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The Parliament of South Australia has recently passed the Surrogacy Bill 2019 (the Surrogacy Bill). The changes apply to who is eligible to use a surrogate and also introduce some mandatory criteria which has to be reflected in a surrogacy agreement. It is hoped that the new Surrogacy Bill will make surrogacy an option which is available to more people while also refining some of the important legal structure around the process.

What is a surrogacy agreement?

In its most simplest form, a surrogacy agreement is an agreement under which a surrogate mother agrees to carry a child on behalf of another person or couple, who is intended to become the parent/s of the child once born.

Historically, surrogacy agreements in South Australia were covered by the Family Relationships Act 1975 (SA) (the Act).

Under the Act, the criteria for a surrogacy to be considered legally valid in South Australia included:

  • The intended parents and surrogate must be at least 18 years of age;
  • At least one, or both, of the intended parents had to provide genetic material;
  • The intended parents must have a social or medical requirement for needing to use a surrogate. This included same sex couples, who cannot conceive or carry a baby themselves;
  • The intended parents must be legally married, in a registered relationship or have lived together on a genuine domestic basis for three years immediately preceding the date of the agreement;
  • That the arrangement is altruistic. This means that while the intended parents can cover the surrogate’s medical and associated expenses, there cannot be any gifts or lump sum payments made;
  • That the parties undergo counselling about the arrangement and obtain legal advice about the proposed agreement;
  • Any surrogacy agreement must be in writing and signed by all parties.

What does the new Surrogacy Bill change?

While the actual surrogacy process will be similar and all parties will still need to undergo counselling, obtain legal advice and have a proper written and signed agreement in place, the Bill introduces the following changes which take effect from 2020:

  • There is no longer a requirement for the intended parents to provide their own genetic reproductive material and they can now use donor egg and/or sperm;
  • The surrogate mother and the intended parents need to be at least 25 years of age;
  • The surrogate mother and the intended parents must be either an Australian citizen or permanent resident of Australia;
  • The surrogate mother and the intended parents must not have impaired decision making capacity;
  • Single men and women can now pursue or access surrogacy agreements, not just married or de facto couples;
  • Whilst commercial surrogacy agreements are still not permitted, parties to a surrogacy agreement can reimburse the surrogate mother for loss of income and can now advertise for a surrogate as long as it is not for ‘valuable consideration’;
  • The parties can seek or pursue IVF treatment outside of South Australia;
  • Both the intended parents and the surrogate mother will need to provide each other with a criminal history report for the previous 12 month period prior to entering into a surrogacy agreement;
  • At least one of the following circumstances must exist:
    • One of the intended parents is a female who is unable or unlikely to become pregnant, able to carry a pregnancy or give birth, for medical reasons or otherwise; or
    • There is a risk that serious genetic defect, disease or illness would be transmitted to a child born of the intended parent/s; or
    • There is a risk that becoming pregnant or giving birth to a child would be physically harmful to the intended parent; or
    • It appears to be unlikely when considering all of the circumstances that either of the intended parent/s will be able to carry a pregnancy or give birth, whether that be on the basis of gender identity, sexuality or any other reason.

Requirements for a surrogacy agreement to be valid

Under the Surrogacy Bill, the agreement must now comply with the following conditions:

  • It must be in writing;
  • It needs to contain a lawyer’s certificate, which certifies that both parties have obtained independent legal advice on the agreement;
  • It must contain a counsellor’s certificate, verifying that both parties have undergone the required counselling;
  • It must set out arrangements relating to the payment of reasonable surrogacy costs (ie medical expenses, fertility treatment expenses, postnatal care, out of pocket expenses, loss of income, etc);
  • It must contain provisions setting out the Court orders that the intended parents will need to obtain after the birth of the child. These need to be obtained from the Youth Court of South Australia.

What do these changes mean?

The most significant aspect of the Surrogacy Bill is that the door has now been opened for people who were previously excluded from the opportunity of being parents, due to their relationship status or infertility challenges, to be able to access parenthood via surrogacy. It also allows people to pursue IVF treatments interstate, which will potentially provide people with greater choice and flexibility surrounding their surrogacy arrangements.

The Government have announced their intention to create a centralised register which will contain information about sperm, egg and embryo donors from clinics and hospitals located throughout South Australia. Previously, this information was maintained by individual clinics and hospitals, each with their own record keeping procedures. It is currently not envisioned that there will be any changes made to the existing laws surrounding donor confidentiality which requires donor consent before their identity can be revealed.

A final word of warning

While the Surrogacy Bill is intended to be more inclusive, the law surrounding surrogacy and surrogacy agreements are still complex, and certainly not a ‘one size fits all’ situation. There are legal obligations imposed on both parties involved in a surrogacy agreement, along with potential risks if those obligations are breached, or if the parties’ situation changes after entering into a surrogacy agreement.

Any intended parents or potential surrogates should seek independent legal advice prior to entering into any surrogacy agreement.