Each of the States has differing regimes concerning the regulation of surrogacy in South Australia. The process of surrogacy in South Australia allows for the regulation of altruistic surrogacy arrangements and the prohibition of commercial surrogacy arrangements.
The basic scheme contained in the Family Relationships Act 1975 (SA) (the ‘Act’) is to ensure that commissioning parents, the surrogate mother and her partner obtain medical clearance, independent legal advice and counselling before a written recognised surrogacy agreement (the ‘Agreement’) is entered into. Without the Agreement, parentage orders cannot be sought in the South Australian Youth Court and the surrogate parents will remain the legal parents of the child.
Recognised Surrogacy Agreements
An inadequate agreement lacking in precision and detail will considerably diminish the chances of a successful outcome in the Youth Court. In order for parentage orders to be granted (and the birth register be altered to reflect the commissioning parents as the birth parents), the Agreement must be especially particular and embody a number of criteria as stipulated in the Act, including, but certainly not limited to the following:
- Commissioning parents are married or are in a heterosexual relationship for 3 of the last 4 years at the time of signing (notably, same sex couples are not eligible commissioning parents in South Australia);
- The commissioning parents are domiciled in South Australia;
- A commissioning mother is, or appears to be, infertile;
- The surrogate mother has children of her own;
- The child must be conceived as a result of fertilisation procedure carried out in South Australia; and
- The Agreement must state that no valuable consideration is payable under, or in respect of the Agreement, other than for expenses connected with –
- A pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or
- The birth or care of a child born as a result of that pregnancy; or
- Counselling or medical services provided in connection with the agreement (including after the child is born); or
- Legal services provided in connection with the agreement.
Applying to the Youth Court
Upon the birth of any child born pursuant to an Agreement, the commissioning parents are then responsible for making the application to the Youth Court when the child is between 4 weeks and 6 months of age. In considering the application, the Youth Court will regard the welfare of the child as the paramount consideration.
Once the parentage order is made in the Youth Court then for all purposes under Australian law the commissioning parents are recognised as the parents of the child, by virtue of section 60HB of the Family Law Act 1975 (Cth).
A receipt of these parentage orders, it is then necessary to alter the birth register which is done in a straightforward manner with the Registrar of Births, Deaths and Marriages.
Surrogacy In South Australia is achievable but the situation is remarkably different in international commercial surrogacy situations. As raised previously, a 60HB of the Family Law Act 1975 intends that parentage is dealt with by state and territory legislation, which in turn legislate only for domestic altruistic surrogacy arrangements.
As it stands, children born overseas as a result of commercial surrogacy arrangements are not the legal children of their commissioning Australian parents under Federal or state law, regardless of any genetic link.
If you are seeking advice as a potential commissioning parent, or as a surrogate parent, Kate O’Leary of Culshaw Miller Lawyers can advise you or contact our Perth or Adelaide offices for more information.
Blog post by Kate O’Leary