South Australia Considering Bill To Create Standalone Surrogacy Legislation; Allow Single Parents

Tuesday 8 October 2019 @ 11.02 a.m. | Legal Research

On 1 August 2019, South Australian Attorney-General Vickie Chapman introduced the Surrogacy Bill 2019 (SA) (“the Bill”) to the House of Assembly. The Bill passed the lower house with amendments on 26 September 2019.

The Bill is the Government’s response to the recommendations made by the South Australian Law Reform Institute (“SALRI”) in its inquiry into the regulation of surrogacy in South Australia. SALRI presented its final report on the matter on 30 October 2018 and made 69 recommendations, including a recommendation for a standalone surrogacy act.

The Bill

Surrogacy is the practice of a woman (the surrogate) becoming pregnant with a child for another person or couple (the intending parents). Surrogacy is regulated by the states, so there is no uniform set of laws. However, the overarching rationale for the current surrogacy law across the different jurisdictions is to allow and facilitate some types surrogacy in Australia and deter unlawful surrogacies both within and outside of Australia. Commercial surrogacy, where a fee is charged for the pregnancy and birth of a child, is strictly prohibited. 

As summarised by the Attorney-General in her second reading speech:

“The system [to be] provided by the Bill will facilitate domestic, non-commercial surrogacy, where no fee is charged but various medical and other costs may be recovered, and will result in an application for transfer of parentage by the Youth Court [of South Australia] to intending parents if the parties meet the requirements of the regulatory scheme set out in the Bill.”

If passed, the Bill will repeal Part 2B of the Family Relationships Act 1975 (SA) (“the Family Act”) and create a standalone act to recognise and regulate surrogacy in South Australia. Part 2B of the Family Act currently covers the matter of surrogacy in South Australia.

A lawful surrogacy agreement under the Bill is explained by the Attorney-General in her second reading speech to be:

“an agreement that complies with the requirements of the legislation but is unenforceable except for its financial aspects. The intending parents under a lawful surrogacy agreement are entitled to apply to the Youth Court for transfer of parentage of the child. Consistent with the current scheme, an order for the transfer of parentage by the Youth Court must be in the best interests of the child born as the result of the surrogacy agreement. The birth mother must also consent to the transfer.”

Whilst the Bill will retain the basic structure of the current regulatory scheme, the Bill does take into account recommendations put forward by the SALRI in its final report.

One of the main changes to surrogacy laws that the Bill proposes is the change to the requirements for intending parents. Under section 10HA(2)(d) of the Family Act, the intending parents are required to be legally married or in a registered relationship, and have lived together for a set period of time. Single individuals seeking a surrogacy agreement were therefore barred under the current laws. The Bill removes the requirement of marriage, allowing for a single individual to be an intended parent of a surrogate child.

Some of the other amendments to surrogacy laws made by the Bill include:

  • Raising the minimum age for those entering a surrogacy agreement to 25 from 18
  • Allowing surrogacy arrangements where neither intending parent provides genetic material
  • Making additional provisions for the payment of surrogacy costs, including compensation for the loss of income for surrogates
  • Cross-jurisdictional service provisions, allowing for fertility treatments to occur outside of the State and for interstate lawyers and counsellors to provide the necessary advice
  • Clarification for the role of counsellors in the surrogacy process

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