Surrogacy:
Australian Capital Territory

Relevant Legislation?

Parentage Act 2004 (ACT) ss 23-31 (parentage orders); ss 40-45 (offences relating to substitute parent agreements).

Adoption Act 1993 (ACT) ss 60 (Confidentiality of records) other than subsection (1) (a); section 62 (3) (Provision of information); Division 5.3 (Identifying information) other than section 77, section 78 and section 79. (Amongst other provisions).

Legality: What kinds of arrangements are legal?

The legislation in the Australian Capital Territory is framed around the making of ‘substitute parenting orders’. In setting out the requirements for being able to obtain such an order, the Act establishes what may or may not be done in surrogacy agreements.

Altruistic Surrogacy – legal

Altruistic agreements are legal. Payments to cover expenses connected with a pregnancy, birth or care for the resulting child in altruistic surrogacy agreements are allowed. 1

Commercial Surrogacy – prohibited

It is an offence to intentionally enter into a ‘commercial substitute parent agreement’ in the ACT. 2 It is also an offence for a person ordinarily resident in the ACT to enter into a commercial surrogacy agreement elsewhere. 3

Who may enter into a surrogacy arrangement?

The legislation requires ‘2 people’ who indicate their intention to apply for a substitute parenting order – 1 of whom must be a genetic parent. 4

Gestational or Traditional Surrogacy?

Only gestational surrogacy, conceived using assisted reproduction is recognised for the purposes of granting a ‘substitute parenting agreement’.

That is, parentage orders will only be made in favour of the commissioning person(s) if

  • the child has been conceived as a result of a fertilisation procedure;
  • neither of the child’s birth parents are genetic parents of the child;
  • at least one of the ‘substitute parents’  is genetically related to the child. 5

What criteria do the commissioning person(s) need to meet?

Counselling and assessment is a requirement of the Court granting parenting orders.

The ‘substitute parents’ must live in the Australian Capital Territory.

What criteria does the surrogate need to meet?

Counselling and assessment is a requirement of the Court granting parenting orders.

Is advertising legal?

No. It is an offence to publish any advertisement to induce a person to enter into such an agreement or to publish an advertisement seeking someone willing to do so. 6

Can agents or intermediaries or other people be involved?

No. It is an offence to procure somebody to enter into a ‘substitute parent agreement’ with a third party. (100 penalty units and/or 1 year imprisonment). 7 This means intermediaries, agents, clinicians or other people, cannot persuade or cause a woman and/or a couple to enter into such an agreement.

Enforceability: Can the parties change their mind?

Parenting orders will not be made unless both birth parents (the birth mother, and her partner if any) freely, and with a full understanding of what is involved, agree to the making of the order. 8

Parenting Orders?

Parenting orders will not be made unless both birth parents (the birth mother, and her partner if any) freely, and with a full understanding of what is involved, agree to the making of the order. 9

The court must make the order if it is satisfied it is in the child’s best interests and both birth parents understand what is involved. In making its decision, the court must take the following factors into consideration:

  •  whether the child’s home is with the substitute parent(s);
  • whether both substitute parents are at least 18 years old;
  • when only one of the substitute parents has made the application, whether the other agrees to the making of the order;
  • whether payment or reward (other than for expenses reasonably incurred) has been given or received by either of the child’s substitute parents pursuant to the agreement; and
  • whether both birth parents and both substitute parents have received appropriate counselling and assessment. 10The court may also take into consideration any other relevant information. 11

Access to Information for Children?

For the purposes of access to information, the legislation provides that relevant provisions of the Adoption Act 1993 (ACT) apply, thus providing for access to information about the birth parents (amongst other things). 12

Notes:

  1. Parentage Act 2004 (ACT) s 40.
  2. Section 41.
  3. Section 45.
  4. Section 24(c).
  5. Section 24.
  6. Parentage Act 2004 (ACT), s 43.
  7. Parentage Act 2004 (ACT) s 42.
  8. Section 26(b).
  9. Section 26(b).
  10. Section 26(3).
  11. Section 26(4).
  12. Section 29; Adoption Act 1993 (ACT) – applicable sections regarding information include ss 60 (Confidentiality of records) other than subsection (1) (a); section 62 (3) (Provision of information); Division 5.3 (Identifying information) other than section 77, section 78 and section 79.