Surrogacy: South Australia

Relevant Legislation?

Family Relationships Act 1975 (SA)

Assisted Reproductive Treatment Act 1988 (SA) (when ART is used)

Guiding principles of the legislation

The welfare of any child to be born as a consequence of the provision of assisted reproductive treatment must be treated as being of paramount importance, and accepted as a fundamental principle.

Legality: What kinds of arrangements are legal?

Altruistic Surrogacy

Altruistic surrogacy agreements are permissible subject to meeting certain criteria.

Reimbursement of expenses in relation to altruistic agreements are permitted provided they are connected with

  • a pregnancy (including any attempt to become pregnant) that is the subject of the agreement;
  • the birth or care of a child born as a result of that pregnancy;
  • counselling or medical services provided in connection with the agreement (including after the birth of a child); or
  • legal services provided in connection with the agreement (including after the birth of a child). 1

Commercial Surrogacy

Commercial surrogacy is prohibited.

Who may enter into a surrogacy arrangement?

A married or de facto hetero-sexual couple.

Gestational or Traditional Surrogacy?

Gestational or traditional surrogacy are possible, however at least one of the commissioning parents must provide human reproductive material with respect to creating an embryo for the purposes of the pregnancy, unless the commissioning parents have a certificate issued by a doctor explaining why this is not possible.

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

Only when persons meet the requirements of ‘recognised surrogacy agreements’ is surrogacy legal in South Australia and is it possible to transfer legal parentage.

In relation to the commissioning parents, they must

  • be at least 18 years old;
  • live in South Australia,
  • be legally married or have cohabited continuously together as de facto husband and wife for the period of 3 years; and
  • the female commissioning parent must be, or appear to be, infertile or at risk of transmitting a serious genetic defect, disease or illness to a child born to her;
  • undergo counselling; and
  • at least one of the commissioning parents must provide human reproductive material with respect to creating an embryo for the purposes of the pregnancy, unless the commissioning parents have a certificate issued by a doctor explaining why this is not possible.

What criteria does the surrogate need to meet?

The surrogate mother:

  • must be at least 18 years old;
  • must have been assessed by and approved as a surrogate by a counselling service.

Is advertising legal?

No.

It is an offence in South Australia to publish an advertisement or cause an advertisement to be published to the effect that a person

  • is or may be willing to enter into a surrogacy contract;
  • is seeking a person willing to enter into a surrogacy contract; or
  • is willing to negotiate, arrange or obtain the benefit of a surrogacy contract on behalf of another. 2

Can agents or intermediaries or other people be involved?

It is illegal to enter into a contract under which a person agrees to negotiate, arrange, or obtain the benefit of, a surrogacy contract on behalf of another; or a person agrees to introduce prospective parties to a surrogacy contract.
Fine of $4000 and/or 12 months imprisonment.

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. 3

Parenting Orders?

Application to a court for parenting orders can be made for a child between 4weeks and 6 months of age.

In addition to being satisfied that the criteria above has been satisfied, the court must not make an order unless the court

  • is satisfied that
    • the surrogate mother freely, and with a full understanding of what is involved, agrees to the making of the order (unless she is dead, incapacitated or unable to be contacted);
    • all parties agree to the order;
    • counselling of all parties has occurred and any other matter it considers relevant; and
  • has considered whether the child is living with the commissioning parents. 4

Access to Information for Children?

When a parenting order is made, the court is to give to the Registrar of Births, Deaths and Marriages

  • written notice of the date of the order;
  • the full name, address and occupation of each of the birth parents;
  • the full name, address and occupation of each of the commissioning parents;
  • the name by which the child to whom the order relates is known before, and is to be known after, the order becomes effective;
  • details of the date and place of birth of the child.

It is unclear whether this information will be released to the individual born as a result of the surrogacy arrangement, or if so, whether there are any requirements surrounding access to information.

Notes:

  1. Family Relationships Act 1975 (SA), s 10HA.
  2. Family Relationships Act 1975 (SA) s 10H.
  3. Family Relationships Act 1975 (SA) s 10HB(7).
  4. Family Relationships Act 1975 (SA), s 10HB.