Surrogacy: Tasmania

Relevant Legislation?

Surrogacy Act 2012 (Tas)

Guiding Principles of the Legislation

  • A child born as a result of a surrogacy arrangement should be cared for in a way that –
    • (i) ensures a safe, stable and nurturing family and home life; and
    • (ii) promotes openness and honesty about the child’s birth parentage; and
    • (iii) promotes the development of the child’s emotional, mental, physical and social wellbeing.
  • The well-being and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
  • The same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of –
    • (i) how the child was conceived under the arrangement; or
    • (ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
    • (iii) the relationship status of the intended parents of the child.
  • The long-term health and well-being of parties to a surrogacy arrangement and their families should be promoted;
  • The autonomy of consenting adults in their private lives should be respected.

Legality: What kinds of arrangements are legal?

Altruistic Surrogacy

Altruistic surrogacy is permitted.

‘Reasonable costs’ may be recovered when they are associated with trying to become pregnant; a pregnancy or birth; counselling of the birth mother and her spouse (if any); and/or being a party to proceedings in relation to a parentage order.

Note the overarching principles of the legislation that a child born as a result of a surrogacy arrangement should be cared for in a way that –

  • ensures a safe, stable and nurturing family and home life; and
  • promotes openness and honesty about the child’s birth parentage; and
  • promotes the development of the child’s emotional, mental, physical and social wellbeing.

Commercial Surrogacy

A person must not enter into, or offer to enter into, a commercial surrogacy arrangement. 1

Who may enter into a surrogacy arrangement?

A single person or couple (regardless of sex), are able to apply to the court for parenting orders. 2

Gestational or Traditional Surrogacy?

Gestational or traditional surrogacy may take place.

The legislation notes that ‘the manner by which a child was conceived is not to be taken into account in determining whether a parentage order is to be made in relation to the child.’ 3

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

The intended parent must be over the age of 21 when the surrogacy agreement was made. 4

There must be a medical or social need for surrogacy. This will be satisfied if

  • there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman; or
  • there are two intended parents under the surrogacy arrangement and the intended parents are –
    • a man and an eligible woman; or
    • two men; or
    • two women, each of whom is an eligible woman.

An ‘eligible’ woman is a woman who is

  • unable, on medical grounds, to conceive a child; or
  • likely to be unable, on medical grounds, to carry a pregnancy or give birth; or
  • is unlikely to survive a pregnancy or birth or is likely to have her health significantly affected by a pregnancy or birth; or
  • if she were to conceive a child, the child is
    • likely to be affected by a genetic condition or genetic disorder,or
    • unlikely to survive the pregnancy or birth, or
    • likely to have its health significantly affected by the pregnancy or birth.

Independent legal advice must have been obtained.

Counselling is required prior to entering into the agreement, and before applying for a parenting order about the social and psychological implications.

All parties to the surrogacy arrangement must be resident in Tasmania.

What criteria does the surrogate need to meet?

The birth mother must be 25 years of age or more when the surrogacy arrangement is made.

She must have previously given birth to a live child.

Counselling must be had prior to entering into any surrogacy arrangement, and also after a child’s birth about the social and psychological implications of the arrangement.

Independent legal advice must have been obtained.

The birth mother must be resident of Tasmania. 5

Is advertising legal?

No.

Can agents or intermediaries or other people be involved?

 Commercial brokerage or advertising of surrogacy arrangements prohibited

A person must not, for payment (meaning by way of money, money’s worth, material advantage, or benefit), or in anticipation of receiving payment –

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement; or

(b) offer or agree to negotiate the making of a surrogacy arrangement; or

(c) compile any information with a view to its use in making, or negotiating the making of, any surrogacy arrangements; or

(d) knowingly cause another person to do any of the acts referred to in paragraph (a), (b) or (c). 6

Enforceability: Can the parties change their mind?

A surrogacy arrangement is unenforceable, which means the parties may change their mind.

However, an obligation to pay or reimburse the surrogate mother’s reasonable costs may be enforced. 7

Parenting Orders?

An application for parenting orders may be made not less than 30 days, and not more than 6 months, after the day on which the child is born, or with special leave from the Court. 8

All criteria (as noted above) must have been met.

The parties must freely consent to such orders being made.

Access to Information for Children?

Entry onto the register of births, deaths and marriages regarding a parentage order  must refer to the legislation, and make reference identifying the entry of birth of that person as shown in the register before the parentage order or corresponding order was made.

There are no specific legislative provisions in Tasmania regarding the notification of status to the child, or making provision for the release of information to children.

The NHMRC Ethical Guidelines do provide that children have a right to information about their genetic heritage.

Given the paramountcy of children’s best interests, they would be entitled to know about the circumstances of their birth, information about their birth mother, and any donors of genetic material.

Notes:

  1. Surrogacy Act 2012 (Tas) s 40.
  2. Surrogacy Act 2012 (Tas) s 14.
  3. Surrogacy Act 2012 (Tas) s 23.
  4. Surrogacy Act 2012 (Tas) s 16.
  5. Surrogacy Act 2012 (Tas) s 16.
  6. Surrogacy Act 2012 (Tas) s 41.
  7. Surrogacy Act 2012 (Tas) s 10.
  8. Surrogacy Act 2012 (Tas) s 15.