Surrogacy: Victoria

Relevant Legislation?

Status of Children Act 1974 (Vic) (Re legal parentage orders)

Assisted Reproductive Treatment Act 2008 (Vic) (Re Assisted Reproductive Treatment)

Guiding principles of the legislation

The guiding principles of the legislation are:

  • the welfare and interests of persons born or to be born as a result of treatment  procedures are paramount;
  • at no time should the use of treatment procedures be for the purpose of exploiting, in trade or otherwise—
    • the reproductive capabilities of men and women; or
    • children born as a result of treatment procedures;
  • children born as the result of the use of donated gametes have a right to information about their genetic parents;
  • the health and well-being of persons undergoing treatment procedures must be protected at all times;
  • persons seeking to undergo treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion.

Legality: What kinds of arrangements are legal?

Altruistic Surrogacy

Altruistic surrogacy is permitted, although contracts are not enforceable.

Reimbursement of reasonable costs is permitted.

NB. A registered ART provider can only carry out a treatment procedure on a woman who is party to a surrogacy arrangement if there has been approval from the Victorian ‘Patient Review Panel‘. 1

Commercial Surrogacy

Commercial surrogacy is prohibited. A surrogate mother must not receive any material benefit or advantage as a result of a surrogacy arrangement. Significant fines and/or up to two years imprisonment apply if a person breaches this provision. 2

Who may enter into a surrogacy arrangement?

A person or persons(s) who is

  • unlikely to become pregnant; or
  • unlikely to be able to carry a pregnancy or give birth; or
  • if the commissioning person is a woman, that she is likely to place her life or health, or that of the baby, at risk if she becomes pregnant, carries a pregnancy or gives birth.

Gestational or Traditional Surrogacy?

Only gestational surrogacy is permitted.

The surrogate mother’s oocyte (eggs) are not to be used in the conception of the child. 3

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

Criminal record checks and child protection order checks must be undertaken.

The Patient Review Panel must also be satisfied before approving the arrangement that:

  • a doctor has formed an opinion that in the circumstances, the commissioning parent is unlikely to become pregnant, be able to carry a pregnancy or give birth; or if the commissioning parent is a woman, the woman is likely to place her life or health, or that of the baby, at risk if she becomes pregnant, carries a pregnancy or gives birth;
  • the commissioning parent(s) have received counselling and legal advice;
  • the parties to the surrogacy arrangement are aware of and understand the personal and legal consequences of the arrangement;
  • the parties to the surrogacy arrangement are prepared for the consequences if the arrangement does not proceed. 4

A report from a counsellor who provided counselling must be provided to the Patient Review Panel.

NB. Similar requirements are necessary under the Status of Children’s Act 1974 (Vic) when an arrangement has occurred without the assistance of an ART provider (for example when self-insemination has been used). 5

What criteria does the surrogate need to meet?

Criminal record checks and child protection checks must be undertaken by the surrogate mother and her partner (if any).

The Patient Review Panel cannot approve a surrogacy arrangement unless it is satisfied that:

  • the surrogate mother’s eggs will not be used in the conception of the child;
  • the surrogate mother has previously carried a pregnancy and given birth to a live child;
  • the surrogate mother is at least 25 years of age;
  • the surrogate mother and the surrogate mother’s partner, if any, have received counselling and legal advice;
  • the parties to the surrogacy arrangement are aware of and understand the personal and legal consequences of the arrangement;
  • the parties to the surrogacy arrangement are prepared for the consequences if the arrangement does not proceed in accordance with the parties’ intentions, including that the commission parent decides not to accept the child; or the surrogate chooses not to relinquish the child. 6

A report from a counsellor who provided counselling must be provided to the Patient Review Panel.

NB. Similar requirements are necessary under the Status of Children’s Act 1974 (Vic) when an arrangement has occurred without the assistance of an ART provider. 7

Is advertising legal?

No.

A person must not publish, or cause to be published, a statement, advertisement, notice or document in newspaper, television, radio, internet, or other means, that:

  • a person
    • is or may be willing to enter into a surrogacy arrangement; or
    • is seeking another person who is or may be willing to enter into a surrogacy arrangement or to act as a surrogate mother or to arrange a surrogacy arrangement; or
    • is or may be willing to arrange a surrogacy arrangement; or
    • is or may be willing to accept any benefit under a surrogacy arrangement, whether for himself or herself or for another person; or
  • is intended or likely to counsel or procure a person to agree to act as a surrogate mother; or
  • to the effect that a person is or may be willing to act as a surrogate mother. 8

Penalty:     240 penalty units or 2 years imprisonment or both.

Enforceability: Can the parties change their mind?

Surrogacy arrangements are not enforceable.

The legislation recognises that the birth mother may choose not to relinquish the child, and that the commissioning person(s) may choose not to take the child.

Parenting Orders?

Provided the above requirements have been met, and a child is born, the commissioning parent(s) may make an application to the court for a legal parentage order – no less than 28 days and no more than 6 months after the child is born .

The Status of Children’s Act 1974 (Vic) requires that the court must further be satisfied that

  • making the order is in the best interests of the child;
  • the Patient Review Panel approved the surrogacy arrangement before it was entered into; and
  • the child was living with the commissioning parents at the time the application was made. 9

They will also require confirmation that no material benefit has been gained by the surrogate mother and/or her partner (if any), she and her partner (if any) consent to the order, and make any other considerations deemed relevant. 10

The Status of Children’s Act 1974 (Vic) provides additionally for surrogacy arrangements that have occurred without the assistance of a registered ART provider. When the surrogate mother has become pregnant as a result of artificial insemination, and the commissioning parents have applied for a substitute parentage order, the court must be satisfied that

  • the surrogate mother was at least 25 years of age before entering the arrangement,
  • that all parties (the surrogate mother, her partner (if any) and the commissioning parent(s) have received counselling as per the requirements described above, and
  • that all parties have received information about the legal implications of the surrogacy arrangement. 11

Access to Information for Children?

When ART has been used in Victoria there is a requirement that donors of gametes consent to the placing of information on a Central Registry.

ART providers and doctors must provide the Central Registry with details in the case of a birth of the name of the person born as a result of ART; the name of the donor; the name of the woman on whom the procedure was carried out and the name of her partner (if any); and the kind of procedure carried out. 12

Application can be made by an adult conceived using donor gametes, or a child subject to having the approval of parent(s) and/or guardian(s) and having undergone counselling, for information about the donor. 13

Notes:

  1. Assisted Reproductive Treatment Act 2008 (Vic) s 39. (‘ART Act’)
  2. ART Act s 44(1).
  3. ART Act, s 40.
  4. ART Act s 40.
  5. Status of Children’s Act 1974 (Vic) s 23.
  6. ART Act s 40.
  7. Status of Children’s Act 1974 (Vic) s 23.
  8. ART Act s 45.
  9. Status of Children’s Act 1974 (Vic) s 22.
  10. Status of Children’s Act 1974 (Vic) s 22.
  11. Status of Children’s Act 1974 (Vic) s 23.
  12. ART Act, Pt 6, Div 1.
  13. ART Act 2008 (Vic) ss 56 and 59.