The law in South Australia recognises only those surrogacy agreements that conform to the requirements outlined in the Family Relationships Act 1975 (SA).
A surrogacy agreement is an agreement under which a surrogate mother agrees to become pregnant, or to seek to become pregnant, and to surrender custody of, and rights in relation to, a child born as a result of the pregnancy to 'commissioning parents' [s 10HA(2)(a)].
The parties to a recognised surrogacy agreement are the commisioning parents and the surrogate mother, and, if the surrogate mother is married, either legally or living with a man as his wife on a genuine domestic basis [s 10A(1)], the surrogate mother's husband. No-one else may be a party to a surrogacy agreement [s 10HA(2)(b)(i)].
The commissioning parents are the two persons it is agreed will have custody of a child under a recognised surrogacy agreement. The commissioning parents must be:
- at least 18 years old [s 10HA(2)(b)(ii)]
- legally married, or have cohabited continuously together as de facto husband and wife for the period of 3 years immediately preceding the date of the agreement, or for periods aggregating not less than 3 years during the period of 4 years immediately preceding the date of the agreement [s 10HA(2)(b)(iii)]
- residents of South Australia [s 10HA(2)(b)(iv)].
Currently, same sex de facto partners cannot be commissioning parents.
The female commissioning parent [s 10HA(2)(b)(v)]:
- must be infertile, or
- be unable on medical grounds to carry a pregnancy or to give birth, or
- may transmit a serious genetic defect, serious disease or serious illness to a child born to her, or
- be at risk of more than normal physical harm by becoming pregnant.
The surrogate mother is the person who agrees to become pregnant or to seek to become pregnant, and to surrender custody of, and rights in relation to, a child born as a result of the pregnancy to the commissioning parents [s 10HA(2)(a)].
- The surrogate mother and her husband must be at least 18 years old [s 10HA(2)(b)(ii)].
- The surrogate mother must be assessed and approved as a surrogate by an accredited counselling service [s 10HA(2)(b)(vi)].
The surrogate mother does not have to live in South Australia. If the surrogate mother lives overseas, the surrogacy agreement must be approved by the Minister as an international surrogacy agreement [s 10F].
A recognised surrogacy agreement must state that:
- the parties intend the pregnancy is to be achieved by the use of a fertilisation procedure carried out in South Australia [s 10HA(2)(b)(viii)]
- at least one of the commissioning parents will provide human reproductive material for the creation of an embryo, unless they have a medical certificate saying both prospective commissioning parents appear to be infertile, or there is a medical reason why it would be preferable not to use human reproductive material provided by the prospective commissioning parents to create an embryo for the purposes of achieving a pregnancy [ss 10HA(2)(viii), (5)]
- no valuable consideration is payable under the agreement (other than for expenses connected with the pregnancy and birth of the child, including reasonable 'out of pocket expenses' incurred by the surrogate mother) [s 10HA(2)(b)(ix)]
- the parties intend the commissioning parents will apply for an order recognising them as parents under s 10HB after the child is born [s 10HA(2)(b)(x)]
- the commissioning parents will, in accordance with any requirements in the State Framework for Altruistic Surrogacy, take reasonable steps to ensure that the surrogate mother and her husband (if any) are offered counselling (at no cost to the surrogate mother or her husband) after the birth or still-birth of a child to which the agreement relates [s 10HA(2)(b)(xi)].
A recognised surrogacy agreement must be in writing and signed by each of the parties, with the signatures being attested by a lawyer for the commissioning parents, and another independent lawyer for the surrogate mother and, if relevant, her husband [s 10HA(6)].
Offences [s 10H]
It is an offence to negotiate, arrange or obtain the benefit of a surrogacy contract on behalf of another for payment and in circumstances that do not meet the criteria for a recognised surrogacy agreement.
It is also an offence to induce another to enter into a surrogacy contract for valuable consideration.
The maximum penalty is 12 months imprisonment.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.