Surrogacy is certainly on the rise, both locally and on a global scale. In Australia adoption is heavily regulated, which makes helping a child in need difficult. Surrogacy is now becoming a more acceptable option for intended parents.
Sadly, some women are unable to conceive or maintain a pregnancy. It could be devastating. The reasons are plentiful; you could have a medical issue, be without a partner, be in a same sex relationship. Whatever the reason, you need to know the facts and the law surrounding surrogacy.
Surrogacy is an arrangement where a woman becomes pregnant with, and gives birth to, a child for another individual or couple without an intent of having any legal rights to that child after its birth. Surrogacy is lifechanging for those who desperately want a baby but have been unable to use traditional methods.
There are two different types of surrogacies:
Surrogacy arrangements have been known to be either altruistic or monetary/commercial.
Commercial surrogacy involves the surrogate receiving a financial gain from the intended parents in addition to the other costs associated with the pregnancy.
Altruistic surrogacy does not involve any financial profit or reward. However, usually the surrogate’s medical bills and other costs associated with the pregnancy are paid by the intended parents.
The Australian laws regulating surrogacy are not uniform across the States, meaning, that they can be quite different.
For instance, currently, the Northern Territory has no regulations at all. Lack of regulation contrary to what one may believe can actually further complicate things. This is because the surrogate and intended parents do not know their rights and obligations.
Regulation is protective, particularly to the birth mother.
For all states and territories excluding the Northern Territory, there are some general uniform Laws that apply:
Surrogacy laws change from place to place. Intended parents, and those considering becoming a surrogate, should speak to an experienced family lawyer.
Overseas surrogacy has had disastrous consequences on surrogates and intended parents.
During the Covid19 travel bans, dozens of babies born through cross border surrogacy were stranded in temporary overseas accommodation. Babies were placed in danger and there was a risk of being sent to orphanages or even being abandoned.
Many intended parents were placed in a dire economic position and unable to assist the surrogate. Surrogates whom had high levels of vulnerability due to poverty were unable to attend medical appointments. The consequences were far reaching.
It would be exceptionally difficult to understand which law applies in the particular country selected and what laws will impact your child upon a return to Australia.
Some countries allow commercial surrogacies.
When considering whether to enter into an overseas surrogacy arrangement it is imperative that you obtain advice from an experienced family lawyer.
You need to know about the laws around international surrogacy in both your State or Territory and in the country where the surrogate mother is located or lives.
Is some States such as the Australian Capital Territory New South Wales and Queensland it is illegal to make a commercial surrogacy arrangement outside of Australia. Parents who do this face serious consequences upon their return.
With minimal provision for regulating surrogacy facilitators in Australia, there are risks of utilising illegal intermediaries. These intermediaries may or may not be participating in the trafficking of children and women. It is a very real human rights issue.
There can also be implications for the citizenship of the child. Citizenship of such children is not an automatic right and certain applications must be made.
It may be necessary to create a complex surrogacy arrangement that incorporates elements about Family Law both in Australia and the Country of the Surrogacy.
The law in South Australia requires intended parent(s) to have a medical or social need for surrogacy. Surrogacy may be one of the only options available to intended parents. To enter into an agreement, you must be over 25 years old, an Australian Citizen or Permanent resident and have at least one intended parent domiciled in South Australia.
Often family or friends are utilised for surrogacy. If not, finding a surrogate may prove quite difficult. We recommend looking at community groups on social media specific to this issue. This can provide you with some insight from those who may have been through the journey.
In South Australia, you are allowed by law to advertise for your surrogacy but this is contingent upon the surrogacy being altruistic. To be very clear, you cannot advertise a commercial surrogacy.
A Lawful Surrogacy Agreement is essential for those utilising surrogacy in South Australia. Our state has specific pre-conditions to ensure the integrity of ethical and legal considerations.
All parties to a Lawful Surrogacy Agreement in South Australia must have been provided with independent legal advice.
That advice ought to be obtained by an experienced family lawyer to avoid any potential complications with the agreement. A lawyer experienced in surrogacy will be able to explain the legal process and the eligibility criterion to be met under the Surrogacy Act 2019 (SA).
In a bizarre twist, a Lawful Surrogacy Agreement is not enforceable, but it is still none the less required to be in place prior to the conception of the child.
The intended parents and surrogate must have counselling prior to the finalisation of the Surrogacy Agreement.
The law makes it clear that this counselling service must be accredited to providing provide counselling, consistent with the guidelines published by the Australian and New Zealand Infertility Counsellors Association (ANZICA) and any relevant guidelines published by the National Health and Medical Research Council.
The counselling aspect assesses the suitability of all parties in this process. The goal here is to ensure or reduce the risk that the intended parents and surrogate understand any psychological and social implications associated with the agreement.
Pre-signing counselling is also required to ensure parties interest align with the most paramount consideration, the best interests of the child. The other pivotal role of counselling is to inform the parties and make them prepared for this journey.
