Surrogacy South Australia – Law Reform Update, September 2020
South Australia has reviewed its surrogacy laws and now enacted the Surrogacy Act 2019. The Act came into effect on 1 September 2020.
This is the first time that South Australia has stand-alone surrogacy legislation, and there are a few highlights. I am pleased that feedback from the community and professionals is reflected in the new legislation.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.
You can also purchase Sarah’s book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.
What does the Act include?
As with the previous legislation, the parties need to undergo counselling and obtain legal advice, and enter into a written agreement. But things that have changed include:
- The surrogate must be over 25 years of age. The previous requirement was that she be over 18. Intended parents also need to be over 25.
- The surrogate must be an Australian citizen or permanent resident of Australia. People occasionally ask if they can have a surrogate from overseas – the Act makes it clear that she must be in Australia with citizenship or permanent residency.
- The surrogate’s partner is not a party to the agreement, and is not listed on the original birth certificate. This is different from other states, where surrogate’s partners are generally presumed to be a party to the agreement and must sign both the Agreement and the Birth Registration.
- The surrogate can be reimbursed for lost income – the previous legislation did not allow for this.
- Single intended parents are now permitted to pursue surrogacy in South Australia. Previous legislation required the intended parents to be a couple.
- Advertising for a surrogate, or to be a surrogate, is permitted, as long as it is not ‘for valuable consideration’ – this means it cannot be a commercial arrangement. Advertising for an altruistic surrogate is permissible.
- The parties can seek IVF treatment outside of South Australia. Previously, the treatment must have occurred within South Australia to qualify for a Parentage Order after the birth.
- The surrogacy lawyer instructed by either party can be outside of South Australia and does not need to hold a South Australian practising certificate.
- An amendment in the House means that the parties are expected to provide each other with a criminal history report provided by South Australia Police, or the Australian Crime Commission or an Australian Crime Commission accredited agency or broker, within the 12 months prior to entering a lawful surrogacy agreement. This amendment was hotly debated but eventually agreed to in the House.
You can read more about South Australian surrogacy laws here, and listen to Simone’s story on the Podcast.
If you’re from another state, you can find all the details of the surrogacy laws that apply to you.
Sarah practices surrogacy law across Australia, including for intended parents in South Australia.
If you would like to know more about how surrogacy works in Australia and South Australia, you might like to download the Surrogacy Handbook, or book in for a consult with Sarah below. You can also hear stories from intended parents and surrogates on the Surrogacy Podcast.
You can check out the legal services I provide.