Surrogacy South Australia – Law Reform Update, November 2019
South Australia has reviewed its surrogacy laws and now passed the Surrogacy Bill – you can read the full Bill here. The Bill has passed both Houses and awaits Royal Assent, so it will become law likely early in 2020.
This is the first time that South Australia will have stand-alone surrogacy legislation, and there are a few highlights. I am pleased that feedback from the community and professionals is reflected in the proposed law reform.
What does the Bill include?
Surrogacy processes will be similar to the current process – the parties will need to undergo counselling and obtain legal advice, and enter into a written agreement. But things that will change include:
- The surrogate will need to by over 25 years of age. The current requirement is that she be over 18. Intended parents will also need to be over 25.
- The surrogate will need to be an Australian citizen or permanent resident of Australia. People occasionally ask if they can have a surrogate from overseas – the Bill makes it clear that she must be in Australia with citizenship or PR.
- The surrogate will be able to be reimbursed for lost income – the current legislation does not allow for this.
- Single intended parents will be permitted to pursue surrogacy in South Australia. Current legislation requires 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. Currently the treatment must occur 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 will be 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.