SALRI was asked by the former South Australian Attorney General to inquire into and report on certain aspects of the present law regulating surrogacy in South Australia and future reforms in the area, contained in Part 2B of the Family Relationships Act 1975 (SA) and to suggest a suitable regulatory framework for surrogacy for South Australia. The present South Australian Attorney General, the Hon Vickie Chapman MP, supports SALRI undertaking this reference into this important area of law for the community.
Surrogacy is the practice of a woman (the surrogate) becoming pregnant with a child (that may or may not be genetically related to her), carrying the pregnancy and giving birth to the child for another family (the commissioning parents) who then become the legal parents of the child. Further information about the meaning of these and other key terms is set out in Fact Sheet 2.
In general terms, the law relating to surrogacy in Australia is clear: commercial surrogacy (where a fee is charged for carrying the pregnancy and having the child) is prohibited, and altruistic surrogacy arrangements (where no fee is charged) will only be legally recognised if a range of strict conditions are met. The law in each Australian State and Territory has a strong focus on protecting the rights and best interest of children born under surrogacy arrangements, and on protecting the rights and wellbeing of the surrogate mother. These features of the existing South Australia law (set out in further detail in Fact Sheet 3) on are not the subject of this Reference. Rather, this Reference looks at a number of recent and proposed and potential linked changes to Part 2B Family Relationships Act 1975 (SA) to determine whether they are operating effectively or whether they can be improved.
This includes consideration of:
- the South Australian Surrogacy Framework, introduced by the Family Relationships (Surrogacy) Amendment Act 2015, that allows the relevant Minister to provide further details on the types of conditions required to be met to recognise domestic and international surrogacy agreements in South Australia, as well as other matters;
- the Surrogate Register, introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA), which enables the relevant Minister to compile a list of women who are prepared to act as surrogate mothers in South Australia. The Register is not public, but certain categories of people can be authorised to access it;
- the changes proposed by Family Relationships (Surrogacy) Amendment Act 2017 , including changes to what type of expenses or ‘reasonable costs’ can be recovered or form part of a recognised surrogacy agreement under Part 2B of the Family Relationships Act 1975 (SA). There are problems in if or how to recognise and give effect to overseas surrogacy arrangements in Australia (which are likely to be commercial), especially parenting orders for children born under international surrogacy arrangements. The Reference also includes consideration of the way the courts should approach the question of who is the legal parent of a child born as a result of such a surrogacy agreement, following the Family Court’s decision in Bernieres and Anor & Dhopal and Anor  FamCAFC 180. The Family Court in Bernierres said that it does not have the power to make parenting orders for such children and it is for the States and not the Federal Government to work out how to sort out this problem. The Reference provides that SALRI in considering the various issues should be guided by the general principle that surrogacy arrangements are private arrangements between individuals, with the State setting the parameters of what must and must not be agreed to, rather than taking a direct and ongoing role in establishing and maintaining individual arrangements. Wide and inclusive consultation is integral to SALRI’s approach to law reform. We want to hear from you about your experiences with the current law, or your views as to whether the current law or practice requires reform and what you think the law should be.
We are particularly interested in views on:
- The key principles that should govern altruistic surrogacy agreements in South Australia, including the best interests of the child and the wellbeing of the surrogate mother;
- What powers, if any, the relevant Minister (presently the State Attorney-General) should have to intervene in private surrogacy agreements? Is the Attorney-General the best person to exercise such powers to and, if not, who should have such a role?;
- Whether the South Australian law should include a process to recognise or give effect to international or interstate surrogacy agreements;
- If so, what process or procedure and criteria should be included in South Australian law to recognise or give effect to international or interstate surrogacy agreements;
- Whether the Attorney-General is the preferable person to be involved in such a process or whether some other person or body would be preferable to be involved in such a process;
- Whether the conditions currently applying to lawful surrogacy agreements are appropriate or require modification or clarification;
- How the law should deal with expenses incurred by a surrogate mother during a lawful surrogacy agreement, including what types of expenses should be able to be recovered;
- Whether there should be a process or mechanism, such as a Surrogate Register, for potential surrogate mothers to be put in contact with potential intending parents;
- Whether any changes need to be made to the process of applying for and issuing a parentage order for a child born as a result of a domestic or international surrogacy agreement.