The Surrogacy Bill 2019 repeals part 2B of the Family Relationships Act 1975 and creates a standalone act to recognise and regulate certain forms of surrogacy in South Australia. Part 2B of the act has been the subject of considerable discussion over recent years and involves an extremely sensitive area of policy for the community. The bill now before the parliament can be traced to the Family Relationships (Surrogacy)Amendment Act 2015, as introduced by the Hon. John Dawkins MLC in late 2014, which commenced on assent in 2015 and reformed the area of surrogacy through amendments to the Family Relationships Act.
On 26 December 2017, the South Australian Law Reform Institute was asked by the former attorney-general to inquire into and report on the law regulating surrogacy in South Australia, contained in part 2B of the Family Relationships Act, and to suggest a suitable regulatory framework for surrogacy in South Australia. I supported the SALRI undertaking this reference.
Referral of surrogacy to the SALRI for proper investigation and recommendations for reform based on best practice in this area and with the guidance of other jurisdictions was considered a suitable way to achieve effective, modern and appropriate reform of surrogacy in South Australia. The SALRI presented the government with its report on 30 October 2018. That report made 69 recommendations, including a recommendation for a standalone surrogacy act.
I take this opportunity to thank the SALRI and, in particular, Professor John Williams, Dr David Plater, Dr Sarah Moulds, Ms Madeleine Thompson, Anita Brunacci, and the entire team of University of Adelaide Law Reform students working on this referral. A draft bill was prepared in accordance with the recommendations of the SALRI and tabled in parliament in late 2018 for an extended period of public consultation.
This bill before the parliament is the culmination of the work of Mr Dawkins, the SALRI and the government on this important matter of law reform to affected members of the community. The government has considered the SALRI's report and the submissions of both members of the public and stakeholders in order to present a suitable legislative regulatory framework for surrogacy in South Australia.
Surrogacy—the practice of a woman, (known as the surrogate) becoming pregnant with a child, carrying the pregnancy and giving birth to a child for another person or couple (known as the intending parents)—is a complex and sensitive subject. As noted by the SALRI, surrogacy raises many ethical, legal and other issues and implications. It attracts strong, emotional and often conflicting views from both those directly affected and legal and academic commentators. The development of a complete regulatory framework for surrogacy requires sensitivity and careful consideration to ensure that a moderate and suitable way forward is achieved, giving regard to the resulting impact on South Australian families.
Commercial surrogacy, where a fee is charged for carrying the pregnancy and delivering the child, will remain unlawful. This is a position reflected in the law regulating surrogacy across Australia. The system provided by the bill will facilitate domestic, non-commercial surrogacy, where no fee is charged but various medical and other costs may be recovered, and will result in an application for transfer of parentage by the Youth Court to intending parents if the parties meet the requirements of the regulatory scheme set out in the bill.
A standalone act is preferred, on recommendation of the SALRI, after hearing from the community that parties have difficulty navigating the role and content of the legal requirements in part 2B of the Family Relationships Act. However, the new standalone bill retains the appropriate basic structure of the current scheme. The bill sets out what is considered to be a 'lawful surrogacy agreement'.
A lawful surrogacy agreement is an agreement that complies with the requirements of the legislation but is unenforceable except for its financial aspects. The intending parents under a lawful surrogacy agreement are entitled to apply to the Youth Court for transfer of parentage of the child. Consistent with the current scheme, an order for the transfer of parentage by the Youth Court must be in the best interests of the child born as the result of the surrogacy agreement. The birth mother must also consent to the transfer.
The lawful practice of surrogacy in South Australia will be guided by the principles set out in the bill, including that the best interests of any child born as a result of a lawful surrogacy agreement is a primary consideration in the administration and operation of the act; and the surrogacy principles as follows:
- that the human rights of all parties to a lawful surrogacy agreement, including any child born as a result of the agreement, must be respected; and
- that the surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement.
Key innovations in the bill adopted from the SALRI report include updating outdated language around surrogacy used in the Family Relationships Act, raising the required age of parties to surrogacy agreements to 25 or older, allowing surrogacy agreements in which neither intending parents provides genetic material, making clearer provision for the payment of reasonable surrogacy costs, including compensating surrogates for loss of income, and providing less complex fertility requirements that include same-sex couples and single intending parents.
The bill also implements the SALRI recommendation of accommodating cross-jurisdictional service provision by removing the requirements for fertility treatment to take place in South Australia, and allowing interstate lawyers and counsellors to fulfil advisory functions under the bill. Existing protections will continue, including the requirement for parties to obtain counselling from an appropriately qualified counsellor and legal advice from a legal practitioner in order for the agreement to be a lawful surrogacy agreement, that the parties not have impaired decision-making capacity, that the surrogate mother must not be pregnant at the time the agreement is entered into and that the agreement must be in writing.
The bill ensures that the counsellors have an appropriate role in the surrogacy process to counsel parties to an agreement. The bill brings the counsellor role back to their core function of ensuring that parties have fully considered the issues arising from a surrogacy agreement, and the proposed parentage order. There are strong and conflicting views about the practice of surrogacy in South Australia, across Australia and internationally. Both the SALRI and the government have listened carefully to and considered the views of the community on this important issue.
Ultimately, there are divergent views and cross-jurisdictional complexities that cannot be resolved by this bill alone. However, it is this government's view that the bill before the parliament strikes an appropriate and suitable balance to properly regulate the practice of non-commercial surrogacy in this state, having regard to the needs of the community and the acknowledgement of the privacy of parties to lawful arrangements within appropriate parameters set by legislation.
Again, I would like to reflect on the extensive history of this law and thank the Hon. John Dawkins MLC of the other place for his tireless work to assist people in accessing surrogacy in South Australia. I commend the bill for members' consideration, and I hope ultimate approval, and seek leave to have the explanation of clauses inserted without my reading it.
Explanation of Clauses
Part 1—Preliminary 1—Short title 2—Commencement
These clauses are formal.
3—Simplified outline of Act
This clause provides a simplified outline of the proposed measure.
This clause defines key terms to be used in the proposed measure.
5—Interaction with other Acts
This clause provides that, except where the contrary intention appears, nothing in the measure will limit the operation of any law relating to the guardianship, custody, protection or adoption of children.
Part 2—Guiding principles for purposes of Act
6—Best interests of child paramount
This clause provides that the best interests of any child born as a result of a lawful surrogacy agreement is to be a primary consideration (including for the Court) in respect of the administration and operation of the proposed measure.
This clause sets out the surrogacy principles which are to inform the Minister, the Court and each person or body engaged in the administration of the proposed measure. The principles are:
the human rights of all parties to a lawful surrogacy agreement, including any child born as a result of the agreement, must be respected;
the surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement.
8—Presumptions under Family Relationships Act 1975 to apply until parentage order made
The clause provides that presumptions and other rules as to the parentage of a child under the Family Relationships Act 1975 continue to apply to a child born as a result of a surrogacy arrangement until such time as the Court makes an order or orders as to parentage of the child under the proposed measure.
Part 3—Lawful surrogacy agreements
Division 1—Lawful surrogacy agreements
9—Surrogacy agreements not in accordance with Act void and of no effect
This clause provides that surrogacy agreements other than as provided for in this Act are void and of no effect.
10—Certain surrogacy agreements lawful in South Australia
The clause sets out the elements of a lawful surrogacy agreement, namely who may be a party to a lawful surrogacy agreement (including definitions of lawful surrogacy agreement, surrogate mother and intended parent), and the provisions that must be satisfied by a surrogate mother and an intended parent under a lawful surrogacy agreement. It also sets out the requirements with which a lawful surrogacy agreement must comply.
11—Extent to which surrogacy costs are payable
This clause provides that no payment of any form may be made in relation to a lawful surrogacy agreement except for matters as provided for in the clause and defined as the reasonable surrogacy costs. A provision in a lawful surrogacy agreement that is inconsistent with the reasonable surrogacy costs as defined is to be void and of no effect. The clause also clarifies that it does not authorise the regulations to allow for commercial surrogacy. The reasonable surrogacy costs include:
such reasonable costs as may be incurred, or likely to be incurred, in respect of the lawful surrogacy agreement (such as costs relating to the pregnancy that is the subject of the agreement, the birth of the child, medical, counselling or legal services provided in relation to the agreement, reasonable out of pocket expenses incurred by the surrogate mother;
payments representing loss of income of a kind to be prescribed by the regulations;
other costs of a kind to be prescribed by the regulations.
12—Variation of lawful surrogacy agreement
The clause allows a lawful surrogacy agreement to be varied if in writing and signed by all the parties to the agreement.
13—Extent to which lawful surrogacy agreement can be enforced
The clause provides that a provision of a lawful surrogacy agreement relating to the reasonable surrogacy costs is enforceable in a court of competent jurisdiction. This does not apply if the surrogate mother refuses or fails to relinquish the custody or rights to the intended parents in relation to a child born as a result of the lawful surrogacy arrangement or the surrogate mother does not consent to the making of a parentage order in relation to the child. A lawful surrogacy agreement is otherwise not enforceable.
14—Counselling requirements prior to entering lawful surrogacy agreement
The clause provides that a surrogate mother and the intended parents must each undergo counselling before entering a lawful surrogacy arrangements. The counselling must comply with the requirements set out in the clause. The costs of such counselling are to be met by the intended parents.
15—Intended parents to ensure counselling available to surrogate mother during pregnancy and after birth
The clause provides that the intended parents must take reasonable steps to ensure that the surrogate mother and the spouse or domestic partner of the surrogate mother are offered counselling during any period during which the surrogate mother is attempting to become pregnant for the purposes of a lawful surrogacy agreement, or during any pregnancy to which a lawful surrogacy agreement relates. The costs of such counselling are to be met by the intended parents, and it is an offence, with a maximum penalty of $5,000, for the intended parents to refuse or fail to comply with this provision.
Division 3—Preservation of certain rights of surrogate mother
16—Rights of surrogate mother to manage pregnancy and birth
The clause provides that a surrogate mother has the same rights to manager her pregnancy and birth as any other pregnant woman, and that any provision in a lawful surrogacy agreement to the contrary is void.
17—Medical decisions affecting surrogate mother or child
The clause provides that for the purposes of the proposed Act, the Consent to Medical Treatment and Palliative Care Act 1995 and any other Act or law, a question relating to any medical treatment to be provided to a surrogate mother, or to an unborn child to which a lawful surrogacy agreement relates, is to be determined as if the lawful surrogacy agreement did not exist. The proposed Act is also not intended to limit the operation of an advanced care directive under the Advance Care Directives Act 2013.
Part 4—Court orders relating to lawful surrogacy agreements
18—Court may make orders as to parentage of child born as a result of lawful surrogacy agreement
This clause provides for the Youth Court to make orders in relation to a child born as a result of a lawful surrogacy agreement. An application for orders must be made by 1 or both of the intended parents not less than 30 days but not more than 12 months after a child is born as a result of the lawful surrogacy agreement (or such later time as the Court may allow if it is in the interests of the child or exceptional circumstances exist).
The Court may make any of the following orders on application:
that the relationship between the child and the intended parent or parent is as specified in the order;
that the relationship between the child and the surrogate mother is as specified in the order;
that the relationships of all other persons to the child are to be determined according to the other relationships specified in the order;
that the name of the child is as specified in the order;
such consequential or ancillary orders as the Court considers appropriate.
If there is more than 1 child born as a result of the pregnancy, the application will be taken to relate to the child and each of the birth siblings (unless the Court considers it is not in the best interests of the child to do so).
Before making an order, the Court must be satisfied of a number of matters set out in subclause (4), including that making the order is in the best interests of the child. The Court may make an order where only 1 of the intended parents applies for the order (instead of both) if satisfied that the other intended parent consents, if the other intended parent cannot be contacted to obtain their consent or in other circumstances as prescribed by the regulations.
The clause makes further provisions about the manner in which the Court may dispense or excuse a failure to comply either with the provisions of the clause or a requirement under proposed Part 3.
The clause also enables the Court to dispense with certain requirements under Part 3 of the measure, and makes further procedural provision in relation to orders under the proposed section (including provisions revoking existing appointments as guardians and displacing the presumption as to parentage under the Family Relationships Act 1975).
19—Court may revoke order under section 18
The clause provides for the circumstances in which the Court may, on the application of the woman who gave birth to a child the subject of a lawful surrogacy agreement, revoke an order made under proposed section 18.
The clause also requires the Court to make orders declaring the relationship of the child to the birth mother and the intended parents following the revocation.
20—Court may require separate representation of child
This clause provides for the Court to order that a child born as a result of a lawful surrogacy agreement be separately represented in proceedings.
21—Court to notify Registrar of Births, Deaths and Marriages
This clause requires the Registrar of the Youth Court to give written notice to the Registrar of Births, Deaths and Marriages of the details as provided in the clause of any orders made under proposed section 18 or 19.
22—Access to Court records
The clause provides that the records of proceedings relating to an order under proposed section 18 or 19 are not open to inspection.
Part 5—Offences relating to surrogacy agreements
23—Offence relating to commercial surrogacy agreements
The clause provides for an offence with a maximum penalty of imprisonment for 12 months for a person who enters a commercial surrogacy agreement.
24—Offence to arrange etc surrogacy agreement for another person
The clause provides for an offence with a maximum penalty of imprisonment for 12 months for a person who for valuable consideration:
negotiates, or arranges or obtains the benefit of, a surrogacy agreement on behalf of another;
offers to negotiate, or arrange or obtain the benefit of a surrogacy agreement on behalf of another;
arranges, or offers to arrange, introductions between people seeking to enter a surrogacy agreement.
25—Offence to induce person to enter surrogacy agreement
The clause provides for an offence with a maximum penalty of imprisonment for 5 years for a person who, by threat of harm, or by dishonesty or undue influence, induces another to enter a surrogacy agreement. it also provides an offence with a maximum penalty of imprisonment for 2 years for a person who for valuable consideration, induces another to enter into a surrogacy agreement.
26—Offence to advertise certain services relating to surrogacy
This clause provides for an offence with a maximum penalty of $10,000 for a person who publishes an advertisement, statement, notice or other material that seeks, or purports to seek, the agreement of a person to act as a surrogate mother for valuable consideration, or states, or implies, that a person is willing to act as a surrogate mother for valuable consideration.
27—Provision of information etc for purposes of Births, Deaths and Marriages Registration Act 1996
This clause provides that nothing in the measure affects the requirements in the Births, Deaths and Marriages Registration Act 1996 to have the birth of a child registered.
28—Limitation of liability
The clause provides that, except as specifically provided, no civil or criminal liability.
The clause prevents the disclosure of information by a person obtained in the course of the administration of the proposed Act except to persons and in circumstances specified in the clause.
This clause provides for the manner in which notices or other documents required to be given or served on a person under the measure are to be served on a person.
31—Review of Act
This clause provides that the Minister must cause a review of the operation of the proposed Act before the 6th anniversary of its commencement. the report is to be prepared and submitted to the Minister who must then lay a copy of the report before both Houses of Parliament.
This clause allows the Governor to make regulations in respect of the proposed Act.
Schedule 1—Related amendments and transitional provisions etc
This clause is formal.
Part 2—Amendment of Assisted Reproductive Treatment Act 1988
2—Amendment of section 3—Interpretation
This clause makes a consequential amendment.
3—Amendment of section 9—Conditions of registration
This clause makes a consequential amendment.
Part 3—Amendment of Births, Deaths and Marriages Registration Act 1996
4—Amendment of section 4—Interpretation
This clause makes consequential amendments.
5—Amendment of section 22A—Surrogacy orders
This clause makes consequential amendments.
6—Amendment of section 49A—Saving provision—surrogacy arrangements
This clause makes a technical amendment.
Part 4—Amendment of Family Relationships Act 1975
7—Amendment of section 10—Saving provision
This clause makes a technical amendment.
8—Amendment of section 10EA—Court order relating to paternity
This clause makes a consequential amendment.
9—Repeal of Part 2B
The provisions in Part 2B of the Act are repealed as they are now to be contained in the proposed Act.
Part 5—Transitional and saving provisions etc
10—Continuation of recognised surrogacy agreements under Family Relationships Act 1975 as lawful surrogacy agreements
This clause makes transitional and saving provisions consequential on the repeal of Part 2B of the Family Relationships Act 1975 and the enactment of this measure.