Sunday, August 16, 2015

South Australia changes its surrogacy laws

South Australia has changed its surrogacy laws, to potentially make it easier to find a surrogate locally, but harder to undertake surrogacy overseas.

Local changes

The biggest change is to have a surrogate's register, where women who want to be surrogates can register with the State government. It does not prevent family members or friends becoming surrogates, but if a woman wants to be a surrogate, they can register, and ultimately be found by intended parents.

Under a proposed State Framework for Altruistic Surrogacy, the register would be open to women who:

(a) are18 years of age or older; and

(b) are resident and domiciled in the State; and

(c) are a permanent resident of Australia; and

(d) satisfies any other requirement set out in the regulations for the purposes of this subsection.

The register will not be open for public inspection, but will be open to certain classes of people specified in the yet to be seen regulations, such as intended parents.

It will be seen if the register works. Let's see.

One counsellor only

An odd requirement in South Australia was to require  intended parents and the surrogate and her partner to go to three counsellors: one for all of them, then the commissioning parents would see another counsellor, and the surrogate and her partner would see yet a third counsellor. The potential for this going wrong is obvious.

I lobbied for this to be changed to what occurs elsewhere, namely one counsellor doing the lot, so that all four people have a common vision for their surrogacy. I am pleased that this change has now been made.

Post-birth counselling

I was also concerned that in South Australia, unlike say Queensland or NSW, there was no safety net for the surrogate post-birth. There was no assessment or automatic provision for counselling, in order to provide her with support. I lobbied for change.

A change from the new laws is that counselling is to be provided for the surrogate post-birth. Hooray!

Information giving

Another requirement of the State Framework is that information would be published by the Government setting out what steps need to be undertaken to comply with the law.

 Going overseas

It is now a requirement for anyone in South Australia who wants to go overseas that they must get their surrogacy arrangement approved by the Attorney-General. There is no clarification in the legislation as to what the basis for approval or disapproval might be. My understanding was to ensure that the intended parents have gone to a clinic overseas, in order to avoid another Baby Gammy saga. However, in the Baby Gammy saga, the intended parents had ended up at the clinic of Dr Pisit.

It is likely that this change will fall disproportionately on gay (and lesbian) couples and singles- because they still  cannot access surrogacy in South Australia.

A recent similar proposed change in Israel was dropped when it was realised that overseas clinics saw that a never ending requirement for more paperwork to comply with Israel's laws meant that those clinics would not serve Israeli clients- because Israel was too small a market to be bothered with such onerous requirements.

Let's see if the same approach is taken to South Australia, or more likely that intended parents in South Australia will copy their cousins in Queensland, NSW and the ACT and ignore the law, and go overseas anyway in the expectation borne out by practice that no one will be charged.

Discrimination remains

The Family Relationships Act 1975 and the Assisted Reproductive Treatment Act 1988 still discriminate against single men, gay couples, to an extent lesbian couples and single woman. The amendments make no change to this discrimination. A current review in SA to remove this discrimination. I made a submission concerning these laws and those to do with adoption.

Even if the review recommends change, there is no guarantee that there will be any. Let's hope there is!

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