As a result of the recommendations of the South Australian surrogacy review, undertaken by the South Australian Law Reform Institute (SALRI), the South Australian Government has prepared a draft Surrogacy Bill 2018, for consultation, which picks up the recommendations of SALRI's report.
The draft Bill is likely to be debated in February or March 2019.
“SALRI received divergent views and consultation including support for a commercial system of surrogacy in Australia and opposing any form of surrogacy. SALRI reiterates that both options of a commercial system of regulated surrogacy in banning or precluding any form of surrogacy in South Australia are not within its terms of reference. SALRI also notes that the result of both its consultation and research supports an intermediate approach within these two polarised views as the most appropriate way forward. SALRI does not support a system of regulated commercial surrogacy in South Australia in light of the well documented concerns that commercial surrogacy gives rise to. An order SALRI supports seeking to preclude or ban non-commercial surrogacy in South Australia and any such option is both inappropriate and unrealistic. SALRI also reiterates the apparent rationale of the present law throughout Australia is to allow to facilitate lawful surrogacy within Australia and deter or discourage recourse to unlawful surrogacy within Australia especially overseas commercial surrogacy.”
SALRI called for a national and uniform scheme concerning surrogacy but:
“This is likely to prove a long term process and, in the interim, it is crucial that the State regulatory framework for surrogacy is as effective as possible. SALRI supports a suitable regulatory framework for South Australia that maintains the (admittedly often tenuous) distinction between commercial and non-commercial surrogacy and clarifies and improves the current system to most appropriately allow and facilitate lawful domestic surrogacy within Australia for South Australians but discourages and deters recourse to unlawful surrogacy, especially offshore commercial surrogacy. It is unrealistic, in light of the diversity of modern families and the dramatic advances in reproductive technology, to expect that the law can cover every conceivable surrogacy situation that might arise. Nevertheless, SALRI considers that the framework which it has recommended is the most effective and appropriate to recognise and respect the interests of all parties, but crucially to protect the best interests of the child. This must always be the primary or paramount factor of any system.”
The review undertaken by the South Australian Law Reform Institute was released in mid-November. Its recommendations are:
SALRI recommends that any legislative reform to accompany a new surrogacy framework should use the opportunity to move towards national consistency and, as part of this process, the problematic terms such as “commissioning parent” (to be replaced with “intending parent”) and, as far as practicable, the term “altruistic”, should be replaced or avoided.
The report said that it had heard widely in consultation that the term commissioning parents is considered inappropriate by some parties as it imparts strong commercial undertones into a non-commercial family arrangement. Most, if not all, “commissioning parents” refer to themselves as “intending parents”. The surrogate mothers that SALRI spoke to also used the term “intending parents” when describing their experiences with surrogacy.
The report quoted me as saying:
“Commissioning parents sound as though they have bought a baby in the same way they might have commissioned a ship or the purchase of a car or a refrigerator. It is in my view somewhat disrespectful of them and of the process, which at its best is magical. These people intend to be the parents, and hopefully with the making of an order, which should be termed a parentage order, become the parents as a matter of law.”
SALRI recommends that, in light of the likely delay of uniform (or at least consistent) national laws being developed, South Australia should, as far as practicable, devise its laws in relation to surrogacy until national laws are formulated, to ensure the States laws are as effective as possible.
SALRI recommends that South Australia, along with other States and Territories, resume efforts towards a national consensus on this issue and to formulate a national uniform scheme as a matter of the highest priority.
SALRI recommends that, where necessary, give effect to recommendation 3 above, South Australia should refer the jurisdictions of its powers in respect of surrogacy to the Commonwealth and allow the Family Court to exercise jurisdiction in respect of all aspects of the surrogacy at its earliest opportunity.
SALRI recommends that, for ease of reference and application and accessibility, the current scheme for surrogacy contained in Part 2B of the Family Relationships Act 1975 (SA) be excised and replaced with a standalone Surrogacy Act for South Australia.
SALRI recommends that any new Surrogacy Act should draw on Part 2B of the Family Relationships Act 1975 and the Family Relationships (Surrogacy) Amendment Bill 2017, notably as to the provisions set out in Part 5 of this report.
SALRI recommends that the practice of commercial surrogacy should remain illegal in South Australia, but that domestic, non-commercial surrogacy agreements should be permissible in certain specified circumstances.
SALRI recommends that, under any Surrogacy Act and surrogacy framework, the interests and human rights of all parties, namely the child born as a result of the surrogacy, the surrogate mother and her partner and the intending parents must be recognised and respected, but confirms that the primary or paramount consideration, both before and after birth, should be the best interests of the child.
In recommendations 8 and 9, I was quoted in the report:
“Mr Page noted that ‘both ART and surrogacy generally have a myriad of complex moral and ethical issues but surrogacy, whilst usually involving ART, is not a medical process, but a legal process of transfer of parentage from the surrogate (and her partner if any) to the intended parent or parents’. SALRI agrees with the view of Mr Page in consultation that: ‘It is essential that there is appropriate regulation of surrogacy in Australia within an appropriate human rights framework’ and there is, and continues to be, appropriate regulation that respects the interests of all parties.
SALRI accepts that any regulatory framework for surrogacy should explicitly recognise the interests of human rights of all parties (including the intended parents and the surrogate mother and her partner (who is sometimes overlooked)), while ensuring that, as Chief Justice Pascoe, Mr Adams and others have articulated, the paramount consideration is the best interests of the child born as a result of the surrogacy.”
SALRI recommends that any Surrogacy Act should provide that the court must be satisfied that the making of any parentage order in respect of a child born as a result of surrogacy is in the best interests of the child and there should be a necessary pre-condition to the making of a parentage order.
SALRI recommends that there is a review of the operation and effectiveness of any new Surrogacy Act five years after its commencement, given the complexities and rapid advances in the area of surrogacy (both research wise and internationally).
SALRI recommends that any new Surrogacy Act should contain the following statutory guiding principles to apply in any decision in relation to surrogacy, at both the pre-birth and post birth stage:
1. That the best interests of the child are paramount and should be protected (including the child’s safety and wellbeing and the child’s right to know about their family and origins).
2. That the surrogate mother is able to make a free and informed decision about whether to act as a surrogate.
3. That sufficient regulatory protections are in place to protect the surrogate mother and the intending parents from exploitation.
4. That there is legal clarity about the parent-child relationships that result from the arrangement.
5. The intervention of the law in the State in peoples’ private lives, with regard to surrogacy, should be kept to a minimum.
6. Any model should ensure that, at the outset, all parties are fully aware of their rights and responsibilities (particularly in relation to the child) and such a model should seek to avoid and resolve any legal dispute (if arising) between the parties.
7. That the surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman.
SALRI recommends that the current role of the State Attorney-General introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy (including both the framework and/or approved individual surrogacy agreements (including international surrogacy agreements)) is inappropriate and should be removed.
SALRI said in its report:
“Many participants, including Professor Keyes, Mr Page, Dr Allan and Chief Justice Pascoe also raise concerns about how a State Attorney-General could effectively and practically recognise international commercial surrogacy arrangements. It was noted that it would be very difficult, if not effectively impossible, for a State Attorney-General to really know if an international surrogacy arrangement was fair and equitable or exploitative. Mr Page stated that it was preferable for a court to be given this role and described the Attorney-General’s power as ‘impractical’. Mr Page noted:
“There would be an ever mounting pile of information requested as to each surrogacy journey. The Minister, with respect, I presume is not an expert on overseas jurisdictions, surrogacy agencies or IVF clinics. To properly discharge his or her role under the legislation, the Minister would require a burdensome amount of information and even then may not be satisfied as to whether it is an appropriate jurisdiction, surrogacy agency or IVF clinic.”
SALRI agreed with those views:
“It is no criticism of the expertise of the Attorney-General or their advisers but a State Attorney-General lacks the role, capacity or expertise for such a sensitive and specialised role as recognising international commercial surrogacy agreements.”
SALRI recommends that the framework introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy be removed.
SALRI recommends that the State Register of potential surrogate mothers introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) be removed.
SALRI noted that:
“Mr Page, drawing on his wide experience in surrogacy law, noted that there is a need for surrogates and intending parents to be able to get in touch but no surrogate mother would ever joint a State Register…Monica, an intending surrogate and active member of online surrogacy networks said:
Surrogacy is complex and altruistic surrogacy is all about relationships. Although a register would attempt to facilitate easier matches with Intended Parents and surrogates, it needs to not detract from the relationship that needs to be built up between both parties. This relationship is ultimately in the best interests of the future child. We need to maintain a relationship model, not a transaction model…A surrogate offering to carry for a person/couple is a gift, it cannot be asked for. To ensure that the surrogate is the one to offer this gift, the surrogate needs to choose which IPs she wants to carry for. Not the other way around that the IPs choose the surrogate from a register.
Monica told SALRI that she thought the idea of a State Register of surrogates was a ‘joke’. It was ‘well-intentioned but doomed to fail’. Monica said it had the things the ‘wrong way around’ as it created a ‘transactional’ rather than a ‘relationship’ based surrogacy model. She commented that it is a ‘surrogate shop because it is not focusing on the relationship’ and ‘well-intentioned but doomed to fail’ as it was impractical. Monica saw it as a ‘surrogate shop where you can choose surrogates from’ when the applicable ‘currency’ should be time and love’.”
SALRI recommends that the present law should be clarified to provide that any offence covering the act of commercial surrogacy itself should include offering, encouraging, inducing or assisting such an Act. This would capture commercial introduction and brokerage in commercial advertising, but not frustrate communication negotiation between the parties on a non-commercial aspect, which is essential.
Under recommendation 15 there was a reference to the 2017 Bill that provided:
“A person who, for payment or other consideration, negotiates or arranges or obtains the benefit of a surrogacy arrangement on behalf of another is guilty of an offence.
Maximum penalty: imprisonment for 12 months.”
“Mr Page, Ms Redmond, Dr Oxlad and others raise concerns in consultation of the proposed extension…arguably extends the scope of the offences too far and could potentially impede the otherwise lawful work of professionals, including legal practitioners and counsellors, necessary to achieve the broad purposes of the regulatory scheme. Mr Page said:
“Whilst on its face, clause 10U(I) appears to be substantially the same, why it is a considerable widening is that section 10H(I) refers to surrogacy contract whereas clause 10U(I) refers to surrogacy arrangement. The difference is substantial. If a solicitor in South Australia negotiates a surrogacy contract currently, then the solicitor commits an offence. Surrogacy arrangements under the Act are not binding. They are not contracts. If clause 10U(I) is enacted, then a solicitor cannot take part in negotiating a surrogacy arrangement for a client.”
Mr Page noted that a similar offence exists in the United Kingdom and he asserted anecdotally that it has resulted in parties going to their solicitors with draft terms and agreements they have found online.
SALRI agrees with the concern about the scope of the proposed revised offence in the 2017 Bill.”
SALRI recommends that the Surrogacy Act (a relevant Act) should include an offence that “…a person must not publish any advertisement, statement, notice or other material that seeks to introduce people for a reward or other inducement with the intention that those people might enter into a surrogacy arrangement (whether non-commercial or commercial)”.
SALRI recommends that, in light of the ineffectual nature, the extraterritorial offences relating to commercial surrogacy as exists in the Australian Capital Territory, New South Wales and Queensland should not be introduced in South Australia.
It was also noted to SALRI that such extraterritorial laws are of little utility unless they are actively enforced and the need to also enforce such laws was also noted. Mr Adams, for example, argued that the authorities:
“…must make steps to prosecute all parties involved in the exploitation of women and the sale of children, which is what occurs under international commercial surrogacy agreements. Previously in other Australian States, parties that have undertaken such agreements have not been prosecuted. Those States have in effect therefore given a green light to an endorsed exploitation in the sale of children. The only way to prevent such ethically and morally wrong practices is to actually prosecute those doing so as a preventative measure. Currently, it is well known within the “Surrogacy Community” that those undertaking commercial agreements overseas will not be prosecuted by those jurisdictions and therefore they feel free to flaunt and openly mock the law.”
However, a strong contrary view was also expressed to SALRI that saw no need for such an extraterritorial offence in South Australia. Indeed, it was widely noted that such offshore surrogacy offences are ineffectual, if not positively unhelpful. This view was expressed by parties including Simone Cureton, Dr Ronli Sifris at Monash University, Mr Everingham of Surrogacy Australia, Professor Stuhmcke and Millbank and several intending parents.
“Mr Page explained that:
‘History demonstrates that trying to stop (by criminal sanction) people going overseas for surrogacy does not work’.
Mr Page noted the Australian Capital Territory, New South Wales and Queensland extraterritorial offences had never led to any prosecutions, even when apparent clear cases had been referred to the DPP for consideration for prosecution by the Family Court. He said the DPP is likely to have more pressing things to focus on. Mr Page noted these offences should either be enforced or appealed and ‘don’t have a mockery of the law’. Mr Page raised what real sanction would ever be imposed for a parent charged with breaching the extraterritorial offence as it could leave the child born As a result of surrogacy without a parent. Mr Page also noted these offences can be readily evaded by the intended parents moving (or appearing to move as more than one party noted to SALRI) interstate where such specific laws do not exist. Mr Page said that such offences are unhelpful in leading to secrecy and discourage transparency and any such parents from coming forward.”
SALRI also noted that Chief Justice Pascoe had said:
“It is plain…that the current State and Territory laws do not deter people from engaging in commercial surrogacy in order to become parents and international commercial surrogacy is becoming increasingly common.”
A recent ABC report had the following comment of the extraterritorial offences:
“Want to introduce such a law and not enforce it”.
The practical effectiveness of the extraterritorial criminal laws to deter overseas surrogacy has been doubted by the Australian Human Rights Commission.
Professor Anita Stuhmcke noted that three of the four jurisdictions worldwide that currently impose extraterritorial prohibitions on commercial surrogacy are Australian States and that the only other private life offences to attract a similar level of international liability are female genital mutilation and child sex. She concludes that, with the exception of a couple of New South Wales Family Court cases in which the judge recommended that prosecution be considered, these laws ‘are an exercise in pure symbolism’. Professor Stuhmcke argues that the introduction of these laws follow little debate and fail to be informed by those actually engaging in cross-border reproduction. She also questions whether this infringes on a right to seek medical treatment wherever people choose.
“It considers that any specific extraterritorial surrogacy offence is inappropriate and ineffectual. Such laws have not discouraged Australians from using commercial surrogacy overseas. It is notable that no person has ever been prosecuted in Australia for international commercial surrogacy, not even cases referred to the DPP by the Family Court for consideration of whether a prosecution should be instituted against the parents who had contravened the extraterritorial offences. The State Authorities, including South Australian police, are likely to lack the role, resources, specialised expertise, and, one suspects, inclination (given their many other demands) to effectively deal with international commercial surrogacy. The notion of SAPOL officers travelling to Kiev or India or Cambodia to gather evidence or seeking or obtaining effective cooperation from overseas authorities is highly unlikely.
The Parliamentary context is also significant. The Hon. John Dawkins explained in relation to the 2015 Act that it was not his intention to introduce extraterritorial application of the commercial surrogacy offences and he had been careful to avoid doing so.”
SALRI recommends that a website should be developed which provides advice and information for Australians considering domestic surrogacy and should include:
1. clear advice on the role of Commonwealth Government support and service provision for intending parents, surrogates and children including Medicare, social security and welfare payments, child support and paid parental leave;
2. clear advice on the surrogacy legislation in each Australian State and Territory;
3. clear advice on the support and services funded and provided for by each Australian State and Territory including relevant health, counselling and legal services available; and
4. best practice guidelines and other information for healthcare providers including hospitals, obstetricians, paediatric care, employers and others dealing with surrogates.
In this context, SALRI encourages the Commonwealth to implement recommendation 6 of the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) for the Commonwealth Government to develop such a website.
In the event that the Commonwealth does not set up such a website, in the alternative, or in addition to recommendation 18 above, SALRI recommends that an appropriate agency or agencies in South Australia such as SA Health or the Legal Services Commission prepares a suitable page on their own site to provide reliable and impartial information.
SALRI recommends that any Surrogacy Act should confirm that a surrogacy arrangement should not proceed or be undertaken in South Australia unless, and until, the parties have in place a legal agreement that satisfies the relevant legislative requirements such as legal and counselling advice.
SALRI recommends that the current concept of infertility to access lawful surrogacy in South Australia should be retained but that, to clarify and update the relevant terminology, the present definition of infertility in section 10HA(2a)(e) of the Family Relationships Act 1975 (SA) should be removed and replaced with a new Surrogacy Act or other relevant Act with the following definition of medical or social need to access lawful surrogacy based on section 30(2) Surrogacy Act 2010 (NSW):
“(2) There is a medical or social need for a surrogacy arrangement if:
(a) there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman, or
(b) there are 2 intended parents under the surrogacy arrangement and the intended parents are:
(i) a man and an eligible woman, or
(ii) 2 men, or
(iii) 2 eligible women.
(3) An eligible woman is a woman who:
(a) is unable to conceive a child on medical grounds, or
(b) is likely to be unable, on medical grounds, to carry a pregnancy or to give birth, or
(c) is unlikely to survive a pregnancy or birth, or is likely to have her health significantly affected by a pregnancy or birth, or
(d) if she were to conceive a child:
(i) is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or
(ii) is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy or birth.”
SALRI recommends that all references to ‘husband’ and their accompanying definitions in Part 2B of the Family Relationships Act 1975 (SA) should be removed and replaced in any new Surrogacy Act with ‘spouse’ to be inclusive of surrogate mothers and intending parents and same-sex relationships.
SALRI recommends that any Surrogacy Act should provide the surrogate mother must be at least 25 years of age in order to be a party to a lawful surrogacy agreement in South Australia, unless the Accredited Independent Counsellor, as part of the counselling (and screening) process, is satisfied that there are exceptional circumstances to support a woman under the age of 25 years acting as a surrogate mother.
SALRI recommends that any Surrogacy Act should provide that the intending parents must be at least 25 years of age in order to be a party to a lawful surrogacy agreement in South Australia, unless the Accredited Independent Counsellor, as part of the counselling (and screening) process, is satisfied that there are exceptional circumstances to support a person under the age of 25 years acting as an intending parent.
SALRI recommends that there should be no legislative requirement for a surrogate mother to have previously carried a pregnancy and given birth to a live child in order to access a lawful surrogacy agreement in South Australia, on the basis that this consideration should be addressed as part of the counselling (and screening) process.
SALRI recommends that the current prohibition in South Australia on single people accessing surrogacy is discriminatory and inappropriate and should be repealed.
SALRI recommends that any Surrogacy Act should clarify the present law regarding surrogacy arrangements involving a child with no genetic link to either of the intending parents, namely that the intending parents can enter into a lawful surrogacy agreement in South Australia but only if a medical practitioner is satisfied that both of the intending parents appear to be infertile or there is medical reason why it would be preferable not to use such human reproductive material to achieve the pregnancy. However, this aspect of the law should be reviewed in 5 years (or 5 years after commencement for any new Surrogacy Act) as further research is available about the development and implications of donor-conceived individuals and adolescents in adulthood.
SALRI recommends that South Australian law should recognise surrogacy-related processes that occur in analogous and comparable Australian jurisdictions which contain key features and safeguards of the South Australian legislative regime.
SALRI recommends that any Surrogacy Act should provide that, for a lawful surrogacy arrangement in South Australia to be legally recognised, the intending parent(s) must ordinarily reside in South Australia prior to the agreement being entered into. SALRI recommends that where the surrogate mother resides and where the fertility treatment occurs should be irrelevant to any such agreement.
SALRI recommends that any Surrogacy Act should provide that the surrogate mother and intending parent(s) must either be an Australian citizen or an Australian permanent resident to be eligible to access a lawful surrogacy agreement in South Australia.
SALRI recommends that any Surrogacy Act (or other relevant Act) should allow the mutual recognition of interstate parentage orders.
SALRI recommends that any Surrogacy Act should require the full and frank exchange of information between the parties to a lawful surrogacy agreement (that is the surrogate mother, her partner (if any) and the intending parents) and the Accredited Independent Counsellor(s), prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child. Included in the information exchange should be any information that will enable the other parties to the lawful surrogacy agreement, and the Accredited Independent Counsellor(s), to consider whether or not a party might propose a risk to the child or another party. As part of this process, each part should (if possible) obtain and provide to the other parties and the Accredited Independent Counsellor(s) either a Working with Children Check (although SALRI notes that there may well be difficulties at this stage with such a requirement) or a National Criminal History Check. Any check must be obtained prior to accessing any surrogacy-related fertility procedure AND prior to entering into a surrogacy agreement. The parties should be advised of this requirement as part of their independent legal advice obtained in the process of receiving their lawyer’s certificate.
The Regulatory Framework governing surrogacy arrangements in South Australia should be consistent with a public health approach and with the public health principles set out in sections 5 to 16 of the Public Health Act 2011 (SA).
SALRI recommends that information about Chapter 8 of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology and Clinical Practice and Research should be accessible to all potential parties to surrogacy agreements and be provided as a matter of course to all clients of registered fertility clinics considering surrogacy as an option.
SALRI recommends that the relevant Chapters of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology and Clinical Practice and Research should be subject to a public consultation and review on a regular basis, in addition to the existing processes for expert review by the NHMRC and its relevant committees.
SALRI recommends that practical information and guidance (for example in the form of Fact Sheets or Guidelines) should be developed by SA Health in consultation with surrogate mothers, intending parents, relevant South Australian hospitals, maternal health service providers, fertility providers, counsellors and obstetricians on how to provide high quality and sensitive care to surrogate mothers and intending parents in the context of a lawful surrogacy agreement.
SALRI recommends that fertility clinics should provide potential parties to a lawful surrogacy arrangement with information about the circumstances in which fertility treatment will be provided to either the surrogate mother or the intending parent(s) prior to and during the surrogacy arrangement. This would allow parties to a lawful surrogacy arrangement to consider including, in the surrogacy arrangement, an undertaking by the intending parent(s) not to continue to receive fertility treatment once a viable pregnancy has been achieved by a surrogate mother in accordance with the surrogacy arrangement.
SALRI recommends that all parties to a lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) should have access to appropriate, high quality and specialist counselling services by an Accredited Counsellor as required prior to, during and following a lawful surrogacy arrangement.
SALRI recommends that any Surrogacy Act should provide that all parties to a South Australian lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) must obtain a counselling certificate (which includes screening as to the suitability of the parties to enter into a surrogacy arrangement) by an Accredited Independent Counsellor prior to any lawful surrogacy arrangement or related fertility treatment.
SALRI recommends that, to give effect to Recommendation 39, the Surrogacy Act (or elsewhere) should include the following legislative changes to improve the present counselling (and screening) process:
1. Retaining the current requirements in section 10HA of the Family Relationships Act 1975 (SA) for all parties to the surrogate agreement, and the surrogate mother’s partner, to obtain counselling prior to the lawful surrogacy agreement by an Accredited Independent Counsellor.
2. Amending section 10HA(3)(ab) to require each person referred to in section 10HA(2a)(g) to receive independent counselling, whether provided by the same counsellor not.
3. Amending section 10HA(3)(b)(i) to require a counselling certificate to be issued by an Accredited Independent Counsellor which states that the person to whom it relates has received counselling about the full range of relevant matters which includes:
(i) The potential long-term psychosocial implications for each individual and each family involved, including the surrogate child and any other child/ren within the family unit(s) who may be affected by that birth.
(ii) The reason(s) why the potential surrogate mother wants to become involved in a surrogacy agreement.
(iii) The need for the surrogate mother’s free, voluntary and informed agreement to enter into a lawful surrogacy agreement.
(iv) The surrogate mother’s right to make informed decisions about their own medical care, including before and during the pregnancy and birth.
(v) The possibility that the surrogate mother may need medical and/or psychological assistance during any attempts to become pregnant, during the pregnancy and following the birth and that the pregnancy may affect the surrogate mother’s own health.
(vi) The potential significance of the gestational connection and the right of a child born as a result of surrogacy to know the details of their birth and background, the benefits of early disclosure.
(vii) The possibility that a child born as a result of surrogacy may learn about the circumstances of their birth from sources other than the intending parents (for example from other family members) and may independently access information about their birth.
(viii) The possibility that a child born as a result of surrogacy may attempt to make contact with the surrogate mother in the future.
(ix) The impact of the potential surrogacy agreement on the surrogate mother’s partner and other children, and on the couple’s relationship and/or the family unit.
(x) The impact of the potential surrogacy agreement on the intending parents’ other children, and on the couple’s relationship and/or the family unit.
(xi) The implications for all parties, if it is proposed that the surrogate mother will provide her own ovum for use within a surrogacy arrangement.
(xii) The exceptional circumstances present, which would deem it allowable for any party (the surrogate mother and/or intending parents) to participate in a surrogacy arrangement under the age of 25 years.
(xiii) The need for the Accredited Independent Counsellor conducting the counselling and screening to confirm that the surrogate mother, her partner (if any) and/or the intending parents are suitable to take part in a lawful surrogacy agreement.
(xiv) The need for the Accredited Independent Counsellor conducting the counselling and screening to confirm that the proposed surrogacy agreement will be in the best interests of any child already existing and any child born as a result of the surrogacy agreement.
SALRI recommends that any Surrogacy Act (or accompanying regulations) provide that full membership of, or eligibility for full membership of, the Australian and New Zealand Independent Counsellors (sic) (should be reference to Infertility) Counsellors Association, is a necessary prerequisite to act in South Australia as an Accredited Independent Counsellor and carry out the counselling (and screening) role in relation to a lawful surrogacy agreement.
SALRI recommends that registered fertility clinics should adopt internal processes to ensure that an individual providing the counselling (and screening) to each person referred to in recommendations 39 and 40 is in a position to provide independent counselling (and screening) to each client (they also note recommendation 43 below).
SALRI recommends that any Surrogacy Act should make it clear that an Accredited Independent Counsellor responsible for the issue of a counselling certificate (including determining the suitability of a party or parties to enter into a lawful surrogacy agreement) cannot be employed by a fertility clinic or be a “contractor” (in the sense of receiving a commission, bonus or any form of valuable consideration from the clinic as a result of the surrogacy arrangement).
SALRI recommends that it should not be mandatory for the parties to undergo counselling during the surrogate mother’s pregnancy. Rather, SALRI recommends that any Surrogacy Act should require that the lawful surrogacy agreement states that the intending parents will take reasonable steps to ensure that the surrogate mother and her partner (if any) are offered counselling (at no cost to the surrogate mother or her partner) during any attempts to become pregnant (even if a pregnancy is not achieved) and during any pregnancy to which the agreement relates.
SALRI recommends that any Surrogacy Act should provide that it is mandatory for the surrogate mother to undergo one session of counselling with an Accredited Counsellor of the surrogate mother’s choice after the birth of a child (with any cost to be met by the intending parents). The counsellor (who need not be an Accredited Independent Counsellor) as part of this session should provide a short post birth report to guide the Court as to whether a more detailed report may be necessary to assist the Court in determining if any order is in the best interests of the child. Any Surrogacy Act should include an express power for the Court to order a more detailed report from an Accredited Counsellor or suitable other expert of the Court’s choice if the Court considers it appropriate and/or in the best interests of the child.
SALRI recommends that any Surrogacy Act provide that both the surrogate mother and the intending parent(s) must have a certificate from an Australian lawyer certifying that they have received independent legal advice on the surrogacy agreement and its various implications.
SALRI recommends that more detail and clarity should be added by any Surrogacy Act to the type of legal advice that has to be provided to the parties. In this regard, SALRI recommends that the form of a surrogacy agreement should meet certain legal requirements in order to be valid, and should include (at a minimum) the following criteria:
(a) The agreement is signed by all parties; and
(b) Before signing the agreement, each party is to be provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time the advice was provided, to that party if making the agreement; and
(c) Either before or after signing the agreement, each party is to be provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(d) A copy of the statement referred to in paragraph (c) be provided to the other party or to a legal practitioner for the other party; and
(e) The agreement is a contract of which the proper law of the contract is South Australian law; and
(f) The agreement has not been terminated and has not been set aside by a court.
For the purposes of recommendation 47 above, SALRI recommends that the present law be extended in any Surrogacy Act to provide that the content of the legal advice provided to the parties should include information dealing with the rights and responsibilities for the child, particularly regarding the authority to make decisions relating to healthcare (both pre and post birth), and upon making of an order as to parentage by a court of competent jurisdiction, the effects of the agreement or matters of succession in an estate planning the categories of costs recoverable.
SALRI recommends that the Youth Court (or any other relevant court) should be provided with the counsellor’s certificates, any initial counselling reports in respect of the parties, the Working with Children Checks (or the National Criminal History Checks) and the lawyers’ certificates in respect of their advice to the parties. This material should be lodged with the Youth Court or any other relevant court prior to any order being made transferring the legal parentage to the child.
SALRI, noting the value of mediation in a surrogacy context, recommends that:
(a) The parties have the right, although not compulsory, to access mediation services through an experienced family law mediator to assist in negotiating the surrogacy agreement between them and this should not constitute an offence by the mediator or facilitating service under the relevant provision.
(b) In the event of a dispute about the terms of the surrogacy agreement during the life of the agreement, the parties can attend mediation to attempt to resolve the dispute and, if this fails, either party can request the mediation to act as arbitrator in order to resolve the dispute, following which, any decision of an arbitrator is binding on the parties.
Note: The aim of mediation should be to try to prevent any disputes arising. The use of mediation and/or arbitration is strictly voluntary, and the parties retain the right, in the alternative, to make an application to a court of competent jurisdiction, however, the aim should be to keep the costs of litigation as low as possible.
SALRI recommends that any Surrogacy Act should provide that the part of the surrogacy agreement relating to costs and expenses should be legal and enforceable.
SALRI recommends that, in relation to costs, the guiding principles should be set out in any Surrogacy Act and should be that:
(i) no valuable consideration shall be provided for the act of becoming pregnant and carrying a child for another person; and
(ii) a surrogate mother should not be financially disadvantaged as a result of taking part in a surrogacy arrangement and should be able to recover any costs actually incurred as a direct result of the pregnancy and birth.
SALRI recommends that any Surrogacy Act should provide that all costs directly related to the lawful surrogacy agreement (including the process of getting pregnant, the pregnancy and birth of the child) should be recoverable by the surrogate mother under a lawful surrogacy arrangement. The scope of these costs should be set out in the parties’ individual surrogacy agreements. However, such costs should be permitted to include:
(a) Medical costs relating to a pregnancy (including any attempt to become pregnant) that is the subject of the agreement.
(b) The birth or care of a child born as a result of that pregnancy.
(c) Counselling provided in connection with the agreement (including after the birth of a child).
(d) Medical services provided in connection with the agreement (medical services provided prior to achieving a pregnancy, and medical care provided during the pregnancy and after the birth of a child).
(e) Legal services provided in connection with the agreement (including after the birth of a child).
(f) Any premium paid for health, disability or life insurance which would otherwise not have been taken out, but for the agreement.
(g) Loss of income of the surrogate mother as a result of leave during the pregnancy or immediately after the pregnancy when the surrogate mother was unable to work on medical grounds. Recoverable loss of income should be limited to a period of 2 months. Loss of income should be recoverable regardless of the surrogate mother’s access to alternative sources of paid leave during the same period (such as paid parental leave, provided the leave was required on medical grounds).
(h) Travel and accommodation costs of the surrogate mother (and her dependents) related to the pregnancy (including any attempt to become pregnant).
(i) Reasonable out-of-pocket expenses (including childcare related expenses and loss of domestic services expenses) incurred by the surrogate mother in respect of the agreement.
(j) Any other costs directly related to the surrogacy agreement as prescribed by the Regulations.
SALRI recommends that the present law relating to recoverable costs should be amended in any Surrogacy Act to provide that:
(a) the scope of recoverable costs should be set out in the parties’ individual surrogacy agreement, but must include all relevant medical costs and the provision of independent legal advice and counselling to the surrogate mother and her partner prior to, during and after the term of the surrogacy agreement;
(b) costs recoverable are those that have actually been incurred by the surrogate mother; and
(c) the provisions in the lawful surrogacy agreement relating to costs are legally enforceable between the parties (for example through the small claims process).
SALRI recommends that information setting out the typical range of costs recoverable under a lawful surrogacy agreement be made publicly available, for example in the form of a Table Schedule of Surrogacy Costs or as a questionnaire, to prompt potential parties to surrogacy agreements to turn their mind to the full range of potential costs recoverable under a lawful surrogacy agreement in South Australia. Such information could be prepared with the assistance of legal experts and published by a relevant Government Department or other body that currently disseminates general legal information on family law matters such as the Legal Services Commission or Relationships Australia.
SALRI recommends that any Surrogacy Act should include an expressed incidental power to enable the relevant court to determine any outstanding issues such as an unresolved issue about costs under a surrogacy agreement when it considers transferring the legal parentage to the intending parents. Section 24 of the Surrogacy Act 2012 (Tas) is an example of such a provision in this context.
SALRI recommends that the process in South Australia for obtaining a birth certificate with respect to a child born as a result of a lawful surrogacy agreement includes mandatory requirements at the stage of notification of birth, registration of birth and the issue of a birth certificate for the collection of information about the child’s intending parents and any donors of human reproductive material. The collection of such information should not affect the legal parentage of the child, which should remain with the surrogate mother (and her partner/spouse as is the current position under the Family Relationships Act 1975 (SA)), unless, and until, an order for transfer of legal parentage is made by the Youth Court.
SALRI recommends that the current process for reissuing a birth certificate upon a declaration of legal parentage by the Youth Court remain and that the Register of Births retains the name of the surrogate mother in its historical records.
SALRI recommends that a birth certificate for a child born as a result of a surrogacy arrangement should, upon any transfer of legal parentage, include a brief notation such as an asterisk or the term “reissue” to indicate that there are relevant historical records which can be sought. The note of the existence of the historical records should appear on the face of the birth certificate but should not provide specific detail of the type of record held. The details as to the surrogate mother and/or any donors of genetic material should not appear on the face of the birth certificate given the privacy of such material and other legitimate concerns.
SALRI recommends that a child born as a result of a surrogacy arrangement should be formally entitled, under the relevant Act, to obtain a certificate (or similar documentary record) certifying all relevant entries in the Register of Births, including details of the surrogate mother and/or any donors of genetic material, once the child obtains the age of 16 years.
In addition, provision should be made in the Registrar’s access policy to allow the Registrar to exercise his or her discretion to grant a child born as a result of a surrogacy arrangement, access to a certificate certifying all relevant entries in the Register of Births regardless of the child’s age, provided that the Registrar is satisfied that such access would not be harmful to the welfare of the child. The Registrar may request that a counselling certificate or similar documentation be provided to assist in their assessment.
SALRI recommends that consistent with existing law and practice, legal parentage should remain with the surrogate mother until a court of appropriate jurisdiction makes a parentage order to the contrary.
SALRI recommends that any Surrogacy Act provide that a court should have the discretion to be able to extend the period in which an application to transfer legal parentage can be made. When exercising a discretion to extend, the court should consider all relevant circumstances as to the reason for the delay in making the application and determine whether an extension of time is in the best interests of the child.
SALRI recommends that any Surrogacy Act provide that a court should have a discretionary power to make a parentage order notwithstanding that one or more of the conditions otherwise applicable for the making of such an order is not satisfied. When exercising this discretion, the court should consider all relevant circumstances, including the nature and extent of the non-compliance of such conditions, the circumstances of non-compliance, including whether non-compliance was deliberate or inadvertent, and the best interests of the child.
SALRI recommends that South Australia should refer a power (consistent with referrals from New South Wales, Queensland, Tasmania and Victoria) which provides that the Family Court may make a determination of parentage “whether or not the determination of the child’s parentage is incidental to the termination of any other matter within the legislative powers of the Commonwealth” and upon receiving the referral of power from South Australia, the Commonwealth Government should amend section 69VA of the Family Law Act 1975 (Cth) to reflect these referrals.
SALRI recommends that South Australia introduce a conclusive statutory presumption of parentage on the basis of a finding of parentage made by another State, Territory or Commonwealth court, as is the situation in the Australian Capital Territory, New South Wales and Queensland.
SALRI recommends that an interstate order relating to parentage of a child of a surrogacy arrangement be able to be given effect as if it was made in South Australia, in addition to recognising Commonwealth orders as to parentage.
SALRI recommends that it is an issue at the national level (whether for the Commonwealth or the Commonwealth, States and Territories jointly) to resolve the effect and implication of Bernieres in relation to both international, commercial and non-commercial surrogacy arrangements.
SALRI recommends that it examine the various consequential civil law issues and implications such as succession law and medical care raised in a domestic surrogacy context as part of a short spinoff report.