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Surrogacy – Is It An Option For You?


Surrogate Parents with Their Child

For many in a relationship, the prospect of having a child is often fraught with complexities, whether it be reproductive issues or same sex relationship. Conversely, those not in a relationship may wonder if they may ever raise a child. After lengthy and costly options such as IVF, you may be considering Surrogacy.

Surrogacy is regulated in South Australia, and it is important that you obtain legal advice prior to any negotiation to commence your family.

How do you become a parent? 

Commercial surrogacy is unlawful in South Australia and severe penalties apply. Commerical means that you cannot undertake this process for a financial benefit.

Prior to 1 September 2020, the court needed to be satisfied that a child was being placed with two intending parents. Now, with the recent legislative changes, a single person can become an intended parent.

You will need a lawful surrogacy agreement[1][1] where a woman will become pregnant and once the child is born will surrender parentage of the child to an intended parent.[2][2]

What is an intended parent? 

You must be over the age of 25 years, have appropriate decision-making capacity, be an Australia Citizen or permanent resident; and be domiciled in South Australia.

Further to this, one intended parent[3][3] must be either:

  1. A female unlikely become pregnant; carry a pregnancy; or give birth due to medical reasons; that harm would come to that intended parent if it occurred; or
  2. Likely to transmit a genetic defect, serious illness, or disease to the child; or
  3. In all circumstances it is unlikely that a parent would become pregnant, carry a pregnancy, or give birth.

I meet these criteria, so what I do to start my family? 

Intended Parents must undergo prescribed counselling[4][4] and provide the surrogate mother with their criminal history report (last 12 months). You must also provide, at your expense, reasonable costs for counselling for the surrogate mother during and up to 6 months after the birth of the child.[5][5] There are financial penalties if you do not comply with this.

Who can be the surrogate mother? 

The Act[6][6] says that the woman needs to be at least 25 years of age; have appropriate decision-making capacity; be an Australian citizen or permanent resident; not be pregnant at the time the agreement is entered; undertake counselling; provide each intended parent a copy of their criminal history (last 12 months).

The difference between the intended parent and the surrogate mother – is that the mother need not reside in South Australia.

What does the agreement look like? 

There are many requirements for the agreement which must be followed, and an experienced family lawyer can help you navigate these requirements including outlining all the expenses; obtaining all certificates and drafting the proposed court orders.[7][7]

What are the ‘reasonable costs’ that you are likely to pay to the surrogate mother? 

Essentially, the surrogate mother should not be financially disadvantaged[8][8], and you should speak an experienced family lawyer about what is reasonable.[9][9] However as a guide, reasonable will include costs relating to the pregnancy and surrogacy agreement.

Does the surrogate mother have rights? 

Yes, the surrogate mother can manage the pregnancy in the same way as other pregnant women.[10][10]

What happens if the surrogate mother does not hand over the child? 

A surrogacy agreement is not enforceable – except in certain circumstances. Significant counselling and communication by all parties is necessary in ensuring that the outcome is as expected.

Are there any deadlines that I need to know? 

Yes, you have from 30 days to 12months from the date of birth of the child to make an application to the Youth Court to transfer parentage from the surrogate mother to the intended parents.

The Youth Court can also make other orders like declaring the name of the children upon application of the intended parents.

Whilst this time will be one of joy for the intended parents, it is important that intended parents complete the process for peace of mind in raising the child.

Adelaide Legal is privileged to be able to assist intended parents and surrogate mothers with their legal obligations.

[11][1] Surrogacy Act 2019 (SA) s 10(2).

[12][2] Ibid ss 4,10.

[13][3] Ibid s10(4).

[14][4] Ibid s14.

[15][5] Ibid s15.

[16][6] Ibid s10(3).

[17][7] Ibid s11, 18.

[18][8] Ibid s7.

[19][9] Ibid s11.

[20][10] Ibid s16.