New surrogacy laws move towards national uniformity - By Julie Redman & Matilda Redman-Lloyd

NEW SURROGACY LAWS MOVE TOWARDS NATIONAL UNIFORMITY

JULIE REDMAN, ACCREDITED FAMILY LAW SPECIALIST AND MATILDA REDMAN-LLOYD, FAMILY LAWYER, ADELTA LEGAL

The rapid change and evolution of society's acceptance of new ways to create a family has made it very difficult for the law to keep abreast of societal attitudes in the area. There remains a diversity of opinions. The reality of increasing infertility amongst young people of child bearing years is a reality that has driven this area of the law.

On 1 September, 2020 we saw the commencement of the South Australian Surrogacy Act 2019 (SA) and its Regulations (2020).

This Act repealed the previous State surrogacy laws contained in Part 2B of the Family Relationships Act 1975 (SA) replacing them for the first time with a standalone Act. This Act regulates access to non-commercial surrogacy in South Australia and continues to outlaw commercial surrogacy. It makes no provision for recognition of overseas surrogacy agreements or children born overseas pursuant to overseas surrogacy agreements. The parentage of these children still remains unlegislated and is not covered in either State or the Family law jurisdiction since Masson v Parsons [2019] HCA 21.

The new State Surrogacy Act is a culmination of the work of the Honourable John Dawkins MLC, the South Australian Law Reform Institute (SALRI) and the Government after submissions from both members of the public and stakeholders in order to present a suitable and legislative framework for surrogacy in South Australia. Congratulations must go to the SALRI whose 2018 Report on the law regulating surrogacy in South Australia and their 69 recommendations have been adopted in their entirety and have paved the way for effective, modern and appropriate reform of surrogacy in South Australia.

The Act incorporates for the first time three surrogacy principles; 1. That the best interest of the child must be the paramount consideration 2. The acknowledgment of the human rights of all parties to a lawful surrogacy agreement including any child born as a result of the agreement to be respected 3. The surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement.

Legal recognition of surrogacy arrangements first occurred in 2010 with the Family Relationship (Surrogacy) Amendment Act 2010. The initial surrogacy requirements under the Family Relationships Act in 2010 required the surrogate to become pregnant, carry the pregnancy and give birth to a child for another couple known as the “Commissioning Parents”. The commissioning couple needed to be a woman and a man and to be married or in an established de facto relationship.

In 2015, the Family Relationships (Surrogacy Amendment Act) 2015 broadened accessibility to allow the commissioning parents to be two people in a qualifying relationship being a marriage-like relationship who were partners irrespective of their sex or gender identity. Gay couples had access to surrogacy; single persons did not.

The Surrogacy Act 2019 has now extended accessibility such that an “Intending Parent” (no longer a commissioning parent) can now be a single person and does not need to be the member of a couple.

The Act for the first time allows 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 Act. One intended parent must be domiciled in South Australia at the time of entering into the lawful surrogacy agreement to invoke the jurisdiction.

The previous requirement that one member of the intending couple must provide genetic material for the production of the embryo has been removed. This leaves the door open for traditional surrogacy and surrogacy arrangements where neither intending parents provides genetic material. Traditional surrogacy is where the surrogate mother uses her own egg for the creation of the embryo. The Youth Court has already recognised traditional surrogacy in South Australia. The identity of the donor of any human reproductive material used in relation to the lawful surrogacy agreement must be provided to the Youth Court at the time of the application for parentage.

The surrogate mother must now be at least 25 years of age or older, must not have impaired decision making capacity and must be an Australian Citizen or a permanent resident of Australia. The surrogate mother must provide to each intended parent a criminal history report provided by the South Australian Police or the Australian Crime Commission within the 12 months prior to entering a lawful surrogacy agreement. The surrogate mother must not be pregnant at the time the lawful surrogacy agreement is entered into. Previously the surrogate mother needed to be only 18 years of age and the other conditions were not imposed.

All parties are still required to enter into a lawful surrogacy agreement which must contain a lawyer’s certificate of independent legal advice in respect of the surrogate mother and each intended parent and the surrogacy agreement drafted by lawyers, must comply with the requirements set out in the regulations.

Counselling prior to entering into the legal requirements is mandatory. Parties must have attended upon an accredited infertility counsellor and received counselling regarding the implications of the agreement that they are about to enter into. Intended Parents are now also required to ensure that counselling is available to the surrogate mother during the pregnancy and after the birth and the Act establishes an offence with a maximum penalty of $5,000 if the Intended Parents do not provide the reasonable costs associated with the counselling during these stages for the surrogate mother. These counselling costs are enforceable as a debt in the Court of competent jurisdiction.

Given these arrangements must not be commercial, an area requiring greater clarity has been what reasonable costs incurred by the surrogate should be covered and expected to be paid by the Intending Parents. While the surrogacy arrangement remains altruistic, reasonable costs can be incurred and must be paid for by the intended parent including costs relating to the pregnancy, to the birth of the child, to postnatal care of the child, to medical counselling, legal services and reasonable out of pocket expenses in relation to the surrogacy agreement and payments representing loss of income.

The 2020 Surrogacy Regulations define reasonable surrogacy costs as “loss of income where the surrogate mother was unable to work due to attendance at medical appointments” and “loss of income during any period of pregnancy when the surrogate mother was unable to work on medical grounds” and “loss of income during any period within 2 months after the end of the pregnancy when the surrogate mother was unable to work on medical grounds”.

A lawful surrogacy agreement is not enforceable other than for reimbursement of the reasonable surrogacy costs in the Court of competent jurisdiction. These costs are not claimable if the surrogate mother refuses or fails to relinquish the custody or rights in relation to the child and does not consent to an Order for the change of parentage of the child born as a result of the lawful surrogacy agreement.

The new Surrogacy Act maintains the position that South Australia has taken since the 2010 introduction of surrogacy and that is to retain the birth mother, being the surrogate mother, as the lawful mother on the birth certificate until changed by Parentage Orders in the Youth Court at a subsequent date. Some jurisdictions recognise on the birth certificate the Intended Parents at the date of birth.

The Intended Parents may make an application to the Youth Court not less than 30 days and no more than 12 months after the child is born for Parentage Orders. If the Court considers it is in the best interest of the child it can make an Order declaring that the relationship between the child and the Intended Parent(s) to be that of parent and child and to remove any relationship of the surrogate to the child. The Court must notify the Registrar of Births Deaths and Marriages of the identity of the donor of any human reproductive material for recording with the Registry. The records of Court proceedings will not be open to inspection except as authorised by the Court.

Prior to making this declaration, the Court has discretion to order further assessments from an accredited counsellor, in particular to ensure that the consent of the surrogate mother is freely given, that the parents are fit and proper to assume the role of parent and the Order is in the best interest of the child. The Registrar of Births, Deaths and Marriages is subsequently notified of the Orders made in the Youth Court and the Registrar will on application change the birth certificate.

The Act sets out offences relating to surrogacy agreements to emphasise the continued ban on commercial surrogacy, an offence to arrange a surrogacy agreement for another person or to induce by threat of harm or by dishonesty or undue influence induce a person to enter into a surrogacy agreement. It continues to be an offence to advertise an advertisement, statement, notice of other material to seek the agreement of a person to act as a surrogate mother for valuable consideration.

There remain cross jurisdictional complexities as each State and Territory maintains their individual legislation. Whilst the surrogacy laws are now becoming more uniform across the States, until we have national legislation to regulate surrogacy arrangements in Australia there will continue to be legal complexities for parties wanting to utilise surrogacy as a recognised form of family formation in Australia. South Australia has built in a review of these laws in five years which is certainly necessary in the changing field of family formation. B