Surrogacy has long had a complicated history in Australia. But with the recent passing of the same-sex relation register (a government registry that officially recognizes gay marriages) and other progressive laws, we may soon see a greater acceptance of surrogacy in Australia.
Commercial surrogacy is banned throughout Australia. It is technically permissible in the Northern Territory, but only because there is no specific legislation. Altruistic surrogacy, a non-binding agreement between the intended parents and genetic mother, is legal but heavily regulated depending on the territory. In altruistic surrogacy, if a surrogate no longer wishes to give birth to the child, she has the legal right to refuse carrying to term.
Intended parents must have attempted other available methods of conception, and have a serious medical application verified by a gynecologist. Applications must be approved by the Human Research Ethics Committee.
Altruistic surrogacy is only permissible if the intended parents are unable to conceive a child, or have some risk of passing a genetic defect. Surrogacy arrangements must be put in writing before the pregnancy occurs. The Surrogacy Act 2010 also requires a pre-conception arrangement that allows parents to apply for a parentage order after birth. Overseas commercial surrogacy arrangements are punishable by fines or imprisonment.
Altruistic surrogacy is permitted for single parents, same-sex and heterosexual couples. There are varying laws on age and pre-conception agreements, but these areas are typically more lenient than other parts of the country.
Altruistic surrogacy became legal in 2008, but traditional surrogacy is still acceptable. Intended parents must be at least 25 or older, and must be in a heterosexual relationship.
South Australia has some of the most restrictive regulations. All parties must be over the age of 18, be living in South Australia, be legally married or in a relationship for at least three years, and the woman must be either infertile or have a genetic condition before entering a surrogacy arrangement. A signed lawyer’s certificate, a counseling certificate, and an application to the Youth Court of South Australia for Parentage Order are all required for a legal surrogacy arrangement to transpire.
In November 2016, South Australia introduced the Statutes Amendment (Surrogacy Eligibility Bill 2016), which allowed same-sex couples (and fertile women) access to assisted reproductive technology and altruistic surrogacy arrangements.
Family First, Australia’s socially conservative political party, originally introduced an amendment allowing assisted reproductive treatment providers the right to refuse service based on the patient’s sexual orientation. But in response,Tammy Franks, Greens MLC representative in the South Australian Legislative Council, introduced another amendment that required any practice that refused service to the LGBT community to be placed on a public list.
"It's great to see four bills around equality for LGBTIQ South Australians passed through the Upper House, having already passed the Lower House. We now know they will become law," Ms. Franks said.
The bill will need to return to the House of Assembly before passing Parliament, but is adjourned until February 2017.
While there are still many regulations that need to be updated, we applaud South Australia’s move towards a more progressive and inclusive law that works for the people and helps create families. The battle may not be over, but we look forward to seeing Australia adopt more surrogacy-friendly laws in the future.
For more information on surrogacy laws around the world, visit ConceiveAbilities' blog today.
All Things Conceivable is a blog dedicated to sharing the knowledge and expert opinions of the dedicated team at ConceiveAbilities, a Chicago-based egg donation and surrogacy agency.