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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Family Relationships (Surrogacy) Amendment
Bill 2017
A BILL FOR
An Act to amend the
Family
Relationships Act 1975
, and to make related amendments to the
Assisted
Reproductive Treatment Act 1988
and the
Births,
Deaths and Marriages Registration Act 1996
.
Contents
Part 2—Amendment of Family
Relationships Act 1975
10GInteraction with
other Acts
10HRights of
surrogate mother to manage pregnancy and birth
Division 2—Lawful
surrogacy agreements
10ILawful surrogacy
agreements
10KUse of commissioning parent's
human reproductive material not necessary in certain circumstances
10LPayment or reimbursement of
certain costs permitted
Division 3—Court
proceedings relating to recognised surrogacy arrangements
10NExtent to which
recognised surrogacy arrangements can be enforced
10QCourt may discharge
parentage order
10RCourt to notify
Registrar of Births, Deaths and Marriages
Division 4—Offences relating to
unlawful surrogacy arrangements
10TCommercial and
other unlawful surrogacy arrangements prohibited
5Amendment of section
15—Regulations
Schedule 1—Related amendments and
transitional provisions
Part 1—Amendment of Assisted
Reproductive Treatment Act 1988
1Amendment of section
3—Interpretation
Part 2—Amendment of Births, Deaths
and Marriages Registration Act 1996
2Amendment of section
4—Interpretation
3Substitution of Part 3 Division 6
Part 3—Transitional
provisions
4Continuation of recognised surrogacy
agreements
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Family Relationships (Surrogacy) Amendment
Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Family Relationships
Act 1975
Part 2B—delete the Part and substitute:
Part 2B—Surrogacy
Division 1—Preliminary
10F—Interpretation
(1) In this Part—
commercial surrogacy arrangement—see
subsection (2)
;
commissioning parent, in relation to a lawful surrogacy
agreement—see
section 10I(1)
;
Court means the Youth Court of South Australia
constituted of the Judge of the Court or a magistrate;
fertilisation procedure has the same meaning as in Part
2A;
human reproductive material means—
(a) human semen; or
(b) a human ovum;
lawful surrogacy agreement means a lawful surrogacy agreement
under
section 10I
, as in force from time to time;
lawyer means a legal practitioner within the meaning of the
Legal
Practitioners Act 1981
;
parentage order means a parentage order under
section 10O
;
prescribed reason, for entering a lawful surrogacy agreement,
means 1 or more of the following reasons:
(a) it is unlikely that a commissioning parent can or would become
pregnant (whether because of infertility or other medical reasons, or by reason
of the sex or gender identity of the commissioning parent);
(b) it is unlikely on medical grounds that a commissioning parent would be
reasonably able to carry a pregnancy to term or give birth;
(c) there appears to be a risk that a serious genetic defect, serious
disease or serious illness would be transmitted to a child born to a
commissioning parent;
(d) there appears to be a risk that becoming pregnant or giving birth to a
child would result in physical harm to a commissioning parent (being harm of a
kind, or of a severity, unlikely to be suffered in the course of a pregnancy or
birth generally);
qualifying relationship—2 persons will be taken to be
in a qualifying relationship on a particular day if, on that day,
they—
(a) are legally married; or
(b) are in a registered relationship; or
(c) have lived together continuously in a marriage-like
relationship—
(i) for the period of 3 years immediately preceding that day;
or
(ii) for periods aggregating not less than 3 years during the period
of 4 years immediately preceding that day;
recognised surrogacy arrangement means—
(a) a lawful surrogacy agreement; or
(b) a surrogacy arrangement (however described) entered into in accordance
with a prescribed corresponding law of the Commonwealth, or of another State or
Territory; or
(c) a surrogacy arrangement of a kind declared by the regulations to be a
recognised surrogacy arrangement;
registered relationship means a relationship that is
registered under the
Relationships
Register Act 2016
, and includes a corresponding law registered relationship under that
Act;
surrogate mother, in relation to a lawful surrogacy
agreement—see
section 10I(1)
.
(2) For the purposes of
this Part, a commercial surrogacy arrangement means a surrogacy
arrangement under which a person offers or receives payment, reward or other
material benefit or advantage for the person, or another person—
(a) agreeing to enter, or entering, the surrogacy arrangement;
or
(b) relinquishing custody and guardianship of a child born as a result of
a pregnancy relating to the surrogacy agreement to 1 or more other persons;
or
(c) consenting to
the making of an order under
Division 3
in relation to a child born as a result of a pregnancy relating to the
surrogacy agreement.
(3) For the purposes of this Part, it is irrelevant whether the
commissioning parents in respect of a particular recognised surrogacy
arrangement are of the same or a different sex or gender identity.
(4) For the purposes of this Part, a reference to the
partner of a surrogate mother will be taken to be a reference
to—
(a) if the surrogate mother is legally married—her husband;
or
(b) if the surrogate mother is in a registered relationship—the
other person in the registered relationship; or
(c) if the surrogate mother is in a qualifying relationship—the
other person in the qualifying relationship,
but, to avoid doubt, to no other person or relationship.
10G—Interaction with other
Acts
(1) This Part does not affect the operation of any law relating to the
guardianship, custody or adoption of children.
(2) For the purposes of the
Consent
to Medical Treatment and Palliative Care Act 1995
, the
Mental
Health Act 2009
or the
Guardianship
and Administration Act 1993
, or any other Act or law, a question relating to any medical treatment to
be provided to a surrogate mother or an unborn child to which a recognised
surrogacy arrangement relates (including, to avoid doubt, a question relating to
who can consent to such treatment, whether or not it relates to the pregnancy)
is to be determined as if the recognised surrogacy arrangement did not
exist.
(3) Nothing in this Part limits the operation of an advance care directive
under the
Advance
Care Directives Act 2013
.
10H—Rights of surrogate mother to manage pregnancy
and birth
(1) A surrogate mother has the same rights to manage her pregnancy and
birth as any other pregnant woman.
(2) This section applies despite any agreement of the parties to a
recognised surrogacy arrangement to the contrary.
Division 2—Lawful surrogacy
agreements
10I—Lawful surrogacy
agreements
(1) A lawful
surrogacy agreement is an agreement (however described) between a woman
(the surrogate mother) and 2 other persons (the
commissioning parents) that complies with the requirements under
this section and under which—
(a) the surrogate mother agrees to become, or try to become, pregnant;
and
(b) it is agreed that a child born as a result of the pregnancy is to be
treated as the child of the commissioning parents and not of the surrogate
mother; and
(c) the surrogate mother will relinquish custody and guardianship of the
child to the commissioning parents; and
(d) the
commissioning parents agree to become permanently responsible for the custody
and guardianship of the child.
(2) A lawful
surrogacy agreement must comply with the following provisions:
(a) only the surrogate mother and the commissioning parents can be parties
to the agreement;
(b) the surrogate mother and each of the commissioning parents must be at
least 18 years old;
(c) both of the commissioning parents must, on the day the agreement is
entered, be domiciled in this State;
(d) the commissioning parents must, on the day the agreement is entered,
be in a qualifying relationship;
(e) there must be a prescribed reason for the lawful surrogacy
agreement;
(f) the lawful surrogacy agreement must be entered before the pregnancy is
achieved;
(g) the surrogate mother has been assessed and approved under
section 10J(1)(a)
;
(h) the surrogate
mother and her partner (if any) have received counselling in accordance with
section 10J(1)(b)
or
10J(2)
(as the case requires);
(i) the commissioning
parents have each—
(i) been assessed and approved under
section 10J(3)(a)
; and
(ii) received counselling in accordance with
section 10J(3)(b)
;
(j) the pregnancy is to be achieved by the use of a fertilisation
procedure carried out in this State;
(k) except as may
be authorised under
section 10K
, human reproductive material required to achieve the pregnancy will be
provided by at least 1 of the commissioning parents;
(l) except as may be permitted under
section 10L
, no valuable consideration is payable under, or in respect of, the
agreement;
(m) the
commissioning parents must, in accordance with any requirement set out in the
regulations, undertake to 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 partner) after the birth of a child to which the agreement
relates (including, to avoid doubt, a stillbirth).
(3) A lawful surrogacy agreement must—
(a) be a written instrument; and
(b) be signed by each party to the agreement (and the signature of each
party must attested by a lawyer's certificate).
(4) The regulations may make further provisions in relation to lawful
surrogacy agreements (including, without limiting the generality of this
subsection, by requiring or limiting the inclusion of provisions of a specified
kind in lawful surrogacy agreements).
(5) Subject to this Part and to any other Act or law, the parties to a
lawful surrogacy agreement may include such other provisions in the agreement as
the parties think fit.
(6) In this section—
lawyer's certificate means a certificate signed by a lawyer,
and endorsed on the relevant lawful surrogacy agreement, certifying
that—
(a) the lawyer
explained the legal implications of the lawful surrogacy agreement to a party to
the agreement named in the certificate; and
(b) the party appeared to understand the advice given under
paragraph (a)
; and
(c) the party signed the lawful surrogacy agreement in the lawyer's
presence.
10J—Assessment and counselling
(1) For the purposes of
section 10I(2)(h)
, the surrogate mother—
(a) must be assessed
and approved as a surrogate by an accredited counselling service in accordance
with any requirements set out in the regulations; and
(b) must receive
counselling in respect of the proposed surrogacy arrangements from an accredited
counselling service in accordance with any requirements set out in the
regulations.
(2) For the purposes of
section 10I(2)(h)
, the partner of the surrogate mother must receive counselling in respect
of the proposed surrogacy arrangements from an accredited counselling service in
accordance with any requirements set out in the regulations.
(3) For the purposes of
section 10I(2)(i)
, each of the commissioning parents—
(a) must be assessed by
and approved as a commissioning parent by an accredited counselling service in
accordance with any requirements set out in the regulations; and
(b) must receive
counselling in respect of the proposed surrogacy arrangements from an accredited
counselling service in accordance with any requirements set out in the
regulations.
(4) On a person
receiving counselling under this section, the accredited counselling service
must issue to the person a certificate that complies with the requirements set
out in the regulations.
(5) Except where it is not reasonably practicable to do so, counselling
required under this section should be provided to each party to a lawful
surrogacy agreement by the same counsellor.
(6) In this section—
accredited counselling service means a person or body
accredited for the purposes of this section in accordance with the
regulations.
10K—Use of commissioning parent's human
reproductive material not necessary in certain
circumstances
For the purposes of
section 10I(2)(k)
, a pregnancy the subject of a lawful surrogacy agreement may be achieved
without the use of human reproductive material from either of the commissioning
parents if a medical practitioner is satisfied that—
(a) both of the commissioning parents appear to be infertile; or
(b) there is a medical reason why it would be preferable not to use such
human reproductive material to achieve the pregnancy.
10L—Payment or reimbursement of certain costs
permitted
(1) Payment of the reasonable surrogacy costs of a surrogate mother, or
the reimbursement of a surrogate mother for payment of reasonable surrogacy
costs, in respect of a lawful surrogacy agreement is permitted (and such
payments or reimbursements may be provided for in a lawful surrogacy agreement
accordingly).
(2) A surrogate
mother’s reasonable surrogacy costs are the reasonable costs
associated with any of the following matters (being matters related to the
agreement):
(a) pregnancy (including any attempt to become pregnant) that is the
subject of the agreement;
(b) birth or care of a child born as a result of the pregnancy;
(c) the value of the surrogate mother’s actual lost earnings because
of leave taken—
(i) for a period of not more than 2 months during which a birth happened
or was expected to happen; or
(ii) for any other period during the pregnancy when the surrogate mother
was unable to work on medical grounds;
(d) counselling or medical services (including after the birth of a
child);
(e) legal services (including after the birth of a child);
(f) reasonable out of pocket expenses incurred by the surrogate
mother;
(g) any other matter prescribed by the regulations.
(3) For the purposes of this section, a reference to legal
services includes a reference to—
(a) legal costs (including fees for obtaining legal advice and legal
representation); and
(b) court fees, registry fees associated with registration of a birth and
transfer of parentage.
(4) For the purposes of this section, a reference to costs for
medical services does not include such costs to the extent that
they are recoverable under Medicare or any health insurance or other
scheme.
Division 3—Court proceedings relating to
recognised surrogacy arrangements
10M—Interpretation
In this Division—
birth parent, of a child, means—
(a) the woman who gave birth to the child; or
(b) a man (if any) who is the father of the child under another Part of
this Act (the birth father);
birth sibling, of a child, means a brother or sister of the
child who is born as a result of the same pregnancy as the child.
10N—Extent to which recognised surrogacy
arrangements can be enforced
(1) Except as is provided for in
subsection (2)
, a recognised surrogacy arrangement, or purported recognised surrogacy
arrangement, is not enforceable.
(2) An obligation under
a recognised surrogacy arrangement to pay or reimburse the reasonable surrogacy
costs (within the meaning of
section 10L(2)
) of the surrogate mother is enforceable in a court of competent
jurisdiction unless a child is born as a result of the surrogacy arrangement and
the surrogate mother—
(a) refuses or fails to relinquish the custody and guardianship of the
child to the commissioning parents; or
(b) does not consent to the making of a parentage order.
10O—Parentage orders
(1) An application may be made by 1 or both of the commissioning parents
(being a commissioning parent domiciled in this State) in respect of a
recognised surrogacy arrangement to the Court for a parentage order in relation
to a child to whom the recognised surrogacy arrangement relates.
(2) An application for a parentage order may only be made when the child
is between the ages of 4 weeks and 6 months.
(3) Subject to
section 10P
, the Court must not make a parentage order unless satisfied
that—
(a) the making of the parentage order is in the best interests of the
child; and
(b) the child is currently residing with the commissioning parents, and
has done so for at least 28 consecutive days before the application for the
parentage order was made; and
(i) in the case of a
lawful surrogacy agreement—the requirements under
Division 2
have been complied with in respect of the agreement; or
(ii) in the case of any other recognised surrogacy arrangement—the
requirements of the law of the jurisdiction under which the arrangement was
entered have been complied with in respect of the arrangement; and
(d) the surrogate
mother freely, and with a full understanding of what is involved, agrees to the
making of the parentage order; and
(e) if only 1 of the commissioning parents has applied for the parentage
order, and the other commissioning parent is alive at the time of the
application—
(i) the other
commissioning parent consents to the making of a parentage order in favour of
the applicant commissioning parent; or
(ii) the applicant commissioning parent cannot, after making reasonable
inquiries, contact the other commissioning parent to obtain consent under
subparagraph (i)
; and
(f) the recognised surrogacy arrangement is not a commercial surrogacy
arrangement.
(4) In deciding whether to make a parentage order, the Court must take
into account any submission made to the Court by, or on behalf of, the birth
father, and may take into account anything else the Court considers
relevant.
(5) The Court may, before deciding whether to make a parentage order,
require any party to the proceedings to provide an assessment from a specified
counselling service (obtained at the expense of the commissioning parents) in
relation to the matter.
(6) If the Court makes a parentage order, the effect of the order is as
follows:
(a) the
relationship between the child and the commissioning parent or each
commissioning parent (as specified under the terms of the parentage order) is to
be treated as being that of child and parent;
(b) the
relationship between the child and any birth parent is to be treated as not
being that of child and parent; and
(c) any existing appointment of a person as guardian of the child will
cease to have effect; and
(d) the relationships of all other persons to the child are to be
determined according to the operation and effect of
paragraphs (a)
and
(b)
.
(7) The name of a
child to whom a parentage order relates will be taken the name approved by the
Court on the application of 1 or both of the commissioning parents (however,
nothing in this subsection prevents the name of the child being later changed in
accordance with another law of the State).
(8) If a child in relation to whom an application for a parentage order
has been made has a living birth sibling—
(a) the application will be taken to relate to the child and the birth
sibling; and
(b) the Court may only make a parentage order in relation to the child if
it makes a comparable order (in all respects apart from any given name or names)
in relation to the birth sibling; and
(c) this section will apply to the birth sibling in the same way as it
applies to the child.
10P—Court may dispense with certain requirements
under
section 10O(3)
(1) Subject to this section, the Court may dispense with a requirement
under
section 10O(3)(c)(i)
(being a requirement to comply with a specified requirement under
Division 2
) if satisfied that there are exceptional reasons for doing so.
(2) However, the Court must not dispense with the following requirements
under
section 10O(3)(c)
(being a requirement to comply with a specified requirement under
Division 2
or a law of another jurisdiction):
(a) a requirement that the recognised surrogacy arrangement not be a
commercial surrogacy arrangement;
(b) a requirement that the commissioning parents be in a qualifying
relationship;
(c) a requirement that the surrogate mother and each of the commissioning
parents be at least 18 years old;
(d) a requirement that the recognised surrogacy arrangement be entered
before pregnancy is achieved.
(3) Subject to this section, the Court may dispense with a requirement
under
section 10O(3)(d)
—
(a) if satisfied that the surrogate mother is dead or incapacitated;
or
(b) if satisfied that the applicants cannot contact the surrogate mother
after making reasonable inquiries; or
(c) in any other circumstances prescribed by the regulations.
(4) In each case, the Court must not dispense with a requirement under
section 10O(3)
unless satisfied that it is in the best interests of the child to do
so.
10Q—Court may discharge parentage
order
(1) The Court may,
on an application by—
(a) the Attorney-General; or
(b) the chief executive of an administrative unit of the Public Service
responsible for assisting a Minister in the administration of the
Adoption
Act 1988
,
discharge a parentage order if the Court is satisfied that—
(c) the parentage order was obtained by fraud, duress or other improper
means; or
(d) a consent relied on for the making of the parentage order was not an
effective consent because it was obtained by fraud, duress or material
inducement; or
(e) there is an exceptional reason why the parentage order should be
discharged,
and, in each case, the Court is satisfied that it is in the best interests
of the child to whom the parentage order relates to do so.
(2) If the Court
discharges a parentage order, the Court must make a declaration of the name by
which a child to whom the parentage order relates is to be known (however, a
child's first name should not be changed except in exceptional
circumstances).
(3) Nothing in
subsection (2)
prevents the name of a child being later changed in accordance with
another law of the State.
(4) The Court should not discharge a parentage order unless reasonable
efforts have been made to give notice of the application to—
(a) each of the birth parents of the child; and
(b) each of the commissioning parents under the recognised surrogacy
arrangement to which the parentage order relates; and
(c) if the Court considers it appropriate, the child.
(5) Any person may
apply for leave to intervene in an application under this section and the Court
may make an order entitling the person to intervene in the
application.
(6) A person who is permitted under
subsection (5)
to intervene in an application under this section is to be treated as a
party to the application with all the rights, duties and liabilities of a party,
unless the Court orders otherwise.
(7) The Court may,
on discharging a parentage order, make such other consequential or ancillary
orders as the Court thinks fit, including an order relating to—
(a) the ownership or possession of property; or
(b) any matter affecting the child to whom the parentage order relates in
relation to the duties, powers, responsibilities and authority which, by law,
parents have in relation to children; or
(c) the domicile of the child.
(8) If a parentage
order is discharged, the rights, duties and relationships under the law of the
State are to be determined as if the parentage order had not been
made.
(9) The discharge of a parentage order does not affect—
(a) anything lawfully done; or
(b) the consequences of anything lawfully done; or
(c) any proprietary right or interest that became vested in any
person,
while the parentage order was in force.
10R—Court to notify Registrar of Births, Deaths and
Marriages
The Registrar of the Court must, if the Court makes or discharges a
parentage order, give to the Registrar of Births, Deaths and Marriages notice
setting out such information as may be required by the Registrar of Births,
Deaths and Marriages.
10S—Access to Court records
Except as may be authorised by the Court, the records of proceedings under
this Division will not be open to inspection.
Division 4—Offences relating to unlawful
surrogacy arrangements
10T—Commercial and other unlawful surrogacy
arrangements prohibited
(1) A person who enters, or offers to enter, a commercial surrogacy
arrangement is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) A person who enters, or offers to enter, a surrogacy arrangement is
guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
(3) This section does not apply in relation to a recognised surrogacy
arrangement.
10U—Related offences
(1) A person who,
for payment or other consideration, negotiates, arranges or obtains the benefit
of a surrogacy arrangement on behalf of another is guilty of an
offence.
Maximum penalty: Imprisonment for 12 months.
(2) A person who,
for payment or other consideration, induces another to enter into a surrogacy
arrangement is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
(3)
Subsections (1)
and
(2)
apply to a surrogacy arrangement whether it is a recognised surrogacy
arrangement or otherwise.
(4) For the purposes of
subsections (1)
and
(2)
, the prosecution need not prove that—
(a) a surrogacy arrangement was, in fact, entered; or
(b) a woman became pregnant, or a child was born, pursuant to a surrogacy
arrangement.
5—Amendment
of section 15—Regulations
Section 15(2)—after paragraph (b) insert:
(ba) make provisions of an evidentiary nature in relation to a matter or
thing in respect of which regulations may be made;
Schedule 1—Related
amendments and transitional provisions
Part 1—Amendment of Assisted Reproductive
Treatment Act 1988
1—Amendment
of section 3—Interpretation
(1) Section 3—after the definition of in vitro fertilisation
procedure insert:
lawful surrogacy agreement means a lawful surrogacy agreement
under Part 2B of the
Family
Relationships Act 1975
;
(2) Section 3, definition of recognised surrogacy
agreement—delete the definition
Part 2—Amendment of Births, Deaths and
Marriages Registration Act 1996
2—Amendment
of section 4—Interpretation
(1) Section 4—after the definition of human remains
insert:
parentage order means an order under section 10O of the
Family
Relationships Act 1975
or a corresponding previous section of that Act;
(2) Section 4—after the definition of prohibited name
insert:
recognised surrogacy arrangement has the same meaning as in
Part 2B of the
Family
Relationships Act 1975
;
(3) Section 4, definition of surrogacy order—delete
the definition
3—Substitution
of Part 3 Division 6
Part 3 Division 6—delete Division 6 and substitute:
Division 6—Surrogacy
22A—Parentage orders
(1) On receipt of a
notice under section 10R of the
Family
Relationships Act 1975
(or a corresponding previous section of that Act) in relation to the
making or discharge of a parentage order about a child whose birth is registered
in this State, the particulars provided in the notice must be registered by the
Registrar in relation to the registration of the child's birth and the child's
name.
(2) Without limiting
subsection (1)
, the Registrar must, in relation to the Register, make such entries and
alterations as are necessary to give effect to the operation of
section 10O(6) or 10Q(8) (as the case requires) of the
Family
Relationships Act 1975
(or a corresponding previous section of that Act).
(3) Subject to
subsection (4)
, a certificate issued by the Registrar after the registration of the
particulars provided in a notice under section 10R of the
Family
Relationships Act 1975
(or a corresponding previous section of that Act)—
(a) must only disclose and certify up-to-date particulars contained in an
entry; and
(b) must not provide any information disclosing a change in a parent or
parents of the relevant child, or a change in the name of the child (including
by disclosing the name of, or information about, any birth parent who is no
longer considered as a parent of the child).
(a) who is the subject of a parentage order and who has attained the age
of 18 years; or
(b) who is a party to the recognised surrogacy arrangement that gave rise
to a parentage order,
is entitled to a certificate certifying all relevant entries in the
Register.
(5) On the receipt of a notice under section 10R of the
Family
Relationships Act 1975
(or a corresponding previous section of that Act) in relation to the
making or discharge of a parentage order about a child whose birth is registered
in another State, the Registrar must send a copy of the notice to the relevant
registering authority.
Part 3—Transitional
provisions
4—Continuation
of recognised surrogacy agreements
(1) A recognised surrogacy agreement under section 10HA of the
Family
Relationships Act 1975
and in force immediately before the commencement of this clause will,
subject to this clause, continue in accordance with its terms.
(2) Any matter or dispute arising under or related to a recognised
surrogacy agreement continued under this clause is, to the extent that the
matter or dispute relates to the operation of the
Family
Relationships Act 1975
, to be determined according to that Act, and any regulations or the State
Framework for Altruistic Surrogacy under that Act, as in force immediately
before the commencement of this clause.