10HB—Orders as to parents of child born under recognised surrogacy
(1) In this
"birth parent", of a child, means—
woman who gave birth to the child; or
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;
"Court" means the Youth Court of South Australia constituted of the Judge of
the Court or a magistrate.
(2) This section
applies to a child if—
child was born under the terms of a recognised surrogacy agreement; and
commissioning parents under the surrogacy agreement are domiciled in this
(3) An application may
be made to the Court for an order under this section in relation to a child.
(4) The application
may be made by either or both of the commissioning parents.
(5) The application
may only be made when the child is between the ages of 4 weeks and
(6) In deciding an
application under this section, the welfare of the child must be regarded as
the paramount consideration.
(7) In addition to
being satisfied as to the matters referred to above (including as to the
validity of the relevant agreement as a recognised surrogacy agreement), the
Court must not make an order under this section unless it is satisfied that
the surrogate mother freely, and with a full understanding of what is
involved, agrees to the making of the order.
(8) However, the Court
may dispense with the requirement under subsection (7)—
satisfied that the surrogate mother is dead or incapacitated; or
satisfied that the applicants cannot contact the surrogate mother after making
reasonable inquiries; or
any other circumstances prescribed by the regulations.
(9) In deciding
whether to make an order under this section, the Court must also take into
account the following, if relevant:
whether the child's home is, and was at the time of the application, with both
only 1 of the commissioning parents has applied for the order, and the other
commissioning parent is alive at the time of the application, whether—
the other commissioning parent freely, and with a full
understanding of what is involved, agrees to the making of an order in favour
of the applicant commissioning parent; or
the applicant commissioning parent cannot, after making
reasonable inquiries, contact the other commissioning parent to obtain his or
her agreement under subparagraph (i);
whether valuable consideration (other than as is authorised under
section 10HA(2a)(i)) has been given or received by either of the
commissioning parents, or either of the child's birth parents, for or in
the making of the order; or
the handing over of the child to the commissioning
the making of any arrangements with a view to the making
of the order;
submission made to the Court by, or on behalf of, the birth father.
(10) The Court must
also decide whether, in the opinion of the Court, the commissioning parents
are fit and proper persons to assume the role of parents of the child.
(11) The Court may
take into account anything else it considers relevant.
(12) The Court may,
before deciding whether to make an order under this section, require any party
to the proceedings to provide an assessment from a counselling service
(obtained at the expense of the commissioning parents) in relation to the
(13) If the Court
makes an order under this section, the effect of the order for the purposes of
the laws of the State will be as follows:
relationship between the child and the commissioning parent or each
commissioning parent (as specified under the terms of the order) is to be
treated as being that of child and parent;
relationship between the child and any birth parent is to be treated as not
being that of child and parent; and
relationships of all other persons to the child are to be determined according
to the operation and effect of paragraphs (a) and (b).
(14) In the making of
an order under this section in relation to a child, the child has as his or
her name such name as the Court, on the application of either or both of the
commissioning parents, approves in the order.
Subsection (14) does not prevent a name of a child being later changed in
accordance with another law of the State.
(16) If an order is
made under this section, an appointment existing at the time the order is made
of a person as the guardian of the child ceases to have effect.
(17) If a child in
relation to whom an application for an order has been made under this section
has a living birth sibling—
application will be taken to relate to the child and the birth sibling; and
Court may only make an order about the child if it makes a comparable order
(in all respects apart from any given name or names) about the birth sibling;
section will apply to the birth sibling in the same way as it applies to the