South Australian Current Acts

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FAMILY RELATIONSHIPS ACT 1975 - SECT 10HB

10HB—Orders as to parents of child born under recognised surrogacy arrangements

        (1)         In this section—

"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;

"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—

            (a)         the child was born under the terms of a recognised surrogacy agreement; and

            (b)         the commissioning parents under the surrogacy agreement are domiciled in this State.

        (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 months.

        (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)—

            (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.

        (9)         In deciding whether to make an order under this section, the Court must also take into account the following, if relevant:

            (a)         whether the child's home is, and was at the time of the application, with both commissioning parents;

            (b)         if 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—

                  (i)         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

                  (ii)         the applicant commissioning parent cannot, after making reasonable inquiries, contact the other commissioning parent to obtain his or her agreement under subparagraph (i);

            (c)         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 consideration of—

                  (i)         the making of the order; or

                  (ii)         the handing over of the child to the commissioning parents; or

                  (iii)         the making of any arrangements with a view to the making of the order;

            (d)         any 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 matter.

        (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:

            (a)         the 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;

            (b)         the relationship between the child and any birth parent is to be treated as not being that of child and parent; and

            (c)         the 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.

        (15)         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

            (a)         the application will be taken to relate to the child and the birth sibling; and

            (b)         the 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; and

            (c)         this section will apply to the birth sibling in the same way as it applies to the child.



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