Tasmanian Bills Tasmanian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
SURROGACY BILL 2011
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - INTERPRETATIVE PROVISIONS
3. Interpretation
4. Meaning of "surrogacy arrangement", "birth mother" and
"intended parent"
5. Meaning of "birth mother's spouse" and "birth parent"
6. Meaning of "commercial surrogacy arrangement"
7. Meaning of "birth mother's surrogacy costs"
PART 3 - SURROGACY ARRANGEMENTS
8. Enforcement
9. Right of birth mother to manage pregnancy
PART 4 - PARENTAGE ORDERS
Division 1 - New surrogacy arrangements
10. Application of this Division
11. Applications for parentage orders
12. Persons who may apply for parentage orders
13. When applications for parentage orders may be made
[Bill 7]-XI
14. Making of parentage orders
15. Additional requirements if multiple births
Division 2 - Pre-existing surrogacy arrangements
16. Application of this Division
17. Applications for parentage orders
18. Persons who may apply for parentage orders
19. Making of parentage orders
Division 3 - Matters to be taken into account
20. Presumption as to best interests of child
21. Method of conception, &c., irrelevant to whether parentage order
ought to be made
Division 4 - Miscellaneous
22. Other orders
23. Appeal against decision in relation to application for parentage
order
24. Effect of parentage orders on legal relationships
PART 5 - DISCHARGE OF PARENTAGE ORDERS
25. Applications for discharge of parentage orders
26. Orders for discharge of parentage orders
27. Effect of discharge of parentage order
28. Appeal against decision granting or refusing discharge of
parentage order
PART 6 - REGISTRATION OF ORDERS
29. Duty of parents not abrogated by Act
30. Surrogacy record
31. Copy of parentage orders and orders discharging parentage
orders to be sent to registrar
32. Record of parentage orders, &c., of child born in Tasmania to be
made in birth register
33. Record of parentage orders of persons born outside Tasmania
34. Alteration of records, &c., where parentage orders discharged
35. Sending of memoranda, &c., of orders to other States, &c.
2
36. Registrar of Supreme Court may provide registrar with certain
information
37. Copies of entries in register or surrogacy record
PART 7 - OFFENCES AND PROSECUTIONS
38. Commercial surrogacy arrangements prohibited
39. Commercial brokerage or advertising of surrogacy arrangements
prohibited
40. Reporting of applications prohibited
41. Prosecutions and enforcement of certain surrogacy arrangements
PART 8 - MISCELLANEOUS
42. Hearings to be private
43. Access to court records
44. Accreditation of counsellors
45. Regulations
46. Administration of Act
3
4
SURROGACY BILL 2011
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
14 April 2011
(Brought in by the Minister for Justice, the Honourable David
John Bartlett)
A BILL FOR
An Act to provide for the transfer of parentage of children
in relation to whom certain non-commercial surrogacy
arrangements are made before their birth, to prohibit
commercial surrogacy arrangements and certain
associated actions, and for related matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Surrogacy Act
2011.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
THIS BILL IS COGNATE WITH THE SURROGACY (CONSEQUENTIAL AMENDMENTS) BILL
2011
[Bill 7] 5
Surrogacy Act 2011
Act No. of
s. 3 Part 2 - Interpretative Provisions
PART 2 - INTERPRETATIVE PROVISIONS
3. Interpretation
In this Act, unless the contrary intention
appears -
"accredited counsellor" means a person
accredited under section 44;
"birth mother" - see section 4;
"birth mother's spouse" - see section 5;
"birth mother's surrogacy costs" - see
section 7;
"birth parent" - see section 5;
"child" means a child born, or to be born, as a
result of a surrogacy arrangement, and
includes, where the context requires, an
adult who is born as a result of a
surrogacy arrangement;
"consent" means informed consent freely and
voluntarily given by a person with the
capacity to give the consent;
"corresponding law" means a law, of another
State or a Territory, that corresponds to
this Act and includes a prescribed law of
another State or a Territory;
"corresponding order" means an order that
is -
6
Surrogacy Act 2011
Act No. of
Part 2 - Interpretative Provisions s. 3
(a) a member of a prescribed class of
orders; or
(b) in the opinion of the registrar, the
equivalent, under a law of
another State, a Territory or a
foreign country, of a parentage
order;
"court" means the Magistrates Court
(Children's Division);
"intended parent" - see section 4;
"parentage order" means a parentage order
made under section 14 or section 19;
"register" means the register maintained
under section 40 of the Births, Deaths
and Marriages Registration Act 1999;
"registrar" means the Registrar of Births,
Deaths and Marriages appointed under
the Births, Deaths and Marriages
Registration Act 1999;
"relevant party", in relation to a child,
means -
(a) the birth mother of the child; or
(b) the birth mother's spouse, if any;
or
(c) the spouse, if any, of the birth
mother of the child; or
7
Surrogacy Act 2011
Act No. of
s. 4 Part 2 - Interpretative Provisions
(d) a birth parent, if any, of the child;
or
(e) each of the intended parents of
the child;
"spouse", in relation to a person, means -
(a) the husband or wife of the
person; or
(b) if the person is a party to a
significant relationship within the
meaning of section 4 of the
Relationships Act 2003, the other
party to that relationship;
"surrogacy arrangement" - see section 4;
"surrogacy record" means the surrogacy
record established under section 30.
4. Meaning of "surrogacy arrangement", "birth
mother" and "intended parent"
(1) In this Act, a "surrogacy arrangement" is an
arrangement for -
(a) a female person (the "birth mother") to
seek to become pregnant and give birth
to a child; and
(b) the child to be treated as the child of a
person or persons other than the birth
mother (the "intended parent" or
"intended parents").
8
Surrogacy Act 2011
Act No. of
Part 2 - Interpretative Provisions s. 5
(2) The birth mother and the intended parent or
intended parents in relation to a child must be
parties to a surrogacy arrangement in relation to
the child.
(3) There may be other parties to a surrogacy
arrangement, for example, a birth mother's
spouse.
(4) Also, there may be other matters dealt with in a
surrogacy arrangement.
(5) To remove any doubt, it is declared that a
surrogacy arrangement -
(a) does not include an arrangement made
after the birth mother becomes pregnant;
but
(b) may include a variation, made after the
birth mother becomes pregnant, of an
obligation under the arrangement to pay
or reimburse the birth mother's
surrogacy costs.
(6) A surrogacy arrangement may be made orally or
in writing.
5. Meaning of "birth mother's spouse" and "birth
parent"
(1) A "birth mother's spouse", for a surrogacy
arrangement, is a spouse of the birth mother at
the time when the birth mother entered into the
surrogacy arrangement.
9
Surrogacy Act 2011
Act No. of
s. 6 Part 2 - Interpretative Provisions
(2) A "birth parent", of a child, is a person (other
than an intended parent) who is recognised at
law as being a parent of the child at the time
when the child is born.
6. Meaning of "commercial surrogacy arrangement"
A surrogacy arrangement is a commercial
surrogacy arrangement if it provides for a person
to receive a payment, reward or other material
benefit or advantage (other than the
reimbursement of the birth mother's surrogacy
costs) for the person or another person -
(a) agreeing to enter into, or entering into,
the surrogacy arrangement; or
(b) giving up a child born as a result of the
surrogacy arrangement to be raised by
the intended parent or intended parents;
or
(c) consenting to the making of a parentage
order in relation to a child born as a
result of the surrogacy arrangement.
7. Meaning of "birth mother's surrogacy costs"
A birth mother's surrogacy costs are the birth
mother's reasonable costs associated with any of
the following:
(a) becoming, or trying to become, pregnant;
10
Surrogacy Act 2011
Act No. of
Part 2 - Interpretative Provisions s. 7
(b) a pregnancy or birth;
(c) the birth mother and a birth mother's
spouse (if any) receiving counselling, or
legal advice, in relation to a surrogacy
arrangement;
(d) the birth mother, a birth mother's spouse
(if any) and another birth parent (if any)
being a party to proceedings in relation
to a parentage order.
11
Surrogacy Act 2011
Act No. of
s. 8 Part 3 - Surrogacy Arrangements
PART 3 - SURROGACY ARRANGEMENTS
8. Enforcement
(1) A surrogacy arrangement is not enforceable.
(2) However, an obligation under a surrogacy
arrangement to pay or reimburse the birth
mother's surrogacy costs is enforceable if -
(a) the birth mother has tried to become
pregnant for the purposes of the
surrogacy arrangement, but no child is
born as a result of the surrogacy
arrangement; or
(b) the birth mother has become pregnant for
the purposes of the surrogacy
arrangement but, through no action taken
by or at the request of the birth mother,
no child is born as a result of the
surrogacy arrangement; or
(c) a child is born as a result of the
surrogacy arrangement, unless -
(i) the birth parent or birth parents
have not consented to the making
of a parentage order in relation to
the child; or
(ii) no parentage order is made in
relation to the child without the
consent of the birth parent or
birth parents; or
12
Surrogacy Act 2011
Act No. of
Part 3 - Surrogacy Arrangements s. 9
(d) a child is born as a result of the
surrogacy arrangement and any of the
following has occurred:
(i) no intended parent has made an
application under section 11 in
relation to the child within 6
months after the child is born;
(ii) no intended parent has made an
application under section 17 in
relation to the child within 6
months after the commencement
of Division 2 of Part 4;
(iii) all applications made under
section 11 or section 17 in
relation to the child have been
withdrawn;
(iv) no intended parent consents to the
making of a parentage order in
respect of the child.
9. Right of birth mother to manage pregnancy
(1) This section applies in relation to a surrogacy
arrangement despite anything that the parties to
the arrangement may have agreed, whether
orally or in writing.
(2) A birth mother has, while pregnant with a child,
the same right to make decisions, and to take
actions, which decisions or actions -
13
Surrogacy Act 2011
Act No. of
s. 9 Part 3 - Surrogacy Arrangements
(a) relate to the child or may affect the child;
and
(b) determine the circumstances in which she
gives birth, or does not give birth, to the
child -
as does a woman pregnant with a child to which
no surrogacy arrangement relates.
14
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 10
PART 4 - PARENTAGE ORDERS
Division 1 - New surrogacy arrangements
10. Application of this Division
This Division applies only in relation to a
surrogacy arrangement made on or after the
commencement of this section.
11. Applications for parentage orders
(1) The intended parent, or intended parents, in
relation to a child may apply to the court for a
parentage order in relation to the child.
(2) An application may only be made under
subsection (1) in accordance with sections 12
and 13.
(3) An application under subsection (1) must be -
(a) in the approved form; and
(b) accompanied by the prescribed fee; and
(c) lodged with the court.
(4) An intended parent who makes an application
under subsection (1) in relation to a child must
serve on the birth parent, or birth parents, of the
child a copy of the application.
15
Surrogacy Act 2011
Act No. of
s. 12 Part 4 - Parentage Orders
12. Persons who may apply for parentage orders
(1) A person who is, under a surrogacy arrangement,
the only intended parent in relation to a child
may apply under section 11(1) for a parentage
order in relation to the child.
(2) Subsection (1) only applies in relation to a
person if, at the time the surrogacy arrangement
is made -
(a) the person does not have a spouse; or
(b) the person is living separately and apart
from the person's spouse.
(3) If there are, under a surrogacy arrangement in
relation to a child, 2 intended parents who were,
at the time the arrangement was made, and are,
at the time of the application, spouses of one
another, an application under section 11(1) for a
parentage order in relation to the child may only
be made by both intended parents jointly.
(4) If there are 2 intended parents under a surrogacy
arrangement in relation to a child who were, at
the time the arrangement was made, spouses of
one another, but who are, at the time of the
application, no longer spouses of one another -
(a) the application may be made under
section 11(1) by both intended parents
jointly; or
(b) each of the intended parents may
separately apply under section 11(1) for a
parentage order naming him or her as
16
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 13
becoming a parent in relation to the
child.
(5) If there are 2 intended parents under a surrogacy
arrangement in relation to a child who were not,
at the time the arrangement was made, spouses
of one another, neither intended parent may
apply under section 11(1) for a parentage order
in relation to the child.
(6) An intended parent who makes, in accordance
with subsection (4)(b), an application under
section 11(1) for a parentage order in relation to
a child must ensure that, at least 14 days before
the date of the hearing in respect of the
application, the other intended parent is served
with a copy of the application.
(7) If both intended parents, in accordance with
subsection (4)(b), make separate applications
under section 11(1) for a parentage order in
relation to the child, the court must deal with the
applications together.
(8) If there are 2 intended parents under a surrogacy
arrangement in relation to a child and one of
them has died, the surviving intended parent may
apply under section 11(1) for a parentage order
in relation to the child.
13. When applications for parentage orders may be
made
(1) An application under section 11 for a parentage
order in relation to a child -
17
Surrogacy Act 2011
Act No. of
s. 14 Part 4 - Parentage Orders
(a) may be made not less than 30 days, and
not more than 6 months, after the day on
which the child is born; or
(b) may, if the application is to be made by a
person on whom a copy of an application
is served under section 12(6), be made
within 14 days after the copy is so
served; or
(c) may be made at a later time, with the
court's leave.
(2) The court may only grant leave under
subsection (1)(c) for an application to be made
under section 11 in relation to a child after 6
months after the day on which the child is born if
it considers that -
(a) there are exceptional circumstances that
justify the making of such an application
after that period; and
(b) granting leave is in the best interests of
the child.
14. Making of parentage orders
(1) The court may make a parentage order on an
application under section 11.
(2) The court may make a parentage order under
subsection (1) only if it is satisfied as to all of
the following matters:
(a) the surrogacy arrangement -
18
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 14
(i) was made after each person who
was a relevant party at the time
the arrangement was entered into
received independent legal advice
about the arrangement and its
implications and the implications
of a parentage order; and
(ii) was not a commercial surrogacy
arrangement;
(b) the intended parent or, if there are 2
intended parents, both of the intended
parents were 21 years of age or more
when the surrogacy arrangement was
made;
(c) the birth mother was 21 years of age or
more when the surrogacy arrangement
was made;
(d) each person who, at the time the
surrogacy arrangement was made, was a
relevant party received -
(i) before the child to which the
arrangement relates was
conceived; and
(ii) after the birth of the child and
before the application for a
parentage order was made -
counselling from an accredited
counsellor about the arrangement and its
social and psychological implications;
19
Surrogacy Act 2011
Act No. of
s. 14 Part 4 - Parentage Orders
(e) if there were 2 intended parents under the
surrogacy arrangement and they have not
applied jointly for the parentage order,
the intended parent who is to be named
in the order as becoming a parent of the
child has served the other intended parent
under section 12(6) with a copy of the
application within the period referred to
in that subsection;
(f) at the time of the hearing -
(i) the child is living with the
intended parent, or one of the
intended parents, who is to be
named in the order as becoming a
parent of the child; and
(ii) each intended parent who is to be
named in the order as becoming a
parent of the child is resident in
Tasmania; and
(iii) each person who is a relevant
party at the time of the hearing
consents to the making of the
parentage order;
(g) the proposed order is in the best interests
of the child.
(3) Despite subsection (2), the court may make a
parentage order even though it is not satisfied -
(a) as to a matter mentioned in
subsection (2)(a)(i), subsection (2)(d) or
subsection (2)(f)(i) and (ii); or
20
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 14
(b) that a birth parent (apart from the birth
mother or birth mother's spouse) has
consented to the making of the parentage
order as required under
subsection (2)(f)(iii); or
(c) that, where there were 2 intended
parents, both of them have consented to
the making of the parentage order as
required under subsection (2)(f)(iii) -
if the court considers that making the parentage
order is in the best interests of the child.
(4) Despite subsection (2), the court may make a
parentage order even though the birth mother, or
the birth mother's spouse, has not consented, at
the time of the hearing, to the making of the
order, if -
(a) the birth mother or birth mother's
spouse -
(i) does not have the mental capacity
to give consent; or
(ii) has died; or
(iii) cannot be contacted, despite
reasonable efforts having been
made to do so; and
(b) the child is living with an intended parent
who applied for a parentage order in
relation to the child; and
21
Surrogacy Act 2011
Act No. of
s. 15 Part 4 - Parentage Orders
(c) the court considers that making the
parentage order is in the best interests of
the child.
(5) Despite subsection (2), the court may make a
parentage order even though -
(a) one or more of the birth parents have, at
the time of the hearing, not consented to
the making of the order; or
(b) the child is not living with an intended
parent who applied for a parentage order
in relation to the child -
if the court is satisfied that -
(c) none of the birth parents is a person from
whose egg or sperm the child is
conceived; and
(d) at least one intended parent is a person
from whose egg or sperm the child is
conceived.
(6) Subject to Division 3, in deciding whether to
make the parentage order, the court may have
regard to any other matter it considers relevant.
15. Additional requirements if multiple births
(1) In this section -
"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.
22
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 16
(2) This section applies if a child has a living birth
sibling.
(3) Despite any other provision of this Act, the court
may make a parentage order under which the
child becomes a child of the intended parent or
parents named in the order only if -
(a) the court also makes a parentage order,
about each living birth sibling of the
child, under which the birth sibling
becomes a child of the intended parent or
parents; or
(b) the court considers the order will be in
the best interests of the child even if a
parentage order about each living birth
sibling of the child is not made as
mentioned in paragraph (a).
Division 2 - Pre-existing surrogacy arrangements
16. Application of this Division
This Division applies only in relation to a
surrogacy arrangement made before the
commencement of this section.
17. Applications for parentage orders
(1) The intended parent, or intended parents, in
relation to a child may apply to the court for a
parentage order in relation to the child.
23
Surrogacy Act 2011
Act No. of
s. 18 Part 4 - Parentage Orders
(2) An application under subsection (1) may only be
made in accordance with section 18.
(3) An application under subsection (1) must be -
(a) in the approved form; and
(b) accompanied by the prescribed fee; and
(c) lodged with the court.
18. Persons who may apply for parentage orders
(1) A person who is, under a surrogacy arrangement,
the only intended parent in relation to a child
may apply under section 17(1) for a parentage
order in relation to the child.
(2) Subsection (1) only applies in relation to a
person if, at the time the surrogacy arrangement
is made -
(a) the person does not have a spouse; or
(b) the person is living separately and apart
from the person's spouse.
(3) If there are, under a surrogacy arrangement in
relation to a child, 2 intended parents who were,
at the time the arrangement was made, and are,
at the time of the application, spouses of one
another, an application under section 17(1) for a
parentage order in relation to the child may only
be made by both intended parents jointly.
24
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 18
(4) If there are 2 intended parents under a surrogacy
arrangement in relation to a child who, at the
time the arrangement was made, were spouses of
one another, but who are, at the time of the
application, no longer spouses of one another -
(a) the application may be made under
section 17(1) by both intended parents
jointly; or
(b) each of the intended parents may
separately apply under section 17(1) for a
parentage order naming him or her as
becoming a parent in relation to the
child.
(5) An intended parent who makes, in accordance
with subsection (4)(b), an application under
section 17(1) for a parentage order in relation to
the child must ensure that, at least 14 days before
the date of the hearing in respect of the
application, the other intended parent is served
with a copy of the application.
(6) If there are 2 intended parents under a surrogacy
arrangement in relation to a child who were not,
at the time the arrangement was made, spouses
of one another, neither intended parent may
apply under section 17(1) for a parentage order
in relation to the child.
(7) A person on whom a copy of an application is
served under subsection (5) may make an
application under section 17(1) in accordance
with subsection (4)(b) within 14 days after the
25
Surrogacy Act 2011
Act No. of
s. 19 Part 4 - Parentage Orders
copy is so served or, with the court's leave, at a
later time.
(8) If both intended parents, in accordance with
subsection (4)(b), make separate applications
under section 17(1) for a parentage order in
relation to the child, the court must deal with the
applications together.
(9) If there are 2 intended parents under a surrogacy
arrangement in relation to a child and one of
them has died, the surviving intended parent may
apply under section 17(1) for a parentage order
in relation to the child.
19. Making of parentage orders
(1) The court may make a parentage order on an
application under section 17.
(2) The court may make a parentage order under
subsection (1) only if it is satisfied as to all of
the following matters:
(a) the surrogacy arrangement was not a
commercial surrogacy arrangement;
(b) if there were 2 intended parents under the
surrogacy arrangement and they have not
applied jointly for the order, the intended
parent who is to be named in the order as
becoming a parent of the child has served
the other intended parent under
section 18(5) with a copy of the
26
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 19
application within the period referred to
in that subsection;
(c) at the time of the hearing -
(i) the child is being raised by the
intended parent, or one of the
intended parents, who is to be
named in the order as becoming a
parent of the child; and
(ii) each intended parent who is to be
named in the order as becoming a
parent of the child is resident in
Tasmania; and
(iii) the child is under 18 years of age;
and
(iv) each person who is a relevant
party at the time of the hearing
consents to the making of the
parentage order;
(d) where the court is satisfied that the child
is able to adequately form and express
the child's opinion as to whether the
child wishes to become the child of one
or both of the intended parents, the child
consents to becoming the child of the
intended parent who is to be named in
the order as becoming a parent of the
child;
(e) the proposed order is in the best interests
of the child.
27
Surrogacy Act 2011
Act No. of
s. 19 Part 4 - Parentage Orders
(3) Despite subsection (2), the court may make a
parentage order even though it is not satisfied -
(a) as to a matter mentioned in
subsection (2)(b) or subsection (2)(c)(i),
(ii) or (iii); or
(b) that a birth parent (other than the birth
mother or the birth mother's spouse) has
consented to the making of the parentage
order as required under
subsection (2)(c)(iv); or
(c) that, where there were 2 intended
parents, both of them have consented to
the making of the parentage order as
required under subsection (2)(c)(iv) -
if the court considers that making the parentage
order is in the best interests of the child.
(4) Despite subsection (2), the court may make a
parentage order in relation to a child even though
the birth mother, or the birth mother's spouse,
has not consented, at the time of the hearing, to
the making of the order, if -
(a) the birth mother or birth mother's
spouse -
(i) does not have the mental capacity
to be able to consent; or
(ii) has died; or
28
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 19
(iii) cannot be contacted, despite
reasonable efforts having been
made to do so; and
(b) the child is being raised by an intended
parent who applied for a parentage order
in relation to the child; and
(c) the court considers that making the
parentage order is in the best interests of
the child.
(5) Despite subsection (2), the court may make a
parentage order even though -
(a) one or more of the birth parents have, at
the time of the hearing, not consented to
the making of the order; or
(b) the child is not living with an intended
parent who applied for a parentage order
in relation to the child -
if the court is satisfied that -
(c) none of the birth parents is a person from
whose egg or sperm the child is
conceived; and
(d) at least one intended parent is a person
from whose egg or sperm the child is
conceived.
(6) Subject to Division 3, in deciding whether to
make the parentage order, the court may have
regard to any other matter it considers relevant.
29
Surrogacy Act 2011
Act No. of
s. 20 Part 4 - Parentage Orders
Division 3 - Matters to be taken into account
20. Presumption as to best interests of child
It is presumed, in the absence of evidence to the
contrary, that, if all the parties to a surrogacy
arrangement in relation to a child consent, it is in
the best interests of the child for the child to
become the child of an intended parent or
intended parents, as the case may be, who have
made an application for a parentage order under
this Act.
21. Method of conception, &c., irrelevant to whether
parentage order ought to be made
The manner by which a child was conceived is
not to be taken into account in determining
whether a parentage order is to be made in
relation to the child.
Division 4 - Miscellaneous
22. Other orders
If the court makes a parentage order under
section 14 or section 19 it may make any other
order (including any orders as to the disposition
of property) that it considers is required in order
to deal with matters relating to, or arising from,
the order or the surrogacy arrangement to which
the order relates.
30
Surrogacy Act 2011
Act No. of
Part 4 - Parentage Orders s. 23
23. Appeal against decision in relation to application
for parentage order
(1) A relevant party may, under section 20 of the
Magistrates Court (Children's Division) Act
1998, appeal to the Supreme Court against a
decision under this Act granting or refusing an
application for a parentage order, as if the
relevant party were a party to the proceedings
under that Act.
(2) An application under this section may only be
made by a person within 30 days after the day on
which notice of the decision appealed against
was received by the person.
24. Effect of parentage orders on legal relationships
(1) On the making of a parentage order in relation to
a child -
(a) the child becomes a child of the intended
parent or parents named in the order as
becoming parents of the child and the
intended parent or parents named in the
order become the parents of the child;
and
(b) the child ceases to be a child of a birth
parent; and
(c) each birth parent of the child ceases to be
a parent of the child.
(2) Other relationships are determined in accordance
with subsection (1).
31
Surrogacy Act 2011
Act No. of
s. 24 Part 4 - Parentage Orders
(3) Despite subsection (1), if the relationship
between persons is relevant for the purposes of
any law relating to a sexual offence -
(a) a parentage order in relation to a child, or
the discharge of such an order, does not
cause the cessation of a relationship that
would have existed if the order, or its
discharge, as the case may be, had not
been made; and
(b) any such relationship is to be taken to
exist in addition to any relationship that
exists by virtue of the application of that
subsection in relation to that order or by
virtue of that discharge.
32
Surrogacy Act 2011
Act No. of
Part 5 - Discharge of Parentage Orders s. 25
PART 5 - DISCHARGE OF PARENTAGE ORDERS
25. Applications for discharge of parentage orders
(1) In this section -
"interested person", for an application for
discharge of a parentage order, means -
(a) the child, if he or she is 18 years
of age or more; or
(b) a relevant party in relation to the
child; or
(c) the Attorney-General.
(2) An interested person may apply to the court for
discharge of a parentage order in relation to a
child on the ground that -
(a) the parentage order was obtained by
fraud, duress or other improper means; or
(b) a consent that the court making the
parentage order considered had been
given to the making of the parentage
order was, in fact, not given or was given
for payment, reward or other material
benefit or advantage (other than the birth
mother's reasonable surrogacy costs); or
(c) there is an exceptional reason why the
parentage order should be discharged.
(3) An application under subsection (2) is to be -
33
Surrogacy Act 2011
Act No. of
s. 26 Part 5 - Discharge of Parentage Orders
(a) in the approved form; and
(b) accompanied by the prescribed fee; and
(c) lodged with the court.
26. Orders for discharge of parentage orders
(1) On an application under section 25, the court
may make an order discharging a parentage
order.
(2) A court may only make an order discharging a
parentage order if the court is satisfied of one of
the grounds mentioned in section 25(2).
(3) The court may, on an application under
section 25, make any other orders it thinks fit.
27. Effect of discharge of parentage order
(1) This section applies except to the extent that the
court orders otherwise.
(2) On the making of an order discharging a
parentage order, the rights, privileges, duties,
liabilities and relationships of the child and all
other persons are the same as if the parentage
order had not been made.
(3) However, the making of an order discharging a
parentage order does not affect -
34
Surrogacy Act 2011
Act No. of
Part 5 - Discharge of Parentage Orders s. 28
(a) anything lawfully done, or the
consequences of anything lawfully done,
while the parentage order was in force; or
(b) a right, privilege or liability acquired,
accrued or incurred while the parentage
order was in force.
28. Appeal against decision granting or refusing
discharge of parentage order
(1) Any of the following persons may, under section
20 of the Magistrates Court (Children's
Division) Act 1998, appeal to the Supreme Court
against a decision under this Act granting, or
refusing, an application for discharge of a
parentage order, as if the person were a party to
the proceedings under that Act:
(a) the child, if he or she is 18 years of age
or more;
(b) the birth parents;
(c) the intended parents named in the
parentage order as becoming parents of
the child;
(d) the Attorney-General, if he or she made
the application;
(e) another person served with the
application.
(2) An application under this section may only be
made by a person within 30 days after the day on
35
Surrogacy Act 2011
Act No. of
s. 28 Part 5 - Discharge of Parentage Orders
which notice of the decision appealed against
was received by the person.
36
Surrogacy Act 2011
Act No. of
Part 6 - Registration of Orders s. 29
PART 6 - REGISTRATION OF ORDERS
29. Duty of parents not abrogated by Act
Nothing in this Act affects the responsibility of
the persons who are parents of a child before a
parentage order is made in relation to the child to
have the child's birth registered under the Births,
Deaths and Marriages Registration Act 1999.
30. Surrogacy record
(1) The registrar is to establish and maintain a
surrogacy record.
(2) The surrogacy record is to contain the
information the registrar is required to enter in
the record under this Act.
(3) The surrogacy record is to be maintained in the
form the registrar thinks fit.
31. Copy of parentage orders and orders discharging
parentage orders to be sent to registrar
The registrar of the court must, as soon as
reasonably practicable after the making of -
(a) a parentage order; or
(b) an order discharging such an order -
37
Surrogacy Act 2011
Act No. of
s. 32 Part 6 - Registration of Orders
cause to be sent to the registrar, within the
meaning of this Act, a copy of the order.
32. Record of parentage orders, &c., of child born in
Tasmania to be made in birth register
(1) The registrar is to re-register, in accordance with
this section, the birth of a child whose birth is
registered in Tasmania, if the registrar receives -
(a) a copy of a parentage order, sent to the
registrar under section 31, in respect of
the child; or
(b) a memorandum, sent to the registrar
under a provision, of a corresponding
law, that corresponds to section 35, of
the making of a corresponding order in
respect of the child; or
(c) an application under subsection (2) for
the re-registration of a child to whom a
corresponding order relates.
(2) Any of the following persons may apply to the
registrar for the re-registration of a child, to
whom a corresponding order relates, whose birth
is registered in Tasmania:
(a) the child;
(b) a person, referred to in a corresponding
order, who was named in the order as
becoming a parent of the child.
38
Surrogacy Act 2011
Act No. of
Part 6 - Registration of Orders s. 32
(3) An application under subsection (2) is to be
accompanied by a certified copy of the
corresponding order in relation to the child.
(4) For the purposes of this section, the re-
registration of the birth of a child is to be made -
(a) by the registrar making an entry in the
surrogacy record and by endorsing that
entry with -
(i) a reference to this section; and
(ii) a reference identifying the entry
of birth of that person as shown
in the register before the
parentage order or corresponding
order was made; and
(b) by altering the entry of birth and
endorsing the entry of the birth of the
child as shown in the register with -
(i) a reference to this section; and
(ii) a reference identifying the entry,
made in relation to the child, in
the surrogacy record; and
(c) if there is a previous entry relating to the
child in the surrogacy record, by
endorsing it with a reference to the entry
of the birth of that person as re-registered
under this section.
39
Surrogacy Act 2011
Act No. of
s. 33 Part 6 - Registration of Orders
33. Record of parentage orders of persons born outside
Tasmania
The registrar, on receiving under section 31 a
copy of a parentage order in relation to a child
whose birth is not registered in Tasmania, must
cause an entry to be made in the surrogacy
record.
34. Alteration of records, &c., where parentage orders
discharged
(1) In this section -
"relevant document" means -
(a) a copy, of an order discharging a
parentage order, that is received
under section 31; or
(b) information received under
section 36 from the Registrar of
the Supreme Court about the
discharge of a parentage order; or
(c) a memorandum, of an order
discharging a corresponding
order, sent to the registrar under a
provision, of a corresponding
law, that corresponds to
section 35.
(2) The registrar, on receiving a relevant document
in relation to a child whose birth is registered in
Tasmania, must -
40
Surrogacy Act 2011
Act No. of
Part 6 - Registration of Orders s. 35
(a) cause the entry made in relation to that
person in the surrogacy record to be
cancelled; and
(b) cause the endorsement, if any, made
under section 32(4)(b) on the entry of the
birth of that person in the register to be
cancelled and reinstate the original entry
of birth as shown on the register before
the parentage order or corresponding
order was made.
(3) The registrar, on receiving under section 31 a
copy of an order discharging a parentage order in
relation to a child whose birth is not registered in
Tasmania, must cause any entry made in relation
to the child in the surrogacy record to be
cancelled.
35. Sending of memoranda, &c., of orders to other
States, &c.
(1) In this section -
"corresponding officer" means a person in
another State or a Territory who has
functions in relation to the registration of
births that correspond to those of the
registrar.
(2) If the registrar -
(a) has received under section 31 a copy of a
parentage order, or of an order
41
Surrogacy Act 2011
Act No. of
s. 36 Part 6 - Registration of Orders
discharging a parentage order, in relation
to a child; and
(b) has reason to believe the birth of the
child is registered in another State or a
Territory -
the registrar must cause a memorandum,
certified to contain a true copy of the order, to be
sent to the corresponding officer of that State or
Territory.
36. Registrar of Supreme Court may provide registrar
with certain information
The Registrar of the Supreme Court may provide
information to the registrar in relation to the
making or discharge of parentage orders.
37. Copies of entries in register or surrogacy record
(1) On application, the Registrar must issue, subject
to the same terms, conditions and regulations as
to the payment of fees and otherwise as are
applicable under the Births, Deaths and
Marriages Registration Act 1999, an extract
from, or certified copy of, an entry in the register
or the surrogacy record.
(2) An extract from, or certified copy of an entry in,
the register or the surrogacy record is not to
contain a reference to any matter referred to in
section 32(4)(a).
42
Surrogacy Act 2011
Act No. of
Part 7 - Offences and Prosecutions s. 38
PART 7 - OFFENCES AND PROSECUTIONS
38. Commercial surrogacy arrangements prohibited
A person must not enter into, or offer to enter
into, a commercial surrogacy arrangement.
Penalty: Fine not exceeding 100 penalty units.
39. Commercial brokerage or advertising of surrogacy
arrangements prohibited
(1) In this section -
"payment" means -
(a) payment in money or money's
worth, other than payment of the
birth mother's reasonable
surrogacy costs; and
(b) for reward or other material
benefit or advantage, other than
payment of any of the birth
mother's reasonable surrogacy
costs.
(2) A person must not, for payment, or in
anticipation of payment -
(a) initiate or take part in any negotiations
with a view to the making of a surrogacy
arrangement; or
43
Surrogacy Act 2011
Act No. of
s. 40 Part 7 - Offences and Prosecutions
(b) offer or agree to negotiate the making of
a surrogacy arrangement; or
(c) compile any information with a view to
its use in making, or negotiating the
making of, any surrogacy arrangements;
or
(d) knowingly cause another person to do
any of the acts referred to in
paragraph (a), (b) or (c).
Penalty: Fine not exceeding 100 penalty units.
40. Reporting of applications prohibited
(1) In this section -
"relevant matter" means -
(a) a consent given, or dispensed
with, under this Act or under a
law of another State or a
Territory, for a parentage order, a
corresponding order, or the
discharge of either such order; or
(b) an application made under this
Act, or under a law of another
State or a Territory, for a
parentage order, a corresponding
order, or the discharge of either
such order; or
(c) the proceedings on an application
referred to in paragraph (b).
44
Surrogacy Act 2011
Act No. of
Part 7 - Offences and Prosecutions s. 40
(2) A person must not at any time publish, or cause
to be published, in relation to a relevant matter -
(a) the name of any intended parent; or
(b) the name of a child; or
(c) the name of the birth mother, the birth
mother's spouse, a birth parent or a
guardian of the child; or
(d) any matter reasonably likely to enable
any of those persons to be identified.
(3) In subsection (2), to publish means to publish in
a newspaper or periodical, or by means of
broadcasting, television, on the internet or public
exhibition.
(4) Subsection (2) does not apply in relation to the
publishing of matter -
(a) with the authority of the court -
(i) to which the application for a
parentage order, a corresponding
order, or the discharge of either
such order, is made; or
(ii) to which an application is made
under subsection (5); or
(b) that consists of information that has been
obtained under Part 6 by the person
publishing it.
(5) A person who is a relative of a child may apply
to the court for authority to publish matter, in
45
Surrogacy Act 2011
Act No. of
s. 41 Part 7 - Offences and Prosecutions
relation to a child, to which subsection (2)
applies, if the child is 18 years of age or more.
41. Prosecutions and enforcement of certain surrogacy
arrangements
(1) Section 8 applies in relation to a surrogacy
arrangement (other than a commercial surrogacy
arrangement) made before the commencement of
this section even though the arrangement was,
under the Surrogacy Contracts Act 1993, illegal
and void.
(2) A person is not liable to be prosecuted for an
offence against the Surrogacy Contracts Act
1993, other than an offence for which the person
could have, under this Act, been found guilty, if
this Act had been in force at the relevant time.
46
Surrogacy Act 2011
Act No. of
Part 8 - Miscellaneous s. 42
PART 8 - MISCELLANEOUS
42. Hearings to be private
(1) An application under this Act must not be heard
in open court.
(2) Persons who are not parties to proceedings in
relation to an application under this Act, or their
legal representatives, are, except as otherwise
directed by the court, to be excluded during the
hearing of such an application.
(3) A court may, at the hearing of an application
under this Act -
(a) at any time during the hearing, order a
child to leave the room or other place in
which the court is hearing the application
if it is of the opinion that such an order
should be given in the interests of the
child; and
(b) order a person to leave the room or other
such place during the examination of a
witness.
43. Access to court records
(1) In this section -
"record of proceedings" includes -
(a) a written transcript of the
proceedings; and
47
Surrogacy Act 2011
Act No. of
s. 44 Part 8 - Miscellaneous
(b) the documents in the court file for
the proceedings; and
(c) an appeal book in relation to the
proceedings.
(2) A person may not have access to the record of
proceedings in the court or the Supreme Court in
relation to a proceeding under this Act or an
appeal under the Magistrates Court (Children's
Division) Act 1998 under section 23 or
section 28 unless the court or Supreme Court,
respectively, has, on application by the person,
given approval to the access.
(3) Only the following persons may apply to a court
for approval to the access to a record in
proceedings referred to in subsection (2) in
relation to a child:
(a) the child;
(b) a birth parent;
(c) an intended parent;
(d) the Attorney-General.
(4) The court may give access to all or part of the
record of proceedings.
44. Accreditation of counsellors
The Secretary of the Department may, by notice
in writing, accredit as a counsellor for the
purposes of this Act a person who, in the
48
Surrogacy Act 2011
Act No. of
Part 8 - Miscellaneous s. 45
Secretary's opinion, has appropriate
qualifications and experience.
45. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may require any information or
document that is required to be provided or
given to any person, for the purposes of the
regulations, to be verified by statutory
declaration.
(3) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(4) The regulations may -
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units.
(5) The regulations may authorise any matter to be
from time to time determined, applied, approved
or regulated by the registrar or any other person
or body specified in the regulations.
49
Surrogacy Act 2011
Act No. of
s. 46 Part 8 - Miscellaneous
46. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Justice; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
50 Government Printer, Tasmania