Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
SURROGACY BILL 2010
Clause 1: Short title
sets out the name of the proposed Act
Surrogacy Act 2010
Clause 2: Commencement
provides that the bill will commence on a day
or days to be proclaimed.
Clause 3: Interpretation
defines certain words and expressions used in
the proposed Act eg
"consent" means informed consent freely
and voluntarily given by a person with capacity
to give consent.
"relevant party" includes birth mother, birth
mothers spouse (at time of agreement and
time of birth) and intended parents.
"spouse" includes husband and wife and
parties to a significant relationship.
Clause 4: Meaning of "surrogacy arrangement",
"birth mother" and "intended parent"
defines the terms "surrogacy arrangement",
"birth mother" and "intended parents"
Clause 5: Meaning of "birth mother's spouse" and
"birth parent"
defines the terms "birth mother's spouse" and
"birth parent"
Clause 6: Meaning of "commercial surrogacy
arrangement"
outlines what constitutes a "commercial
surrogacy arrangement" (which is
unenforceable).
Clause 7: Meaning of "birth mother's surrogacy
costs"
defines the term "birth mother's surrogacy
costs"
Clause 8: Enforcement
provides that a surrogacy arrangement itself is
not enforceable (e.g a birth mother can never
be forced to give up the child she gives birth
to), but an obligation that the intended
parent/s pay the birth mother's surrogacy
costs is enforceable in a number of
circumstances. Broadly, a costs arrangement
may be enforced where a birth mother has
tried to become pregnant and fails, the birth
mother becomes pregnant but the pregnancy
fails, a child is born and parentage is
transferred to the intended parents or a child
is born and the intended parents then refuse
to take it.
Clause 9: Right of birth mother to manage
pregnancy
provides that the birth mother has the same
rights to manage her pregnancy as any other
woman does.
Clause 10: Application of Division
provides that clauses 12 to 16 inclusive only
apply in relation to surrogacy arrangements
made on or after the commencement of clause
11.
Clause 11: Applications for parentage orders
provides that the intended parent or parents
may apply to the court for a parentage order
and explains how this is to be done
Clause 12: Persons who may apply for parentage
orders
provides more detail on who may apply for
parentage orders. If there is one intended
parent, then that person must not have had a
spouse at the time the surrogacy arrangement
was entered into. If a person is part of a
couple, then each person must be a party to
the surrogacy arrangement. It is in the best
interests of the child if this is the case as both
parties will be involved in the child's
upbringing. If there are two intended parents
who are spouses, they must apply together for
the parentage order. If the parties have
separated since the surrogacy arrangement
was entered into, this clause provides the
mechanisms for applying to the court and
possibly making an order in favour of one of
the intended parents. Subsection 5 has the
effect of providing that if there are two
intended parents, they must be in a spousal
relationship with one another, they cannot
simply be two people who are not connected
by a spousal arrangement, such as two friends.
Clause 13: When applications for parentage orders
may be made
unless there are exceptional circumstances, an
application for a parentage order is to be made
not less than 30 days and not more than 6
months after the birth of the child.
Clause 14: Making parentage orders
outlines the conditions which the court must
be satisfied of before a parentage order can be
made.
These include legal advice, counselling, the age
of the birth mother, consent of all relevant
parties and most importantly that the order
would be in the best interests of the child.
There is provision made for the court to waive
conditions in relation to counselling, legal
advice and residence if it is in the best
interests of the child that the parentage order
be made despite the fact that these conditions
have not been met.
All parties must consent to the making of the
parentage order but the court may waive this
in certain circumstances where it is in the best
interests of the child. These include that only
one of the intended parents consents to the
making of the parentage order (this will cover
situations where the intended parents have
separated since the surrogacy arrangement
was entered into and are now contesting
custody). Consent of the birth mother or the
birth mother's spouse may also be waived
where the court is satisfied that they do not
have the mental capacity to give consent, they
have died or they are uncontactable.
The clause also provides that where the birth
parents have not contributed either egg or
sperm for the conception of the surrogate
child, and at least one of the intended parents
has contributed either an egg or sperm to
enable the conception of the surrogate child,
the court may make a parentage order in
favour of the intended parents even though
the birth parents have not consented to the
making of the order and even though the
surrogate child is not living with the intended
parents.
Clause 15: Additional requirements if multiple
births
outlines what orders the court is to make if
there is a multiple birth generally an order
would not be made that would separate the
twins/triplets.
Clause 16: Application of this Division
provides that clauses 18 to 21 apply to
surrogacy arrangements that were entered
into prior to the commencement of this Act
(pre-existing surrogacy arrangements).
Clause 17: Applications for parentage orders
outlines how an application is made in relation
to a pre-existing surrogacy agreement.
Clause 18: Persons who may apply for parentage
orders
outlines who may apply for a parentage order
in relation to a pre-existing surrogacy
arrangement. It essentially mirrors the
requirements of clause 12.
Clause 19: Making of parentage orders
outlines the matters a court must be satisfied
of before it can make a parentage order in
relation to a pre-existing surrogacy
arrangement. The clause also allows the court
to waive certain pre-conditions where it is in
the best interest of the child to do so. This
clause is similar to clause 14 and will not
enable orders where the arrangement was a
commercial surrogacy arrangement but
recognises the fact that the child is likely to
have been with the proposed parents for an
extended period and may be old enough to
express his or her own views on the intended
order. In any event, subject to s 20, the best
interests of the child are still paramount.
The clause also provides that where the birth
parents have not contributed an egg or sperm
to the surrogate child, and at least one of the
intended parents has contributed either an egg
or sperm to the surrogate child, the court may
make a parentage order in favour of the
intended parents even though the birth
parents have not consented to the making of
the order and even though the surrogate child
is not living with the intended parents.
Clause 20: Presumption as to best interests of child
creates a presumption that, unless there is
evidence to the contrary, if all the parties to a
surrogacy arrangement consent to the making
of a parentage order, it is in the child's bests
interests to become the child of the intended
parents.
It also creates the presumption that, unless
there is evidence to the contrary, it is
presumed to be in the best interests of the
child that a parentage order is made in favour
of the intended parents where the birth
parents have not contributed an egg or sperm
to the child and at least one of the intended
parents have contributed an egg or sperm to
the child.
Clause 21: Method of conception, &c, irrelevant to
whether parentage order ought to be
made
makes it clear that the method of conception
of the surrogate child is not a matter which
affects the making of an order.
Clause 22: Other orders
gives the court the power to make any other
orders which it thinks are required as a result
of the making of a parentage order.
Clause 23: Appeal against decision in relation to
application for parentage order
provides a right of appeal to the Supreme
Court.
Clause 24: Effect of parentage orders on legal
relationships
outlines the effect a parentage order has on
the legal relationship of the parties involved
the child becomes the child of the new parents
for all purposes. There is a saving provision
which deals with criminal offences such as
incest where a familial relationship may be
relevant.
Clause 25: Applications for discharge of parentage
orders
outlines who may apply and how to apply for
the discharge of a parentage order and on
what grounds an application for discharge can
be made. These grounds are essentially that
the order was obtained by fraud or duress,
consent that was give to the original order
was, in fact, not given or was given for reward
or payment (except the birth mother's
reasonable surrogacy costs), or there is an
exceptional reason why the order should be
discharged.
Clause 26: Orders for discharging parentage orders
allows the court to make on order discharging
a parentage order.
Clause 27: Effect of discharge of parentage order
outlines the legal effect that a discharge of a
parentage order will have. Essentially, the
discharge of the order will mean that things
revert to being as it the parentage order had
not been made.
Clause 28: Appeal against decision granting or
refusing discharge of parentage order
outlines how an appeal against a decision to
discharge a parentage order is to be made and
by whom.
Clause 29: Duty of birth mother not abrogated by
Act
confirms that the birth mother must still
register the birth of the child in accordance
with the Births, Deaths and Marriages
Registration Act 1999.
Clause 30: Surrogacy record
Provides that the Registrar of Births, Deaths
and Marriages is to establish and maintain a
surrogacy record and outlines how it is to be
maintained.
Clause 31: Copy of parentage orders and orders
discharging parentage orders to be sent
to registrar
Requires the Registrar of the Court to send to
the Registrar Births, Deaths and Marriages a
copy of parentage orders made or discharged.
Clause 32: Record of parentage orders, &c., of child
born in Tasmania to be made in birth
register
outlines how the Registrar, Births, Deaths and
Marriages creates a surrogacy record in
relation to a child born in Tasmania. The
Registrar re-registers the birth of a child who
has had a parentage order made in relation to
them. An entry is made in the surrogacy
record showing the information that was held
in the register before the parentage order was
made.
Clause 33: Record of parentage orders of persons
born outside Tasmania
if the Registrar, Births Deaths and Marriages,
receives a memorandum of a parentage order
in relation to a child whose birth is not
registered in Tasmania, the Registrar must
make an entry in the surrogacy record.
Clause 34: Alteration of records, &c., where
parentage orders discharged
outlines what the Registrar, Births Deaths and
Marriages, is to do when a parentage order is
discharged. This section applies in relation to
both children whose birth is registered in
Tasmania and those whose birth is registered
elsewhere.
Clause 35: Sending of memoranda, &c., of orders to
other States, &c.
provides that the if the Registrar, Births,
Deaths and Marriages, receives a
memorandum of a parentage order in relation
to a child who the Registrar believes was born
in another state or territory of Australia, the
registrar must send information to the
relevant person in another jurisdiction.
Clause 36: Registrar of Supreme Court may
provide registrar with certain
information
allows the Registrar of the Supreme Court to
provide information to the Registrar, Births
Deaths and Marriages, in relation to parentage
orders made or discharged in the Supreme
Court.
Clause 37: Copies of entries in register or surrogacy
record
provides that the Registrar of Births, Deaths
and Marriages is able to issue information in
relation to the birth register of the surrogacy
record in accordance with the provisions of
the Births, Deaths and Marriages Act 1999.
Clause 38: Commercial surrogacy arrangements
prohibited
makes it an offence to enter into, or offer to
enter into, a commercial surrogacy agreement.
Clause 39: Commercial brokerage or advertising of
surrogacy arrangements prohibited
makes commercial brokerage or advertising in
relation to surrogacy an offence.
Clause 40: Reporting of applications prohibited
places limitations on the reporting of
applications.
Clause 41: Prosecutions and enforcement of certain
surrogacy arrangements
provides that prosecutions under the Surrogacy
Contracts Act 1997 are not to occur, unless the
prosecution is for an offence which is also an
offence under this Act.
Clause 42: Hearings to be in private
provides that hearings in relation to surrogacy
arrangements are to be held in private
Clause 43: Access to court records
places limitations on who may access court
records in relation to surrogacy proceedings.
Clause 44: Accreditation of counsellors
the Secretary, Department of Justice, may
accredit appropriately qualified people as
counsellors for the purpose of this Act.
Clause 45: Regulations
provides the Governor with regulation making
powers.
Clause 46: Administration of Act
provides the administrative arrangements in
relation to the Act.