Surrogacy advice and agreements
The legislation with respect to altruistic surrogacy arrangements differs in each State and Territory in Australia. Commercial surrogacy arrangements are currently prohibited and not recognised throughout Australia and, in some jurisdictions (New South Wales, Queensland and the Australian Capital Territory), it is considered a criminal offence to intentionally enter into a commercial surrogacy arrangement.
The relevant legislation with respect to entering into a surrogacy arrangement in Victoria is the Assisted Reproductive Treatment Act 2008 (Vic) (“the ART Act).
Parties to a surrogacy arrangement
The parties to a surrogacy arrangement are know as:
The intended parent/s – means the person or persons who enter into the surrogacy arrangement for a woman to carry a child on that person or persons behalf.
The surrogate – the woman who carries and gives birth to the child as a result of a surrogacy arrangement.
The partner of a surrogate is:
The surrogate’s spouse (other than a spouse from whom the person has separated); or
A person who lives with the Surrogate as a couple on a genuine domestic basis, irrespective of gender.
Approval of a surrogacy arrangement
In Victoria, for parties to enter into a surrogacy arrangement to be conducted by a registered assisted reproductive technology (ART) provider, they first must seek approval from the Patient Review Panel. The Patient Review Panel must be satisfied of the following:
The intended parent/s must be:
At least 18 years of age;
Unlikely to become pregnant, be able to carry a pregnancy or give birth; or, if the intended parent is a woman, the woman is likely to place her life or health, or that of the baby at risk if she becomes pregnant, carries a pregnancy or give’s birth; and
Residents of Victoria.
The surrogate must:
Be at least 25 years of age;
Not use her own oocyte (eggs) for the purpose of the surrogacy arrangement; and
Must have previously carried a pregnancy and given birth to a live child.
It is not required that the surrogate is a resident of Victoria.
Both the intended parent/s and the surrogate (and the surrogate’s partner (if she has one) must have received counselling and legal advice about the implications of entering into a surrogacy arrangement.
The Patient Review Panel can approve both gestational and traditional surrogacy arrangements.
Written agreements
It is open for the parties to a surrogacy arrangement to enter into a written agreement, however, there is no legal requirement to do so, and it is not enforceable, save with respect to provisions in relation to the reimbursement of costs.
Payments in surrogacy arrangements
A surrogate cannot receive a material benefit from entering into a surrogacy arrangement, however, the surrogate (and her partner) can be reimbursed for costs incurred as a direct result of the surrogacy arrangement. The legislation refers to what type of costs can be reimbursed.
Advertising
The legislation prohibits intended parents from advertising their need for a surrogate and the surrogate advertising their desire to act as a surrogate, and all parties from publishing details about any surrogacy arrangement.
Parentage of the child born as a result of a surrogacy arrangement
The surrogate and her partner (if she has one) will be the deemed to be the legal parents of the child born as a result of a surrogacy arrangement, pursuant to the Status of Children Act 1974 (Vic). This is the position under both State and Federal Law.
The intended parents can apply to the County Court of Victoria pursuant for a Substitute Parentage Order, for them to be recognised at the child’s legal parents.
The perquisites for making a Substitute Parentage Order Application in Victoria are:
The child must be conceived as a result of a procedure carried out in Victoria;
The intended parents must live in Victoria at the time of making the application;
The application must be made no earlier than 28 days after the birth of the child and no later than six months following the birth (without leave of the Court).
The Court will grant a Substitute Parentage Order upon being satisfied of the following:
That making the Order is in the best interests of the child;
That the surrogacy arrangement was commissioned with the assistance of a registered Assisted Reproductive Treatment ("ART") provider;
That the Patient Review Panel approved the surrogacy arrangement before the arrangement was entered into;
That the child was living with the intended parents at the time the application was made;
That the surrogate nor her partner received any material benefit or advantage for the surrogacy arrangement; and
That the surrogate mother freely consents to the making of the Order.
Liz Weldon is experienced in providing advice to both intended parents and surrogates on all aspects of domestic surrogacy arrangements, as well as assisting intended parents to prepare an application to the County Court of Victoria for Substitute Parentage Order.
Liz can also provide advice where parties to a surrogacy arrangement do not live in the same State as each other.
It is not a legal requirement that parties to a surrogacy arrangement in Victoria have a formal surrogacy agreement place, however, Liz can assist in drafting or reviewing any proposed written surrogacy agreement.
