Surrogacy is becoming an increasingly popular alternative for Australians seeking to start a family. However, under South Australian law, for a surrogacy arrangement to be legal it must meet specific conditions set out in the Family Relationships Act 1975. The consequences of not complying with the Act could result in the Courts refusing to grant a parenting Order which recognises the recipient parents as the legal parents of the child, or potentially 12 months imprisonment for assisting in commercial surrogacy. Below are some important factors of which people considering surrogacy should be aware:
1. Providing any kind of financial benefit to a surrogate mother in exchange for her carrying a child is illegal in Australia, save for costs in connection with the pregnancy.
2. At least one of the parents-to-be must provide their reproductive material to create the embryo, unless a medical practitioner issues a certificate asserting a medical reason against using their reproductive material
3. The parents-to-be must be residents in South Australia and either:
- legally married; or,
- have lived together in a “marriage-like” relationship for 3 years
4. A surrogacy agreement will not be legal unless it appears unlikely that one of the parents-to-be would become pregnant or be able to carry a pregnancy; or there is a risk of harm to the baby or mother if she became pregnant.
5. The child must be conceived as a result of a fertilization procedure carried out in South Australia.
To formalise a surrogacy agreement,
- the document must be in writing and signed by each party to the agreement;
- the signatures of each party must be attested by a lawyer's certificate; and,
- the certificate of the surrogate mother must be given by an independent lawyer.
There are many more requirements under this complex area of the law, and anyone seeking further advice is welcome to call 8227 1970 to talk to one of our experienced solicitors.