SURROGACY

SURROGACY is an ARRANGEMENT where a woman, known as the surrogate, agrees to carry a child in pregnancy for the intended parents. There are two main types of surrogacy: gestational surrogacy and traditional surrogacy.

There have been several international news stories recently involving Australian same-sex couples who were intended parents in commercial surrogacy arrangements.

Gestational surrogacy

Gestational surrogacy is where the pregnancy results from the transfer of an embryo created by IVF using the father’s or donor sperm and the genetic mother’s egg, so that the child is not genetically related to the surrogate.

Traditional surrogacy

Traditional surrogacy is when the surrogate becomes pregnant naturally or artificially with the donor or father’s sperm and her own egg, so the child is genetically related to the surrogate and not the intended mother or mothers.

Commercial surrogacy

If a surrogate receives monetary compensation for the pregnancy on top of medical and other reasonable expenses, then the arrangement is considered a “commercial surrogacy”.

Altruistic surrogacy

If the surrogate is carrying the child for other reasons, and receives no money other than medical expenses related to the pregnancy, then this is known as an “altruistic surrogacy”.

Rules & regulations

Altruistic surrogacy in Australia is regulated by States and Territories. Federal legislation is used to regulate commercial surrogacy, albeit illegal in Australia. However, ART clinics are regulated under Federal law and State law. This makes it very complicated for fertility clinics and intended parents to know what they can and can’t do. It also makes it very difficult for intended parents going from State to State within Australia.

Altruistic surrogacy is regulated throughout Australia. With an altruistic surrogacy in NSW, the surrogate can only receive payment for “reasonable costs” relating to the pregnancy and birth, such as the surrogate’s medical expenses, the surrogate’s lost earnings and the surrogate’s legal and counselling costs.

Commercial surrogacy is illegal in all states and territories in Australia, except for the Northern Territory where no laws currently exist around surrogacy arrangements.[i]

In NSW, Section 8 of the Surrogacy Act 2010 (NSW) prohibits commercial surrogacy, and the penalty for an offence under this section is a fine of 1000 penalty units (one penalty unit is $110) or two years in jail.

The only fertility clinic in the Northern Territory is subject to federal and South Australian laws.

It is believed that only one in twenty surrogacy arrangements take place in Australia (in an altruistic surrogacy arrangement), with almost all cases involving foreign surrogates (in a commercial surrogacy arrangement) from southeast Asia and the United States.[ii]

The process

Most states have requirements for how altruistic surrogacy arrangements are to be carried out; you should check with a lawyer in your state for exact requirements.

Until a transfer of parentage order (to the intended parents) is made by the court, the surrogate and her partner are recognised as the legal parents. This is one of the major issues with altruistic surrogacy arrangements. Intended parents may find themselves in a situation where the surrogate changes her mind about handing the baby over to the intended parents and a court battle may ensue over a parenting order. As the surrogate is legally the parent, the Court will allow the surrogate to renege on the agreement. The surrogacy agreement is not binding.

Is there disrcimination for lesbians

Until as recently as November 2016, several states in Australia still discriminated against lesbians seeking to have children via a surrogate.

In August 2016, the exemptions under the Sex Discrimination Act 1984 (Cth) ended. These exemptions included; allowing a doctor or fertility clinic to deny a woman IVF because she was not married, or because she was a lesbian.

Under state law, Queensland[iii], Tasmania[iv], New South Wales[v], South Australia[vi] and Victoria[vii] do not discriminate against lesbians in surrogacy arrangements. However, in Queensland, Section 45A of the Anti-Discrimination Act 1991 (Qld) allows for discrimination on the basis of relationship status and sexuality in the provision of assisted reproductive services (ART) services.

The Australian Capital Territory does not discriminate against lesbians, but requires the intended parents and the surrogate to be part of a couple, meaning single lesbians can’t access surrogacy.[viii] In Western Australia, single lesbians can access surrogacy, but lesbian couples can’t.[ix]

Until as recently as March 2017, South Australia did not allow ART for lesbian couples or single lesbians, as the Act specified that the intended parents must be married, or living in a de facto relationship (for at least 3 years) as husband and wife.[x] In March 2017, same-sex couples and single lesbians were granted access to altruistic surrogacy arrangements and IVF under the Statutes Amendment (Surrogacy Eligibility) Act 2017 and amendments to the Family Relationships Act 1975.

The Northern Territory has no legislation that deals with surrogacy, and therefore no clinics that will provide these services.

However, because the exemptions under the Sex Discrimination Act 1984 (Cth) no longer apply, state law may be overruled and fertility clinic providers obliged to provide IVF treatment to lesbians, including single lesbians, irrespective of each states’ law. Problems still may arise in surrogacy situations for intended parents under state law, so you should seek legal advice specific to your situation.

Sending your eggs, sperm or embryos overseas

Most clinics and states in Australia have different requirements with respect to sending eggs, sperm, or embryos overseas. As well as complying with Australian laws and clearing quarantine authorities in Australia, you will also have to comply with the laws of the country you are sending the genetic material to.

Given that commercial surrogacy is illegal in Australia, many clinics are hesitant, or won’t send embryos overseas if they think they may be used for a commercial surrogacy arrangement.

Buying eggs, sperm or embryos in Australia

Under federal laws in Australia, which override state laws, it is an offence to pay a sperm, egg, or embryo donor anything other than out of pocket expenses. This offence carries a punishment of up to 15 years in jail.[xi] This only applies to a donor agreement that occurs within Australia.

The laws in each state differ and some extend to overseas jurisdictions, so it is important to get specific legal advice if you are entering into a surrogacy or donor gamete agreement in Australia or overseas.

Many Australians have no choice but to look overseas for donor eggs, embryos, and sperm, given the chronic shortage of these here. In the past few years there has been a rise in egg donor websites and now also Apps, alleviating the shortage somewhat, but it is still common for Australians to travel overseas for their reproductive genetic needs.

In Australia, all egg, embryo, and sperm donors are required to have counselling. The counsellor must be a member of the Australian and New Zealand Infertility Counsellors Association (ANZICA).

If you are importing sperm, embryos, and eggs to Australia, then you may also be required to have counselling. You may only be allowed to use sperm, eggs, and embryos where the donor has agreed to have their identity released when the child turns 18.

Overseas surrogacy arrangements

Because of the legal complexities around surrogacy in Australia, most surrogacy arrangements take place overseas in countries such as the United States, Canada, Cyprus, Ukraine (heterosexual couples) and Malaysia. It is illegal for foreigners to engage in commercial surrogacy in Mexico, India, Thailand[xii], Cambodia and Nepal.

Commercial surrogacy arrangements undertaken within Australia are illegal in all states, except the Northern Territory, where there is no legislation.

It is a criminal offence for a person who is a resident of Queensland, New South Wales, or the Australian Capital Territory to enter into an overseas commercial surrogacy arrangement (where a surrogate or an agency is paid a fee). The maximum penalty for an offence in relation to a commercial surrogacy arrangement, depending on the state you live in, may be up to three years in jail.

The law in Western Australia states that if the arrangements for an overseas surrogacy are made in Western Australia, an offence is committed there.[xiii]

If you have undertaken a surrogacy arrangement overseas, you will have to make arrangements to obtain a passport for your child to bring them to Australia. To do so, you will need to apply for either Australian citizenship by descent or apply for a permanent visa for the child. Where a child becomes an Australian citizen by descent, you will also need to apply for an Australian passport for the child.[xiv] Additional DNA testing and/or other evidence may also be required to demonstrate the parent-child relationship. Where an international surrogacy arrangement is declared or detected, medical procedure records and surrogacy agreement documents will be required to support the application. Seek advice from an immigration lawyer as well as a family lawyer who has expertise in assisted conception law, prior to embarking on an overseas surrogacy arrangement.

Because of the ban on payments to and advertising for surrogates, as well as international costs, commercial surrogacy is not a realistic option for most lesbians.

Because the laws are complex, variable by state, in a rapid state of flux, and with serious consequences (jail time), it is essential that you obtain the advice of a lawyer who has experience with altruistic and commercial surrogacy law. Despite commercial surrogacy being made illegal in Australia, no one has actually been prosecuted in a criminal court, although parents have been referred to the DPP for prosecution.

International surrogacy arrangements need to be planned very carefully; I cannot overstate the necessity of consulting a surrogacy lawyer specialist if you are considering this option, or even if you are already in the process.

Issues faced by intended lesbian parents

In Australia, a woman who gives birth to a child is the legal parent. This means that even if the surrogate is carrying a child for another couple and is not related to the child biologically, from a legal perspective, she is the mother. If the birth mother decides she wants to keep the baby, then at law she is the legal parent.

The genetic mother can face legal difficulties gaining rights as the legal parent and terminating the surrogate mother’s rights. This can only be done through a parenting order (through the Family Court) or adoption (through the Supreme Court) by the genetic mother and her partner and also by second parent adoption. The surrogate mother would need to consent to the adoption.

Nowadays obtaining parenting orders through the Family Court for intended parents from a commercial surrogacy arrangement is difficult. An application to transfer parentage, in altruistic surrogacy cases, has quite strict criteria, and must be filed in the Supreme Court. This process removes the surrogate and her partner (if any) as the legal parents, and transfers all legal rights and responsibilities to the intended parents. Once the parenting orders are made, they are final orders and a new birth certificate will be issued with the intended parents named as the child’s parents.

Senate Inquiry

On 3 December 2015, the Attorney General for Australia, George Brandis, announced a surrogacy inquiry, to be conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs.[xv]

The surrogacy inquiry was an inquiry into the legal and social issues that related to domestic and international surrogacy arrangements. In broad terms, the surrogacy inquiry was to focus on:

The role and responsibilities of states and territories to regulate surrogacy arrangements, both domestically and abroad, and to consider the differences between them;
The role of health care professionals;
Issues with regards to informed consent, financial payment, and the rights and protection of all parties, including the children;
Commonwealth laws and policies relating to passports and citizenship; and
The laws, policies, and practices of other countries with respect to surrogacy arrangements with other countries.[xvi]

In 2016, the Australian Human Rights Commission made a Submission to Inquiry into the Regulatory and Legislative Aspects of Surrogacy Arrangements, with “Recommendation 2” that states and territories renew their efforts to achieve consistency between their surrogacy laws and thereby increase the certainty for people considering surrogacy.[xvii]

“Recommendation 4” provided that South Australia and Western Australia move to provide equal access to surrogacy arrangements for same-sex couples as is provided for heterosexual couples.[xviii]

The House of Representatives Standing Committee on Social Policy and Legal Affairs report was due by 30 June 2016.

Result of Sentate Inquiry

Unfortunately, the result of the Senate Inquiry was that it was recommended that commercial surrogacy remain illegal in Australia. One positive outcome was a recommendation that altruistic surrogacy be regulated at the federal level, rather than by each state. At the moment the state laws are inconsistent.

The Australian Law Reform Commission has been asked to look at the laws around surrogacy and the surrogacy process.

Summary of Main Points:

Surrogacy is an arrangement where a woman, known as the surrogate, agrees to carry a child in pregnancy for the intended parents.
Commercial surrogacy is illegal in all states and territories in Australia, except for the Northern Territory where no lawcurrently exist around surrogacy arrangements.
The laws governing surrogacy are different depending on the state you live in; it’s very important to consult an experienced assisted conception lawyer before you begin any type of surrogacy process.
In Australia, a woman who gives birth to a child is the legal parent; therefore, the intended parents in an altruistic surrogacy arrangement will need to seek a transfer of parentage order, if using a surrogate to become the legal parents.

Footnotes

[i] Human Rights Law Centre: Regulating Surrogacy in Australia (2015), viewed 4 October 2016, http://hrlc.org.au/regulating-surrogacy-in-australia/

[ii] Dale A, “Two dads and a surrogate create legal landmark”, The Daily Telegraph (June 2012), viewed 4 October 2016, http://www.dailytelegraph.com.au/news/nsw/two-dads-and-a-surrogate-create-legal-landmark/story-e6freuzi-1226377828528

[iii] Surrogacy Act 2010 (Qld)

[iv] s 14 Surrogacy Act 2012 (Tas) (No 34 of 2012)

[v] Surrogacy Act 2010 (NSW)

[vi] Statutes Amendment (Surrogacy Eligibility) Act 2017 (SA)

[vii] Assisted Reproductive Treatment Act 2008 (Vic) and Status of Children Act 1974 (Vic)

[viii] s 24(c) Parentage Act 2004 (ACT)

[ix] s 19(1)(b) Surrogacy Act 2008 (WA)

[x] s 10HA(2)(b)(iii) Family Relationships Act 1975 (SA) amended by Family Relationships (Surrogacy) Amendment Act 2015 (SA) (No 15 of 2015) and s 9 (1)(c)(ii) Assisted Reproductive Treatment Act 1988 (SA)

[xi] s 21 of Prohibition of Human Cloning for Reproduction Act 2002 (Cth)

[xii] SBS, “New Thai surrogacy law bans foreigners” (July 2015), viewed 4 October 2016, http://www.sbs.com.au/news/article/2015/07/31/new-thai-surrogacy-law-bans-foreigners

[xiii] American Society for Reproductive Medicine: Surrogacy in Australia (August 2015), viewed 4 October 2016, https://www.asrm.org/Legally_Speaking/Surrogacy_In_Australia/

[xiv] Australian Government: Department of Immigration and Border Protection (2016), viewed 4 October 2016, https://www.border.gov.au/about/corporate/information/fact-sheets/36a-surrogacy

[xv]Parliament of Australia: Terms of Reference (2016), viewed 4 October 2016, http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Inquiry_into_surrogacy/Terms_of_Reference

[xvi]Parliament of Australia: Terms of Reference (2016), viewed 4 October 2016, http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Inquiry_into_surrogacy/Terms_of_Reference

[xvii] Australian Human Rights Commission: Submission to Inquiry into the Regulatory and Legislative Aspects of Surrogacy Arrangements (2016), viewed 4 October 2016, https://www.humanrights.gov.au/submissions/submission-inquiry-regulatory-and-legislative-aspects-surrogacy-arrangements-2016

[xviii] Australian Human Rights Commission: Submission to Inquiry into the Regulatory and Legislative Aspects of Surrogacy Arrangements (2016), viewed 4 October 2016, https://www.humanrights.gov.au/submissions/submission-inquiry-regulatory-and-legislative-aspects-surrogacy-arrangements-2016

Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.