There are few things more exciting for many than starting a family and while most people will meet someone, fall in love and have children without giving the process any thought this is not the case for everyone.
For those in same-sex relationships, who have fertility issues and those who are single, if they want to start a family medical intervention is required whether that is IVF, sperm / egg donation or, at the furthest extreme, surrogacy.
On 1 September 2020 the Surrogacy Act 2019 (“Act”) will come into effect replacing all previous legislative requirements regarding Surrogacy arrangements in South Australia and allowing access to Surrogacy for more South Australians aged 25 years or over who require it.
Although the Act does widen who can access Surrogacy, its first guiding principal is to protect the human rights of all of those involved in the process, from the intending parent(s), the surrogate and her family and, perhaps most importantly, the child(ren) born of such an arrangement
While Commercial Surrogacy is not permitted under the Act it does state clearly that it is intended a surrogate mother should not be financially disadvantaged by participating in a lawful surrogacy agreement. For this reason, the Act and the supporting Regulations set out the types of expenses and losses which can be paid to the Surrogate, these currently include:
- costs relating to the pregnancy (including any attempt to become pregnant);
- costs relating to the birth of a child born as a result of the surrogacy agreement;
- costs relating to the postnatal care of a child born as a result of the surrogacy agreement;
- medical, counselling or legal services provided in relation to the surrogacy agreement;
- reasonable out of pocket expenses incurred by the surrogate mother; and
- loss of income:
- during any period of the pregnancy when the surrogate mother was unable to work due to attendance at medical appointments relating to the pregnancy;
- during any period of the pregnancy when the surrogate mother was unable to work on medical grounds relating to the pregnancy;
- during any period within 2 months after the end of the pregnancy when the surrogate mother was unable to work on medical grounds relating to the end of the pregnancy.
Payment of these costs may only occur as part of a lawful surrogacy agreement. For an agreement to be lawful, the parties to the agreement must have met with an accredited counsellor prior to entering into the Agreement and received legal advice from an Australian Legal Practitioner and been provided a certificate setting out that this advice has been provided.
Both the intending parent(s) and the surrogate will need to have their own independent legal representation to enter into the agreement to ensure they are protected, and the requirements of the Act are met.
If a surrogate or the intending parents do not obtain the required legal advice prior to entering into the Agreement then it will be considered unlawful and any costs paid by the intending parent(s) for the surrogate could be deemed to be part of a commercial arrangement and therefore an offence.
DBH Lawyers are qualified to provide the necessary legal certificate under the Act and are here to help you determine whether you are eligible to enter into a Surrogacy Agreement either as the surrogate or an intending parent.
*Anita was one of the report writers for the South Australian Law Reform Institute’s report into Surrogacy which was considered by the government when crafting the Surrogacy Act 2019 and related regulations.
David Plater, Madeleine Thompson, Sarah Moulds, John Williams and Anita Brunacci, Surrogacy: A Legislative Framework: A Review of Part 2B of the Family Relationships Act 1975 (SA) (South Australian Law Reform Institute, Adelaide, 2018)