As society changes, our laws and how they are implemented need to develop and evolve so that legislation reflects this. In some cases, entirely new laws are required to be introduced in order to respond to societal developments.

Surrogacy in particular is an area in which family law has had to respond in order to keep up with a major societal change.

The evolution of South Australia’s surrogacy law
I have been involved in the development of South Australia’s laws regarding surrogacy through my work with the South Australian Law Reform Institute. SALRI is an independent body established by an agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia, and its goal is to consider legislation that is no longer meeting the needs of South Australians, or areas where South Australia does not currently have legislation in place.

SALRI consults with relevant authorities, researches and compares laws that are in place elsewhere, and then makes recommendations to legislators for reform. This was the process that was the final step leading to the development and introduction of South Australia’s current laws pertaining to surrogacy.

Is surrogacy legal in South Australia?
Provided you have a Lawful Surrogacy Agreement in place, a surrogate is not being paid for their services, and the baby is conceived through assisted reproduction, i.e., artificial insemination, surrogacy is entirely legal in South Australia.

However, any arrangement needs to be supported by a Lawful Surrogacy Agreement. This is not just in order to be compliant with the law — it is essential so that potential issues, problems and challenges can be resolved long before the time the baby is born, and that all parties are fully protected at law.

Some people mistakenly think that they only need an informal arrangement if the surrogate is a family member or friend — however, this is not the case, and an agreement between the parties where they have each received advice from independent lawyers is compulsory.

What are the requirements for a Lawful Surrogacy Agreement?
Before a Lawful Surrogacy Agreement can be entered into, both parties are required to seek independent legal advice. In addition, the following conditions need to be met:

1. For intended parents, surrogacy must be the only option open to them. It may be that they are a heterosexual couple who can’t conceive due to a medical condition that precludes a woman from getting pregnant, or there would be a risk to herself or the child if she did, or the intended parents may be a male same sex couple.
2. In the case of a surrogate, she is required to be at least 25 years of age, and to undergo counselling so that she understands what surrogacy entails both in practical terms and also with regard to its potential physical and emotional impact. It is also usually preferable that a surrogate has already had her own children, but this is not a legal requirement.
3. Intended parents (or one of them) are required to be resident in South Australia, be at least 25 years of age, and to undergo counselling.
4. Both the surrogate and the intended parents are also required to undertake police checks and share them with each other prior to commencing the surrogacy process.

Are children born to surrogates entitled to know their history?
Between one and twelve months after a child is born to a surrogate, the intended parents are required to complete an application to transfer the parentage of the child from the surrogate to themselves.

This involves lodging an application to the Court, where a magistrate will decide if the transfer should occur. The hearing is usually conducted expediently in a very happy, positive manner, when the Surrogacy Agreement was appropriately prepared, and often the baby will even be present.

Once an Order is made, the magistrate will notify Births, Deaths & Marriages of the Parentage Transfer, and the child’s birth certificate will now show the intended parents as his or her parents.

However, birth certificates of children born to surrogates are likely to be marked to indicate that there is a historical record attached. There is, however, no stigma to having such a notation on a birth certificate, as it can relate to any historical record, including something as simple and straightforward as a spelling mistake in the child’s name when it was registered having been corrected.

The importance of the notation is that it means that once a child reaches 18, they can investigate for themselves the reason their birth certificate is marked in this way. Of course, this is not compulsory and they can choose not to investigate if they prefer.

Why you need a family lawyer who specialises in surrogacy
As an experienced family lawyer specialising in surrogacy, I understand better than most the importance of having a Lawful Surrogacy Agreement in place at the outset of any proposed surrogacy arrangement.

It should be stressed that this is not simply to ensure compliance with the law — it is more than simply a box-ticking exercise. Such an agreement is absolutely essential to provide protection for all parties, and to ensure that potential complications are considered and resolved in advance.

My experience in helping to formulate the laws on surrogacy, as well as my extensive experience acting on behalf of both surrogates and intended parents, means I am able to anticipate potential scenarios so that both parties have a chance to consider them in advance.

This is also why I advocate that intended parents seek legal advice as their very first step — even before beginning the search for a surrogate — as this will help you to be clear in your own mind as to whether going down the surrogacy route is right for you.

What can be included in a Lawful Surrogacy Agreement?
A Lawful Surrogacy Agreement is intended to anticipate as many of the circumstances that can arise as possible before, during and after the surrogate’s pregnancy. This is so that if they do occur, the decisions that can or should be made have been considered in advance by both parties, meaning there is no room for dispute.

What follows is far from a complete list of problems or challenges that can arise, but I hope it gives prospective intended parents and surrogates an idea of what they need to consider before embarking on a surrogacy arrangement.

Although some of the things that follow are not especially pleasant to think about, this is not intended to put you off — rather it’s to demonstrate why you need the expertise and guidance of a lawyer who is experienced and specialises in this particular aspect of family law.

For instance, in the hospital who makes the decisions regarding medical treatment, particularly in an emergency? If the pregnancy is difficult, is the surrogate able to do things to alleviate this that go against the wishes of the intended parents?

If a surrogate unfortunately dies in childbirth (and therefore before a Parentage Transfer can take place), how does this impact on her will and the distribution of her assets amongst her children?

Once a child has been born, what are the expectations of each party regarding the ongoing relationship between them and the child?

None of these problems are insurmountable, and they can be resolved equitably, provided they are considered before a surrogate becomes pregnant. It is when these and other important questions remain unanswered that things can become very difficult when they occur.

A properly prepared Lawful Surrogacy Agreement, written by an experienced family lawyer well versed in surrogacy, can help to provide answers to many of the challenges that can arise.