Tuesday, November 12, 2019
Just over a week ago, the South Australian Parliament has passed new surrogacy laws, the Surrogacy Bill 2019. The Surrogacy Act 2019takes effect on a date to be proclaimed, likely to be early in the New Year.
Previously, the surrogacy provisions in South Australia were contained in parts of the Family Relationships Act. The Weatherill Government asked the South Australian Law Reform Institute (SALRI) to look into surrogacy. The review was continued under the Marshall Government. The review recommended comprehensive changes, including that South Australia have its own Surrogacy Act.
The Surrogacy Actas passed largely captures the recommendations of the review. Some changes included:
· Rather than there being uncertainty as to what expenses can be paid to a surrogate, the flexibility of approach seen in New South Wales and Queensland is now to be the norm in South Australia. This makes it particularly easier when there have been interstate surrogacy arrangements, as is common.
· The surrogate must now be aged 25. Until now, surrogates can be as young as 18. The norm seen interstate and often overseas is a requirement in practice or law for the surrogate to be aged 25. This is considered that she has the requisite maturity to make a decision and may well have had all her own children. Of course, if something goes wrong in the surrogacy journey, the surrogate may be prevented from having children again.
· There will be the ability to undertake traditional surrogacy in South Australia. However, whether this can be undertaken through one of the clinics remains to be seen – as clinics sometimes refuse to undertake traditional surrogacy, because of perceived risks that the surrogate will retain the child.
· Single intended parents will be able to undertake surrogacy in South Australia. Currently, while surrogacy is open to couples (including same sex couples), previous attempts to enable single intended parents to undertake surrogacy have been rebuffed.
· Intended parents in South Australia undertaking surrogacy will need to undertake police checks. It was felt strongly by some members of Parliament that these were required in order to avoid another Baby Gammy situation – even though Victoria (which is alone in requiring these checks) has come to the view that these checks were unlikely to work and is in the process of phasing them out.
· IVF will no longer need to occur in South Australia. If South Australian intended parents are able to find a surrogate but not an egg donor, they may (with extreme care) be able to undertake egg donation overseas. Part of the care is that offences relating to egg donation in South Australia may apply overseas due to what are called long arm provisions in the Criminal Law Consolidation Act 1935 (SA). Clear legal advice is required before undertaking that process. Another possibility is that if the egg donor lives interstate, for example in Sydney, it may be more convenient to do the IVF in Sydney than to do it in South Australia.
· The 2015 amendments to set up a State framework for altruistic surrogacy will be abolished. The State framework for altruistic surrogacy was never set up, despite the laws having been in force for the last four years.
· The surrogacy register, which was also set up in the 2015 changes, will also be abolished.
· The human rights of all involved must be taken into account. This provision in the Bill was after Parliament was made aware that in other legislation in Queensland and Tasmania, the surrogate has a specific right to manage the pregnancy and childbirth, like any other woman. That statement in the Queensland and Tasmanian Surrogacy Actsreflects the common law.
· There will now be an offence of entering into a commercial surrogacy arrangement. Depending on interpretation, that offence may be committed by South Australian residents undertaking surrogacy overseas. Anyone in South Australia contemplating undertaking surrogacy overseas should obtain expert Australian legal advice first.