South Australia surrogacy agreements: are they unlawful?

South Australia takes a distinctly narrow approach to surrogacy agreements. The issue is not simply whether a proposed arrangement is altruistic, or whether everyone involved has acted with the best of intentions. Under the Surrogacy Act 2019 (SA), the first question is whether the arrangement falls into the category of a lawful surrogacy agreement.

That matters particularly where a surrogate lives in South Australia but the intended parents live interstate. An arrangement may be altruistic and may not expose anyone to a criminal charge, yet still be unlawful on its face under South Australian law.

This is an unusual outcome. It is also an outcome that calls for very careful legal advice before anyone proceeds.

Two Categories: Lawful and Unlawful Surrogacy Agreements

The Surrogacy Act 2019 creates two broad categories of surrogacy agreement in South Australia:

• Lawful surrogacy agreements
• Unlawful surrogacy agreements

Other Australian jurisdictions commonly use language about “surrogacy arrangements”. South Australia instead places particular emphasis on whether there is a lawful surrogacy agreement.

A lawful agreement can be a South Australian agreement which satisfies the statutory requirements. Naturally, it must be altruistic. Commercial surrogacy is not the model permitted by Australian surrogacy law.

However, the legislation also contemplates another possible category: an interstate surrogacy agreement under prescribed laws.

At first glance, that sounds sensible. Australia is a federation. Intended parents, surrogates, donors and treatment providers may live in different states. It would be reasonable to expect that a South Australian surrogate could participate in an arrangement involving intended parents from another state, provided the arrangement complied with an approved interstate legal framework.

But that is where the difficulty begins.

The Missing “Prescribed Laws”

The Act refers to interstate agreements made under prescribed laws. The natural next step is to look for the regulations identifying those laws.

There are none.

No interstate surrogacy laws have been prescribed for this purpose. The result is that there is presently no identified interstate legal pathway that turns an interstate arrangement involving a South Australian surrogate into a lawful surrogacy agreement under the South Australian legislation.

This is not a minor technicality. It goes to the legal status of the agreement itself.

Where a South Australian surrogate enters an arrangement for intended parents who live interstate, the arrangement is not made as a South Australian lawful surrogacy agreement. Equally, it cannot presently rely on an interstate agreement made under prescribed laws, because there are no prescribed laws.

On its face, that leaves the arrangement in the category of an unlawful surrogacy agreement in South Australia.

Unlawful Does Not Necessarily Mean Criminal

This distinction is essential. “Unlawful” and “criminal” are not interchangeable terms.

An altruistic interstate surrogacy arrangement involving a South Australian surrogate may not be a criminal offence. That does not mean the arrangement is legally straightforward, authorised or free from risk.

The legislation can still characterise the agreement as unlawful. For intended parents and surrogates, that raises obvious concerns about how the arrangement should be structured, what legal consequences may follow, and whether the parties can safely rely on steps taken under the law of another state.

It is exactly the sort of issue that can be missed when people assume that altruism alone makes a surrogacy arrangement lawful.

It does not. In South Australia, the legal category of the agreement matters.

This Was Not an Administrative Oversight

One might reasonably assume that the absence of prescribed interstate laws is an administrative omission. Perhaps the legislation was enacted, but the regulations needed to support interstate agreements were never finalised.

That assumption has been tested.

South Australia’s Attorney General was asked whether the absence of prescribed laws could be fixed as an obvious oversight. The response was clear: it was not an oversight. It was a deliberate policy decision.

That confirmation is significant. It means parties should not proceed on the hope that the gap will simply be switched on, corrected or treated as immaterial.

The current position needs to be taken seriously. A South Australian surrogate involved in an interstate arrangement may be part of an agreement that is unlawful under South Australian law, even where no criminal offence has occurred.

Why Interstate Intended Parents Need to Take Care

Surrogacy is never just a medical process. It is a legal, emotional and practical undertaking involving people who are often trying to build their family after a long and difficult road.

When the intended parents and surrogate live in different states, the legal work becomes even more important. Different jurisdictions have different requirements, procedures and parentage pathways. South Australia’s approach to interstate agreements adds another layer of complexity.

Before proceeding, the intended parents, surrogate and, where applicable, the surrogate’s partner should obtain independent legal advice that considers the arrangement from every relevant angle.

That advice should address questions such as:

• Whether the proposed agreement can be characterised as a lawful agreement in South Australia.
• Whether the intended parents’ home state has a separate process relevant to parentage or surrogacy orders.
• How the South Australian status of the agreement may affect the parties in practice.
• What documents, counselling and independent advice are required before any treatment steps are taken.
• Whether there are alternative lawful pathways that should be considered before the arrangement progresses.

No one should assume that an agreement drafted for another state will operate cleanly in South Australia. Nor should they assume that a well-intentioned arrangement is protected merely because it is altruistic.

Careful Advice Protects Everyone Involved

Good surrogacy advice is not about finding clever wording to get around a difficult statute. It is about identifying the legal position early, explaining the risks plainly and helping everyone make informed decisions.

That is particularly important for the surrogate. She is undertaking an extraordinary commitment, and her partner may also be directly affected by the arrangement. Intended parents likewise need clarity before investing emotionally, financially and practically in a pathway that may have legal obstacles built into it.

There is no benefit in discovering a jurisdictional problem after treatment has begun, a pregnancy has occurred or a child has been born. The right time to obtain advice is before decisions are made, not after a legal difficulty has emerged.

For broader assistance with surrogacy, egg donation, sperm donation and embryo donation matters, intended parents and surrogates can seek advice from fertility lawyers experienced in Australian and international arrangements.

The Practical Position in South Australia

The present South Australian position can be stated simply:

• A lawful South Australian surrogacy agreement must meet the requirements of South Australian law.
• The legislation allows for interstate agreements under prescribed laws.
• No interstate laws have been prescribed for that purpose.
• An interstate arrangement involving a South Australian surrogate is therefore unlawful on its face under South Australian law.
• That does not necessarily mean that an altruistic arrangement is a criminal offence.
• The absence of prescribed laws has been confirmed as a deliberate policy choice, not an accidental gap.

It is an odd way of looking at the world, particularly in a country where people commonly live, work and form families across state borders. But it is the position that must presently be addressed.

Anyone considering a South Australian surrogacy arrangement with interstate elements should obtain tailored legal advice before proceeding. Surrogacy law is technical, state based and unforgiving of assumptions.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers and an accredited family law specialist at Page Provan Family & Fertility Lawyers. A multi-award-winning practitioner, he advises intended parents, surrogates and donors on Australian and international fertility law, with a strong focus on clear, practical and compassionate legal guidance.