Surrogacy in the Northern Territory
In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page discusses the current state of surrogacy in the Northern Territory and how it’s about to change.
G’day. I’m Stephen Page from Page Provan Family and Fertility Lawyers. And today I’m talking about surrogacy in the Northern Territory or really what’s about to happen.
Currently in the Northern Territory (and this is filmed in April 2022), there are no laws regarding surrogacy. One might think it’s a free for all, but in reality it’s not. Unless you do traditional surrogacy at home currently in the Northern Territory, you can’t do it. And the reason being if you need an IVF clinic, there’s only one and that’s Repromed in Darwin and ReproMed have taken the view well, we won’t assist with any surrogacy at all.
They have restrictions under their licencing requirements, as do every IVF clinic in Australia, not to do commercial surrogacy, but they’ve taken the further view that even if the surrogacy is not commercial, they won’t do it and for the obvious reason. But there are no laws in the Northern Territory to allow transfer of parentage. So who’s going to get the blame if you go through the process with ReproMed and then discover that you aren’t the lawful parents at the other end? They are, for allowing it to occur. So they say hands off, we won’t touch it. But thankfully that’s about to change.
Last year I took part in the Northern Territory government surrogacy joint working group. So this was a bunch of public servants and a small number of outsiders.
There was one outside lawyer whose job was to do the drafting and I took part as a lawyer experienced in surrogacy. I had been pushing one way or another for about the last ten years for the Northern Territory to have surrogacy laws, and I’m really excited that there are going to be laws in the Northern Territory concerning surrogacy.
Of course, any law that might come before Parliament is not perfect. It doesn’t have absolutely everything in my wish list in it, but it’s pretty close to that. And I’m very happy and excited that this law is about to come about.
Currently there are discussions happening between government officials and members of Parliament, and I hope that the members of the Northern Territory Legislative Assembly will pass this law and enable Territorians at long last to undertake surrogacy and not have to go overseas or sometimes interstate in order to become parents.
I’m also excited that this law will come about so that if intended parents who are living in interstate have a surrogate from the NT, typically from Darwin, that she doesn’t have to face the prospect of having to fly into state to give birth, or even worse, drive across the Outback where of course, there’s no medical treatment for hour upon hour upon hour where something could go wrong. And I’m aware of a number of journeys of Northern Territory surrogates who did exactly that. One, for example, who drove from Darwin to Melbourne in order to give birth. Now I think this is crazy and avoidable, and I hope that the law comes in place soon and will change all that.
The basic format of the law follows that of interstate models, namely that intended parents. And there won’t be any discrimination in the Northern Territory. There’s currently discrimination in the Anti-Discrimination Act, allowing the IVF clinic to discriminate on its treatment. That will go. So that’s good.
So anyone who needs to undertake surrogacy, so whether you’re a heterosexual married couple or unmarried, or whether you are a single man, woman, non-binary, transgender, or whether you are a gay male relationship, a lesbian couple, whoever it is, if you need to do surrogacy, you’ll be able to undertake it in the Northern Territory. And I think that’s wonderful.
So if you live in the Northern Territory, it will be Northern Territory laws that apply, even if you have a surrogate who lives in interstate.
I should add that there is a grandfather period under the law, under the proposed law, so that anyone who has undertaken surrogacy at home in the Northern Territory will be able to be recognised. And a grandfather period like that has been experienced in other jurisdictions, for example, Queensland, New South Wales, and there were a small number of people who had undertaken surrogacy before and wanted to have that final recognition.
I’d say get advice now if you’re in that category, but for everyone else who’s planning the same kind of process that you’re looking at in interstate will happen, namely, go off and get your surrogate checked out, that she’s medically okay. Get independent legal advice. Both sides, preferably from someone who knows what they’re doing about surrogacy.
What I worry about is that if you go to a Northern Territory lawyer at this stage, they know nothing about surrogacy and therefore there’s a risk of something going wrong. Not because they mean anything to go, it’s just they have a lack of expertise in the area, that expertise will develop over time and go off and get fertility counselling.
And once you’ve got those bits in place, namely, doctor says surrogate is okay to go, that you have a surrogacy arrangement all signed up. It must be written and by all the parties. So it’s the intended parents, surrogate and her partner. You’ve had the independent legal advice on both sides and you’ve had the fertility counsellor and the fertility councillor gives a positive report.
Then it’ll Repromed to approve it. I should say that you don’t have to have treatment in the Northern Territory. You can have it interstate, but chances are you will do it locally. But it will depend. I’ve certainly seen a number of interstate variants.
It’s not necessarily the treatment will be occurring locally. At the end of the process, the surrogate, and if she has a partner, her partner will be the parents. The intended parents will not be the parents at birth. Nevertheless, the name of the child will be that chosen by the intended parents. That’s what you’d normally set out in the surrogacy arrangement.
Commercial surrogacy will be illegal like it is everywhere else in the country. And then you post birth and there will be a period from recollection it’s one to six months post-birth. You then make an application to the Magistrate’s court for a transfer of parentage from the surrogate and her partner. She has one to the intended parent or intended parents. And when that order is made, then you’ll be recognised for all purposes as the parents under Australian law.
And then that order will be given to the Registrar. Birthday, marriages. I don’t know the process yet. I don’t think that’s been worked through quite yet. But it’ll go to the Registrar bestice and marriages assume the child is born in the Northern Territory, and the best of it will then alter recognising you as the parents.
The Northern Territory, by making commercial surrogacy illegal, will also, in some circumstances, if you’re thinking of doing surrogacy overseas, makes that overseas journey illegal. So the Northern Territory government has done a couple of things with its bill which are important by not being in there.
The first is that there won’t be a requirement to go to a state regulator to get your surrogacy arrangement approved. That was certainly something that I was strongly against. I thought that then there should not be a state regulator like there is in WA and Victoria, but there should be a process of independent legal advice and counselling and clinic approval, as we see in Queensland, New South Wales, the ACT, Tasmania and South Australia.
The second is that there is no specific ban under the surrogacy bill in undertaking commercial surrogacy overseas. So that’s quite unlike Queensland, New South Wales or the ACT. However, that doesn’t mean that there’s a free for all in undertaking commercial surrogacy overseas, because there are provisions of the Northern Territory Criminal Code that make it illegal to engage in acts which may occur overseas where part of the act or the effect of the act occurs in the territory. So very careful legal advice needs to be obtained on that, because you don’t want to be tripped up on that.
And the last one that is allowable in the Northern Territory is that traditional surrogacy can occur in the Northern Territory.
There are restrictions in some other states. For example, in Victoria, you can’t do traditional surrogacy through an IVF clinic. You can do it at home, but you can’t rely on the surrogate using her eggs as part of the journey so that she is not only caring the child, but she is also the mother of the child. So that will be allowable in the Northern Territory. And I think that’s a good idea, because the reality is that sometimes that’s the only option.
And the approach taken by IVF clinics interstate where traditional surrogacy is allowed is to assess each case on a case by case basis, look at risk and if it’s not too risky, then to proceed, but I don’t know whether Repromed will ultimately undertake traditional surrogacy, that will be a decision for them, and some clinics in the state don’t do traditional surrogacy because they consider it too risky, and the risk that they worry about is that the surrogate, being the mother of the child, wants to hang on to the child.
So these are all good developments, the bill comes before the Parliament to be debated in May, and I hope that it takes effect later this year, but I think it has a finite period by which it must come into law by 2024, hopefully it will be a lot sooner.
Basically, the government will want to make sure, if the bill is passed, that key stakeholders are ready, and there are three key stakeholders, they are the Registrar, births, deaths, and marriages want to make sure they’re ready so that the process for change of names on birth certificates can be done quickly and efficiently.
Secondly, the Magistrate’s court that it’s ready to handle any applications, I think the number of applications will be very low, if we do one a year, you’ll be lucky. South Australia typically has one a year, and it has a much bigger population than the territory.
Having said that, the territory has a young population, so you might have one a year, and the last one being the local IVF clinic, namely recommend that it has its systems in place, and with those three key stakeholders ready, then the law will start.
So very excited, I think this is wonderful news, the Northern Territory joining the rest of Australia in regulating surrogacy and enabling intended parents to become parents through surrogacy.
I’m Stephen Page, thank you for joining me, and I’m from Page Provan Family and Fertility lawyers, thank you.