Guidelines for Surrogacy

Introduction

Some states and territories require approval by an ethics committee for each surrogacy arrangement.  These guidelines have been prepared to assist an ethics committee with deliberations concerning surrogacy arrangements. They are designed to conform to the Substitute Parent Agreements Act 1994 (the Act) and other relevant guidelines and legislation. Guidelines are applied on a case-by-case basis with a certain measure of flexibility in accordance with the general purpose of the Act.  Note that each ethics committee will have their own guidelines which may differ from these presented.

1. Non commercial

Surrogacy agreements shall be non-commercial. Section 3 of the Act indicates that a payment or award on account of expenses connected with a surrogate pregnancy or the birth and care of the child so born is not considered to render the agreement commercial. Obviously the greater such payments or awards, the harder it will be to adequately link them to such expenses.

2. Permanent Residency

All parties to the surrogacy arrangements must normally be resident in Australia for the period of the procedure and pregnancy. This includes the genetic parents, the surrogate mother and the surrogate’s partner if there is one.

3. The Genetic Parents (Commissioning Couple)

3.1 The genetic mother must be over 18 years of age and generally under 38 years of age at the time of referral (the IVF pregnancy rate for patients over the age of 40 is negligible).

3.2 The genetic parents should not have more than one live child each or more than one from their present relationship.

3.3 The genetic mother should be suffering from some medical condition making pregnancy unlikely, but which is unlikely to reduce the ability to care for her child, or reduce her life expectancy until the child has at least reached majority. Without restricting the foregoing, examples of such conditions are absent uterus, diseased or damaged uterus, abnormal uterus, repeated failed IVF attempts and repeated miscarriage.

3.4 The genetic parents should not be suffering from a medical or psychological condition likely to be exacerbated by her entering the surrogacy arrangement.

3.5 The genetic parents must have a commitment to lifelong care of the child.

4. The Surrogate Mother

The surrogate mother must be over 18 years of age and generally under 40 years of age at the time of referral.

The surrogate mother should have at least one child by her partner in her present marriage or stable defacto relationship of over three years, or if separated, widowed or divorced, have at least one child. Neither the surrogate’s financial situation or the care of her existing children should suffer unduly as a result of the surrogacy arrangement.

The genetic mother and her partner should nominate the surrogate mother. The relevant gynaecologist or fertility specialist or their employees should not attempt to procure, or provide any professional or technical assistance to facilitate a surrogacy arrangement. The relevant gynaecologist or fertility specialist has discretion, however, to assess other people who volunteer to be surrogates, as to their suitability.

5. Counselling

5.1 The genetic parent(s) and surrogate parent(s) must be counselled by the relevant gynaecologist or fertility specialist according to a set protocol. Counselling should address the following;

5.1.1   the reasons for surrogacy;

5.1.2   the ability of the genetic mother to care for the child;

5.1.3   the surrogate’s obstetric, gynaecological and medical history; and

5.1.4   the medical risks the surrogate will face by entering the arrangement.

5.2  Where surrogacy is required because of the genetic mother’s medical condition a report from her treating physician is also required.

5.3 The genetic parent(s) and surrogate parent(s) should be counselled by a solicitor with expertise in family law according to a set protocol on matters such as the legal implications of surrogacy, the consequences of the surrogate refusing to surrender the child, consequences of refusal of the genetic parents to accept a disabled child and the implications of how the child’s paternity is assigned on the birth certificate.

5.4 All parties (including children over the age of 4 and under the age of 18) shall be assessed separately by an independent psychologist. Parties other than children are then assessed by a trained counsellor on the IVF program. Both assessments shall answer a set of questions prepared by the fertility centre. The relevant gynaecologist or fertility specialist then counsels the genetic parents and the surrogate parents.

6. Declarations

All involved adults must signify their agreement to the surrogacy by signing a declaration that the above counselling has taken place and that all other preconditions are satisfied.

All involved adults must sign a statutory declaration that the surrogacy arrangement conveys no financial advantage upon any of them.

7. Ethics Committee Approval

Some states and territories required ethics committee approval for surrogacy arrangements.  The relevant gynaecologist or fertility specialist may be required to submit each surrogacy arrangement to an ethics committee for approval.

The ethics committee shall approve or reject each case after consideration of the declarations and statutory declarations and any relevant written reports.

8. Cooling-Off Period

A cooling-off period of generally of three months shall apply from the time of counselling during which any of the parties may withdraw from the arrangement.

Modification of Guidelines

The ethics committee may modify guidelines.