Surrogacy Legal Requirements and Legislation

It is a requirement that couples seeking surrogacy obtain legal advice. A report covering the following issues must be submitted as part of the surrogacy application to the ethics committee:

• the legal implications of the surrogacy arrangement;
• the consequences of refusal of the surrogate to surrender the child;
• the refusal of the genetic parents to adopt a disabled child;
• the adequate provision for the surrogate’s dependants in the event of hospitalisation, illness or death related to the pregnancy;
• the adequate provision of guardianship of embryos or any existing children should either or both of the genetic parents die; and
• statuatory declarations stating non commercial basis of surrogacy between both parties.

Currently there is no law that can force the surrogate to give up the child and it is expected that the surrogate will give up the child for adoption with the commissioning couple applying to adopt the child after an appropriate period of time. It is important that all the issues regarding the adoption process, its time frame and the costs involved as they pertain to the state in which the birth will occur are thoroughly covered. The report must clearly show that this issue has been discussed and a plan of action needs to be prepared

Each state has its own legislation covering surrogacy. For a good summary follow the link: http://www.murdoch.edu.au/elaw/issues/v3n1/stuhmck1.html

See also Intro>Legislation and Ethics section on this website.

Surrogacy Legislation in the ACT

The surrogacy process in the ACT is governed by the Parentage Act 2004 (follow the link to the ACT government site to view and download this legislation). This act clearly distinguishes between commercial and altruistic surrogacy and bans completely commercial surrogacy in any form. The act also bans advertising as a mechanism of obtaining a surrogate. The act also makes it an offence for a third party to assist in any way in the procurement of a surrogate. Effectively these provisions mean that the commissioning couple must obtain their own surrogate and they must not advertise in a public forum (including the internet). The act also renders any agreement between the commissioning couple and the surrogate unenforceable. The consequence of this provision is that if the surrogate does not wish to give up the child at birth then the commissioning couple cannot legally force her to do so and vice versa.

For commissioning parents in the ACT who have had their baby born in the ACT, the Births Deaths and Marriages Act (1997) and the Parentage Act 2004 allows for the re-registration of the birth if an approved parenting order has been made.