The South Australia legislation guiding surrogacy arrangements are set out in the Family Relationships Act 2975, which can be found on the Government of South Australia website.
Who may enter into a surrogacy arrangement
|Must be at least 18 years old||Surrogate and their partner must be at least 18 years old|
|Must be residents of South Australia||Does not need to be resident of South Australia|
- Arrangements must not be commercial, and any payment to a surrogate needs to be strictly to reimburse her for expenses connected the surrogate pregnancy.
- Only gestational surrogacy arrangements are permitted (i.e. the surrogate must not be genetically related to the child).
- All parties to the arrangement (including the surrogate’s partner, if she has one) must seek independent legal advice and counselling prior to making the arrangement.
- The intended mother must or appear to be infertile, or there would be a serious risk of genetic defect, disease or illness that could be passed to any child born from a personal pregnancy.
- At least one of the intended parents must be genetically related to the child born from the arrangement, unless a medical practitioner has issued a certificate providing evidence that both parents should not (or cannot) conceive a child from their own genetic material.
- Arrangements must be in writing, signed by both parties and accompanied by a certificate from a lawyer.
- Surrogacy arrangements made in South Australia cannot be enforced anywhere in Australia
Payments in surrogacy arrangements
|Intended parents may reimburse their surrogate for costs connected to the surrogate pregnancy and birth||Commercial surrogacy arrangements are prohibited in South Australia, and it is considered an offence to intentionally enter into a commercial surrogacy arrangement|
- The Act does not include any provisions relating to advertising, which means that intended parents and surrogates are able to advertise their need for a surrogate or to act as one.
At birth, the surrogate is recognised as the birth mother of the child, and if she has a husband or partner they are recognised as the child’s other parent. Intended parents can apply to the Supreme Court for a Parentage Order no earlier than 28 days after birth, and no later than six months following birth.
Preconditions to Parentage Orders
For intended parents to make an application for a parentage order in South Australia there are several mandatory requirements:
- The child was born under the terms of a recognised surrogacy agreement.
- The child was conceived as a result of a fertilisation procedure carried out in South Australia.
- The surrogate fully and freely consents to the order being made (except if she has died, is incapacitated or cannot be contacted).
The Supreme Court also maintains considerations:
- Whether the child’s home is and was with the intended parents.
- If one of the intended parents applies, that the other parent agrees with the full understanding of what is involved.
- Any submission to the court on behalf of the surrogate’s partner.
- Whether the intended parents are fit and proper parents to assume the role of parents to the child.
- Any other matters the Court deems relevant.