The Tasmanian legislation guiding surrogacy arrangements are set out in the Surrogacy Act 2012, which can be found on the Tasmanian Legislation website.
Who may enter into a surrogacy arrangement
|Must be at least 21 years old
|Surrogate must be at least 25 years old
|Must have birthed at least one live child
|Must be residents of Tasmania
|Must be resident of Tasmania
- 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.
- Arrangements must be in writing, signed by both parties.
- There must be a medical or social need for the surrogacy arrangement.
- Surrogacy arrangements made in Tasmania cannot be enforced anywhere in Australia
Payments in surrogacy arrangements
|Intended parents must reimburse their surrogate for costs connected to the surrogate pregnancy and birth
|Commercial surrogacy arrangements are prohibited in Tasmania, and it is considered an offence to intentionally enter into a commercial surrogacy arrangement
- It is illegal for intended parents to advertise their need for a surrogate (this includes posting something online).
- It is illegal for surrogates to advertise their desire to act as a surrogate (this includes posting something online)
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 30 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 Tasmania there are several mandatory requirements:
- All parties have received independent legal advice and counselling prior to the arrangement.
- All parties have received counselling prior to the application for a parentage order.
- The surrogate must have given birth to a live child.
- All parties to the agreement have signed the agreement in writing.
- There is a medical or social need for the surrogacy arrangement.
- If there are two intended parents and only one applies, the other parent must be notified.
Considerations at the time of the hearing:
- If the child is living with the intended parents and they are living in Tasmania.
- All relevant parties consent to the making of the parentage order.
- The order is in the best interests of the child.
- Non-discriminatory requirements: that is is not a commercial arrangement.
- Court may make orders without the consent of the surrogate and her partner if they lack mental capacity, death or cannot be contacted and the chid is living with the intended parents and it is in the child’s best interests.
- If the surrogate gave birth to more than one child (e.g. twins), the Court must make parentage orders about each living birth sibling.