South Australia

Family Relationships Act 1975

Overview of the Act. We recommend you read the Act in its entirety or get legal advice before proceeding with surrogacy in South Australia

The guiding principles of this act is that the wellbeing and best interests of a child born through a surrogacy arrangement are paramount

Am I eligible for surrogacy?

An eligible couple is a man and a woman is unable to conceive or is able to conceive but is unlikely to carry the baby to term without significant risk to herself or the baby’s health. You will need a certificate from a qualified medical practitioner to state your infertility. Eligible people include married heterosexual couples or defacto couples who have been living in a defacto relationship for at least 3 years.  All parties must be at least 18 years old.

Can we do Gestational Surrogacy?

Yes, you can use either your egg, or that of a donor. At least one parent must be a genetic parent unless you have a medical certificate from a fertility specialist advising that donor sperm and donor eggs need to be used. Medicare does not cover the costs IVF in the case of gestational surrogacy; this means you will be required to pay the full medical fee associated with getting pregnant

Can we do Traditional Surrogacy?

Yes, however you will need to have the support of a clinic to be able to legally do traditional surrogacy.

What do we need to do to obtain a parentage order?

There are a few requirements you need to meet to be eligible for a parentage order – these must be done prior to entering an agreement…

Counselling

Both the surrogate and IP’s will need a certificate of counselling that is issued by a counselling service that is accredited for the purposes of infertility. The certificate must state that counselling has been provided and all personal and psychological issues that may arise in connection with a surrogacy arrangement has been addressed and that, in the opinion of the counsellor who undertook the counselling; the proposed recognised surrogacy agreement would not jeopardise the welfare of any child born as a result of the pregnancy that forms the subject of the agreement.

The counsellor who carries out the service must follow –

  • any guidelines related to such counselling published by the Australian and New Zealand Infertility Counsellors Association

AND

  • any relevant guidelines published by the National Health and Medical Research Council

Legal Advice

You and your surrogate must have independent legal advice from different legal representatives before entering an arrangement. An illegible lawyer is someone who is admitted as a barrister and solicitor of the Supreme Court and holds a current practising certificate. That lawyer must provide you with a lawyer’s certificate which is a certificate signed by a lawyer, and endorsed on an agreement, certifying that

  • the lawyer explained the legal implications of the agreement to a party to the agreement named in the certificate;

AND

  • the party signed the agreement in the lawyer’s presence

Consent

Consent must be given freely by the surrogate before entering the arrangement. This means that there should be no coercion on the part of the IP’s.

What costs do the IP’s have to cover?  

As an IP you must cover all of your surrogate’s reasonable costs which include…

  • reasonable expenses included in getting pregnant and being pregnant
  • expenses incurred as a result of the birth or care of a child born as a result of that pregnancy
  • counselling or medical services provided in connection with the agreement (including after the birth of a child)
  • legal services provided in connection with the agreement (including after the birth of a child)

Application of a parentage order

Must be made after 4 weeks of birth and before the child turns 6 months. If done outside this time you have to apply for special orders and this is at the court’s discretion

The surrogacy agreement must be in writing and witnessed by a lawyer

The Court must also decide whether, in the opinion of the Court, the commissioning parents are fit and proper persons to assume the role of parents of the child

The child must be residing with the IP’s from birth

Can I advertise for a surrogate in South Australia?

Advertising is not mentioned in the Act, therefore you are able to advertise.

Is commercial surrogacy illegal?

Yes, commercial surrogacy is illegal in South Australia. Commercial surrogacy is defined by payment or reward given to the surrogate excluding the surrogate’s expenses.