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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Surrogacy)
Bill 2008
A BILL FOR
An Act to amend the Family Relationships Act 1975, the
Births, Deaths and Marriages Registration Act 1996 and the
Reproductive Technology (Clinical Practices) Act 1988.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Family Relationships
Act 1975
4 Amendment of
section 5—Interpretation
5 Amendment of
section 10—Saving provision
6 Amendment of
section 10A—Interpretation
7 Amendment of
section 10B—Application of Part
8 Insertion of
heading
9 Amendment of section 10F—Interpretation
10 Insertion
of heading
11 Amendment of section 10G—Illegality of surrogacy and
procuration contracts
12 Insertion of new Division
Division 3—Lawful surrogacy under recognised agreements
Subdivision 1—Recognised surrogacy
agreements
10HA Recognised surrogacy
agreements
Subdivision 2—Orders
10HB Orders as to parents of
child born under recognised surrogacy
arrangements
10HC Ability to discharge an
order
10HD Court to notify Registrar of Births, Deaths
and Marriages
10HE Access to Court
records
10HF Finality of orders
Subdivision 3—Related matters
10HG Power of court
to cure irregularities
10HH Ministerial power of
delegation
13 Insertion of heading
14 Amendment of
section 13—Confidentiality of proceedings
15 Amendment of
section 14—Claim under this Act may be brought in the course of other
proceedings
Part 3—Amendment of Births, Deaths and Marriages
Registration Act 1996
16 Amendment of section
4—Definitions
17 Insertion of Part 3 Division 6
Division 6—Surrogacy orders
22A Surrogacy
orders
18 Insertion of section 29A
29A Saving
provision—surrogacy arrangements
19 Insertion of section
49A
49A Saving provision—surrogacy
arrangements
Part 4—Amendment of Reproductive Technology
(Clinical Practices) Act 1988
20 Amendment of
section 3—Interpretation
21 Amendment of
section 10—Functions of Council
22 Section 13—Licence
required for artificial fertilisation procedures
Schedule 1—Transitional
provisions
1 Existing agreements
2 Consequential
regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Surrogacy)
Act 2008.
This Act comes into operation 3 months after assent.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Family Relationships
Act 1975
4—Amendment of
section 5—Interpretation
Section 5, after the definition of father
insert:
fertilisation procedure means—
(a) artificial insemination; or
(b) the procedure of fertilising a human ovum outside the body and
transferring the fertilised ovum into the body; or
(c) the procedure of transferring an unfertilised human ovum into the body
for the purposes of fertilisation within the body;
5—Amendment of
section 10—Saving provision
Section 10—after paragraph (c) insert:
or
(d) the consequences at law or in equity of an order under Part 2B
Division 3 of this Act.
6—Amendment of
section 10A—Interpretation
Section 10A(1), definition of fertilization
procedure—delete the definition
7—Amendment of
section 10B—Application of Part
Section 10B—after subsection (3) insert:
(4) Nothing in this Part prevents a person becoming the mother or father
of a child by virtue of the operation of any other law of the State (including
by virtue of an order under Part 2B Division 3).
Before section 10F insert:
Division 1—Interpretation
9—Amendment of
section 10F—Interpretation
Section 10F—after the definition of procuration
contract insert:
recognised surrogacy agreement—see
section 10HA;
After section 10F insert:
Division 2—Certain contracts and activities
relating to surrogacy illegal
11—Amendment of
section 10G—Illegality of surrogacy and procuration
contracts
Section 10G—after subsection (3) insert:
(4) This section does not apply in relation to a recognised surrogacy
agreement.
After section 10H insert:
Division 3—Lawful surrogacy under recognised
agreements
Subdivision 1—Recognised surrogacy
agreements
10HA—Recognised surrogacy
agreements
(1) In this section, unless the contrary intention
appears—
human reproductive material means—
(a) human semen; or
(b) a human ovum;
husband has the same meaning as under Part 2A;
lawyer means a person who is admitted as a barrister and
solicitor of the Supreme Court and holds a current practising
certificate;
lawyer's certificate means a certificate signed by a lawyer,
and endorsed on an agreement, certifying that—
(a) the lawyer explained the legal implications of the agreement to a
party to the agreement named in the certificate; and
(b) the party gave the lawyer apparently credible assurances that the
party was not acting under coercion or undue influence; and
(c) the party signed the agreement in the lawyer's presence;
marriage relationship means the relationship between
2 persons cohabitating as husband and wife or de facto husband and
wife;
married woman has the same meaning as under
Part 2A;
medical practitioner means a legally qualified medical
practitioner;
Minister means the Minister for Families and
Communities;
prescribed relative means a mother, sister, step-sister or
first-cousin.
(2) A recognised surrogacy agreement is an
agreement—
(a) under which a woman (the surrogate mother)
agrees—
(i) to become pregnant or to seek to become pregnant; and
(ii) to surrender custody of, or rights in relation to, a child born as a
result of the pregnancy to 2 other persons (the commissioning
parents); and
(b) in relation to which the following conditions are satisfied:
(i) the parties to the agreement are—
(A) the surrogate mother and, if she is a married woman, her husband;
and
(B) the commissioning parents,
and no other person;
(ii) all parties to the agreement are at least 18 years
old;
(iii) the commissioning parents have cohabited continuously together in a
marriage relationship for the period of 5 years immediately preceding the
date of the agreement;
(iv) the commissioning parents are domiciled in this State;
(v) the surrogate mother is a prescribed relative of at least 1 of
the commissioning parents, or has a certificate issued under subsection (3)
in relation to the proposal that she act as a surrogate mother for the
commissioning parents;
(vi) the surrogate mother and both commissioning parents each have a
certificate issued by a counselling service that complies with the requirements
of subsection (4) (being, as between the surrogate mother on the one hand
and the commissioning parents on the other hand, different counselling
services);
(vii) the agreement states that the parties intend—
(A) that the pregnancy is to be achieved by the use of a fertilisation
procedure carried out in this State; and
(B) that at least 1 of the commissioning parents will provide human
reproductive material with respect to creating an embryo for the purposes of the
pregnancy, unless the commissioning parents have a certificate issued under
subsection (5);
(viii) the agreement states that no valuable consideration is payable
under, or in respect of, the agreement, other than for expenses connected
with—
(A) a pregnancy (including any attempt to become pregnant) that is the
subject of the agreement; or
(B) the birth or care of a child born as a result of that pregnancy;
or
(C) counselling or medical services provided in connection with the
agreement (including after the birth of a child); or
(D) legal services provided in connection with the agreement (including
after the birth of a child); or
(E) any other matter prescribed by the regulations for the purposes of
this provision;
(ix) the agreement states that the parties intend that the commissioning
parents will apply for an order under section 10HB after the child is
born.
(3) For the purposes of subsection (2)(b)(v), the Minister may, on
application by a person who is contemplating entering into an agreement that is
intended to be a recognised surrogacy agreement under this section, issue a
certificate under this subsection that will enable the person to act as a
surrogate mother under such an agreement even though she is not a prescribed
relative of the persons who would be the commissioning parents under that
agreement if the Minister is satisfied—
(a) that the person applying for the certificate has a relationship with
the prospective commissioning parents that appears to indicate that the
surrogacy arrangements under such an agreement have a reasonable prospect of
success; and
(b) that, in the circumstances as the Minister knows them, there is no
reason that should prevent the Minister from issuing the certificate.
(4) For the purposes of subsection (2)(b)(vi), a certificate complies
with the requirements of this subsection if—
(a) the certificate is issued by a counselling service—
(i) that is independent of a person who holds a licence under Part 3
of the Reproductive Technology (Clinical Practices) Act 1988;
and
(ii) that satisfies any requirements prescribed by the regulations for the
purposes of this provision; and
(b) the certificate states that the person to whom it relates has received
counselling about personal and psychological issues that may arise in connection
with a surrogacy arrangement.
(5) For the purposes of subsection (2)(b)(vii)(B), a certificate
issued under this subsection—
(a) must be issued by a medical practitioner; and
(b) must relate to the persons who are seeking to be commissioning parents
under the relevant agreement; and
(c) must state that, in the opinion of the medical
practitioner—
(i) both prospective commissioning parents appear to be infertile;
or
(ii) there is a medical reason why it would be preferable not to use human
reproductive material provided by the prospective commissioning parents to
create an embryo for the purposes of achieving a pregnancy.
(6) In addition, in order for an agreement to be taken to be a recognised
surrogacy agreement—
(a) the relevant terms of the agreement (as envisaged by
subsection (1)) must be set out in a written agreement; and
(b) the written agreement must be signed by each party to the agreement;
and
(c) the signatures of each party must be attested by a lawyer's
certificate and the certificate with respect to the surrogate mother (and, if
relevant, her husband) must be given by a lawyer who is independent of a lawyer
who gives a certificate with respect to either or both of the commissioning
parents.
(7) An agreement or certificate under this section must comply with any
other requirement prescribed by the regulations.
Subdivision 2—Orders
10HB—Orders as to parents of child born under
recognised surrogacy arrangements
(1) In this section—
birth parent, of a child, means—
(a) the woman who gave birth to the child; or
(b) a man (if any) who is the father of the child under another Part of
this Act;
birth sibling, of a child, means a brother or sister of the
child who is born as a result of the same pregnancy as the child;
commissioning parents means the commissioning parents under a
recognised surrogacy agreement;
Court means the Youth Court of South Australia
constituted of a Judge.
(2) This section applies to a child if—
(a) the child was born under the terms of a recognised surrogacy
agreement; and
(b) the commissioning parents under the surrogacy agreement are domiciled
in this State; and
(c) the child was conceived as a result of a fertilisation procedure
carried out in this State.
(3) An application may be made to the Court for an order under this
section in relation to a child.
(4) The application may be made by either or both of the commissioning
parents.
(5) The application may only be made when the child is between the ages of
6 weeks and 6 months.
(6) In deciding an application under this section, the welfare of the
child must be regarded as the paramount consideration.
(7) In addition to being satisfied as to the matters referred to above
(including as to the validity of the relevant agreement as a recognised
surrogacy agreement), the Court must not make an order under this section unless
it is satisfied that both birth parents freely, and with a full understanding of
what is involved, agree to the making of the order.
(8) However, the Court may dispense with the requirement under
subsection (7) in relation to a birth parent if satisfied—
(a) that the birth parent is dead or incapacitated; or
(b) that the applicants cannot contact the birth parent after making
reasonable inquiries.
(9) In deciding whether to make an order under this section, the Court
must also take into account the following, if relevant:
(a) whether the child's home is, and was at the time of the application,
with both commissioning parents;
(b) if only 1 of the commissioning parents has applied for the order, and
the other commissioning parent is alive at the time of the application,
whether—
(i) the other commissioning parent freely, and with a full understanding
of what is involved, agrees to the making of an order in favour of the applicant
commissioning parent; or
(ii) the applicant commissioning parent cannot, after making reasonable
inquiries, contact the other commissioning parent to obtain his or her agreement
under subparagraph (i);
(c) whether valuable consideration (other than for expenses of the kind
allowed under section 10HA(2)(b)(viii)) has been given or received by
either of the commissioning parents, or either of the child's birth parents, for
or in consideration of—
(i) the making of the order; or
(ii) the handing over of the child to the commissioning parents;
or
(iii) the making of any arrangements with a view to the making of the
order.
(10) 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.
(11) The Court may take into account anything else it considers
relevant.
(12) The Court may, before deciding whether to make an order under this
section, require any party to the proceedings to provide an assessment from a
counselling service (obtained at the expense of the commissioning parents) in
relation to the matter.
(13) If the Court makes an order under this section, the effect of the
order for the purposes of the laws of the State will be as follows:
(a) the relationship between the child and the commissioning parent or
each commissioning parent (as specified under the terms of the order) is to be
treated as being that of child and parent;
(b) the relationship between the child and any birth parent is to be
treated as not being that of child and parent; and
(c) the relationships of all other persons to the child are to be
determined according to the operation and effect of paragraphs (a) and
(b).
(14) In the making of an order under this section in relation to a
child—
(a) the child has as his or her surname—
(i) if the order is made in favour of both commissioning parents and they
are both known by the same surname—that surname; or
(ii) in any other case—a name the Court, on the application of
either or both of the commissioning parents, approves in the order;
and
(b) the child has as his or her given name or names a name or names the
Court, on the application of either or both of the commissioning parents,
approves in the order.
(15) Subsection (14) does not prevent a name of a child being later
changed in accordance with another law of the State.
(16) If an order is made under this section, an appointment existing at
the time the order is made of a person as the guardian of the child ceases to
have effect.
(17) If a child in relation to whom an application for an order has been
made under this section has a living birth sibling—
(a) the application will be taken to relate to the child and the birth
sibling; and
(b) the Court may only make an order about the child if it makes a
comparable order (in all respects apart from any given name or names) about the
birth sibling; and
(c) this section will apply to the birth sibling in the same way as it
applies to the child.
10HC—Ability to discharge an
order
(1) Terms used in this section have meanings consistent with the meanings
they have in section 10HB.
(2) The Court may, if satisfied as described in subsection (3), make
an order discharging an order under section 10HB on receiving an
application to do so from—
(a) the Attorney-General; or
(b) the chief executive of the administrative unit principally assisting
in the administration of the Adoption Act 1988.
(3) On an application under subsection (2), the Court may make an
order discharging an order under section 10HB if it is satisfied
that—
(a) the original order was obtained by fraud, duress or other improper
means; or
(b) a consent relied on for the making of the original order was not an
effective consent because it was obtained by fraud, duress or material
inducement; or
(c) there is an exceptional reason why the original order should be
discharged.
(4) In the making of an order under this section in relation to a child,
the Court is to declare the name by which the child is to be known, having
regard to the principle that the child's first name should not be changed by the
order except in exceptional circumstances.
(5) Subsection (4) does not prevent a name of a child being later
changed in accordance with another law of the State.
(6) The Court is not to make an order under this section
unless—
(a) to do so would be for the welfare and best interests of the child who
would be affected by the order; and
(b) the Court is satisfied that reasonable efforts have been made to give
notice of the application to—
(i) each of the birth parents of the child; and
(ii) each of the commissioning parents; and
(iii) if the Court considers it appropriate having regard to the child's
age, the child.
(7) Any person may apply for leave to intervene in an application under
this section and the Court may make an order entitling the person to intervene
in the application.
(8) A person who is permitted under subsection (7) to intervene in an
application under this section is to be treated as a party to the application
with all the rights, duties and liabilities of a party, unless the Court orders
otherwise.
(9) If an order is made under this section, the Court may make any
consequential or ancillary order it thinks fit in the interests of justice or
for the welfare and in the best interests of the child to whom the order
relates, including any order relating to—
(a) the ownership or possession of property; or
(b) any matter affecting the child in relation to the duties, powers,
responsibilities and authority which, by law, parents have in relation to
children; or
(c) the domicile of the child.
(10) If an order is made under this section, the rights, duties and
relationships under the law of the State are to be as if the original order had
not been made.
(11) Subsection (10)—
(a) does not apply to the extent that its application would be
inconsistent with any order made under subsection (9); and
(b) does not affect—
(i) anything lawfully done; or
(ii) the consequences of anything lawfully done; or
(iii) any proprietary right or interest that became vested in any
person,
while the original order was in force.
10HD—Court to notify Registrar of Births, Deaths
and Marriages
(1) The Registrar of the Youth Court of South Australia is to give to the
Registrar of Births, Deaths and Marriages written notice of the particulars
described in subsection (2) if the Court makes an order under
section 10HB or 10HC.
(2) The particulars of which notice has to be given are—
(a) the date of the order; and
(b) the full name, address and occupation of each of the birth parents;
and
(c) the full name, address and occupation of each of the commissioning
parents; and
(d) the name by which the child to whom the order relates is known before,
and is to be known after, the order becomes effective; and
(e) details of the date and place of birth of the child; and
(f) if relevant, the terms of any consequential or ancillary order made
under section 10HC(9); and
(g) any particulars prescribed by the regulations; and
(h) if available, any other information required by the Registrar of
Births, Deaths and Marriages in relation to registration under the Births,
Deaths and Marriages Registration Act 1996 of the birth of the child to
whom the order relates.
10HE—Access to Court records
Except as authorised by the Youth Court of South Australia, the records of
proceedings for an order under section 10HB or 10HC will not be open to
inspection.
10HF—Finality of orders
An order under section 10HB cannot be appealed against, reviewed,
called into question, or affected by any court, on any account, except under
section 10HC.
Subdivision 3—Related matters
10HG—Power of court to cure
irregularities
(1) In this section—
Court means the Youth Court of South Australia
constituted of a Judge.
(2) If the Court, on application under this section, is
satisfied—
(a) that—
(i) there has been a failure to comply with a requirement under this
Division with respect to any matter associated with an agreement intended to be
a recognised surrogacy agreement; or
(ii) there is a matter arising under this Division that a person cannot
reasonably satisfy or achieve; and
(b) that in the circumstances of the particular case it would be a just
and appropriate course of action for the Court to exercise the powers conferred
by this section,
the Court may excuse the failure or excuse compliance with the matter by
ordering that, subject to such conditions as may be stipulated by the Court, the
requirement or the matter (as the case requires) be dispensed with (to the
necessary extent).
(3) An order under subsection (2) may have effect for the purposes of
any Act or law that may be connected to the status or operation of recognised
surrogacy agreements or to the operation of this Division.
10HH—Ministerial power of
delegation
(1) The Minister may delegate to a person (including a person for the time
being holding or acting in a specified office or position) a function or power
of the Minister under this Division.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Minister to act in any
matter; and
(d) is revocable at will.
Before section 10I insert:
Division 4—Interaction with other
laws
14—Amendment of
section 13—Confidentiality of proceedings
(1) Section 13(1)—delete "the Court" and substitute:
a court
(2) Section 13(2)—delete "the Court" and substitute:
a court
15—Amendment of
section 14—Claim under this Act may be brought in the course of other
proceedings
(1) Section 14(1)(a)—delete "the Court" and
substitute:
a court
(2) Section 14(2)—delete "the Court" and substitute:
a court
Part 3—Amendment
of Births, Deaths and Marriages Registration
Act 1996
16—Amendment of
section 4—Definitions
(1) Section 4, definition of registrable event—after
"marriage" insert:
and includes the making or discharge of a surrogacy order
(2) Section 4—after the definition of still-born child
insert:
surrogacy order means an order under section 10HB of the
Family Relationships Act 1975.
17—Insertion of
Part 3 Division 6
After section 22 insert:
Division 6—Surrogacy orders
22A—Surrogacy orders
(1) On receipt of a notice under section 10HD of the Family
Relationships Act 1975 in relation to the making or discharge of a
surrogacy order about a child whose birth is registered in this State, the
particulars provided in the notice must be registered by the Registrar in
relation to the registration of the child's birth and the child's
name.
(2) Without limiting subsection (1), the Registrar must, in relation
to the Register, make such entries and alterations as are necessary to give
effect to the operation of section 10HB(13) or 10HC(10) (as the case requires)
of the Family Relationships Act 1975.
(3) Subject to subsection (4), a certificate issued by the Registrar
after the registration of the particulars provided in a notice under
section 10HD of the Family Relationships
Act 1975—
(a) must only disclose and certify up-to-date particulars contained in an
entry; and
(b) must not provide any information disclosing a change in a parent or
parents of the relevant child, or a change in the name of the child (including
by disclosing the name of, or information about, any birth parent who is no
longer considered as a parent of the child).
(4) A person—
(a) who is the subject of a surrogacy order and who has attained the age
of 18 years; or
(b) who is a party to the surrogacy agreement that gave rise to a
surrogacy order,
is entitled to a certificate certifying all relevant entries in the
Register.
(5) On the receipt of a notice under section 10HD of the Family
Relationships Act 1975 in relation to the making or discharge of a
surrogacy order about a child whose birth is registered in another State, the
Registrar must send a copy of the notice to the relevant registering
authority.
After section 29 insert:
29A—Saving provision—surrogacy
arrangements
This Part does not limit the operation of Division 6 of Part 3.
After section 49 insert:
49A—Saving provision—surrogacy
arrangements
(1) Despite a preceding section of this Part, but subject to
subsection (2), the Registrar must restrict access to the Register so as to
keep confidential any information that would disclose the making or discharge of
a surrogacy order.
(2) Subsection (1) does not apply if the person seeking access to a
relevant part of the Register is—
(a) a party to the surrogacy agreement that gave rise to the surrogacy
order; or
(b) the person who is the subject of the surrogacy order if he or she has
attained the age of 18 years.
Part 4—Amendment
of Reproductive Technology (Clinical Practices)
Act 1988
20—Amendment of
section 3—Interpretation
Section 3—after the definition of in vitro fertilisation
procedure insert:
recognised surrogacy agreement means a recognised surrogacy
agreement under section 10HA of the Family Relationships
Act 1975;
21—Amendment of
section 10—Functions of Council
Section 10—after subsection (5) insert:
(6) The code of ethical practice should (insofar as may be relevant) deal
with the issue of the use of artificial fertilisation procedures to give effect
to recognised surrogacy agreements on its merits and without drawing unnecessary
or unreasonable distinctions between circumstances that arise under such
agreements and circumstances that arise in other cases that are within the ambit
of the operation of this Act.
22—Section 13—Licence
required for artificial fertilisation procedures
Section 13—after subsection (3) insert:
(3a) Subsection (3)(b) does not apply in relation to artificial
fertilisation procedures carried out for the purposes of a recognised surrogacy
agreement.
Schedule
1—Transitional provisions
(1) In this clause—
Court means the Youth Court of South Australia
constituted of a Judge;
surrogacy contract means a surrogacy contract under section
10F of the Family Relationships Act 1975.
(2) Subject to this clause, if the Court, on application under this
clause, is satisfied—
(a) that a surrogacy contract entered into before the commencement of this
clause satisfies the requirements for a recognised surrogacy agreement under
section 10HA(2)(b)(ii), (iii), (iv) and (viii) of the Family
Relationships Act 1975 (as enacted by this Act); and
(b) that in the circumstances of the particular case it would be an
appropriate course of action for the Court to exercise the powers conferred by
this clause,
the Court may determine that the surrogacy contract should have effect as a
recognised surrogacy agreement under section 10HA of the Family Relationships
Act 1975 (as enacted by this Act).
(3) An application under this clause—
(a) must be made by all parties to the surrogacy contract; and
(b) must be made within 15 months after the commencement of this
clause.
(4) An application cannot be made under this clause if a child has been
born as a result of the relevant pregnancy and the child is more than
5 years old on the day on which this clause comes into operation.
(5) An application may be made under this clause, and the Court may make
an order under this clause, despite the operation of sections 10G and 10H of the
Family Relationships Act 1975.
(6) The Attorney-General may intervene in any proceedings under this
clause to make representations or tender evidence (or both).
(7) If the Court makes an order under this clause—
(a) the surrogacy contract will be taken to be a recognised surrogacy
agreement validly entered into under section 10HA of the Family Relationships
Act 1975; and
(b) a child within the contemplation or operation of the agreement will be
taken to be a child born under the terms of a recognised surrogacy agreement;
and
(c) the person or persons to whom custody or rights were to be surrendered
under the surrogacy contract will be taken to be a commissioning parent or
commissioning parents under a recognised surrogacy agreement; and
(d) the Court may consider and deal with an application under section 10HB
of the Family Relationships Act 1975 (as enacted by this Act) as if
it applied to the surrogacy contract (and to the parties to the surrogacy
contract) and, if relevant, as if subsections (2)(c) and (5) of that section did
not apply.
Section 20(4) of the Reproductive Technology (Clinical Practices)
Act 1988 does not apply with respect to a regulation made under that
Act on or before the commencement of this Act that is expressed to come into
operation on the day on which this Act comes into operation.