10—Certain surrogacy agreements lawful in South Australia
(1) Subject to this
Act, a surrogacy agreement that complies with the requirements under this
section, and any regulations made for the purposes of this section, will be
taken to be a "lawful surrogacy agreement .
(2) Subject to this
Act, the following persons may be parties to a lawful surrogacy agreement:
(a) a
woman (the
"surrogate mother") who is to have a child or children for the purposes of the
lawful surrogacy agreement;
(b) a
person, or
both persons, (an "intended parent") on whom parentage of the child or
children born as a result of the lawful surrogacy agreement will be conferred
in accordance with this Act.
(3) Subject to this
Act, each of the following provisions must be satisfied by, or in respect of,
the surrogate mother under a lawful surrogacy agreement:
(a) the
surrogate mother must be 25 years of age or older at the time the
lawful surrogacy agreement is entered;
(b) the
surrogate mother must not have impaired decision-making capacity in respect of
the decision to enter a lawful surrogacy agreement;
(c) the
surrogate mother must be an Australian citizen or a permanent resident of
Australia;
(d) the
surrogate mother must not be pregnant at the time the lawful
surrogacy agreement is entered;
(e) the
surrogate mother must, before entering the lawful surrogacy agreement, undergo
counselling of a kind required by section 14;
(f) the
surrogate mother must provide to each intended parent a criminal history
report in respect of the surrogate mother provided by South Australia Police,
or the Australian Crime Commission or an Australian Crime Commission
accredited agency or broker, within the 12 months prior to entering a
lawful surrogacy agreement;
(g) the
surrogate mother must comply with any other requirements set out in the
regulations.
(4) Subject to this
Act, each of the following provisions must be satisfied by, or in respect of,
the intended parents under a lawful surrogacy agreement:
(a) each
intended parent must be 25 years of age or older at the time the
lawful surrogacy agreement is entered;
(b) an
intended parent must not have impaired decision making capacity in respect of
the decision to enter a lawful surrogacy agreement;
(c) each
intended parent must be an Australian citizen or a permanent resident of
Australia;
(d) at
least 1 intended parent must be domiciled in South Australia at the time the
lawful surrogacy agreement is entered;
(e) each
intended parent must, before entering the lawful surrogacy agreement, undergo
counselling of a kind required by section 14;
(f) at
least 1 of the following circumstances must exist in relation to the
intended parent or parents:
(i)
at least 1 of the intended parents is a female person who
is unlikely to become pregnant, or to be able to carry a pregnancy or give
birth (whether because of medical reasons or otherwise); or
(ii)
there is a risk that a serious genetic defect, serious
disease or serious illness would be transmitted to a child born to an
intended parent; or
(iii)
there is a risk that becoming pregnant or giving birth to
a child would result in physical harm to an intended parent (being harm of a
kind, or of a severity, unlikely to be suffered by women who become pregnant
or give birth generally); or
(iv)
it appears to be unlikely in all of the circumstances of
the intended parent or parents that an intended parent would become pregnant,
or be able to carry a pregnancy or give birth (whether because of gender
identity, sexuality or any other reason);
(g) each
intended parent must provide to the surrogate mother a criminal history report
in respect of the intended parent provided by South Australia Police, or the
Australian Crime Commission or an Australian Crime Commission accredited
agency or broker, within the 12 months prior to entering a
lawful surrogacy agreement;
(h) the
intended parents must comply with any other requirements set out in the
regulations.
(5) Subject to this
Act, a lawful surrogacy agreement must comply with each of the following
provisions:
(a) the
lawful surrogacy agreement must be in writing in a form that complies with any
requirements set out in the regulations;
(b) the
lawful surrogacy agreement must contain a lawyer's certificate in respect of
the surrogate mother and each intended parent;
(c) the
lawful surrogacy agreement must contain a counsellor's certificate in respect
of the surrogate mother and each intended parent;
(d) the
lawful surrogacy agreement must contain provisions setting out the
arrangements for the payment of reasonable surrogacy costs;
(e) the
lawful surrogacy agreement must contain provisions setting out the Court
orders under Part 4 that the intended parents will be likely to seek
following the birth of a child under the lawful surrogacy agreement (however,
nothing in this paragraph prevents the intended parents from seeking orders
that differ from those set out in the agreement);
(f) the
lawful surrogacy agreement must comply with any other requirements set out in
the regulations.
(6) Without limiting
this section, a lawful surrogacy agreement may contain such other lawful
provisions as the parties to the lawful surrogacy agreement think fit.