South Australian Current Acts

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SURROGACY ACT 2019 - SECT 10

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.



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