Victorian Numbered Acts Victorian Numbered ActsFor Part III of the Principal Act substitute—
In this Part—
"procedure" means the following procedures within the meaning of the Assisted Reproductive Treatment Act 2008 —
(a) assisted reproductive treatment;
This Part applies in respect of a woman who undergoes a procedure and who, at the time of the procedure—
(a) has a female partner; or
(b) does not have a partner, whether female or male.
(1) If a woman undergoes a procedure as a result of which she becomes pregnant—
(a) the woman is presumed, for all purposes, to be the mother of any child born as a result of the pregnancy; and
(b) the woman's female partner is presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy if she—
(i) was the woman's female partner when the woman underwent the procedure as a result of which she became pregnant; and
(ii) consented to the procedure as a result of which the woman became pregnant; and
(c) the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman or her female partner.
(2) A presumption of law that arises under subsection (1)—
(a) is irrebuttable; and
(b) prevails over—
(i) any conflicting presumption that arises under section 8; or
(ii) any conflicting declaration made under section 10.
(3) In any proceedings in which the operation of subsection (1) is relevant, the woman's female partner's consent to the carrying out of the procedure in respect of the woman is presumed but that presumption is rebuttable.
(1) If a woman undergoes a procedure using a donor ovum as a result of which she becomes pregnant—
(a) the woman is presumed, for all purposes, to have become pregnant as a result of fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b) the woman's female partner is presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy if she—
(i) was the woman's female partner when the woman underwent the procedure as a result of which she became pregnant; and
(ii) consented to the procedure as a result of which the woman became pregnant; and
(c) the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman or her female partner; and
(d) the woman who produced the ovum used in the procedure is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.
(2) A presumption of law that arises under subsection (1)—
(a) is irrebuttable; and
(b) prevails over—
(i) any conflicting presumption that arises under section 8; or
(ii) any conflicting declaration made under section 10.
(3) In any proceedings in which the operation of subsection (1) is relevant, the woman's female partner's consent to the carrying out of the procedure in respect of the woman is presumed but that presumption is rebuttable.
(1) If a woman who does not have a partner undergoes a procedure as a result of which she becomes pregnant—
(a) the woman is presumed, for all purposes, to be the mother of any child born as a result of the pregnancy; and
(b) the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman.
(2) A presumption of law that arises under subsection (1)—
(a) is irrebuttable; and
(b) prevails over—
(i) any conflicting presumption that arises under section 8; or
(ii) any conflicting declaration made under section 10.
(1) If a woman who does not have a partner undergoes a procedure using a donor ovum as a result of which she becomes pregnant—
(a) the woman is presumed, for all purposes, to have become pregnant as a result of fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b) the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman; and
(c) the woman who produced the ovum used in the procedure is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.
(2) A presumption of law that arises under subsection (1)—
(a) is irrebuttable; and
(b) prevails over—
(i) any conflicting presumption that arises under section 8; or
(ii) any conflicting declaration made under section 10.
(1) In this Part—
artificial insemination has the meaning given by the Assisted Reproductive Treatment Act 2008 ;
"commissioning parents", in relation to a child born under a surrogacy arrangement, means the person or persons who entered into the surrogacy arrangement for a woman to carry the child on behalf of the person or persons;
"court" means the Supreme Court or the County Court;
registered ART provider has the meaning given by the Assisted Reproductive Treatment Act 2008 ;
"substitute parentage order" means an order made under section 22 ;
surrogacy arrangement has the meaning given by the Assisted Reproductive Treatment Act 2008 ;
"surrogate mother" means the woman who carries and gives birth to a child under a surrogacy arrangement.
(2) In this Part, a reference to the surrogate mother's partner means the person who was the surrogate mother's partner at the time the surrogacy arrangement was entered into.
(1) The court that has jurisdiction to make a substitute parentage order or any other order under this Part is—
(a) the Supreme Court; or
(b) at the applicant's option, the County Court.
(2) If an application for a substitute parentage order or other order under this Part is made to the County Court, and the County Court considers that, in all the circumstances of the case, the matter should be dealt with by the Supreme Court, the County Court may direct that the application be transferred to the Supreme Court.
The presumptions of law that arise under Part II, III or V of this Act—
(a) apply in respect of a child that is born as a result of a surrogacy arrangement; but
(b) do not prevail over a substitute parentage order.
(1) The commissioning parents of a child born under a surrogacy arrangement may apply to the court for a substitute parentage order if—
(a) the child was conceived as a result of a procedure carried out in Victoria; and
(b) the commissioning parents live in Victoria at the time of making the application.
(2) An application for a substitute parentage order must be made—
(a) not less than 28 days, and not more than 6 months after the birth of the child; or
(b) at another time with leave of the court.
(3) Before the court hears the application, the commissioning parents must file a certified copy of the child's birth certificate (if available) with the court.
(1) If the court decides to make a substitute parentage order, it is presumed that the commissioning parents will be named on the order as the child's legal parents.
(2) A presumption under subsection (1) is only rebuttable by evidence that a person named as a commissioning parent did not consent to the surrogacy arrangement.
(1) The court may make a substitute parentage order in favour of the commissioning parents if it is satisfied—
(a) that making the order is in the best interests of the child; and
(b) if the surrogacy arrangement was
commissioned with the assistance of a registered ART provider, that the
Patient Review Panel approved the surrogacy arrangement before the arrangement
was entered into; and
s. 147
(c) that the child was living with the commissioning parents at the time the application was made; and
(d) that the surrogate mother and, if her partner is a party to the arrangement, her partner have not received any material benefit or advantage from the surrogacy arrangement; and
(e) that the surrogate mother freely consents to the making of the order.
(2) In deciding whether to make a substitute parentage order, the court may take into account any other considerations it thinks relevant.
(3) If the surrogate mother's partner is a party to the surrogacy arrangement, before making a substitute parentage order the court must also consider whether her partner consents to the making of the order.
(4) To avoid doubt, the reimbursement of costs as permitted by section 44 of the Assisted Reproductive Treatment Act 2008 is not a material benefit or advantage for the purposes of subsection (1)(d).
(1) This section applies if—
(a) a surrogacy arrangement was commissioned without the assistance of a registered ART provider; and
(b) the surrogate mother became pregnant as a result of artificial insemination; and
(c) the commissioning parents apply under section 20 for a substitute parentage order.
(2) In addition to the matters set out in section 22, the court must also be satisfied—
(a) that the surrogate mother was at least 25 years of age before entering the arrangement; and
(b) that the commissioning parents, the surrogate mother and, if her partner is a party to the surrogacy arrangement, her partner have—
(i) received counselling about the social and psychological implications of making the substitute parentage order, including counselling, if relevant, about any of the matters prescribed for the purposes of section 43(a) of the Assisted Reproductive Treatment Act 2008 ; and
(ii) received counselling about the implications of the relinquishment of the child and the relationship between the surrogate mother and the child once the substitute parentage order is made; and
(iii) obtained information about the legal consequences of making the substitute parentage order.
(3) For the purposes of subsection (2)(b), the person must receive counselling from a counsellor within the meaning of section 61(3) of the Assisted Reproductive Treatment Act 2008 .
(1) Despite section 22(1)(e), the court may dispense with consent of the surrogate mother if satisfied—
(a) that the commissioning parents cannot, after reasonable inquiries, find the surrogate mother; or
(b) that the surrogate mother is deceased; or
(c) on evidence given in accordance with subsection (4), that the surrogate mother is, and is likely to continue to be, in such a physical or mental condition as to be incapable of properly considering whether to give consent.
(2) Despite section 22(3), the court may dispense with consent of the surrogate mother's partner if satisfied—
(a) that the commissioning parents cannot, after reasonable inquiries, find the surrogate mother's partner; or
(b) that the surrogate mother's partner is deceased; or
(c) on evidence given in accordance with subsection (4), that the surrogate mother's partner is, and is likely to continue to be, in such a physical or mental condition as to be incapable of properly considering whether to give consent.
(3) For the purposes of subsections (1)(a) and
(2)(a), the commissioning parents have made reasonable inquiries if they
have—
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(a) sent the person a letter, by registered post, to the person's last known place of residence and seeking the person's consent; and
(b) sent a letter referred to in paragraph (a) to the address of any other person that the commissioning parents believe may know where the person may be found; and
(c) searched the roll of electors under the Commonwealth Electoral Act 1918 and confirmed that the address of the person could not be found; and
(d) made enquiries of such persons, bodies, agencies and government departments as might reasonably be expected to have known where the person may be found; and
(e) made any other enquiries the court determines.
(4) For the purposes of subsections (1)(c) and (2)(c), the evidence required is a certificate signed by at least two medical practitioners registered under the Health Professions Registration Act 2005 certifying as to the matters referred to in that paragraph.
On making a substitute parentage order, the court may make any consequential or ancillary order it thinks fit—
(a) in the interests of justice; or
(b) for the welfare and in the best interests of the child in respect of whom the order is made.
(1) If the court makes a substitute parentage order in respect of a child, the provisions of the Adoption Act 1984 set out in subsection (2) (the applied provisions) apply in relation to the substitute parentage order as if that order were an adoption order made under that Act and as if the child were an adopted child.
(2) The applied provisions are sections 53 to 58 of the Adoption Act 1984 , except sections 53(1)(d) and (e).
(3) An applied provision applies to a substitute parentage order as if—
(a) a reference to an adopted child were a reference to a child who is the subject of a substitute parentage order; and
(b) a reference to an adoptive parent were a reference to the commissioning parents in whose favour the substitute parentage order was made; and
(c) a reference to the commencement of the Adoption of Children Act 1964 were a reference to the commencement of the Assisted Reproductive Treatment Act 2008 ; and
(d) a reference to an adoption order were a reference to a substitute parentage order made under this Act; and
(e) any other necessary changes have been made to the applied provision.
Note
The applied provisions clarify the effect of a substitute parentage order by reference to the Adoption Act 1984 rather than inserting new provisions in this Act. However, a substitute parentage order is not an adoption order and a child who is the subject of a substitute parentage order is not an adopted child.
The applied provisions provide for the following—
• the general effect of a substitute parentage order, including that the child is to be treated in law as a child of the commissioning parents as if the child had been born to the commissioning parents (section 53);
• the disposition of property, whether by will or otherwise, in circumstances in which a substitute parentage order has been made (section 54) ;
• bequests by will to an unascertained person who is the subject of a substitute parentage order (section 55);
• the names of a child who is the subject of a substitute parentage order (section 56);
• the domicile of a child who is the subject of a substitute parentage order (section 57);
• that a substitute parentage order does not affect the distribution of property by trustees or personal representatives except in certain circumstances (section 58).
(1) The following persons may apply for an order discharging a substitute parentage order—
(a) the Attorney-General;
(b) the Secretary of the Department of Justice;
(c) a child whose parentage was transferred by the substitute parentage order and who has reached the age of 18 years.
(2) Any person may apply for leave to intervene in an application under subsection (1) and the court may make an order entitling the person to intervene in the application.
(3) A person who is permitted under subsection (2) to intervene in an application under subsection (1) 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.
(1) On an application under section 27, the court may make an order discharging a substitute parentage order if it is satisfied that—
(a) the substitute parentage order was obtained by fraud, duress or other improper means; or
(b) a consent relied on for the making of the substitute parentage order was not an effective consent because it was obtained by fraud, duress or material inducement; or
(c) there is an exceptional reason the substitute parentage order should be discharged.
(2) The court must not make an order under subsection (1) discharging a substitute parentage order unless—
(a) the order is in the best interests of the child whose parentage would be affected; and
(b) the court is satisfied that reasonable efforts have been made to give notice of the application to—
(i) the surrogate mother of the child whose parentage would be affected; and
(ii) if the surrogate mother had a partner who was also a party to the surrogacy arrangement, that partner; and
(iii) each of the commissioning parents; and
(iv) if the court considers it appropriate having regard to the child's age, the child whose parentage would be affected.
(3) If the court makes an order discharging the substitute parentage order, the court must declare the name by which the child is to be known, having regard to the principle that a child's first name should not be changed except in special circumstances.
(4) A declaration under subsection (3) does not prevent a subsequent change of name under a law of the State.
(5) On making an order discharging a substitute parentage order, the court may make any consequential or ancillary order it thinks fit in the interests of justice or in the best interests of the child whose parentage is affected, 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.
(6) For the purposes of subsection (1), material inducement does not include the reimbursement of costs as permitted by section 44 of the Assisted Reproductive Treatment Act 2008 .
(1) On the discharge of a substitute parentage order, the rights, duties, liabilities and relationships of persons are as if the substitute parentage order had not been made.
(2) Subsection (1)—
(a) does not apply to the extent that its application would be inconsistent with any order made under section 28; and
(b) does not affect—
(i) anything lawfully done while the substitute parentage order was in force; or
(ii) the consequences of anything lawfully done while the substitute parentage order was in force; or
(iii) any proprietary right or interest that became vested in any person, while the substitute parentage order was in force.
(1) A party to a proceeding under this Part may appeal to the Court of Appeal against an order of the court in the proceeding or a refusal of the court to make an order.
(2) In this section "party" includes an intervener in an application under section 27.
The court must serve a sealed copy of the order on the Registrar of Births, Deaths and Marriages if the court makes either of the following orders—
(a) a substitute parentage order; or
(b) a discharge order.
(1) Any proceeding to which this Part applies must be heard in closed court, and all persons other than the parties to the proceedings and their legal representatives (if any) are to be excluded during the proceedings, except as otherwise directed by the court.
(2) The court may order any person to leave the courtroom or other place during the examination of a witness in the proceedings.
(1) This section applies to—
(a) a proceeding under this Part; or
(b) an order made under this Part.
(2) A person must not publish, or cause to be published, a report of the proceeding or about the order that contains any particulars likely to lead to the identification of a party to a surrogacy arrangement or a child who is the subject of a surrogacy arrangement.
Penalty: 1000 penalty units, in the case of a body corporate;
100 penalty units or imprisonment for 2 years, in the case of an individual.
(3) In this section—
"publish" means—
(a) publish in any newspaper; or
(b) publish by means of television, radio or the Internet; or
(c) otherwise disseminate to the public.
(1) A person must not access the court record for a proceeding under this Part without leave of the court.
(2) The court may grant leave for access to the court record on application in writing by—
(a) a child to whom the proceeding relates; or
(b) a surrogate mother of the child; or
(c) if the surrogate mother had a partner who was also a party to the surrogacy arrangement, the partner; or
(d) a commissioning parent of the child; or
(e) an intervener in a proceeding under section 27; or
(f) any other person who was a party to the proceeding.
(3) The court may refuse the application—
(a) if the applicant has not produced to the registrar of the court proof of the applicant's identity; or
(b) if granting access would be contrary to any court order in relation to exclusion of persons from the hearing of the proceedings; or
(c) for any other reason the court considers appropriate in the circumstances.
(1) If a person referred to in section 34(2) is deceased, an application under that section may be made by an adult who is—
(a) a parent or grandparent of the deceased; or
(b) a child or grandchild of the deceased; or
(c) a sibling of the deceased.
(2) If the child to whom the proceeding related is now an adult and cannot be found or contacted after making reasonable inquiries, an application under section 34(2) may be made by an adult who is—
(a) a parent or grandparent of the child; or
(b) a child or grandchild of the child; or
(c) a sibling of the child.
In this Part—
treatment procedure has the meaning given in the Assisted Reproductive Treatment Act 2008 .
(1) This section applies if—
(a) a woman undergoes a treatment procedure in accordance with Part 5 of the Assisted Reproductive Treatment Act 2008 as a result of which she becomes pregnant; and
(b) either of the following applies—
(i) the semen used in the procedure—
(A) was produced by the woman's partner before his death; or
(B) was collected from the woman's partner after his death; or
(ii) the embryo used in the procedure was created before the woman's partner died using sperm produced by him.
(2) If a woman becomes pregnant—
(a) the woman who gave birth is the mother of any child born as a result of the pregnancy; and
(b) her partner is taken to be the father of any child born as a result of the pregnancy for the sole purpose of enabling the particulars of the deceased to be entered as the particulars of the child's parent in the Register of births kept under the Births, Deaths and Marriages Registration Act 1996 ; and
(c) if a donor ovum, or an embryo created from a donor ovum, was used in the procedure, the woman who produced the ovum is presumed, for all purposes, not to be a parent of any child born as a result of the pregnancy.
(1) This section applies if—
(a) a woman undergoes a treatment procedure in accordance with Part 5 of the Assisted Reproductive Treatment Act 2008 as a result of which she becomes pregnant; and
(b) either of the following applies—
(i) the ovum used in the procedure—
(A) was produced by the woman's partner before her death; or
(B) was collected from the woman's partner after her death; or
(ii) the embryo used in the procedure was created before the woman's partner died using an ovum produced by her.
(2) If a woman becomes pregnant—
(a) the woman who gave birth is the mother of any child born as a result of the pregnancy; and
(b) the deceased is taken to be a parent of any child born as a result of the pregnancy for the sole purpose of enabling the particulars of the deceased to be entered as the particulars of the child's parent in the Register of births kept under the Births, Deaths and Marriages Registration Act 1996 ; and
(c) the man who produced the semen used in the procedure, or used to create the embryo used in the procedure, is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is or was known to the woman or the deceased.
(1) This section applies if—
(a) a man commissions a surrogacy arrangement in accordance with the Assisted Reproductive Treatment Act 2008 ; and
(b) the surrogate mother undergoes a procedure as a result of which she becomes pregnant; and
(c) either of the following applies—
(i) the ovum used in the procedure—
(A) was produced by the man's partner before her death; or
(B) was collected from the man's partner after her death; or
(ii) the embryo used in the procedure was created before the man's partner died using an ovum produced by her.
(2) If the surrogate mother becomes pregnant, the man may apply to the court under section 20 for a substitute parentage order to be made in respect of the child and in favour of the man and the deceased.
(3) In addition to the matters set out in section 22, the court must also be satisfied as to the matters set out in Part 5 of the Assisted Reproductive Treatment Act 2008 .
(4) If a substitute parentage order is made, the deceased is taken to be a parent of any child born as a result of the pregnancy for the sole purpose of enabling the particulars of the deceased to be entered as the particulars of the child's parent in the Register of births kept under the Births, Deaths and Marriages Registration Act 1996 .
(1) A deceased person referred to in section 37, 38 or 39—
(a) is to be treated in law as a parent of the child for the purpose referred to in that section; but
(b) is not to be treated in law as a parent of the child for any other purpose.
(2) To avoid doubt, this section does not apply in relation to a will executed by the deceased that expressly refers to a child born as a result of a procedure referred to in section 37, 38 or 39.
The Governor in Council may make regulations for or with respect to—
(a) forms for the purposes of this Act;
(b) fees to be charged under this Act;
(c) generally, any matter or thing which is authorised or required to be prescribed for carrying this Act into effect.
In this Part, 2008 Act means the Assisted Reproductive Treatment Act 2008 .
For the purposes of Part II, on and from the commencement of Part 14 of the 2008 Act—
(a) "embryo "includes an embryo as defined in section 10A(3) as in force immediately before its repeal;
(b) "ovum in the process of fertilisation "includes an ovum in the process of fertilisation as defined in section 10A(3) as in force immediately before its repeal;
(c) "syngamy" includes syngamy as defined in section 10A(3) as in force immediately before its repeal.
(1) This section applies if, before the commencement of section 146 of the 2008 Act—
(a) a man produced semen that was used in a procedure of artificial insemination of a woman who was not a married woman or of a married woman otherwise than in accordance with the consent of her husband; and
(b) as a result of that procedure the woman became pregnant.
(2) Despite its repeal, section 10F continues to apply in respect of a child born as a result of a pregnancy referred to in subsection (1).
(1) On and from the commencement of Part 14 of the 2008 Act, the provisions of Part III apply—
(a) in respect of a pregnancy referred to in Part III, whether the pregnancy occurred before or after the commencement of Part 14 of the 2008 Act and whether or not it resulted from a procedure carried out in Victoria; and
(b) in respect of any child born in Victoria as a result of a pregnancy referred to in Part III, whether the child was born before or after the commencement of Part 14 of the 2008 Act.
(2) Nothing in this Part affects the vesting in possession or in interest of any property that occurred before the commencement of Part 14 of the 2008 Act.
(1) Part IV applies in respect of a child born to a surrogate mother under a surrogacy arrangement if—
(a) the child was born—
(i) before the commencement of Part 14 of the 2008 Act; or
(ii) within 10 months of that commencement; and
(b) the commissioning parents were ordinarily resident in Victoria at the time the child was conceived.
(2) Subsection (1) applies whether or not the child was conceived in Victoria.
(3) Nothing in Part IV affects the vesting in possession or in interest of any property that occurred before the commencement of Part 14 of the 2008 Act.
(1) Part V applies in respect of a pregnancy which resulted from a procedure carried out in Victoria after the commencement of Part 14 of the 2008 Act.
(2) Nothing in Part V affects the vesting in possession or in interest of any property that occurred before the commencement of Part 14 of the 2008 Act.".