The terms of reference were
1. To review Part 2B of the Family Relationships Act 1975 (SA), in particular the changes brought about by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) (the ‘2015 Act’) and proposed by the Family Relationships (Surrogacy) Amendment Bill 2017 (SA) (the ‘2017 Bill’).
2. To consult with relevant experts, and other interested parties as considered suitable by the Institute, and to consider best practice from other jurisdictions in relation to the regulation of surrogacy arrangements.
3. To make recommendations on best practice and legislative changes as a result of the investigations.
4. To be guided by the principle that surrogacy arrangements are private arrangements between individuals with the State setting the parameters of what must and must not be agreed to, rather than taking a direct and ongoing role in the establishment and maintenance of individual arrangements.
5. To consider the impact of the decision of 1 September 2017 of the Full Court of the Family Court of Australia in Bernieres v Dhopal (2017) 324 FLR 21; and make recommendations in respect of the issues identified in the decision if so necessary.The report states
The option of a regulated system of commercial surrogacy favoured by some parties in consultation was not within SALRI’s terms of reference. Equally the option of banning or precluding any form of surrogacy favoured by some parties in consultation was not within SALRI’s terms of reference. The rationale of the present law throughout Australia is to allow or facilitate lawful surrogacy within Australia and deter or discourage recourse to unlawful surrogacy within both Australia and overseas, especially offshore commercial surrogacy (though how effective the present law has proved in this regard is open to debate). SALRI notes and adopts the explanation of the Hon John Dawkins MLC in introducing the 2015 Act to the South Australian Parliament as an accurate rationale of the current law: the [aim of the] current law in South Australia is to secure the welfare of children born through surrogacy, to try to make accessibility of surrogacy arrangements in this jurisdiction wider, to limit overseas use of the commercial surrogacy process, and to ensure that commercial surrogacy remains banned in South Australia. ...
. Surrogacy is a complex and sensitive subject that raises many ethical, legal and other issues and implications. It is a topic that attracts strong and often conflicting views. Much of the research into the effects of surrogacy is both incomplete and conflicting and the long-term effects of surrogacy on the parties are still not fully known. SALRI acknowledges the sincerity of the many and often conflicting views that it has received in this reference. SALRI has had careful regard to all the views it received in consultation, but it is ultimately impossible to reconcile these views. SALRI reiterates that both options of a commercial system of regulated surrogacy and banning or precluding any form of surrogacy in South Australia are not within its terms of reference. SALRI also notes that the result of both its consultation and research supports an intermediate approach within these two polarised views as the most appropriate way forward. SALRI does not support either a system of regulated commercial surrogacy in South Australia in light of the well-documented concerns that commercial surrogacy gives rise to. Nor does SALRI support seeking to preclude or ban surrogacy in South Australia. Any such option is both inappropriate and unrealistic. SALRI notes that the complexities and national and international implications of surrogacy are such that the preferable solution to this issue is a national and uniform scheme co-ordinated between the States and Territories and the Commonwealth and the referral of State power to the Commonwealth. This option has been supported by the Chief Magistrate, Judge Eldridge of the Youth Court of South Australia and Chief Justice Pascoe of Family Court (speaking in a personal capacity). However, this is likely to prove a long-term process and in the interim it is crucial that the State regulatory framework for surrogacy is as effective as possible.
SALRI supports a suitable regulatory framework for South Australia that maintains the (admittedly often tenuous) distinction between commercial and noncommercial surrogacy and clarifies and improves the current system to most appropriately allow and facilitate lawful domestic surrogacy within Australia for South Australians but discourages and deters recourse to unlawful surrogacy, especially offshore commercial surrogacy. It is unrealistic, in light of the diversity of modern families and the dramatic advances in reproductive technology, to expect that the law can cover every conceivable surrogacy situation that might arise. Nevertheless, SALRI considers that the framework which it has recommended is the most effective and appropriate to recognise and respect the interests of all parties, but crucially to protect the best interests of a child born as a result of surrogacy. This must always be the primary or paramount factor of any scheme.SALRI’s findings include:
1. The value of a uniform national framework for surrogacy and the potential future referral as part of such a scheme of the State’s role with respect to surrogacy to the Commonwealth.
2. The Family Court is the preferable court to deal with surrogacy (both domestic and international) given its specialised role, expertise and processes.
3. The need for South Australia to have the most appropriate framework possible for a noncommercial system of surrogacy, whilst working towards national consistency (given that any national surrogacy framework will be a long-term process).
4. The benefit, for clarity and accessibility, of a standalone Surrogacy Act.
5. The current distinction between commercial and non-commercial surrogacy be retained and commercial surrogacy should remain prohibited in South Australia.
6. Any surrogacy framework must recognise the human rights and interests of all parties, namely the child, surrogate mother and the intending parents, but the best interests of the child (including the child’s right to know their full history and family) is the primary or paramount factor. This should apply throughout the process at both the pre-birth and post-birth stages.
7. Any court order to transfer the parentage of a surrogate child to the intending parents should be based on the child’s best interests.
8. Given the complexities in this area and emerging research and international developments, there should be a statutory review of the operation of any new Surrogacy Act five years after commencement.
9. The Surrogate Register, the State Framework and the Attorney-General’s role with respect to surrogacy set out in the 2015 Act are well-intentioned but impractical and should be removed.
10. The existing offences against commercial surrogacy should be clarified to focus on commercial introduction or brokerage or commercial adverting but allow social online advertising and discussion so as not to impede the potential parties to a surrogacy arrangement getting in touch.
11. A specific extraterritorial application in respect of commercial surrogacy offences as exists in New South Wales, the Australian Capital Territory and Queensland is ineffective and inappropriate and should not be adopted.
12. The benefit of a website from the Commonwealth and/or State to provide comprehensive, reliable and impartial advice to the parties about surrogacy and its various implications.
13. Any new Surrogacy Act should contain various general principles to apply throughout the process at both the pre-birth and post-births stages. These general principles are designed to protect the interests of all parties but, above all, protect the best interests of the child. These general principles include protecting all parties from exploitation, the need for an early focus under any regulatory framework at the outset of the process and before any fertility treatment and certainly before the child is born and the entitlement of the surrogate mother to manage and maintain her own medical autonomy and that, as far as practicable, surrogacy arrangements should be a private matter between the parties without State involvement.
14. All parties to a lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) should have access to appropriate, high quality, specialist and independent counselling services prior to a lawful surrogacy arrangement (and the option to seek counselling during and after any arrangement). The role of this counsellor, an ‘Accredited Independent Counsellor’, includes assessing or screening the suitability of the parties (the surrogate mother, her partner and the intending parents) to enter into a lawful surrogacy arrangement and the counsellor must certify they have covered certain important areas with the party(s) as part of their role. This counsellor cannot be employed by a fertility provider.
15. Any surrogacy framework should be governed by public health principles of best practice and linked to the NHMRC ART Guidelines.
16. The surrogate mother and the intending parties must obtain appropriate, high quality and independent legal advice prior to entering into a lawful surrogacy arrangement and the lawyer, as part of such advice, must certify they have covered certain important areas with their client.
17. The surrogacy agreement must be signed and in writing and the part relating to costs should be legally enforceable.
18. Mediation is to be strongly encouraged for the parties to resolve any dispute, but it is not mandatory.
19. The threshold criteria to proceed with a lawful surrogacy agreement are that the intending parents are ordinarily resident in South Australia, the surrogate mother and the intending parents are 25 years or over, the intending parents are effectively infertile, and the surrogate mother is an Australian citizen or permanent resident.
20. There should be the full and frank exchange of information between the parties to a lawful surrogacy agreement (that is the surrogate mother, her partner (if any) and the intending parents) and with the Accredited Independent Counsellor(s), prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child. As part of this process, each party should (if possible) obtain and provide to the other parties and the Accredited Independent Counsellor(s) either a Working with Children Check (though SALRI notes there may well be difficulties at this stage with such a requirement) or a national criminal history check.
21. The present restriction on single persons accessing lawful surrogacy is unsound and should be removed.
22. The concept of a ‘team baby’ (where there is no genetic link between the intending parents and the child) raises sensitivities (especially where the surrogate mother proposes to provide her own ovum) but the present approach in South Australia should be retained to permit such arrangements if the intending parent(s) are effectively infertile and the arrangement is approved by the Accredited Independent Counsellor.
23. A flexible and realistic approach to jurisdiction within Australia is necessary to recognise the interstate aspects of surrogacy whilst discouraging forum shopping. Part of this is a mutual recognition scheme to comparable surrogacy processes to South Australia within Australia.
24. The child’s right to know his or her full family and birth history is, consistent with ART and donor conception, vital and changes to law and practice are appropriate so that a child is entitled to access such information at age 16 and that a neutral indication on the birth certificate will alert the holder that there is private material behind the public record to which they are entitled.
25. In relation to the allowable costs of a surrogate mother, greater clarity and content to the present law is necessary. The guiding principles should be that no valuable consideration should be provided for the act of becoming (or trying to become) pregnant and carrying a child for another person, a surrogate mother should not be financially disadvantaged as a result of taking part in a surrogacy arrangement and should be able to recover any costs actually incurred as a direct result.
26. The surrogate mother should remain the legal parent of the child unless, and until, legal parentage is transferred by an order from a court of competent jurisdiction to the intending parents.
27. Two incidental aspects in relation to paternity should be referred to the Commonwealth or recognised at a State level to diminish needless complexity and duplication.
28. It is inappropriate for reasons of both policy and practice for a State to seek to resolve the ‘gap’ to recognise parentage from international surrogacy arising from Full Court of the Family Court of Australia’s decision in Bernieres v Dhopal (2017) 324 FLR 21. This is an issue to be resolved at a national level. 29. SALRI proposes to complete a short spin off report into various consequential civil law issues and implications raised in a surrogacy context. Such a Report need not delay any new Surrogacy Act as any recommendations will relate to other Acts. ...The specific recommendations are -
PART 3 - TERMINOLOGY
Recommendation 1 SALRI recommends that any legislative reform to accompany a new surrogacy framework should use the opportunity to move towards national consistency and, as part of this process, that problematic terms such as ‘commissioning parent’ (to be replaced with ‘intending parent’) and, as far as practicable, the term ‘altruistic’, should be replaced or avoided.
PART 4 – STATE VS NATIONAL
Recommendation 2 SALRI recommends that, in light of the likely delay of uniform (or at least consistent) national laws being developed, South Australia should, as far as practicable, revise its laws in relation to surrogacy until national laws are formulated, to ensure the State’s laws are as effective as possible.
Recommendation 3 SALRI recommends that South Australia, along with other States and Territories, resume efforts towards a national consensus on this issue and to formulate a national uniform scheme as a matter of the highest priority.
Recommendation 4 SALRI recommends that, where necessary to give effect to Recommendation 3 above, South Australia should refer the jurisdiction of its powers in respect of surrogacy to the Commonwealth and allow the Family Court to exercise jurisdiction in respect of all aspects of surrogacy at its earliest opportunity.
PART 5 – THE NEED FOR A STANDALONE SURROGACY ACT
Recommendation 5 SALRI recommends that, for ease of reference and application and accessibility, the current scheme for surrogacy contained in Part 2B of the Family Relationships Act 1975 (SA) be excised and replaced with a standalone Surrogacy Act for South Australia.
Recommendation 6 SALRI recommends that any new Surrogacy Act should draw on Part 2B of the Family Relationships Act 1975 (SA) and the Family Relationships (Surrogacy) Amendment Bill 2017, notably as to the provisions set out in Part 5 of this Report. To this end, SALRI suggests that any new Surrogacy Act should be subject to the further recommendations set out below, namely recommendations 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 39, 40, 41, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 56, 57, 59, 60, 61, 62, 63, 64, 65, 66 and 69.
PART 6 – COMMERCIAL SURROGACY AND ITS IMPLICATIONS
Recommendation 7 SALRI recommends that the practice of commercial surrogacy should remain illegal in South Australia, but that domestic, non-commercial surrogacy agreements should be permissible in certain specified circumstances.
PART 7 – HUMAN RIGHTS IMPLICATIONS
Recommendation 8 SALRI recommends that, under any Surrogacy Act and surrogacy framework, the interests and human rights of all parties, namely the child born as a result of surrogacy, the surrogate mother and her partner and the intending parents must be recognised and respected, but confirms that the primary or paramount consideration, both before and after birth, should be the best interests of the child.
Recommendation 9 SALRI recommends that any Surrogacy Act should provide that the court must be satisfied that the making of any parentage order in respect of a child born as a result of surrogacy is in the best interests of the child and this should be a necessary precondition to the making of a parentage order.
Recommendation 10 SALRI recommends that there is a review of the operation and effectiveness of any new Surrogacy Act five years after its commencement, given the complexities and rapid advances in the area of surrogacy (both research wise and internationally).
PART 9 – SPECIFIC LAW REFORM ISSUES
Recommendation 11 SALRI recommends that any new Surrogacy Act should contain the following statutory guiding principles to apply in any decision in relation to surrogacy, at both a pre-birth and post-birth stage: 1. That the best interests of the child are paramount and should be protected (including the child’s safety and well-being and the child’s right to know about their family and origins). 2. That the surrogate mother is able to make a free and informed decision about whether to act as a surrogate. 3. That sufficient regulatory protections are in place to protect the surrogate mother and the intending parents from exploitation. 4. That there is legal clarity about the parent-child relationships that result from the arrangement. 5. The intervention of the law and the State in people’s private lives, with regards to surrogacy, should be kept to a minimum. 6. Any model should ensure that, at the outset, all parties are fully aware of their rights and responsibilities (particularly in relation to the child) and such a model should seek to avoid and resolve any legal dispute (if arising) between the parties. 8 7. That the surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman.
PART 10 – HOW ACTIVE SHOULD THE STATE BE?
Recommendation 12 SALRI recommends that the current role of the State Attorney-General introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy (including both the Framework and to approve individual surrogacy agreements (including international surrogacy agreements)) is inappropriate and should be removed.
Recommendation 13 SALRI recommends that the Framework introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy be removed.
Recommendation 14 SALRI recommends that the State Register of potential surrogate mothers introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) be removed.
PART 11 – CONNECTING SURROGATES AND INTENDING PARENTS
Recommendation 15 SALRI recommends that the present law should be clarified to provide that any offence covering the act of commercial surrogacy itself should include offering, encouraging, inducing or assisting such an act. This would capture commercial introduction and brokerage and commercial advertising, but not frustrate communication and negotiation between the parties in a non-commercial aspect, which is essential.
Recommendation 16 SALRI recommends that the Surrogacy Act (or relevant Act) should include an offence that ‘a person must not publish any advertisement, statement, notice or other material that seeks to introduce people for a reward or other inducement with the intention that those people might enter into a surrogacy arrangement (whether non-commercial or commercial)’.
PART 12 – EXTRATERRITORIAL OFFENCE
Recommendation 17 SALRI recommends that, in light of their ineffectual nature, the extraterritorial offences relating to commercial surrogacy as exist in the Australian Capital Territory, New South Wales and Queensland should not be introduced in South Australia.
PART 13 – AVAILABILITY OF SURROGACY-RELATED RESOURCES AND INFORMATION
Recommendation 18 SALRI recommends that a website should be developed which provides advice and information for Australians considering domestic surrogacy and should include: 1. Clear advice on the role of Commonwealth Government support and service provision for intending parents, surrogates and children including Medicare, social security and welfare payments, child support and paid parental leave; 2. Clear advice on the surrogacy legislation in each Australian State and Territory; 3. Clear advice on the support and services funded and provided for by each Australian State and Territory including relevant health, counselling and legal services available; and 4. Best practice guidelines and other information for health care providers including hospitals, obstetricians, paediatric care, employers and others dealing with surrogates. In this context, SALRI encourages the Commonwealth to implement Recommendation 6 of the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) for the Commonwealth Government to develop such a website.
Recommendation 19 In the event that the Commonwealth does not set up such a website, in the alternative, or in addition to Recommendation 18 above, SALRI recommends that an appropriate agency or agencies in South Australia such as SA Health or the Legal Services Commission prepares a suitable page on their own site to provide reliable and impartial information.
PART 14 – THRESHOLD ISSUES
Recommendation 20 SALRI recommends that any Surrogacy Act should confirm that a surrogacy arrangement should not proceed or be undertaken in South Australia unless, and until, the parties have in place a legal agreement that satisfies the relevant legislative requirements such as legal and counselling advice.
Recommendation 21 SALRI recommends that the current concept of infertility to access lawful surrogacy in South Australia should be retained but that, to clarify and update the relevant terminology, the present definition of infertility in s 10HA(2a)(e) of the Family Relationships Act 1975 (SA) should be removed and replaced in the new Surrogacy Act or other relevant Act with the following definition of medical or social need to access lawful surrogacy based on s 30(2) the Surrogacy Act 2010 (NSW): ‘(2) There is a medical or social need for a surrogacy arrangement if: (a) there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman, or (b) there are 2 intended parents under the surrogacy arrangement and the intended parents are: (i) a man and an eligible woman, or 10 (ii) 2 men, or (iii) 2 eligible women. (3) An eligible woman is a woman who: (a) is unable to conceive a child on medical grounds, or (b) is likely to be unable, on medical grounds, to carry a pregnancy or to give birth, or (c) is unlikely to survive a pregnancy or birth, or is likely to have her health significantly affected by a pregnancy or birth, or (d) if she were to conceive a child: (i) is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or (ii) is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy or birth.’
Recommendation 22 SALRI recommends that all references to ‘husband’ and their accompanying definitions in Part 2B of the Family Relationships Act 1975 (SA) should be removed and replaced in any new Surrogacy Act with ‘spouse’ to be more inclusive of surrogate mothers and intending parents in same-sex relationships.
Recommendation 23 SALRI recommends that any Surrogacy Act should provide that a surrogate mother must be at least 25 years of age in order to be a party to a lawful surrogacy agreement in South Australia, unless the Accredited Independent Counsellor, as part of the counselling (and screening) process, is satisfied that there are exceptional circumstances to support a woman under the age of 25 years acting as a surrogate mother.
Recommendation 24 SALRI recommends that any Surrogacy Act should provide that the intending parents must be at least 25 years of age in order to be a party to a lawful surrogacy agreement in South Australia, unless the Accredited Independent Counsellor, as part of the counselling (and screening) process, is satisfied that there are exceptional circumstances to support a person under the age of 25 years acting as an intending parent.
Recommendation 25 SALRI recommends that there should be no legislative requirement for a surrogate mother to have previously carried a pregnancy and given birth to a live child in order to access a lawful surrogacy agreement in South Australia, on the basis that this consideration should be addressed as part of the counselling (and screening) process.
PART 15 – SINGLES ACCESS TO SURROGACY
Recommendation 26 SALRI recommends that the current prohibition in South Australia on single people accessing surrogacy is discriminatory and inappropriate and should be repealed.
PART 16 – TEAM BABY
Recommendation 27 SALRI recommends that any Surrogacy Act should clarify the present law regarding surrogacy arrangements involving a child with no genetic link to either of the intending parents, namely that the intending parents can enter into a lawful surrogacy agreement in South Australia but only if a medical practitioner is satisfied that both of the intending parents appear to be infertile or there is medical reason why it would be preferable not to use such human reproductive material to achieve the pregnancy. However, this aspect of the law should be reviewed in five years (or five years after commencement for any new Surrogacy Act) as further research is available about the development and implications of donor-conceived individuals in adolescence and adulthood.
PART 17 - JURISDICTION
Recommendation 28 SALRI recommends that South Australian law should recognise surrogacy related processes that occur in analogous and comparable Australian jurisdictions which contain key features and safeguards of the South Australian legislative regime.
Recommendation 29 SALRI recommends that any Surrogacy Act should provide that, for a lawful surrogacy arrangement in South Australia to be legally recognised, the intending parent(s) must ordinarily reside in South Australia prior to the agreement being entered into. SALRI recommends that where the surrogate mother resides and where the fertility treatment occurs should be irrelevant to any such agreement.
Recommendation 30 SALRI recommends that any Surrogacy Act should provide that the surrogate mother and an intending parent/s must be either an Australian citizen or an Australian permanent resident to be eligible to access a lawful surrogacy agreement in South Australia.
Recommendation 31 SALRI recommends that any Surrogacy Act (or other relevant Act) should allow the mutual recognition of interstate surrogacy orders.
PART 18 – RISK ASSESSMENT
Recommendation 32 SALRI recommends that any Surrogacy Act should require the full and frank exchange of information between the parties to a lawful surrogacy agreement (that is the surrogate mother, her partner (if any) and the intending parents) and the Accredited Independent Counsellor(s), prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child. Included in the information exchanged should be any information that will enable the other parties to the lawful surrogacy agreement, and the Accredited Independent Counsellor(s), to consider whether or not a party might pose a risk to the child or another party. As part of this process, each party should (if possible) obtain and provide to the other parties and the Accredited Independent Counsellor(s) either a Working with Children Check (though SALRI notes there may well be difficulties at this stage with such a requirement) or a National Criminal History Check. Any check must be obtained prior to accessing any surrogacy related fertility procedure AND prior to entering into a surrogacy agreement. The parties should be advised of this requirement as part of their independent legal advice obtained in the process of receiving their lawyer’s certificate.
PART 19 – HEALTH BEST PRACTICE
Recommendation 33 The regulatory framework governing surrogacy arrangements in South Australia should be consistent with a public health approach and with the public health principles set out in sections 5 to 16 of the Public Health Act 2011 (SA).
Recommendation 34 SALRI recommends that information about Chapter 8 of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research should be accessible to all potential parties to surrogacy agreements and be provided as a matter of course to all clients of registered fertility clinics considering surrogacy as an option.
Recommendation 35 SALRI recommends that the relevant Chapters of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research should be subject to public consultation and review on a regular basis, in addition to the existing processes for expert review by the NHMRC and its relevant committees.
Recommendation 36 SALRI recommends that practical information and guidance (for example in the form of Fact Sheets or Guidelines) should be developed by SA Health in consultation with surrogate mothers, intending parents, relevant South Australian hospitals, maternal health service providers, fertility providers, counsellors and obstetricians on how to provide high quality and sensitive care to surrogate mothers and intending parents in the context of a lawful surrogacy agreement.
Recommendation 37 SALRI recommends that fertility clinics should provide potential parties to a lawful surrogacy arrangement with information about the circumstances in which fertility treatment will be provided to either the surrogate mother or the intending parent/s prior to and during the surrogacy arrangement. This would allow parties to a lawful surrogacy arrangement to consider including, in the surrogacy arrangement, an undertaking by the intending parent/s not to continue to receive fertility treatment once a viable pregnancy has been achieved by a surrogate mother in accordance with the surrogacy arrangement.
PART 20 – COUNSELLING
Recommendation 38 SALRI recommends that all parties to a lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) should have access to appropriate, high quality and specialist counselling services by an Accredited Counsellor as required prior to, during and following a lawful surrogacy arrangement.
Recommendation 39 SALRI recommends that any Surrogacy Act should provide that all parties to a South Australian lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) must obtain a counselling certificate (which includes screening as to the suitability of the parties to enter into a surrogacy agreement) by an Accredited Independent Counsellor prior to any lawful surrogacy arrangement or related fertility treatment.
Recommendation 40 SALRI recommends that, to give effect to Recommendation 39, the Surrogacy Act (or elsewhere) should include the following legislative changes to improve the present counselling (and screening) process: 1. Retaining the current requirements in s 10HA of the Family Relationships Act 1975 (SA) for all parties to the surrogate agreement, and the surrogate mother’s partner, to obtain counselling prior to the lawful surrogacy agreement by an Accredited Independent Counsellor. 2. Amending s 10HA(3)(ab) to require each person referred to in s 10HA(2a)(g) to receive independent counselling, whether provided by the same counsellor or not. 3. Amending s 10HA(3)(b)(i) to require a counselling certificate to be issued by an Accredited Independent Counsellor which states that the person to whom it relates has received counselling about the full range of relevant matters which includes: i. The potential long-term psychosocial implications for each individual and each family involved, including the surrogate child and any other child/ren within the family unit(s) who may be affected by that birth. ii. The reason(s) why the potential surrogate mother wants to become involved in a surrogacy agreement. iii. The need for the surrogate mother’s free, voluntary and informed agreement to enter into a lawful surrogacy agreement. iv. The surrogate mother’s right to make informed decisions about their own medical care, including before and during the pregnancy and birth. v. The possibility that the surrogate mother may need medical and/or psychological assistance during any attempts to become pregnant, during the pregnancy and following the birth and that the pregnancy may affect the surrogate mother’s own health. vi. The potential significance of the gestational connection and the right of a child born as a result of surrogacy to know the details of their birth and background, and the benefits of early disclosure. 14 vii. The possibility that a child born as a result of surrogacy may learn about the circumstances of their birth from sources other than the intending parents (for example from other family members) and may independently access information about their birth. viii. The possibility that a child born as a result of surrogacy may attempt to make contact with the surrogate mother in the future. ix. The impact of the potential surrogacy agreement on the surrogate mother’s partner and other children, and on the couple’s relationship and/or the family unit. x. The impact of the potential surrogacy agreement on the intending parents’ other children, and on the couple’s relationship and/or the family unit. xi. The implications for all parties, if it is proposed that the surrogate mother will provide her own ovum for use within a surrogacy arrangement. xii. The exceptional circumstances present, which would deem it allowable for any party (the surrogate mother and/or intending parents) to participate in a surrogacy arrangement under the age of 25 years. xiii. The need for the Accredited Independent Counsellor conducting the counselling and screening to confirm that the surrogate mother, her partner (if any) and/or the intending parents are suitable to take part in a lawful surrogacy agreement. xiv. The need for the Accredited Independent Counsellor conducting the counselling and screening to confirm that the proposed surrogacy agreement will be in the best interests of any child already existing and any child born as a result of the surrogacy agreement. Recommendation 41 SALRI recommends that any Surrogacy Act (or accompanying Regulations) provide that full membership of, or eligibility for full membership of, the Australian and New Zealand Independent Counsellors Association, is a necessary prerequisite to act in South Australia as an Accredited Independent Counsellor and carry out the counselling (and screening) role in relation to a lawful surrogacy agreement.
Recommendation 42 SALRI recommends that registered fertility clinics should adopt internal processes to ensure that an individual providing the counselling (and screening) to each person referred to in Recommendations 39 and 40 (see also s 10HA(2a)(g) of the Family Relationships Act 1975 (SA)) is in a position to provide independent counselling (and screening) to each client (though also note Recommendation 43 below).
Recommendation 43 SALRI recommends that any Surrogacy Act should make it clear that an Accredited Independent Counsellor responsible for the issue of a counselling certificate (including determining the suitability of a party or parties to enter into a lawful surrogacy agreement) cannot be employed by a fertility clinic or be a ‘contractor’ (in the sense of receiving a commission, bonus or any form of valuable consideration from the clinic as a result of the surrogacy arrangement).
Recommendation 44 SALRI recommends that it should not be mandatory for the parties to undergo counselling during the surrogate mother’s pregnancy. Rather, SALRI recommends that any Surrogacy Act should require that a lawful surrogacy agreement states that the intending parents will take reasonable steps to ensure that the surrogate mother and her partner (if any) are offered 15 counselling (at no cost to the surrogate mother or her partner) during any attempts to become pregnant (even if a pregnancy is not achieved) and during any pregnancy to which the agreement relates.
Recommendation 45 SALRI recommends that any Surrogacy Act should provide that it is mandatory for the surrogate mother to undergo one session of counselling with an Accredited Counsellor of the surrogate mother’s choice after the birth of a child (with any cost to be met by the intending parents). The counsellor (who need not be an Accredited Independent Counsellor) as part of this session should prepare a short post birth report to guide the court as to whether a more detailed report may be necessary to assist the court in determining if any order is in the best interests of the child. Any Surrogacy Act should include an express power for the court to order a more detailed report from an Accredited Counsellor or suitable other expert of the court’s choice if the court considers it appropriate and/or in the best interests of the child.
PART 21 – LAWYERS ADVICE AND CERTIFICATE
Recommendation 46 SALRI recommends that any Surrogacy Act provide that both the surrogate mother and the intending parent(s) must have a certificate from an Australian lawyer certifying that they have received appropriate independent legal advice on the surrogacy agreement and its various implications.
Recommendation 47 SALRI recommends that more detail and clarity should be added by any Surrogacy Act to the type of legal advice that has to be provided to the parties. In this regard, SALRI recommends that the form of a surrogacy agreement should meet certain legal requirements in order to be valid, and should include (at a minimum) the following criteria: (a) the agreement is signed by all parties; and (b) before signing the agreement, each party is to be provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each party is to be provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (d) a copy of the statement referred to in paragraph (c) be provided to the other party or to a legal practitioner for the other party; and (e) the agreement is a contract of which the proper law of the contract is South Australian law; and (e) the agreement has not been terminated and has not been set aside by a court.
Recommendation 48 For the purposes of Recommendation 47 above, SALRI recommends that the present law be extended in any Surrogacy Act to provide that the content of the legal advice provided to the parties should include information dealing with the rights and responsibilities for the child, particularly regarding the authority to make decisions relating to health care (both pre and post birth), and upon the making of an order as to parentage by a court of competent jurisdiction, the effects of the agreement on matters of succession and estate planning and the categories of costs recoverable (see Recommendations 51–54 below).
Recommendation 49 SALRI recommends that the Youth Court (or any other relevant court) should be provided with the counsellor’s certificates, any initial counselling reports in respect of the parties, the Working with Children Checks (or the national criminal history checks) and the lawyers’ certificates in respect of their advice to the parties. This material should be lodged with the Youth Court or any other relevant court prior to any order being made transferring the legal parentage of the child.
PART 22 - MEDIATION
Recommendation 50 SALRI, noting the value of mediation in a surrogacy context, recommends that: (a) the parties have the right, although not compulsory, to access mediation services through an experienced family law mediator to assist in negotiating the surrogacy agreement between them and this should not constitute an offence by the mediator or facilitating service under the relevant provision (see Recommendations 15 and 16 above); (b) in the event of a dispute about the terms of the surrogacy agreement during the life of the agreement, the parties can attend mediation to attempt to resolve the dispute and, if this fails, either party can request the mediator to act as arbitrator in order to resolve the dispute, following which, any decision of an arbitrator is binding on the parties. Note: The aim of mediation should be to try to prevent any disputes arising. The use of mediation and/or arbitration is strictly voluntary, and the parties retain the right, in the alternative, to make an application to a court of competent jurisdiction, however, the aim should be to keep the costs of litigation as low as possible.
PART 23 – RECOVERABLE COSTS
Recommendation 51 SALRI recommends that any Surrogacy Act should provide that the part of the surrogacy agreement relating to costs and expenses should be legally enforceable.
Recommendation 52 SALRI recommends that, in relation to costs, the guiding principles should be set out in any Surrogacy Act and should be that: (i) No valuable consideration should be provided for the act of becoming pregnant and carrying a child for another person; and (ii) A surrogate mother should not be financially disadvantaged as a result of taking part in a surrogacy arrangement and should be able to recover any costs actually incurred as a direct result of the pregnancy and birth.
Recommendation 53 SALRI recommends that any Surrogacy Act should provide that all costs ‘directly related’ to the lawful surrogacy agreement (including the process of getting pregnant, the pregnancy and birth of the child) should be recoverable by the surrogate mother under a lawful surrogacy arrangement. The scope of these costs should be set out in the parties’ individual surrogacy agreements. However, such costs should be permitted to include: (a) Medical costs related to a pregnancy (including any attempt to become pregnant) that is the subject of the agreement. (b) The birth or care of a child born as a result of that pregnancy. (c) Counselling provided in connection with the agreement (including after the birth of a child). (d) Medical services provided in connection with the agreement (medical services provided prior to achieving a pregnancy, and medical care provided during the pregnancy and after the birth of a child). (e) Legal services provided in connection with the agreement (including after the birth of a child). (f) Any premium paid for health, disability or life insurance which would otherwise not have been taken out, but for the agreement; (g) Loss of income of the surrogate mother as a result of leave during the pregnancy or immediately after the pregnancy when the surrogate mother was unable to work on medical grounds. Recoverable loss of income should be limited to a period of two months. Loss of income should be recoverable regardless of the surrogate mother’s access to alternative sources of paid leave during the same period (such as paid parental leave), provided the leave was required on medical grounds. (h) Travel and accommodation costs of the surrogate mother (and her dependents) related to the pregnancy (including any attempt to become pregnant). (i) Reasonable out of pocket expenses (including childcare related expenses and loss of domestic services expenses) incurred by the surrogate mother in respect of the agreement. (j) Any other costs directly related to the surrogacy agreement as prescribed by the Regulations.
Recommendation 54 SALRI recommends that the present law relating to recoverable costs should be amended in any Surrogacy Act to provide that: (a) The scope of recoverable costs should be set out in the parties’ individual surrogacy agreement, but must include all relevant medical costs and the provision of independent legal advice and counselling to the surrogate mother and her partner prior to, during and after the term of the surrogacy agreement; (b) Costs recoverable are those that have been actually incurred by the surrogate mother; and (c) The provisions in the lawful surrogacy agreement relating to costs are legally enforceable between the parties (for example through the small claims process).
Recommendation 55 SALRI recommends that information setting out the typical range of costs recoverable under a lawful surrogacy agreement be made publicly available, for example in the form of a Table or Schedule of Surrogacy Costs, or as a questionnaire, to prompt potential parties to surrogacy agreements to turn their mind to the full range of potential costs recoverable under a lawful surrogacy agreement in South Australia pursuant to Recommendations 52–54 above. Such information could be prepared with the assistance of legal experts and published by a relevant Government department or other body that currently disseminates general legal information on family law matters such as the Legal Services Commission or Relationships Australia.
Recommendation 56 SALRI recommends that any Surrogacy Act should include an express incidental power to enable the relevant court to determine any outstanding issue such as an unresolved dispute about costs under a surrogacy agreement when it considers transferring the legal parentage to the intending parents. Section 24 of the Surrogacy Act 2012 (Tas) is an example of such a provision in this context.
PART 24 – BIRTH CERTIFICATES
Recommendation 57 SALRI recommends that the process in South Australia for obtaining a birth certificate with respect to a child born as a result of a lawful surrogacy agreement includes mandatory requirements at the stage of notification of birth, registration of birth and issue of birth certificate for the collection of information about the child’s intending parents and any donors of human reproductive material. The collection of such information should not affect the legal parentage of the child, which should remain with the surrogate mother (and her partner/spouse as is the current position under the Family Relationships Act 1975 (SA)), unless, and until, an order for transfer of legal parentage is made by the Youth Court.
Recommendation 58 SALRI recommends that the current process for re-issuing a birth certificate upon a declaration of legal parentage by the Youth Court remain and that the Register of Births retains the name of the surrogate mother in its historical records. 19
Recommendation 59 SALRI recommends that a birth certificate for a child born as a result of a surrogacy arrangement should, upon any transfer of legal parentage, include a brief notation such as an asterix or the term ‘reissue’ to indicate that there are relevant historical records which can be sought. The note of the existence of the historical record should appear on the face of the birth certificate but it should not provide specific detail of the type of record held. The details as to the surrogate mother and/or any donors of genetic material should not appear on the face of the birth certificate given the privacy of such material and other legitimate concerns.
Recommendation 60 SALRI recommends that a child born as a result of a surrogacy arrangement should be formally entitled, under the relevant Act, to obtain a certificate (or similar documentary record) certifying all relevant entries in the Register of Births, including details of the surrogate mother and/or any donors of genetic material, once the child attains the age of 16 years. In addition, provision should be made in the Registrar’s Access Policy to allow the Registrar to exercise his or her discretion to grant a child born as a result of a surrogacy arrangement access to a certificate certifying all relevant entries in the Register of Births regardless of the child's age, provided that the Registrar is satisfied that such access would not be harmful to the welfare of the child. The Registrar may request that a counselling certificate or similar documentation be provided to assist in their assessment.
PART 25 – PARENTAGE ORDERS AND THE FAMILY COURT
Recommendation 61 SALRI recommends that, consistent with existing law and practice, legal parentage should remain with the surrogate mother until a court of appropriate jurisdiction makes a parentage order to the contrary.
Recommendation 62 SALRI recommends that any Surrogacy Act provide that a court should have the discretion to be able to extend the period in which an application to transfer legal parentage can be made. When exercising a discretion to extend, the court should consider all relevant circumstances as to the reason for the delay in making the application and determine whether an extension of time is in the best interests of the child.
Recommendation 63 SALRI recommends that any Surrogacy Act provide that a court should have a discretionary power to make a parentage order notwithstanding that one or more of the conditions otherwise applicable for the making of such an order is not satisfied. When exercising this discretion, the court should consider all relevant circumstances, including the nature and extent of the non-compliance with such conditions, the circumstances of non-compliance including whether the non-compliance was deliberate or inadvertent, and the best interests of the child.
Recommendation 64 SALRI recommends that South Australia should refer a power (consistent with the referrals from New South Wales, Queensland, Tasmania and Victoria) which provides that the Family Court may make a determination of parentage ‘whether or not the determination of the child’s parentage is incidental to the determination of any other matter within the legislative powers of the Commonwealth’ and upon receiving the referral of power from South Australia, the Commonwealth Government should amend s 69VA of the Family Law Act 1975 (Cth) to reflect these referrals.
Recommendation 65 SALRI recommends that South Australia introduce a conclusive statutory presumption of parentage on the basis of a finding of parentage made by another State, Territory or Commonwealth court, as is the situation in the Australian Capital Territory, New South Wales and Queensland.
Recommendation 66 SALRI recommends that an interstate order relating to parentage of a child of a surrogacy arrangement be able to be given effect as if it was made in South Australia, in addition to recognising Commonwealth orders as to parentage.
PART 26 – INTERNATIONAL COMMERCIAL SURROGACY: THE BERNIERES GAP
Recommendation 67 SALRI recommends that it is an issue at the national level (whether for the Commonwealth or the Commonwealth, States and Territories jointly) to resolve the effect and implications of Bernieres in relation to both international commercial and non-commercial surrogacy arrangements.
27 – INCIDENTAL ISSUES
Recommendation 68 SALRI recommends that it examine the various consequential civil law issues and implications such as succession law and medical care raised in a domestic surrogacy context as part of a short spin off Report.
Recommendation 69 SALRI recommends that the opportunity of formulating a new Surrogacy Act should be utilised to include a number of worthwhile provisions (drawing on interstate models such as the Surrogacy Act 2010 (NSW) or the Surrogacy Act 2012 (Tas)) lacking in the present law in South Australia (or not within the Family Relationships (Surrogacy) Amendment Bill 2017).