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Surrogacy

What is a surrogacy arrangement?

  • Where a woman (the birth mother) agrees to become pregnant and, if necessary jointly with her husband or partner, agrees to relinquish the child to another person or persons (the intended parents) who will become the child's parent or parents.
  • It can only be made before the birth mother becomes pregnant.
  • It must be made in writing and signed by the parties of the arrangement.

Who can enter in to a surrogacy arrangement?

  • The intended parents must have a medical or social need for the arrangement.
  • Same-sex couples and single persons can enter into a surrogacy arrangement and become intended parents.

Conception

  • Any method can be used for conception.
  • There are no restrictions upon the use of particular genetic material for conception.

Can the arrangement be enforced?

  • If the birth mother changes her mind, she cannot be forced to relinquish the child. The birth mother who agrees to relinquish the child can be reimbursed for, and enforce payment of, costs she has incurred as a result of participating in a surrogacy arrangement. Otherwise a surrogacy arrangement cannot be enforced. 

Who can have a child through surrogacy and who can be a surrogate?

  • A person who wants to have a child using surrogacy (an intended parent) must
  1. have a medical or social need for the surrogacy.
  2. be at least 21 years of age (compulsory).
  3. live in Tasmania at time agreement is entered in to and at time order is made.
  • A person who wants to be a surrogate (a birth mother) must
  1. previously have given birth to a live child.
  2. be at least 25 years of age.
  3. live in Tasmania at time the agreement is made.

The Court is given the power to waive certain preconditions if it is in the best interests of the child.

What other requirements are there?

Intended parent 

  • The intended parent/s must:
  1. receive legal advice prior to entering into a surrogacy arrangement.
  2. enter in to a written agreement with the surrogate mother (and her partner if appropriate) about the terms of the arrangement that is not a commercial arrangement.
  3. reimburse the birth mother's surrogacy costs (compulsory).
  4. receive counselling after the birth but prior to transfer of parentage.
  5. have the child living with them when an application is made to the Court.

Birth mother

  • The birth mother must:
  1. receive legal advice prior to entering into a surrogacy arrangement.
  2. enter into a written agreement with the intended parent or parents about the terms of the arrangement that is not a commercial agreement (compulsory).
  3. receive counselling after birth but prior to transfer of parentage.

New surrogacy agreements to be made in writing

  • Although a surrogacy arrangement is unenforceable, except for the obligation to reimburse the birth mother's surrogacy costs, a written agreement is still required.
  • This must be signed by the birth mother, the birth mother's spouse or partner (if appropriate) and the intended parent or parents.  
  • As an agreement prepared by a lawyer can be costly, the use of counselling between the parties to resolve major issues, which can then be reflected in a document drawn up by the counsellor involved and signed by the parties, is a way of avoiding these costs.
  • If the parties prefer they could use a lawyer or simply draw the document up themselves.

When and how do I obtain legal advice?

  • Parties to a surrogacy arrangement must receive independent legal advice before entering in to the arrangement.
  • Legal advice may be obtained from any lawyer who has knowledge of the area.
  • Parties will receive advice about the implications of the arrangement and the implications of a parentage order.
  • For the Court process, the Court will require parties to provide evidence that they received legal advice.

When and how do I receive counselling?

  • All parties must receive counselling from an accredited surrogacy counsellor.
  • Counselling must occur both before a child is conceived and after birth.
  • The purpose of the counselling is to make parties aware of the social and psychological implications of a surrogacy arrangement. 
  • While there are no prescribed matters that counselling must cover, some of the matters it is recommended parties consider before conception are:
    • The implications of surrogacy for the relationships between all the parties, including any donors and all existing family members of the parties involved.
    • The possibility of medical complications for the surrogate child or the birth mother.
    • The possibility of any party changing their mind on what has previously been agreed regarding any matter in the surrogacy process.
    • The attitude to all parties in relation to the conduct of the pregnancy.
    • The attitude of all parties to investigation of a genetic abnormality in the baby, and the possibility of termination of pregnancy or other complications.
    • The process that will be followed for resolving disputes.
    • The process for care of the child should the intended parent/s die before the surrogacy process is complete.
    • Attitudes towards an ongoing relationship between the birth mother, her family and the child.
  • After the birth, counselling is to be used to ensure that all parties are still comfortable with the arrangement.  

Birth Mother's surrogacy costs

  • The birth mother's surrogacy costs are enforceable and must be paid to the birth mother (unless the birth mother changes her mind about the surrogacy and does not agree to the transfer of the parentage of the child).
  • The costs include, but are not limited to:
    • reasonable medical costs
    • reasonable costs, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement
    • any premium payable for health, disability or life insurance that would not have been incurred by the birth mother otherwise
    • reasonable costs of counselling about the arrangement;
    • reasonable legal costs
    • the value of the birth mother's lost earnings (if any) because of leave taken as a result of the arrangement
    • travel and accommodation costs associated with the arrangement.
  • It is recommended that parties outline the costs they believe are to be paid or reimbursed to the birth mother in their written agreement.

Commercial surrogacy to remain illegal

  • A commercial surrogacy arrangement is an arrangement where payments are made to the birth mother which exceed her actual costs associated with the pregnancy and birth.
  • Commercial brokerage (arranging a third party surrogacy for a fee) and advertising of surrogacy arrangements is also prohibited.

What is a medical or social need for a surrogacy arrangement?

  • If there is only one intended parent and that person is a male.
  • If there are two intended parents, both of who are male.
  • If there is only one intended parent and that person is an eligible woman.
  • If there are two intended parents, a man and an eligible woman.
  • If there are two intended parents, both of who are eligible women.

Who is an eligible woman?

  • A woman who:
    • is unable, on medical grounds, to conceive a child, or
    • is likely to be unable, on medical grounds, to carry a pregnancy or give birth, or
    • is unlikely to survive a pregnancy or birth or who is likely to have her health significantly affected by a pregnancy or birth, or
    • if she were to conceive a child, is likely to conceive:
      • a child who is likely to be affected by a genetic condition or genetic disorder, the cause of which is attributable to the woman, or
      • a child who is unlikely to survive the pregnancy or birth or whose health is likely to be significantly affected by the pregnancy or birth.

What are the rights of the birth mother?

  • To manage her pregnancy, just as any other pregnant woman does. For example, chooses to smoke or drinks alcohol.
  • After the child is born, the birth mother is the mother of the baby, and her partner, if any, is the other parent. This remains the case until the Court orders that parentage be transferred.

Registering the birth

  • Birth parent/s must register the birth of child with Births, Deaths and Marriages.
  • Legally, the birth will be registered showing the birth mother (and her partner if applicable) as the parent/s of the child.
  • Once the Court has made a parentage order, the court will notify the Registrar of Birth, Deaths and Marriages of the making of the order.
  • The Registrar will re-register the birth so that the record now shows the intended parents as the parents of the child.
  • The "original" information about the child's parentage will be entered in a surrogacy record, which is a private database kept by Registrar.
  • The child will be issued with a new birth certificate showing the intended parent/s as the child's parents. This will look like a standard birth certificate.
  • The Registrar is given powers to release the child's original birth information to the child in certain limited circumstances.

Why do you need to transfer the parentage of the child?

  • When the child is born, the birth parent/s must register the birth of the child in their own name/s. Legally, these people are the parents of the child.
  • This may create problems for intended parents, such as when obtaining medical treatment for the child, applying for a passport or in relation to inheritance.
  • The transfer of parentage creates legal certainty for all parties involved and protects the child's best interests into the future.  

How do you transfer the parentage of the child to the intended parents?

  • The intended parent/s must apply to the Magistrate's Court (Children's Division) between 30 days and 6 months after the birth of the child. 
  • You will soon be able to access the necessary forms online or from the Magistrates Court.
  • Applications will need to be lodged in person at the Magistrates Court in Hobart, Launceston, Burnie or Devonport.
  • The Intended Parent/s must serve the Birth Parent/s with a copy of the application.
    • You or another person can personally serve the birth parent/s.
    • You can engage a process server, (the Yellow Pages has a listing).
    • You can use Registered Post.
  • If either of the first two methods are used, a record of service must be completed.
  • For the order to be made, the birth parent/s must consent to the order (unless there are exceptional circumstances such as death or lost mental faculty).
  • If the birth parent/s have changed their mind, no order can be made. The intended parent/s should consider providing the birth parent/s with a copy of the consent form that they must fill in at the same time as the application is served.
  • As a matter of routine, there is no need for the birth parent/s to attend Court, the consent form is sufficient evidence.
  • The child must be living with the intended parent/s at the time of the hearing.
  • The Court will grant an order to transfer the parentage if the order is in best interests of the child and the Magistrate is satisfied the pre-conditions have been met.  

Information for counsellors who wish to be accredited to provide surrogacy counselling

The Act provides that parties are to receive counselling from an accredited counsellor.

The accreditation process involves applying to the Secretary, Department of Justice. The Secretary may accredit a person who has a tertiary qualification or its equivalent in social work, psychology, counselling or another relevant field and who, has appropriate experience.

To demonstrate appropriate experience you will need to have

  1. Registered with the Psychology Registration Board; or
  2. Level 2 Membership of the Australian Counselling Association; or
  3. Registered with the Psychotherapy and Counselling Federation of Australia.

Download application form for accreditation as a surrogacy counsellor (PDF, 2 pages) or email bdm@justice.tas.gov.au to request one.

Once your application is approved, you will be advised in writing.

While there are no prescribed matters that counselling must cover. It is recommended parties consider before conception

  • The implications of surrogacy for the relationships between all the parties, including any donors and all existing family members of the parties involved.
  • The possibility of medical complications for the surrogate child or the birth mother.
  • The possibility of any party changing their mind on what has previously been agreed regarding any matter in the surrogacy process.
  • The attitude to all parties in relation to the conduct of the pregnancy.
  • The attitude of all parties to investigation of a genetic abnormality in the baby, and the possibility of termination of pregnancy or other complications.
  • The process that will be followed for resolving disputes.
  • The process for care of the child should the intended parent/s die before the surrogacy process is complete.
  • Attitudes towards an ongoing relationship between the birth mother, her family and the child.

Parties may wish to use the matters discussed in counselling to inform the written agreement about the arrangement that they must make. As such, counsellors may be asked to record in writing matters discussed and agreed between the parties. The parties may take this information to a lawyer, or may ask the counsellor to sign a copy of the document.

As part of the transfer of parentage, the Court will need to be satisfied that all parties received counselling. Counsellors will be required to sign a simple statement to this effect for evidence to the Court. This statement is contained on the documents the parties must lodge with the Court for transfer of parentage.

Are surrogacy arrangements made prior to the Act commencing included?

  • If an altruistic surrogacy agreement was entered in to before the commencement of the Act, the intended parent/s may apply to the Court to have the parentage of the child transferred to them.

Appeal or discharge of a parentage order.

  • A decision granting or refusing a parentage order may be appealed to the Supreme Court.
  • An application for the discharge of a parentage order may be made to the Magistrate's Court (Children's Division) if
    • the order was obtained by fraud or duress,
    • the arrangement was, in fact, a commercial arrangement,
    • or other exceptional circumstances.

Who can gain access to the information held by Births, Deaths and Marriages?

  • The parties to a surrogacy arrangement may gain access to the original birth information about the child.
  • The individual born as a result of surrogacy can only gain access to their original birth information if
    1. they can prove they are a surrogate child by providing the name of their birth parent/s or
    2. the child obtains a statutory declaration from the counsellor stating that they have received counselling.
  • In this context, a surrogate child is any person who was born as a result of surrogacy, even if they are aged over 18 years of age at the time they apply for their original information.
  • If a surrogate child now lives interstate or overseas, and cannot provide the name of their birth parent/s to Births, Deaths and Marriages, they must receive counselling in the jurisdiction in which they now reside.