Surrogacy

What is a surrogacy arrangement?

• Where a woman (the birth mother) agrees to become pregnant and give birth to a child for another person or couple (the intended parent/s) who will become the child's legal parent/s.
• It can only be made before the birth mother becomes pregnant.
• It must be made in writing and signed by the parties to 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 individuals can enter into a surrogacy arrangement and become the intended parent/s.

Can the arrangement be enforced?

• If the birth mother changes her mind, she cannot be forced to give up her child.

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

You can have a child using surrogacy if you:

• live in Tasmania
• have a medical or social need
• are at least 21 years of age

You can be a surrogate (a birth mother) if you:

• live in Tasmania
• have already given birth to a live child
• are at least 25 years of age

The Court can waive certain conditions if it is in the best interests of the child.

What other requirements are there?

Intended parent

Before entering into a surrogacy arrangement you must:

• receive legal advice about the implications of the arrangement and of a parentage order
• receive counselling from a counsellor accredited under the Surrogacy Act (external link)
• sign an agreement with the surrogate mother (and her partner ) to confirm the terms of the arrangement

Birth mother

Before entering into a surrogacy arrangement you must:

• receive legal advice about the implications of the arrangement and of a parentage order
• receive counselling from a counsellor accredited under the Surrogacy Act (external link)
• sign an agreement with the intended parent/s to confirm the terms of the arrangement

Counselling

• The purpose of the counselling is to make parties aware of the social and psychological implications of a surrogacy arrangement.
• All parties must receive counselling from an accredited surrogacy counsellor.

Counselling must occur both before a child is conceived and after birth.

Birth Mother's surrogacy costs

• The intended parent/s must pay the birth mother's surrogacy costs (unless the birth mother changes her mind about the surrogacy).
• We recommend that parties outline the costs they believe are to be paid or reimbursed to the birth mother in their written agreement.

Commercial surrogacy

• Commercial surrogacy is illegal.
• A commercial surrogacy arrangement is 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 illegal.

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?

• If there are medical reasons preventing you from becoming pregnant or giving birth to a child.
• If you suffer from a genetic condition that is likely to affect your health or the health of your child.

What are your rights as a birth mother?

• To manage your pregnancy. For example, you can choose to smoke or drink alcohol.
• After the child is born, you are the legal mother of the baby, until the Court orders that parentage be transferred.

Registering the birth

• Birth parent/s must register the birth with Births, Deaths and Marriages.
• The birth will be registered showing the birth mother (and her partner) as the parent/s of the child.
• Once the Court has made a parentage order, the court will notify Birth, Deaths and Marriages.
• Births, Deaths and Marriages will re-register the birth so that the record shows the intended parents as the legal parents of the child.
• The "original" details of the child's parents will become a restricted, historical record.
• Births, Deaths and Marriages will issue the child a new birth certificate showing the intended parent/s as the child's parents. This will look like a standard birth certificate.

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.
• The child must be living with the intended parent/s at the time of the Court hearing.
• You can access the necessary forms from the Magistrates Court.
• You need to lodge your application in person at the Magistrates Court in Hobart, Launceston, Burnie or Devonport.
• The Intended Parent/s must provide the Birth Parent/s with a copy of the application. You will need to keep a record to confirm this.
• The birth parent/s must consent to the parentage order (unless there are exceptional circumstances such as death or lost mental faculty).
• The Court will need to be satisfied that all parties received counselling, as part of the transfer of parentage.

Surrogacy arrangements made prior to the Act commencing?

• If an altruistic surrogacy agreement was made 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.

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

• All parties to a surrogacy arrangement may access original birth information about the child.
• The individual born as a result of surrogacy can only access their original birth information if:
  • they can prove they are a surrogate child by providing the name of their birth parent/s; or
  • the child obtains a statutory declaration from an approved counsellor stating that they have received counselling.

Information for counsellors

You can apply to the Secretary of the Department of Justice to be accredited as a surrogacy counsellor if:

• you are registered with the Psychology Registration Board; or
• you have Level 2 Membership of the Australian Counselling Association; or
• you are registered with the Psychotherapy and Counselling Federation of Australia.

Download application form for accreditation as a surrogacy counsellor (PDF, 414.9 KB) or email bdm@justice.tas.gov.au to request one.

While there are no prescribed matters that counselling must cover, we recommend parties consider the following matters before conception:

• The implications of surrogacy for the relationships between all the parties, including any donors and all existing family members involved.
• The possibility of medical complications for the surrogate child or the birth mother.
• The possibility of any party changing their mind about any matter in the surrogacy process.
• The attitude of all parties about 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.
• How disputes will be resolved.
• Care arrangements for 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 include matters discussed in counselling in their written agreement.

Parties may ask the counsellor to provide a written record of matters discussed and agreed between the parties during the counselling process.

The Court will need to be satisfied that all parties received counselling, as part of the transfer of parentage,

Accredited surrogacy counsellors