Australia does not have the benefit of a uniform national approach to surrogacy. Rather, surrogacy arrangements are legislated for on a State and Territory basis, save for the Northern Territory which does not presently have any statutory surrogacy regime. In those Australian jurisdictions which have legislation dealing with surrogacy, it remains common ground that commercial arrangements are prohibited, in some cases extra-territorially, and only altruistic surrogacy arrangements are permitted on a domestic basis.
For States and Territories with surrogacy legislation, the statutes make provision for the transfer of parentage to the party who commissioned the surrogacy arrangement by Court Order following the birth of the child or children.
Whilst there are similarities which exist in terms of the requirements each domestic jurisdiction has to receive approval for a surrogacy arrangement and the ‘Parentage Orders’ which may follow, there are also notable differences in terms of process. The following explanation focuses on the legislative regime which exists in Victoria, and seeks to address some of the opportunities and difficulties which face intended parents and surrogates when considering entering into a surrogacy arrangement.
Domestic surrogacy arrangements typically involve the following parties and authorities:
- Commissioning Parent/s – This is the person or persons who commission the surrogacy arrangement with a view to ultimately obtaining a parentage order and being responsible for the welfare of the child.
- The Surrogate – The woman who undergoes the assisted reproductive treatment to achieve a pregnancy on behalf of the commissioning couple.
- The Donor – A third party who provides genetic material for the purposes of the surrogacy arrangement.
- Patient Review Panel – Established under Part 9 of the Assisted Reproductive Treatment Act 2008, the Patient Review Panel considers individual applications for treatment as part of surrogacy arrangements.
Provision for altruistic surrogacy arrangements in Victoria now exists pursuant to the Assisted Reproductive Treatment Act 2008 (“ARTA”) and associated amendments to the Status of Children’s Act 1974 and Births Deaths and Marriages Registration Act 1996. Other relevant legislation is the Assisted Reproductive Treatment Regulations 2009.
Commissioning couples of a surrogacy arrangement who can satisfy the prescribed requirements of the ARTA can apply for a Substitute Parentage Order in the County Court.
Surrogacy may occur by way of artificial insemination, including self-insemination of a woman, or with assisted reproductive technology.
Eligibility & Treatment
Eligibility for access to assisted reproduction involves specific criteria which often are only met by virtue of the parties having medical complications or receiving a diagnosis of being unable to have a child naturally. Whilst the legislative changes now provide a framework in which altruistic surrogacy is available, it is worthwhile keeping in mind that surrogacy is rarely a first option for commissioning parents.
Section 10 of ARTA stipulates that a woman may undergo a treatment procedure only if:
a. The woman and her partner, if any, have consented to the procedure;
b. The Patient Review Panel has decided there is no barrier to the woman undergoing a treatment procedure of that kind; or
c. A doctor is satisfied on reasonable grounds that:
i. The woman is unlikely to become pregnant or be able to carry a pregnancy or give birth to a child other than by a treatment procedure; or
ii. The woman is at risk of transmitting a genetic abnormality or disease to a child born as a result of a pregnancy conceived other than by a treatment procedure, including a genetic abnormality or disease for which the woman’s partner is the carrier.
Pursuant to Section 7 of ARTA a person may only carry out assisted reproductive treatment if the person is a doctor carrying out the treatment on behalf of a Registered Assisted Reproductive Treatment provider, or under their supervision. There are several Registered ART providers in Victoria, each of which have their own fees and processes. The Victorian Assisted Reproductive Treatment Authority, maintains a register of approved providers. providers as at present are:
Pursuant to section 39 of ARTA, a Registered ART provider may carry out a treatment procedure on a woman under a surrogacy arrangement only if the surrogacy arrangement has been approved by the Patient Review Panel.
Locating a Surrogate
One of the biggest challenges for prospective commissioning parents of altruistic surrogacy arrangements is locating a suitable surrogate. An additional hurdle arises by virtue of section 45 of the Assisted Reproductive Treatment Act 2008, which specifically prohibits the publication of a statement, advertisement, notice or document:
(a) to the effect that a person is or may be willing to enter into a surrogacy arrangement; or
(b) to the effect that a person is seeking another person who is or may be willing to enter into a surrogacy arrangement or to act as a surrogate mother or to arrange a surrogacy arrangement; or
(c) to the effect that the person is or may be willing to arrange a surrogacy arrangement; or
(d) to the effect that a person is or may be willing to accept any benefit under a surrogacy arrangement, whether for himself or herself or for another person; or
(e) that is intended or likely to counsel or procure a person to agree to act as a surrogate mother; or
(f) to the effect that a person is or may be willing to act as a surrogate mother.
For this reason, most altruistic surrogacy arrangements proceed between commissioning parents and close friends or family members.
Pathways to Surrogacy
In Victoria there are two pathways by which parties can avail themselves of a surrogacy arrangement leading to a Substitute Parentage Order. In general terms, the first involves artificial insemination, including self-insemination, of the surrogate and at least in the initial stages this option is significantly less proscriptive. The second involves applying to the Patient Review Panel for approval of a treatment procedure as part of a surrogacy arrangement prior to the pregnancy. Both pathways have the same requirements that parties to the surrogacy arrangement undertake counselling and obtain legal advice before a Substitute Parentage Order can be obtained, however the timing for when each must be undertaken varies, as explained further below.
The primary difference from a procedural perspective is that surrogacy arrangements involving artificial insemination do not ordinarily require the approval of the Patient Review Panel.
If utilising the second pathway, section 40 of ARTA sets out the matters to be considered by the Patient Review Panel in deciding an application for approval of a surrogacy arrangement. These include the following:
a. that a doctor has formed an opinion that—
i. in the circumstances, the commissioning parent is unlikely to become pregnant, be able to carry a pregnancy or give birth; or
ii. if the commissioning parent is a woman, the woman is likely to place her life or health, or that of the baby, at risk if she becomes pregnant, carries a pregnancy or gives birth;
(ab) that the surrogate mother’s oocyte will not be used in the conception of the child;
(ac) that the surrogate mother has previously carried a pregnancy and given birth to a live child;
b. that the surrogate mother is at least 25 years of age;
c. that the commissioning parent, the surrogate mother and the surrogate mother’s partner, if any, have received counselling and legal advice as required under section 43;
d. that the parties to the surrogacy arrangement are aware of and understand the personal and legal consequences of the arrangement;
e. that the parties to the surrogacy arrangement are prepared for the consequences if the arrangement does not proceed in accordance with the parties’ intentions, including—
i. the consequences if the commissioning parent decides not to accept the child once born; and
ii. the consequences if the surrogate mother refuses to relinquish the child to the commissioning parent.
f. that the parties to the surrogacy arrangement are able to make informed decisions about proceeding with the arrangement.
Pursuant to section 41 of ARTA, the Patient Review Panel may approve non complying surrogacy arrangements in exceptional circumstances, and provided it is reasonable to do so.
Before a surrogacy arrangement is entered into the commissioning parent, the surrogate mother and her partner (if any) must satisfy the requirements of section 43 of ARTA, which include:
a. Undergoing counselling by a counsellor providing services on behalf of a Registered ART provider, about the social and psychological implications of entering into the arrangement; and
b. Undergo counselling about the implications of the relinquishment of the child and the relationship between the surrogate mother and the child once it is born; and
c. Obtain information about the legal consequences of entering into the arrangement.
The cost of counselling and legal advice are able to be met by the commissioning couple as ‘proscribed costs’ (see below).
Applications to the Patient Review Panel for approval of a treatment procedure as part of a surrogacy arrangement are usually facilitated by the Registered ART provider, and occurs after the parties have undertaken the requisite counselling and obtained legal information in accordance with section 43.
Substitute Parentage Orders
In the event that approval from the Patient Review Panel is obtained and the treatment procedure is successful, or alternatively if couples utilise artificial insemination which is successful, the Status of Children Act 1974 as amended by the Assisted Reproductive Treatment Act 2008 now provides that commissioning parents may apply to the Supreme Court or County Court for a ‘Substitute Parentage Order’ in respect of the child.
Section 20 of the Status of Children Act 1974 addresses the making of an application for a Substitute Parentage Order and states that:
(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.
Pursuant to section 22 of the Status of Children Act 1974 the Court may make a Substitute Parentage Order if it is satisfied:
a. That making the order is in the best interests of the child;
b. that the surrogacy arrangement was commissioned with the assistance of a Registered ART provider, and that the surrogacy arrangement was approved by the Patient Review Panel before it was entered into;
c. the child was living with the commissioning parents at the time the application was made;
d. 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;
e. the surrogate mother freely consents to the making of the order.
Persons who undertake surrogacy arrangements without the use of a Registered ART provider (ie. artificial insemination) may still apply for a Substitute Parentage Order, however they must satisfy additional requirements stipulated in section 23 which necessitate that:
a. the surrogate mother be aged 25 years or over, and
b. the surrogate mother has received counselling about the social, psychological and legal implications of the making of the Substitute Parentage Order including counselling any of the matters proscribed for the purposes of section 43 of ARTA;
c. 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
d. obtained information about the legal consequences of making the Substitute Parentage Order.
As is evident from the above, whether a Registered ART provider is utilised by a commissioning couple for an approved treatment procedure, or whether parties instead utilise artificial insemination, the requirements for counselling and the obtaining of legal information must be satisfied.
Legal Advice in Surrogacy Matters
As stated above, the parties to a surrogacy arrangement which will be facilitated by a registered ART provider will need to demonstrate to the Patient Review Panel that they have received legal advice before the Panel will approve the proposed arrangement. Lawyers acting for parties are requested to provide correspondence to the Panel confirming that the requisite advice has been provided. For surrogacy arrangements involving artificial insemination, legal advice is still required as a precursor to the parties obtaining a Substitute Parentage Order from a Court.
The legal consequences of a surrogacy matter are readily defined when anticipating that things will ‘go to plan’. Unsurprisingly, the provision of advice becomes more complex when also addressing the myriad of issues which may arise and of which parties ought to be properly advised. The following is not a comprehensive guide but instead provides a starting point.
If legal advice is being obtained for the purposes of a surrogacy arrangement, pursuant to section 43 of ARTA that advice must address ‘the legal consequences of entering into the arrangement’. Despite the encapsulating nature of that requirement, some assistance can be had by reference to Part IV of ARTA, in particular section 40(d)(e) and (f) which specifically states that the Patient Review Panel, when considering approval of a surrogacy arrangement, must be satisfied that the parties are prepared for the consequences in the event that the surrogacy arrangement does not proceed in accordance with their intentions, including:
a. the consequences if the surrogate refuses to relinquish the child once it is born or refuses to consent to the making of the Substitute Parentage Order; and
b. the consequences if the commissioning couple refused or were unable to accept the child once born.
It would be difficult to satisfy section 43 of ARTA without at a minimum addressing the parties rights in the above two circumstances. To do so however, requires a consideration of who is a parent under our State and Federal legislation. The question is relevant for a number of reasons, in particular on a federal level due to the effect of s61C of the Family Law Act which confers parental responsibility in respect of a child on the child’s parents.
Status of Children Born through Medical Procedures
Often the commissioning couple in a surrogacy arrangement provide their own genetic material for implantation into their surrogate. However, it does not necessarily follow that a person who is the genetic parent of a child is regarded as a parent.
In Victoria, Parts II, III and V of the Status of Children’s Act 1974 address the status of children born through medical procedures. Several sections within those parts give rise to statutory presumptions as to who is a parent of a child born through assisted reproduction. These presumptions, by virtue of section 19, also apply to children born through surrogacy arrangements.
The presumptions do not prevail over a Substitute Parentage Order (the effect of which is explained further below), but do arise irrespective of the source of the genetic material used in the treatment procedure. As such, unless displaced by a Substitute Parentage Order, the effect of the presumptions are that the surrogate mother will be the ‘mother’ and legally responsible for the child born as part of the altruistic surrogacy arrangement. If the surrogate has a husband who has consented to the arrangement, he is presumed to be the ‘father’. If the surrogate has a female partner, she will be presumed to be a parent of the child.
The status of children born as a result of artificial conception procedures is also dealt with on a Federal level under the Family Law Act 1975, specifically by section 60H. The language however is different, in that the Family Law Act does not refer to presumptions of parentage but stipulates that a child is ‘of’ a woman and the other intended parent provided certain criteria are met, and irrespective of the genetic progeny of the child born as a result of the artificial conception procedure. However the ramifications for parties in a surrogacy arrangement are the same.
Section 60H was amended on 21 November 2008 by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. The Amendment Act also introduced s60HB, which relates to children born pursuant to surrogacy arrangements.
If commissioning parents are able to obtain a Substitute Parentage Order in Victoria, their legal position in respect of the child is acknowledged on a Federal level by the operation of Section 60HB, which provides that if a Court has made an Order under a ‘prescribed law of a State or Territory’ to the effect that a child is the child of one or more persons; or that each of one or more persons is a parent of a child then, for the purposes of the Family Law Act, the child is the child of each of those persons. Substitute Parentage Orders in Victoria are made pursuant to section 22 of the Status of Children’s Act 1974, which is the relevant ‘prescribed law’ for the purposes of s60HB as set out in Regulation 12CAA of the Family Law Regulations 1984.
What then is the situation for commissioning couples of a surrogacy arrangement prior to a Substitute Parentage Order being granted? As all surrogacy arrangements necessarily involve an ‘artificial conception procedure’ s60H remains relevant.
Section 60H provides as follows:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material–the child is not the child of that person.
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6) In this section:
“this Act” includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates Rules.
As is evident from the wording, s60H is readily applicable to parties who need the assistance of infertility treatment as a means of conceiving children, but which are not part of a surrogacy arrangement, and would in the case of parties using donor genetic material have the desired effect of deeming the child to be a child of the parties for the purposes of the Act.
However when the provision is applied to surrogacy arrangements, commissioning couples and the surrogate should be aware of its effect, namely that the child will be considered to be the child of the surrogate, and her spouse or de facto partner (the ‘other intended parent’) provided the necessary conditions of s60H are satisfied, namely:
a. That the surrogate mother, and the other intended parent are married or in a de facto relationship (noting that such a relationship must exist at the time of the child’s conception); and
b. Both the surrogate mother and the other intended parent consented to the artificial conception procedure ; and
c. Any parties who provided genetic material used in the procedure consented to same;
d. under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the surrogate and of the other intended parent .
The relevant ‘prescribed law’ for the purposes of s60H(1)(b)(ii) is set out in Regulation 12C of the Family Law Regulations 1984
The relevant ‘prescribed law’ for the purposes of s60H(2)(b) is set out in Regulation 12CA of the Family Law Regulations 1984.
As is evident on the face of the legislation, the effect of s60H is not displaced by the fact that the surrogate, and if present the other intended parent, have no biological connection to the child. Rather, s60H(1)(d) specifically establishes that providing genetic material for the purposes of an artificial conception procedure does not give rise to a presumption of parentage. In other words, commissioning couples who provide genetic material for the conception of a child as part of a surrogacy arrangement will not, in the absence of any State or Territory Order substituting parentage, be the ‘parents’ of the resulting child for the purposes of the Family Law Act.
Given that the status of the child has been legislatively provided for on both a State and Federal level, the parties to the surrogacy arrangement must be made aware of their respective rights, or lack thereof. Specifically:
a. Commissioning couples must have considered the consequences if the surrogate mother refuses to relinquish the child, and be aware of the above presumptions. Recourse in such circumstances may well be limited to an application under the Family Law Act 1975 if the commissioning couple can satisfy the Court that they are persons ‘concerned with the care, welfare or development of the child’ so as to have standing to make application under section 65C(c).
b. Conversely, the surrogate mother and her husband if any must consider the consequences if the commissioning party refuses to accept the child, separate or die. At law, the child is theirs, and their options in the absence of viable alternatives will necessitate consideration of relinquishing the child with a view to adoption, or accepting parental responsibility for them.
Surrogacy Agreements in Victoria
In Victoria parties are not required to enter into a Surrogacy Agreement when seeking approval of a surrogacy arrangement which incorporates a treatment procedure with a Registered ART provider, or artificial insemination. They are of course able to should they choose, but as any such agreement is rendered unenforceable by virtue of the aforementioned statutory presumptions, it is unusual for parties to incur the additional cost of formalising their arrangement. Many of the issues which might otherwise form part of a surrogacy agreement are however addressed during the counselling process which is the precursor to either approval by the Patient Review Panel for a treatment procedure, or a Substitute Parentage Order from a Court.
Care of the Child Pending a Substitute Parentage Order
This legislative provisions as to the status of the child conceived as part of an altruistic surrogacy arrangement in Victoria apply notwithstanding that the child may be relinquished into the care of the commissioning couple post birth.
Parties should be made aware that the application to the County Court for a Substitute Parentage Order can be made not less than 28 days and not more than 6 months after the birth of the child, or at another time with leave of the Court. The practical reality is that a Court may not hear and determine an application for a Substitute Parentage Order until some weeks after the application has been lodged. Advice will necessarily need to address who exercises parental responsibility for the child in the interim period, and who is able to provide parental consents to medical treatment and like matters.
Typically, the child is discharged to the commissioning couple with the consent of the surrogate from hospital following the birth. In practical terms, this means that the commissioning party will be responsible for the day-to-day care, welfare and development of the child. However, the surrogate mother is still the parent at law and in circumstances where her partner consented to the treatment procedure giving rise to the pregnancy, they are presumed to be a parent. Accordingly, they are the persons able to provide consent to matters such as medical treatment, immunisations and like matters until such time as substitute Parenting Order is made.
Similarly, it will be necessary for the surrogate to obtain a copy of the child’s birth certificate from the Registry of Births, Deaths and Marriages, which is a document required for the purposes of the Substitute Parentage Order application.
Altruistic Surrogacy & Prescribed Costs
Section 44 of the Assisted Reproductive Treatment Act 2008 prohibits a surrogate from receiving any material benefit or advantage pursuant to the surrogacy arrangement and stipulates a penalty for breach of 240 units or two years imprisonment or both. Pursuant to s22(1)(d) of the Status of Children’s Act 1974 the Court must actually be satisfied that the surrogate has not received any material benefit or advantage under the arrangement in order for the Court to making a Substitute Parentage Order. However, s44(2) does not prevent the surrogate mother being reimbursed for “prescribed costs” actually incurred as a direct consequence of entering the surrogacy arrangement. Regulation 10 of the Assisted Reproductive Treatment
Regulations 2009 defines prescribed costs as:
(a) any reasonable medical expenses associated with the pregnancy or birth that are not recoverable under Medicare, health insurance or another scheme;
(b) any legal advice obtained for the purposes of section 43(c) of the Act;
(c) travel costs related to the pregnancy or birth.
Whilst the prescribed costs are stipulated, the Assisted Reproductive Treatment Act 2008 does not specifically state that a surrogate mother is only able to be reimbursed for prescribed costs. At the present time there are no test cases available to provide specific guidance as to whether particular costs other than prescribed costs can be reimbursed to the surrogate. The question arises as to whether expenses, or losses incurred by a surrogate as a result of the surrogacy arrangement outside the scope of prescribed costs can nevertheless be reimbursed provided they do not result in a material benefit or advantage to the surrogate.
Whilst strict compliance with the Regulations is advisable, some guidance might be taken from the Explanatory Memorandum for the Assisted Reproductive Treatment Bill which states in respect of s44 that the section:
“prevents a surrogate mother from receiving any material benefit or advantage as a result of a surrogacy arrangement. Surrogacy arrangements under this Act may only be altruistic and can never be commercial arrangements.
This does not, however, prevent a surrogate mother from being reimbursed for costs actually incurred by her as part of the surrogacy arrangement. Costs actually incurred may include medical expenses or lost earnings not otherwise reimbursed by leave entitlement.
This clause makes it clear that, to the extent that a surrogacy arrangement may provide for a matter other than the reimbursement of costs actually incurred by a surrogate mother, the arrangement is void and unenforceable.”
As lost earnings are beyond the scope of prescribed costs, the Explanatory Memorandum may suggest that Section 44 of the Assisted Reproductive Treatment Act does permit costs which fall outside the definition of prescribed costs to be reimbursed provided that they do not result in a material benefit or advantage to the surrogate.
What does remain clear however is the very strict intent that surrogacy arrangements are only permitted if they proceed in a purely altruistic manner.
Effect of a Substitute Parentage Order
Section 26 of the Status of Children’s Act 1974 provides that if the Court makes a Substitute Parentage Order in respect of a child, certain provisions of the Adoption Act 1984 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.
The applied provisions are sections 53 to 58 of the Adoption Act 1984, except sections 53(1)(d) and (e). In general terms, by virtue of those provisions, a Substitute Parentage Order has a number of effects including:
a. that the child is treated in law as a child of the commissioning parents;
b. the surname of the child shall be that of the commissioning parents;
c. the domicile of the child (Citizenship) shall be determined in accordance with the Domicile Act 1978 on the basis that the child’s parents are the commissioning couple;
d. in relation to the disposal of property;
e. in relation to bequests by Will to an unascertained person;
In comparison to the legal complexities international surrogacy arrangements can be fraught with, the legislative framework for altruistic surrogacy provides a level of certainty provided the arrangement proceeds in accordance with the parties intentions. The clear message from a legislative standpoint however is that parties need to enter altruistic surrogacy arrangements with their eyes wide open as to their legal position should there be a change of heart prior to the making of a parentage order.