Surrogacy

The law in South Australia recognises certain forms of surrogacy that meet the requirements outlined in the Surrogacy Act 2019 (SA) and the Surrogacy Regulations 2020 (SA).

The Surrogacy Act and Regulations commenced on 1 September 2020, and repealed Part 2B of the Family Relationships Act 1975 (SA). A recognised surrogacy agreement under Part 2B of the Family Relationships Act 1975 (SA) that was in force immediately before 1 September 2020 will continue to be in force in accordance with its terms, and will be taken to be a lawful surrogacy agreement under the Surrogacy Act [Surrogacy Act 2019 (SA) Sch 1 cl 11(1)].

Commercial surrogacy remains unlawful in South Australia. Part 5 of the Surrogacy Act 2019 (SA) outlines specific offences relating to surrogacy.

A lawful surrogacy agreement is an agreement under which a woman agrees to become pregnant (or seeks to become pregnant) and surrender parentage or custody of, and rights in relation to, a child born as a result of the pregnancy to another person or persons [ss 4, 10].

The only parties to a lawful surrogacy agreement are the intended parent or parents and the surrogate mother [s 10(2)]. The Act allows a single parent to become an intended parent, whereas prior to 1 September 2020, two intending parents in a qualifying relationship were required.

An intended parent or parents are persons it is agreed will have custody of a child under a lawful surrogacy agreement [s 10(2)(b)].

Under section 10(4) of the Act, an intended parent must:

be at least 25 years old
not have impaired decision-making capacity in respect of the decision to enter a lawful surrogacy agreement [see s 4(4) for the definition of impaired decision-making capacity]
be an Australian citizen or permanent resident of Australia
undergo prescribed counselling prior to entering a lawful surrogacy agreement (as outlined in section 14 of the Act)
provide to the surrogate mother a criminal history report within the 12 months prior to entering a lawful surrogacy agreement.

Further, at least one intended parent must:

live in South Australia at the time the lawful surrogacy agreement is entered into, and
fall within one of the following circumstances:
- they are female and unlikely to become pregnant or be able to carry a pregnancy or give birth
- there is a risk of genetic defect, serious disease or serious illness that would be transmitted to a child born to an intended parent
- there is a risk that becoming pregnant or giving birth would result in physical harm to an intended parent (over and above a usual pregnancy)
- it is unlikely in all of the circumstances of the intended parent or parents that an intended parent would become pregnant, or be able to carry a pregnancy, or give birth (whether due to gender identity, sexuality or other reason).

The intended parent or parents must also ensure counselling is available to the surrogate mother before and during the pregnancy and up to 6 months after the birth [see s 15 for more detail]. Failure to comply with this requirement is an offence with a maximum penalty of $5,000. The reasonable costs of counselling must be paid by the intending parent or parents and are recoverable as a debt from either parent [s 15(3)].

The surrogate mother is the woman who is to carry a child or children for the purposes of the lawful surrogacy agreement [s 10(2)(a)].

Under s 10(3) of the Act, the surrogate mother must:

be at least 25 years old
not have impaired decision-making capacity in respect of the decision to enter a lawful surrogacy agreement [see s 4(4) for the definition of impaired decision-making capacity]
be an Australian citizen or permanent resident of Australia
not be pregnant at the time the lawful surrogacy agreement is entered into
undergo counselling as prescribed by section 14 of the Act
provide to each intending parent a criminal history report within the 12 month period prior to entering a lawful surrogacy agreement.

A surrogate mother is not required to live in South Australia, and may live interstate.

A lawful surrogacy agreement must:

be in writing and in a form prescribed by the Regulations
contain a separate lawyer’s certificate for the surrogate mother and each intended parent respectively
contain a counsellor’s certificate in respect of the surrogate mother, and each intended parent
contain provisions setting out the payment arrangements for reasonable surrogacy costs [see s 11, reg 5 and discussion below]
outline the proposed court orders being sought by the intended parent or parents under Part 4 of the Act [s 18].

An accredited counsellor is prescribed under section 4(1) of the Act and regulation 4 of the Regulations as a member (or person eligible to be a member) of the Australian and New Zealand Infertility Counsellors Association subcommittee of the Fertility Society of Australia.

What are ‘reasonable costs’ payable to the surrogate mother?

A guiding surrogacy principle is that a surrogate mother should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement [s 7(1)(b)].

Section 11 of the Act outlines the permissible payments to a surrogate mother in respect of the lawful surrogacy agreement, and the circumstances in which they can occur. Payments made that are not in accordance with the Act and regulations are unlawful, and may constitute an offence under Part 5 of the Act. Nothing in the Act or the Regulations authorises commercial surrogacy [s 11(3)].

Reasonable costs may include:

costs relating to the pregnancy (including any attempt to become pregnant)
costs relating to the birth of the child
costs relating to the postnatal care of the child
medical, counselling or legal services provided in relation to the lawful surrogacy agreement
reasonable out of pocket expenses incurred by the surrogate mother in relation to the lawful surrogacy agreement
any costs prescribed by the regulations.

Under regulation 5 of the Surrogacy Regulations 2020 (SA), the surrogate mother is entitled to loss of income payments relating to the lawful surrogacy agreement for:

loss of income during any period of the pregnancy when the surrogate mother was unable to work due to attendance at medical appointments relating to the pregnancy
loss of income during any period of the pregnancy where the surrogate mother was unable to work on medical grounds due to the pregnancy
loss of income during any period within 2 months after the end of the pregnancy when the surrogate mother was unable to work on medical grounds relating to the end of the pregnancy.

Guiding Principles of the Act

The best interests of the child born to a lawful surrogacy agreement is the most important consideration to the administration and operation of the Act, and also in making any Court orders that transfer or revoke parentage [s 6].

The human rights of all parties to a lawful surrogacy agreement (including the child born) must be respected, and the surrogate mother should not be financially disadvantaged as a result of her involvement in a lawful surrogacy agreement [s 7].

The privacy requirements of a child born as a result of a surrogacy agreement are outlined in section 29 of the Act.

Rights of surrogate mother

A surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman [s 16]. Any question relating to medical treatment to be provided to a surrogate mother, or to an unborn child to which a lawful surrogacy agreement relates, is to be determined as if the lawful surrogacy agreement did not exist. The Act does not limit the operation of any advance care directive that the surrogate mother may have in place [s 17].

Enforceability of a lawful surrogacy agreement

A lawful surrogacy agreement (or a provision of a lawful surrogacy agreement) is not enforceable, except as otherwise specified in the legislation (for example, the recovery of reasonable surrogacy costs) [s 13].

This means that a surrogate mother may refuse or fail to relinquish the custody or rights in relation to a child born as a result of the lawful custody agreement, or may not consent to a court order transferring parentage under s 18 [see s 18(5)(c)]. In this situation, the recovery of reasonable surrogacy costs would not be enforceable.

Court orders relating to lawful surrogacy agreements

The Youth Court may, on an application by one or both of the intended parents under a lawful surrogacy agreement, make any of the following orders in relation to a child born as a result of the lawful surrogacy agreement [s 18]:

that the relationship between the child and the intended parent or parents is as specified in the order
that the relationship between the child and a deceased person whose reproductive material resulted in conception of the child is as specified in the order
that the relationship between the child and the surrogate mother is as specified in the order
that the relationships of all other persons to the child are to be determined according to the operation and effect of the above relationships
an order declaring the name of the child
such consequential or ancillary orders as the Court considers appropriate.

A court application to transfer parentage under section 18 of the Act must be made between 30 days and 12 months after the child is born. This time limit can only be extended if the Court considers it to be in the best interests of the child, or if exceptional circumstances exist [s 18(2)(b)].

The surrogacy jurisdiction of the Youth Court is governed Chapter 8 Part 4 (rr 352.1-354.5) of the Uniform Special Statutory Rules 2022 (SA).

The Youth Court cannot make an order under section 18(1) of the Act unless it is satisfied that the making the order is in the best interests of the child and that the intended parent or parents (if alive at the time of the order) are fit and proper to care for the child [s 18(5)]. The surrogate mother under the lawful surrogacy agreement must consent to the making of the section 18 order, as well as each intended parent (if alive) to the lawful surrogacy agreement [s 18(5)]. The Youth Court can only dispense with the requirement to have the consent of the surrogate mother if satisfied that the surrogate mother is deceased or incapacitated, or that that the applicants cannot contact the surrogate mother after making reasonable inquiries.

An applicant must provide to the Court, if known, the identity of the donor of any human reproductive material used in relation to the lawful surrogacy agreement which resulted in the birth of a child [s 18(3)].

The Youth Court may, if it thinks it appropriate, order that the child be separately represented in the proceedings, and make any other orders the Court considers necessary or appropriate to secure their separate representation [s 20]. A legal practitioner representing a child in proceedings under this Act must act in the best interests of the child, having regard to the evidence available to the legal practitioner [s 20(2)].

The Registrar of the Youth Court must, as soon as is reasonably practicable after the Court makes an order under section 18 or 19 relating to a child, give to the Registrar of Births, Deaths and Marriages written notice of the following [s 21]:

the date of the court order
the full name, address and occupation of the birth mother of the child
the full name, address and occupation of the intended parent or parents of the child under the lawful surrogacy agreement
the full name and any other prescribed particulars of any deceased person in relation to whom an order is made under s 18(1)(a)(ia) or s 19(3)(a)(iia)
the name by which the child is known before, and is to be known after, the order becomes effective
the date and place of birth of the child
the terms of any other orders made
if known, the identity of the donor of any human reproductive material used in relation to the relevant lawful surrogacy agreement and resulting in the birth of a child (being a donor who is not the birth mother, an intended parent or a deceased person the subject of an order under s 18(1)(a)(ia))
such other information as may be reasonably required by the Registrar of Births, Deaths and Marriages for the purposes of registration of the birth of the child to whom the order relates.

The Youth Court may only make an order that revokes an order under section 18 (the 'original order') in the following prescribed circumstances [s 19]:

the application is made by the birth mother of a child, and
it is in the best interests of the child, and
it can be shown that the original order was obtained by fraud, duress or other improper means (including any consent relied upon in making the original order) or there are exceptional reasons why the original order should be discharged.

The records of court proceedings relating to an order under section 18 or 19 of the Act are not open to inspection unless authorised by the Youth Court [s 22].

Offences [Part 5 of the Act]

It is a criminal offence to:

enter, or try to enter, a commercial surrogacy agreement, whereby a woman is paid to enter into a surrogacy agreement, give up a child born as a result of a surrogacy agreement, or consent to an order under the Act in relation to a child born as a result of a surrogacy agreement [s 23]. Payment does not include payment of reasonable surrogacy costs permitted under the Act. Maximum penalty: imprisonment for 12 months.
for valuable consideration, negotiate, arrange or obtain the benefit of a surrogacy agreement for another person [s 24]. Maximum penalty: imprisonment for 12 months.
threaten, use dishonesty or undue influence to induce another person into a surrogacy agreement [s 25(1)]. Maximum Penalty: imprisonment for 5 years.
for valuable consideration, induce another to enter a surrogacy agreement [s 25(2)]. Maximum Penalty: imprisonment for 2 years.
advertise certain services relating to surrogacy for valuable consideration [s 26]. Maximum penalty: $10,000 fine.

Surrogacy : Last Revised: Tue Feb 25th 2025
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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