Recent surrogacy reform in the ACT

The Parentage (Surrogacy) Amendment Bill 2023 came into effect in the ACT on 10 July 2024, bringing about a series of amendments to surrogacy arrangements in the ACT.

The reforms are directed to making surrogacy arrangements more accessible to hopeful parents, and to bring the ACT legislation in line with surrogacy arrangements across the country.

The primary changes to surrogacy arrangements in the ACT are:

1. It is no longer a requirement that there be two intended parents of a surrogacy arrangement, and a single person not in a marriage or de facto relationship may pursue a surrogacy arrangement;

2. The timeframes in which an application must be made to the ACT Supreme Court for a Parentage Order have been relaxed, in some circumstances;

3. To provide surrogates and intended parents greater access to fertility services and greater freedom of movement, it is no longer a requirement that a child born of a surrogacy arrangement be conceived and birthed within the ACT. Intended parents who wish to make an application to the ACT Supreme Court for a Parentage Order may utilise assisted reproductive technology treatment, or birth a child outside of the ACT;

4. It is no longer a requirement that there be a genetic connection between the child and the intended parents. Prior to the recent amendments, it was required that one intended parent provide genetic material used for conception;

5. Whilst commercial surrogacy remains unlawful in the ACT (and all other Australian states and territories), hopeful parents wishing to enter into a surrogacy arrangement are now permitted to advertise a proposed altruistic surrogacy, to improve their prospects of connecting with a surrogate;

6. The Parentage Amendment 2024 which also came into effect from July 2024, provides a prescribed list of antenatal and postnatal expenses which are deemed to be “reasonable expenses” for which a birth parent may seek reimbursement;

7. The amendments place greater emphasis upon the Court’s ability to exercise discretion to grant a Parentage Order where it is in the best interests of the child to do so.

For specialist legal advice in relation to surrogacy arrangements, contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Margot McCabe, Associate Director.

Altruistic Surrogacy in the ACT: Your guide to recent reforms

Making the decision to bring a child into your lives is a big and exciting milestone.  Whether you are in a relationship or you are pursuing parenthood on your own, it is not always as easy as it seems.  For some Australians, giving birth is not an option – whether due to fertility challenges, biological barriers, or other reasons.  These individuals or couples might consider other pathways to parenthood, such as adoption or surrogacy.

Surrogacy provides future parents with the opportunity to have a child, where they are unable to give birth.  Whilst in some countries you can pay an individual to give birth on your behalf, commercial surrogacy is illegal in Australia. Surrogacy in Australia is governed by states and territories.  All Australian jurisdictions permit altruistic surrogacy, where the surrogate is unable to profit from the arrangement but their reasonable expenses are covered.

If you reside in the ACT and are pursuing parenthood, you should take note of the recent changes to legislation.   On 25 June 2024, the ACT Government passed the Parentage (Surrogacy) Amendment Bill 2023 (ACT).  The Bill brings a number of amendments to altruistic surrogacy in the ACT which include:

1.      The removal of the requirement that two intended parents enter into a surrogacy arrangement.  This allows for a single person to consider surrogacy, without the need to be in a relationship;

2.      The removal of the requirement to have a genetic connection with the child.  This change will be welcomed by future parents who face fertility challenges as it allows for traditional surrogacy (where the altruistic surrogate may conceive a child using their own egg); and

3.      All parties are required to seek independent legal advice and counselling prior to entering into a surrogacy arrangement.  This will likely reduce the potential for conflict, as altruistic surrogates and aspiring parents can better understand their rights and the nature of the surrogacy agreement.

The amendments better align ACT’s surrogacy laws with that of other Australian states and territories.

Surrogacy presents unique legal challenges for all adults involved.  For example, if you engage in commercial surrogacy, it may be difficult to gain recognition as the child’s legal parent in Australia, and the surrogate may remain the legal parent of the child.  Many future parents and potential altruistic surrogates negotiate and enter into surrogacy arrangements, which can stipulate what ‘reasonable’ expenses will be covered.

The likely costs involved for intended parents and the surrogate may include fertility treatment, legal advice (for you and the surrogate), counselling and psychological assessments, pregnancy and birth related expenses, and costs associated with obtaining a parentage order. Additional costs you should consider may include travel costs, loss of income, allied health treatment and pre-natal supplements.

Surrogacy laws can be tricky to navigate on your own.  For advice in relation to surrogacy laws in the ACT, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley