Surrogacy Act 2010

This Act may be cited as the Surrogacy Act 2010.

This Act commences on a day to be fixed by proclamation.

The dictionary in schedule 2 defines particular words used in this Act.

This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and all the other States.

Subsection (1) does not make the State, the Commonwealth or another State liable for an offence.

The main objects of this Act are—

to regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and

in the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result—

to establish procedures to ensure parties to the arrangement understand its nature and implications; and

to safeguard the child’s wellbeing and best interests.

This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.

Subject to subsection (1), this Act is to be administered according to the following principles—

a child born as a result of a surrogacy arrangement should be cared for in a way that—

ensures a safe, stable and nurturing family and home life; and

promotes openness and honesty about the child’s birth parentage; and

promotes the development of the child’s emotional, mental, physical and social wellbeing;

the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of—

how the child was conceived under the arrangement; or

whether there is a genetic relationship between the child and any of the parties to the arrangement; or

the relationship status of the persons who become the child’s parents as a result of a transfer of parentage;

the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;

the autonomy of consenting adults in their private lives should be respected.

A surrogacy arrangement means an arrangement, agreement or understanding between a woman and another person or persons under which—

the woman agrees to become, or try to become, pregnant with the intention that—

a child born as a result of the pregnancy is to be treated as the child, not of the woman, but of the other person or persons; and

the woman will relinquish to the other person or persons custody and guardianship of a child born as a result of the pregnancy; and

the other person or persons agree to become permanently responsible for the custody and guardianship of a child born as a result of the pregnancy.

Note—

Section 7(1) sets out only the minimum requirements for a surrogacy arrangement. There are many additional requirements which must be satisfied to obtain a parentage order under chapter 3. For example, independent legal advice must be obtained before entering into a surrogacy arrangement if transfer of parentage of the child born as a result of the arrangement is desired—see section 22(2)(e)(i).

There may be other parties to a surrogacy arrangement, for example, the woman’s spouse.

Notes—

1 The woman’s spouse (if any) must be a party to the arrangement if transfer of parentage of the child born as a result of the arrangement is desired—see section 22(2)(e)(v).

2 Spouse is defined in the Acts Interpretation Act 1954, schedule 1 to include a de facto partner and a civil partner.

Also, there may be other matters dealt with in a surrogacy arrangement.

The birth mother is the woman who agrees to the matters mentioned in section 7(1)(a) under a surrogacy arrangement.

The birth mother’s spouse means the birth mother’s spouse at the time when the birth mother entered into the surrogacy arrangement.

A birth parent, of a child, means a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born.

An intended parent is a person who agrees to the matter mentioned in section 7(1)(b) under a surrogacy arrangement.

Note—

Parentage of a child born as a result of a surrogacy arrangement may only be transferred to 1 intended parent who is single or 2 intended parents who are a couple—see section 22(2)(c).

A couple is a person and the person’s spouse.

A surrogacy arrangement is a commercial surrogacy arrangement if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person—

agreeing to enter into or entering into the surrogacy arrangement; or

permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or

consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.

A birth mother’s surrogacy costs are the birth mother’s reasonable costs associated with any of the following matters—

becoming or trying to become pregnant;

a pregnancy or a birth;

the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.

Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs—

a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);Example of a reasonable medical cost for paragraph (a)—

a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure

a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;

a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;

a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including—

the cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or

the cost relating to the preparation of a surrogacy guidance report under section 32;

a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;

the value of the birth mother’s actual lost earnings because of leave taken—

for a period of not more than 2 months during which a birth happened or was expected to happen; or

for any other period during the pregnancy when the birth mother was unable to work on medical grounds;

another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.Examples of other reasonable costs for paragraph (g)—

• travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth

• travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court

In this section—

legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.

medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.

A parentage order is an order made by the court under chapter 3 for the transfer of the parentage of a child born as a result of a surrogacy arrangement.

A discharge order is an order made by the court under chapter 3 discharging a parentage order.