New surrogacy laws for Australian Capital Territory

A government bill introduced to the Australian Capital Territory (ACT)'s Parliament proposes a refresh of the ACT's surrogacy laws.

The Parentage (Surrogacy) Amendment Bill 2023 will remove some anomalies with the current Parentage Act 2004, proposing incremental changes, but not fundamental ones. Commercial surrogacy, both in the ACT and outside of it, will remain a criminal offence, but advertising for surrogacy or procuring surrogacy will be decriminalised.

The Bill requires that surrogacy arrangements – for the first time – be in writing, as they can currently be oral. It also specifies that the intended parents have independent legal advice (as would the surrogate and her partner), and that all parties have counselling. This aligns the law with curent practice of IVF clinics in the ACT, which currently require that the parties must have independent legal advice and counselling before entering into a surrogacy arrangement.

Unlike other Australian states and the Northern Territory, there will be no requirement for the qualification of the counsellor, other than that the counsellor ought to be independent. It seems that any counsellor will do, not just a specialised infertility counsellor. There is no requirement that the counsellor have any professional qualifications or memberships, or that, for example, that the counsellor be a social worker or psychologist.

The Bill proposes removing several restrictions. Traditional surrogacy, currently banned, will be allowed. The requirement that the intended parents must be a couple is to be abolished, enabling intended parents to be a couple or single. The current requirements that there must be a genetic link between one of the intended parents, that the surrogate must be part of a couple, and that the embryo transfer occurs in the ACT, are all to be abolished.

The Bill would also allow those who have a child born from traditional surrogacy within the ACT to be able to obtain a parentage order, with a sunset period of five years after the Act commences.

The ACT Supreme Court will have the discretion to make a parentage order when there has been commercial surrogacy. This might be, for example, a gay couple who had undertaken surrogacy in India when only one of the men is named on the birth certificate, or a couple who had undertaken surrogacy in Thailand where the genetic father is named on the birth certificate, along with the surrogate.

However, in order to obtain that order, the court would need to be satisfied that there is a pressing disadvantage facing the child that would be alleviated by making a parentage order about the child.

If parents came to the Supreme Court seeking a parentage order for a child born as a result of commercial surrogacy (even overseas) they would still have to run the gauntlet that the court might refer them to authorities. The Bill clearly expresses that there will be no let-up on those who have engaged in commercial surrogacy, but this statement stands in contrast to the reality that there have been no prosecutions in the 19 years of the Bill's existence. However, the offence of entering into a commercial surrogacy arrangement (currently a commercial substitute parentage agreement) has no time limit for prosecution. The risk that parents will be referred to authorities will deter them from asking in the first place.

The Bill will enable surrogates to have bodily autonomy as to how they manage their pregnancy and childbirth like other women, and like surrogates do under similar laws elsewhere in Australia.

The concept of 'substitute parents' and 'substitute parentage order' will be replaced with 'intended parents' and 'parentage order'.

Oddly, the current liberal regime for expenses is to be replaced with a highly proscriptive one. This appears, unintentionally, to be a case of two steps forward with the Bill, and one step back with expenses. While for the first time the surrogate and partner can be compensated for necessary time away from work, any payments made to the surrogate for maternity clothes, breastmilk pump and bottles, housekeeping, massages or acupuncture, to engage a locum if self-employed, to pay for the surrogate or partner's new will, will be characterised as a payments that are commercial in nature, and therefore would be commercial surrogacy, and illegal.

Travel, accommodation and parking will be allowed to be reimbursed when the surrogate is going to see the doctor, but not when going to see the counsellor, and only sometimes when going to see the lawyer. Australia is a big place. Surrogates are commonly located interstate and may be a long way from their doctor, counsellor or lawyer, and may not want or be able to use electronic attendances.

The Bill is to be debated later in November. It will either be enacted before the end of the month, or referred to committee, to be dealt with in early 2024.