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Surrogacy in Victoria

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Victoria‘s laws are finally catching up with social and medical advances.  New laws regulating IVF and surrogacy will commence in 2010.  These reforms will give more Victorians the opportunity to have children and bring Victoria into line with other Australian states and territories.

Rob Hulls MP says that the new surrogacy laws will be available regardless of a person’s relationship status or sexual orientation.  Academics have said that as a result of the new laws lesbian and single women will have access to legal, safe and affordable infertility treatment in Victoria.  Unfortunately however it is unclear whether homosexual men will be afforded the same opportunities as lesbians and heterosexual women under the reforms.

Many perceive the current surrogacy laws to be restrictive. In this respect, surrogacy agreements are unenforceable, only infertile heterosexual married or de facto couples can enter into such arrangements and the pool of potential surrogate mothers is limited to women who are also infertile.

The Assisted Reproductive Treatment Act 2008 (“ART Act”) will commence on 1 January 2010.  This Act will allow parties to enter into binding surrogacy agreements and establishes firm guidelines about when surrogacy arrangements can occur.

The ART Act requires that:

  • All surrogacy arrangements must be approved by the Patient Review Panel (a government selected panel)
  • The commissioning couple must be unlikely to become pregnant or alternatively be unable to carry a baby or give birth.  Alternatively, doctors may conclude that a pregnancy is likely to place the woman or baby at risk
  • The surrogate must be at least 25 years old, must have been previously pregnant and given birth
  • The surrogate’s genetic material (i.e. eggs) must not be used
  • The commissioning parents, the surrogate and the surrogate’s partner (if any) must attend counselling and receive legal advice in relation to the surrogacy agreement
  • A report, written by the professional who provided the counselling services to the parties, must be provided to the Patient Review Panel
  • All parties must undergo a Criminal Records Check and a Child Protection Order Check.  Assisted Reproductive Treatment services cannot be provided to a woman or her partner who have been convicted of a violent offence, or against whom charges of a sexual offence have been proved.  The provision of Assisted Reproductive Treatment services are also prohibited where a child protection order was issued which removed a child from the custody or guardianship of the woman or her partner.
  • The surrogacy arrangement must be altruistic, although the surrogate may be reimbursed for costs incurred as a result of the surrogacy arrangement

That said, some of the current restrictions on surrogacy will continue. For example advertising of surrogacy remains prohibited.

The reforms also amend the Status of Children Act 1974 and the Births, Deaths and Marriages Act 1996.  These amendments clarify and provide that anonymous sperm and egg donors are not the legal parents of a child conceived through assisted reproductive treatment.  In addition, the commissioning parents, with the consent of the surrogate mother, can apply within a limited period to the courts for substitute parenting orders.  These changes, in particular, may assist some same sex couples in having children and being legally recognised as the child’s parents.

Controversially, the reforms also allow for a deceased spouse’s egg or sperm to be used by their surviving spouse in order to have a child. This can occur either by surrogacy or by IVF. However the deceased spouse must have consented in writing to the use of their eggs or sperm.

MST’s Family Law team is able to provide legal advice in relation to surrogacy, and can guide you through the complicated application process. Please do not hesitate to contact us if you would like to discuss how the new surrogacy laws may affect you.

Author:  Louise Tolson