Surrogacy arrangements in Victoria are governed by the Assisted Reproductive Treatment Act 2008 (Vic).
The Act specifies, amongst other things, that:
- the surrogate must know or have a personal relationship with the intended parents, and
- must have previously been pregnant and given birth, and
- cannot use her own eggs for the purpose of conception.
It is also an offence for the surrogate to financially or materially profit from the surrogacy arrangement.
Only surrogacy arrangements that have been approved by the Patient Review Panel can be conducted by a registered assisted reproductive technology (ART) provider. Together with counselling and other requirements, the Panel must be satisfied that independent legal advice has been provided to the intended parents as well as the surrogate and her partner, if she has one. This is in circumstances where, pursuant to the Family Law Act 1975 (Cth), it is the surrogate and her partner (if relevant) who will be considered the legal parents of the child upon its birth and will be listed on the child's birth certificate. The parties must cooperate to make an application to the Victorian Supreme or County Court for what is known as a "substitute parentage order" to transfer legal parentage to the intended parents pursuant to the Status of Children Act 1974 (Vic).
Amendments to the Assisted Reproductive Treatment Act and Regulations came into effect on 15 August 2022. Significantly, section 44A was included and specifies that the surrogate mother has the same rights as any other pregnant woman has to make decisions or take actions in relation to the management of the pregnancy and the birth of the child, and that this applies in relation to a surrogacy arrangement despite anything that the parties to the arrangement may have agreed whether orally or in writing.
Should you be considering a surrogacy arrangement, either as an intended parent or as a surrogate, you will require independent legal advice.
For further information about surrogacy arrangements in Victoria, please contact our authors or a member of Lander & Rogers' Family & Relationship Law team.
Image by Carlo Navarro on Unsplash.
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