Proposed laws to make surrogacy easier in South Australia

New laws would make surrogacy easier for more people, even allowing couples to have children through surrogates that are not genetically related to them at all.

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South Australian couples would be able to have through surrogacy a baby not genetically related to them or the surrogate, if proposed laws are approved.

Known as “Team Baby”, the scenario, which uses donor egg and sperm and a surrogate mother, is allowed in draft legislation to be put to Parliament today by Attorney-General Vickie Chapman.

It may sound like a rare set of circumstances but legal experts have recommended the option to the State Government in the context of advances in medical technology and high rates of infertility.

Currently at least one of the eventual parents of a child born by surrogate in South Australia must provide sperm or an egg.

In an earlier draft of the proposed laws the Government excluded the Team Baby concept but in the latest version it is allowed.

The new laws would also clarify that single people and gay male couples would be eligible to take part in surrogacy and raise the minimum age of anyone participating from 18 to 25.

The changes were recommended in a report to Government by the SA Law Reform Institute.

Ms Chapman said the decision to allow the Team Baby approach began with the concern that infertile single people could be given access to surrogacy by the new laws but then excluded if they could not provide sperm or an egg.

“For some people surrogacy is the only way to start a family of their own,” Ms Chapman said.

“The more we looked at it the more it would be a choice that ought to be open to couples that aren’t in a position to make a donation and don’t want to rely on the surrogate mother’s ovum.”

Laws vary around the country but a number of states require the intended parents to donate egg or sperm.

Some critics may argue couples who cannot provide any genetic material for a surrogate child should adopt an unrelated child instead.

Ms Chapman said adoption was extremely rare in South Australia and usually occurred in cases where the child was already related or known to the adoptee.

“Currently South Australias who can’t have children of their own are often forced to go overseas (for adoption),” she said.

“We want to make (surrogacy) as accessible to South Australian couples here as we can.”

Under the proposed laws surrogacy would be an option where at least one intended parent lives in SA and is unable or unlikely to be able to become pregnant, safely carry a child or give birth.

It would also apply where “gender identity, sexuality or any other reason” would make conceiving “unlikely”.

There would not be a requirement to prove that intended parents were unable to donate genetic material but it is unlikely those with another choice would take up the Team Baby option.

Paying a surrogate would remain illegal but associated costs could be reimbursed, including loss of income.

Advertising to be or for a surrogate would attract a fine of up to $10,000.

Threatening to force someone to be a surrogate would carry maximum penalty of five years.

All parties involved would have to undergo counselling.

The surrogate mother’s name would initially be recorded on the birth certificate but could be replaced with the intended parents’ names by court order

The names of any egg or sperm donors would not be on the birth certificate but would be available for the child to access from age 16.

A surrogate mother would have full control over medical decisions while pregnant.

Ms Chapman hoped to have the legislation through Parliament by the end of the year.