Changes to Surrogacy Law (ACT)

The Parentage (Surrogacy) Amendment Act 2024 significantly reformed surrogacy law in the Australian Capital Territory. The amended Parentage Act 2004 aims to improve access to altruistic surrogacy and better establish a clearer and fairer legal framework that brings the ACT in line with other states and territories in Australia. The amendment addresses several challenges faced by surrogates and intended parents, and safeguards the parties’ human rights during the surrogacy process. This article looks at how the changes will impact intended parents and surrogates in the ACT.

What is surrogacy?

Surrogacy is a reproductive arrangement whereby a person (the surrogate) carries and gives birth to a baby for another individual (or couple), who is known as the intended parent (or parents). For people who are unable to bear biological children, such as most same-sex couples and opposite-sex couples who struggle with infertility, surrogacy offers one path to parenthood. Often the child of surrogacy is biologically related to the intended parent/s, in that either or both the egg or sperm of the intended parent/s are used to form an embryo. However, unlike some other jurisdictions in Australia, the ACT also allows for what is sometimes known as “traditional surrogacy”, whereby the surrogate is the genetic mother of the child because she uses her own egg with donated sperm to form an embryo.

Requirement for two intended parents removed

Significantly, the 2024 amendment removes the restriction that required there to be two intended parents in a surrogacy arrangement in the ACT. While the ACT already allowed LGBTQ+ couples to access surrogacy, this change opens the door for single people of all genders and orientations to pursue parenthood through surrogacy in the ACT. The only remaining restriction on intended parents is that they must be at least 18 years old and a resident of the ACT.

Requirement for genetic connection removed

The Act also removes the necessity for there to be a genetic connection between the surrogate child and at least one of the intended parents. Previously, intended parents could not access surrogacy in the ACT unless one intended parent had a genetic link to the child. This change means that couples who both have fertility issues can now pursue surrogacy through donor eggs and sperm.

Geographical restriction removed

Intended parents will now enjoy greater flexibility over where conception can occur. Under the amendment, intended parents do not have to conceive within the ACT, and can access assisted reproductive technology services (ART) in other jurisdictions in Australia. This provision is crucial for intended parents who require specialised ART procedures or prefer to access services that are only available in other locations. Removing the geographical restriction provides a practical solution and enhances accessibility for intended parents who face logistical and resource constraints within the ACT.

Restriction on advertising removed

It was often difficult for intended parents to find a suitable surrogate, as surrogacy must be a voluntary rather than paid arrangement. The new law eases this difficulty as the amendment lifts restrictions on advertising for surrogacy. Intended parents can now connect with potential surrogates through advertising, as long as it is an altruistic arrangement and not a commercial surrogacy. This change helps intended parents to find individuals who are willing to help for no financial gain.

Legal and medical protections

While many of the changes relax the restrictions around surrogacy in the ACT, the amendment also introduces important additional protections. The Act requires that each person receives independent legal advice about the surrogacy agreement. This agreement must be properly documented and operate within a legal framework that clarifies expectations and protects the interests of the surrogate, intended parents and eventually, the child. In addition, each individual must participate in counselling before entering into the surrogacy arrangement.

Rights and requirements for surrogates

The amendment affirms a surrogate’s bodily autonomy and right to make decisions about their own healthcare and pregnancy, including the choice to terminate a pregnancy. While a surrogate cannot be paid for the arrangement, they can be reimbursed or paid for their reasonable expenses, such as the costs of entering the legal arrangement, becoming pregnant, carrying the pregnancy and giving birth. Surrogates do not have to be residents of the ACT. Surrogates must be over the age of 18, however, if they are under the age of 25 they must receive counselling on the implications of the arrangement and the counsellor must be satisfied that the surrogate is sufficiently mature to understand the social and psychological implications.

The updates to the ACT’s surrogacy law bring them more in line with arrangements in other Australian states and territories. This harmonising of legislation will reduce confusion and barriers for intended parents and surrogates, and uphold the rights of all parties consistently across Australia. The amendment is particularly significant for intended parents who are single and those who will have no genetic connection to the child born via surrogacy. Please get in touch with the experienced family law solicitors at Go To Court on 1300 636 846 for any advice on changes to surrogacy law in the ACT.