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New South Wales
Surrogacy Bill 2010
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Guiding principle 2
4 Definitions 2
5 Surrogacy arrangement--meaning 3
Part 2 Surrogacy arrangements
Division 1 Enforcement of surrogacy arrangements
6 Enforcement 5
7 Birth mother's surrogacy costs--meaning 5
Division 2 Offences in relation to surrogacy
arrangements
8 Commercial surrogacy arrangements prohibited 6
b2010-117-40.d09
Surrogacy Bill 2010
Contents
Page
9 Commercial surrogacy arrangement--meaning 6
10 Advertising of surrogacy arrangements prohibited 7
Part 3 Parentage orders
Division 1 Parentage orders
11 Parentage order 8
12 References to "child" 8
Division 2 Application for parentage order
13 Application for parentage order 8
14 Date of surrogacy arrangement 9
15 Time within which application must be made 9
16 Independent counsellor's report 9
Division 3 Making of parentage order
17 Making of parentage order by Court 10
18 Ancillary orders 11
19 Birth siblings must be kept together 11
Division 4 Preconditions to making of parentage order
20 Preconditions to making of parentage order 11
21 Best interests of child are paramount 11
22 Surrogacy arrangement must be altruistic 11
23 Surrogacy arrangement must be a pre-conception
surrogacy arrangement 12
24 Intended parent must be single person or member of a
couple 12
25 Age and wishes of child must be considered 12
26 Age of birth mother 12
27 Age of intended parents 13
28 Medical or social need for surrogacy arrangement must
be demonstrated 13
29 Affected parties must consent to order 14
30 Applicant or applicants must be resident in NSW 14
31 Child must be living with applicant or applicants 14
32 Surrogacy arrangement must be in writing 14
33 Counselling must have been obtained 14
34 Legal advice must have been obtained 15
35 Information must be provided for inclusion in central
register 15
36 Birth of child must be registered 15
Division 5 Effect of parentage order
37 General effect of order 16
Contents page 2
Surrogacy Bill 2010
Contents
Page
38 Effect on property 16
39 Liability of trustees and legal personal representatives in
relation to children 17
40 Name of child 17
Division 6 Discharge of parentage order
41 Application for discharge of parentage order 18
42 Power of Court to discharge parentage order 18
43 Effect of discharge of parentage order 18
44 Ancillary orders 19
Division 7 Other provisions relating to parentage order
45 Proceedings to be heard in closed court 19
46 Right of appeal 19
47 Registrar of Births, Deaths and Marriages to be notified of
order 19
48 Notice to be given to other States 20
49 Director-General of Department of Health to be notified of
order 20
Part 4 Protection of privacy of surrogacy arrangements
50 Prohibition on disclosure of information relating to
surrogacy arrangements 21
51 Restricted access to court records 21
Part 5 Access to birth information
52 Definitions 23
53 Child's right to registered birth information 23
54 Rights of other parties to registered birth information 23
55 Application for supply of birth information 24
Part 6 Miscellaneous
56 Proceedings for offences 25
57 Regulations 25
58 Review of Act 25
Schedule 1 Savings, transitional and other provisions 26
Schedule 2 Amendment of Acts 27
Contents page 3
New South Wales
Surrogacy Bill 2010
No , 2010
A Bill for
An Act to recognise certain surrogacy arrangements, to prohibit commercial
surrogacy arrangements and to provide for the status of children of surrogacy
arrangements, and to make related amendments to other Acts.
Clause 1 Surrogacy Bill 2010
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Surrogacy Act 2010. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Guiding principle 7
This Act is to be administered by reference to the principle that, in 8
relation to any surrogacy arrangement, the best interests of the child of 9
the surrogacy arrangement are paramount. 10
4 Definitions 11
(1) In this Act: 12
affected party, in relation to a surrogacy arrangement, means each of 13
the following persons: 14
(a) the birth mother, 15
(b) a birth mother's partner (if any), 16
(c) another birth parent (if any), 17
(d) the intended parents. 18
birth mother--see section 5. 19
birth mother's partner means a birth mother's spouse or de facto 20
partner at the time when the birth mother enters into a surrogacy 21
arrangement but, if more than one person would qualify as the birth 22
mother's partner, means only the last person to so qualify. 23
Note. Section 21C of the Interpretation Act 1987 defines de facto partner. 24
birth mother's surrogacy costs--see section 7. 25
birth parent, of a child, means a person (other than an intended parent) 26
who is recognised at law as being a parent of the child at the time when 27
the child is born. 28
commercial surrogacy arrangement--see section 9. 29
consent means informed consent freely and voluntarily given by a 30
person with capacity to give the consent. 31
Court means the Supreme Court of New South Wales. 32
intended parent--see section 5. 33
Interstate parentage order means an order under an Interstate 34
surrogacy law that corresponds to a parentage order and includes an 35
Page 2
Surrogacy Bill 2010 Clause 5
Preliminary Part 1
order of a kind declared by the regulations to be an Interstate parentage 1
order. 2
Interstate surrogacy law means a law of another State or a Territory 3
that corresponds to this Act, and includes any law declared by the 4
regulations to be an Interstate surrogacy law. 5
parentage order means an order made by the Court under this Act for 6
the transfer of the parentage of a child. 7
parental responsibility, in relation to a child, means all the duties, 8
powers, responsibilities and authority which, by law, parents have in 9
relation to children. 10
post-conception surrogacy arrangement--see section 5. 11
pre-commencement surrogacy arrangement--see section 14. 12
pre-conception surrogacy arrangement--see section 5. 13
qualified counsellor means a person who has the experience or 14
qualifications (or both) of a kind required by the regulations to exercise 15
the functions of a counsellor under this Act. 16
surrogacy arrangement--see section 5. 17
(2) In this Act, a reference to a child of a surrogacy arrangement is a 18
reference to a child born as a result of a surrogacy arrangement or who 19
is the subject of a surrogacy arrangement. 20
(3) Notes included in this Act do not form part of this Act. 21
5 Surrogacy arrangement--meaning 22
(1) For the purposes of this Act, a surrogacy arrangement means: 23
(a) an arrangement under which a woman agrees to become or to try 24
to become pregnant with a child, and that the parentage of the 25
child born as a result of the pregnancy is to be transferred to 26
another person or persons (a pre-conception surrogacy 27
arrangement), or 28
(b) an arrangement under which a pregnant woman agrees that the 29
parentage of a child born as a result of the pregnancy is to be 30
transferred to another person or persons (a post-conception 31
surrogacy arrangement). 32
(2) An agreement that the parentage of a child is to be transferred to another 33
person is an agreement to the following effect (however expressed): 34
(a) an agreement to consent to a parentage order or an Interstate 35
parentage order being made in respect of the child so as to 36
transfer parentage of the child to another person, 37
(b) an agreement that the child is to be treated as the child of another 38
person (and not of the woman who gives birth to the child), 39
Page 3
Clause 5 Surrogacy Bill 2010
Part 1 Preliminary
(c) an agreement that the custody of, or parental responsibility for, a 1
child is to be transferred to another person, 2
(d) an agreement that the right to care for a child is to be permanently 3
surrendered to another person. 4
(3) Other matters may be dealt with in a surrogacy arrangement. 5
(4) A variation to a pre-conception surrogacy arrangement that is made 6
after a woman who agrees to become pregnant or to try to become 7
pregnant under the arrangement becomes pregnant is considered to be a 8
part of the pre-conception surrogacy arrangement. 9
Note. A parentage order can be made under this Act in respect of a surrogacy 10
arrangement only if the arrangement is a pre-conception surrogacy 11
arrangement. There are additional preconditions to the making of a parentage 12
order. These are set out in Part 3. 13
(5) In this Act, a reference to the birth mother, in relation to a surrogacy 14
arrangement, is a reference to the woman who agrees to become 15
pregnant or to try to become pregnant with a child, or is pregnant with 16
a child, under the surrogacy arrangement. 17
(6) In this Act, a reference to an intended parent is a reference to a person 18
to whom it is agreed the parentage of a child is to be transferred under 19
a surrogacy arrangement. 20
Page 4
Surrogacy Bill 2010 Clause 6
Surrogacy arrangements Part 2
Part 2 Surrogacy arrangements 1
Division 1 Enforcement of surrogacy arrangements 2
6 Enforcement 3
(1) A surrogacy arrangement is not enforceable. 4
(2) However, an obligation under a surrogacy arrangement to pay or 5
reimburse the birth mother's surrogacy costs is enforceable, but only if 6
the surrogacy arrangement is a pre-conception surrogacy arrangement. 7
7 Birth mother's surrogacy costs--meaning 8
(1) For the purposes of this Act, a birth mother's surrogacy costs are the 9
birth mother's reasonable costs associated with any of the following 10
matters: 11
(a) becoming or trying to become pregnant, 12
(b) a pregnancy or a birth, 13
(c) entering into and giving effect to a surrogacy arrangement. 14
(2) The reasonable costs associated with becoming or trying to become 15
pregnant include any reasonable medical, travel or accommodation 16
costs associated with becoming or trying to become pregnant. 17
(3) The reasonable costs associated with a pregnancy or birth include the 18
following: 19
(a) any reasonable medical costs associated with the pregnancy or 20
birth (both pre-natal and post-natal), 21
(b) any reasonable travel or accommodation costs associated with 22
the pregnancy or birth, 23
(c) any premium paid for health, disability or life insurance that 24
would not have been obtained by the birth mother, had the 25
surrogacy arrangement not been entered into, 26
(d) any reasonable costs, including reasonable medical costs, 27
incurred in respect of a child (being the child of the surrogacy 28
arrangement), 29
(e) the cost of reimbursing the birth mother for a loss of earnings as 30
a result of unpaid leave taken by her, but only for the following 31
periods: 32
(i) a period of not more than 2 months during which the birth 33
happened or was expected to happen, 34
(ii) any other period during the pregnancy when the birth 35
mother was unable to work on medical grounds related to 36
pregnancy or birth. 37
Page 5
Clause 8 Surrogacy Bill 2010
Part 2 Surrogacy arrangements
(4) The reasonable costs associated with entering into and giving effect to 1
a surrogacy arrangement include the following: 2
(a) the reasonable costs associated with the birth mother and the birth 3
mother's partner (if any) receiving counselling in relation to the 4
surrogacy arrangement (whether before or after entry into the 5
arrangement), 6
(b) the reasonable costs associated with the birth mother and the birth 7
mother's partner (if any) receiving legal advice in relation to the 8
surrogacy arrangement or a parentage order relating to the 9
surrogacy arrangement, 10
(c) the reasonable costs associated with the birth mother and the birth 11
mother's partner (if any) being a party to proceedings in relation 12
to such a parentage order, including reasonable travel and 13
accommodation costs. 14
(5) A cost is reasonable only if: 15
(a) the cost is actually incurred, and 16
(b) the amount of the cost can be verified by receipts or other 17
documentation. 18
(6) In this section: 19
medical costs does not include any costs that are recoverable under 20
Medicare or any health insurance or other scheme. 21
Division 2 Offences in relation to surrogacy arrangements 22
8 Commercial surrogacy arrangements prohibited 23
A person must not enter into, or offer to enter into, a commercial 24
surrogacy arrangement. 25
Maximum penalty: 2,500 penalty units, in the case of a corporation, or 26
1,000 penalty units or imprisonment for 2 years (or both), in any other 27
case. 28
9 Commercial surrogacy arrangement--meaning 29
(1) For the purposes of this Act, a surrogacy arrangement is a commercial 30
surrogacy arrangement if the arrangement involves the provision of a 31
fee, reward or other material benefit or advantage to a person for the 32
person or another person: 33
(a) agreeing to enter into or entering into the surrogacy arrangement, 34
or 35
(b) giving up a child of the surrogacy arrangement to be raised by the 36
intended parent or intended parents, or 37
Page 6
Surrogacy Bill 2010 Clause 10
Surrogacy arrangements Part 2
(c) consenting to the making of a parentage order in relation to a 1
child of the surrogacy arrangement. 2
(2) However, a surrogacy arrangement is not a commercial surrogacy 3
arrangement if the only fee, reward or other material benefit or 4
advantage provided for is the reimbursement of a birth mother's 5
surrogacy costs. 6
10 Advertising of surrogacy arrangements prohibited 7
(1) A person must not publish any advertisement, statement, notice or other 8
material that: 9
(a) states or implies that a person is willing to enter into, or arrange, 10
a surrogacy arrangement, or 11
(b) seeks a person willing to act as a birth mother under a surrogacy 12
arrangement, or 13
(c) states or implies that a person is willing to act as a birth mother 14
under a surrogacy arrangement, or 15
(d) is intended, or is likely, to induce a person to act as a birth mother 16
under a surrogacy arrangement. 17
Maximum penalty: 18
(a) in the case of a commercial surrogacy arrangement-- 19
2,500 penalty units in the case of a corporation or 1,000 penalty 20
units or imprisonment for 2 years (or both) in any other case, or 21
(b) in any other case--200 penalty units in the case of a corporation 22
or 100 penalty units in any other case. 23
(2) This section does not apply if: 24
(a) the surrogacy arrangement is not a commercial surrogacy 25
arrangement, and 26
(b) no fee has been paid for the advertisement, statement, notice or 27
other material. 28
(3) In this section, publish means disseminate or provide access, by any 29
means, to the public or a section of the public. 30
Note. See also the Assisted Reproductive Technology Act 2007 which requires 31
providers of assisted reproductive technology treatment to ensure that an 32
assessment report is obtained and considered before a person is provided with 33
treatment in connection with a surrogacy arrangement. 34
Page 7
Clause 11 Surrogacy Bill 2010
Part 3 Parentage orders
Part 3 Parentage orders 1
Division 1 Parentage orders 2
11 Parentage order 3
(1) The Court may, on application under this Part, make a parentage order 4
in relation to a child of a surrogacy arrangement. 5
(2) The purpose of a parentage order is to transfer the parentage of a child 6
of a surrogacy arrangement. 7
12 References to "child" 8
In this Part, a reference to a child is a reference to a child of a surrogacy 9
arrangement. 10
Division 2 Application for parentage order 11
13 Application for parentage order 12
(1) An application for a parentage order may be made by one intended 13
parent or by 2 intended parents jointly. 14
(2) If there are 2 intended parents under the surrogacy arrangement, the 15
application must be made jointly by the intended parents, unless the 16
Court grants leave to an intended parent to make a sole application for 17
a parentage order. 18
(3) The Court may grant leave to an intended parent to make a sole 19
application for a parentage order if: 20
(a) the other intended parent has died or lost capacity to make 21
decisions, or 22
(b) the other intended parent cannot be located after reasonable 23
endeavours have been made to locate him or her, or 24
(c) the intended parents have separated, or 25
(d) other exceptional circumstances justify that action. 26
(4) The Court may, before giving leave to an intended parent to make a sole 27
application, require the intended parent to provide evidence to the 28
satisfaction of the Court that: 29
(a) the other intended parent has been given notice of the application, 30
and 31
(b) the other intended parent does not wish to join the application for 32
a parentage order. 33
Page 8
Surrogacy Bill 2010 Clause 14
Parentage orders Part 3
(5) The fact that intended parents have separated does not prevent them 1
from making a joint application for a parentage order. 2
14 Date of surrogacy arrangement 3
(1) An application for a parentage order may be made in relation to a 4
surrogacy arrangement whether it was entered into before or after the 5
commencement of this Part. 6
(2) A surrogacy arrangement entered into before the commencement of this 7
Part is a pre-commencement surrogacy arrangement. 8
(3) A parentage order may be made in respect of a pre-commencement 9
surrogacy arrangement even if it was rendered void by a law in force 10
before the commencement of this section (as if it had not been rendered 11
void). 12
15 Time within which application must be made 13
(1) An application for a parentage order in relation to a child may be made 14
not less than 30 days and not more than 6 months after the child's birth, 15
subject to this section. 16
(2) For a pre-commencement surrogacy arrangement, an application for a 17
parentage order may be made not more than 2 years after the 18
commencement of this section. 19
(3) The Court may hear and determine an application for a parentage order 20
that is made after the time limit for making an application under this 21
section if the Court is satisfied that exceptional circumstances justify 22
that action. 23
16 Independent counsellor's report 24
(1) An application for a parentage order must be supported by a report 25
about the application prepared by an independent counsellor. 26
(2) The report must contain the independent counsellor's opinion as to 27
whether the proposed parentage order is in the best interests of the child 28
and the reasons for that opinion. 29
(3) The report is to include the counsellor's assessment of the following 30
matters: 31
(a) each affected party's understanding of the social and 32
psychological implications of the making of a parentage order 33
(both in relation to the child and the affected parties), 34
(b) each affected party's understanding of the principle that openness 35
and honesty about a child's birth parentage is in the best interests 36
of the child, 37
Page 9
Clause 17 Surrogacy Bill 2010
Part 3 Parentage orders
(c) the care arrangements proposed by the applicant or applicants in 1
relation to the child, 2
(d) any contact arrangements proposed in relation to the child and his 3
or her birth parent or parents or biological parent or parents, 4
(e) the parenting capacity of the applicant or applicants, 5
(f) whether any consent given by the birth parent or parents to the 6
parentage order is informed consent, freely and voluntarily given, 7
(g) the wishes of the child, if the counsellor is of the opinion that the 8
child is of sufficient maturity to express his or her wishes. 9
(4) The report may address any other relevant matters. 10
(5) The report must: 11
(a) indicate the persons who were interviewed for the purposes of the 12
report, and the date or dates on which the interviews were 13
conducted, and 14
(b) set out the basis on which the person making the report claims to 15
be an independent counsellor. 16
(6) The provisions of any law or rules of court relating to the adducing of 17
opinion evidence apply in relation to the independent counsellor's 18
report, unless inconsistent with this section. 19
(7) For the purposes of this section, an independent counsellor is a 20
qualified counsellor who: 21
(a) is not the counsellor who counselled the birth mother, the birth 22
mother's partner (if any) or an intended parent about the 23
surrogacy arrangement, to meet a precondition to the making of 24
a parentage order, and 25
(b) is not, and is not connected with, a medical practitioner who 26
carried out a procedure that resulted in the conception or birth of 27
the child. 28
Division 3 Making of parentage order 29
17 Making of parentage order by Court 30
(1) The Court may make a parentage order only if satisfied that the 31
preconditions to the making of a parentage order have been met. 32
(2) However, the Court may make a parentage order, despite not being 33
satisfied that a precondition to the making of the order has been met, if: 34
(a) the precondition is not a mandatory precondition to the making of 35
a parentage order, and 36
Page 10
Surrogacy Bill 2010 Clause 18
Parentage orders Part 3
(b) the Court is satisfied that exceptional circumstances justify the 1
making of the parentage order, despite the precondition not 2
having been met. 3
(3) In deciding whether to make the parentage order, the Court may also 4
have regard to any other matter it considers relevant. 5
18 Ancillary orders 6
On making a parentage order, the Court may make such other orders in 7
relation to the child as it considers appropriate. 8
19 Birth siblings must be kept together 9
(1) If a child has any living birth siblings, the Court is to make a parentage 10
order in relation to the child only if the Court also makes or proposes to 11
make a parentage order in relation to each birth sibling, so that the child 12
and all his or her living birth siblings become children of the same 13
applicant or applicants. 14
(2) A birth sibling of a child is any brother or sister of the child who is born 15
as a result of the same pregnancy as the child. 16
(3) However, the Court may make a parentage order, despite 17
non-compliance with subsection (1), if the Court considers it in the best 18
interests of the child to make an order even if the parentage of his or her 19
birth sibling is not transferred to the same applicant or applicants. 20
Division 4 Preconditions to making of parentage order 21
20 Preconditions to making of parentage order 22
This Division sets out the preconditions to the making of a parentage 23
order. 24
Note. Mandatory preconditions to the making of a parentage order cannot be 25
waived by the Court. Other preconditions can only be waived in exceptional 26
circumstances. See section 17. 27
21 Best interests of child are paramount 28
(1) The Court must be satisfied that the making of the parentage order is in 29
the best interests of the child. 30
(2) This precondition is a mandatory precondition to the making of a 31
parentage order. 32
22 Surrogacy arrangement must be altruistic 33
(1) The surrogacy arrangement must not be a commercial surrogacy 34
arrangement. 35
Page 11
Clause 23 Surrogacy Bill 2010
Part 3 Parentage orders
(2) This precondition is a mandatory precondition to the making of a 1
parentage order. 2
23 Surrogacy arrangement must be a pre-conception surrogacy 3
arrangement 4
(1) The surrogacy arrangement must be a pre-conception surrogacy 5
arrangement. 6
(2) This precondition is a mandatory precondition to the making of a 7
parentage order. 8
24 Intended parent must be single person or member of a couple 9
(1) The surrogacy arrangement must be an arrangement under which: 10
(a) there are 2 intended parents who, at the time of entering into the 11
arrangement, are a couple, or 12
(b) there is only one intended parent. 13
(2) A couple consists of a person and the person's spouse or de facto 14
partner. 15
(3) This precondition is a mandatory precondition to the making of a 16
parentage order. 17
25 Age and wishes of child must be considered 18
(1) The child must be under 18 years of age at the time the application is 19
made. 20
(2) The Court must have regard to the wishes of the child, if the child is of 21
sufficient maturity to express his or her wishes and the Court considers 22
it appropriate to take those wishes into account. 23
(3) These preconditions are mandatory preconditions to the making of a 24
parentage order. 25
Note. The above preconditions will generally be of relevance only to 26
pre-commencement surrogacy arrangements, which may have been entered 27
into some years before the commencement of this Act. 28
26 Age of birth mother 29
(1) The birth mother must have been at least 25 years old when she entered 30
into the surrogacy arrangement. 31
(2) For a pre-commencement surrogacy arrangement, it is sufficient that the 32
birth mother was at least 18 years old when she entered into the 33
surrogacy arrangement. 34
Page 12
Surrogacy Bill 2010 Clause 27
Parentage orders Part 3
(3) In all cases, it is a mandatory precondition to the making of a parentage 1
order that the birth mother was at least 18 years old when she entered 2
into the surrogacy arrangement. 3
27 Age of intended parents 4
(1) Each intended parent must have been at least 18 years old when he or 5
she entered into the surrogacy arrangement. 6
(2) This precondition is a mandatory precondition to the making of a 7
parentage order. 8
28 Medical or social need for surrogacy arrangement must be 9
demonstrated 10
(1) The Court must be satisfied that there is a medical or social need for the 11
surrogacy arrangement. 12
(2) There is a medical or social need for a surrogacy arrangement if: 13
(a) there is only one intended parent under the surrogacy 14
arrangement and the intended parent is a man or an eligible 15
woman, or 16
(b) there are 2 intended parents under the surrogacy arrangement and 17
the intended parents are: 18
(i) a man and an eligible woman, or 19
(ii) 2 men, or 20
(iii) 2 eligible women. 21
(3) An eligible woman is a woman who: 22
(a) is unable to conceive a child on medical grounds, or 23
(b) is likely to be unable, on medical grounds, to carry a pregnancy 24
or to give birth, or 25
(c) is unlikely to survive a pregnancy or birth, or is likely to have her 26
health significantly affected by a pregnancy or birth, or 27
(d) if she were to conceive a child: 28
(i) is likely to conceive a child affected by a genetic condition 29
or disorder, the cause of which is attributable to the 30
woman, or 31
(ii) is likely to conceive a child who is unlikely to survive the 32
pregnancy or birth, or whose health would be significantly 33
affected by the pregnancy or birth. 34
(4) This precondition does not apply to a pre-commencement surrogacy 35
arrangement. 36
Page 13
Clause 29 Surrogacy Bill 2010
Part 3 Parentage orders
29 Affected parties must consent to order 1
(1) Each of the affected parties must consent to the making of the parentage 2
order. 3
Note. Consent is defined to mean informed consent freely and voluntarily given 4
by a person with capacity to give the consent. 5
(2) The consent of a birth parent to the making of the parentage order is a 6
mandatory precondition to the making of a parentage order unless the 7
Court is satisfied that: 8
(a) the birth parent has died or lost capacity to give consent, or 9
(b) the birth parent cannot be located after reasonable endeavours 10
have been made to locate him or her. 11
(3) If the Court grants leave to an intended parent to make a sole application 12
in respect of a surrogacy arrangement that involves 2 intended parents, 13
it is not necessary to establish that the intended parent who is not a party 14
to the application consents to the making of the parentage order. 15
30 Applicant or applicants must be resident in NSW 16
The applicant or applicants must be resident in New South Wales at the 17
time of the hearing of the application. 18
31 Child must be living with applicant or applicants 19
The child must be living with the applicant or applicants at the time of 20
the hearing of the application. 21
32 Surrogacy arrangement must be in writing 22
(1) The surrogacy arrangement must be in the form of an agreement in 23
writing, signed by the birth mother, the birth mother's partner (if any) 24
and the applicant or applicants. 25
(2) This precondition does not apply to a pre-commencement surrogacy 26
arrangement. 27
33 Counselling must have been obtained 28
(1) Each of the affected parties must have received counselling from a 29
qualified counsellor about the surrogacy arrangement and its social and 30
psychological implications before entering into the surrogacy 31
arrangement. 32
(2) The birth mother and the birth mother's partner (if any) must have 33
received further counselling from a qualified counsellor about the 34
surrogacy arrangement and its social and psychological implications 35
after the birth of the child and before consenting to the parentage order. 36
Page 14
Surrogacy Bill 2010 Clause 34
Parentage orders Part 3
(3) This precondition does not apply to a pre-commencement surrogacy 1
arrangement. 2
(4) If the Court grants leave to an intended parent to make a sole application 3
in respect of a surrogacy arrangement that involves 2 intended parents, 4
it is not necessary to establish that the intended parent who is not a party 5
to the application received counselling about the surrogacy 6
arrangement. 7
34 Legal advice must have been obtained 8
(1) Each of the affected parties must have received legal advice from an 9
Australian legal practitioner about the surrogacy arrangement and its 10
implications before entering into the surrogacy arrangement. 11
(2) The legal advice obtained by the birth mother and the birth mother's 12
partner (if any) must have been obtained from an Australian legal 13
practitioner who is independent of the Australian legal practitioner who 14
provided legal advice about the surrogacy arrangement to the applicant 15
or applicants. 16
(3) This precondition does not apply to a pre-commencement surrogacy 17
arrangement. 18
(4) If the Court grants leave to an intended parent to make a sole application 19
in respect of a surrogacy arrangement that involves 2 intended parents, 20
it is not necessary to establish that the intended parent who is not a party 21
to the application received legal advice about the surrogacy 22
arrangement. 23
35 Information must be provided for inclusion in central register 24
(1) All information about the surrogacy arrangement that is registrable 25
information under Division 3 of Part 3 of the Assisted Reproductive 26
Technology Act 2007 must have been provided to the Director-General 27
of the Department of Health, for entry in the central register kept under 28
that Act. 29
(2) The Court may waive compliance with this precondition in relation to 30
any information that is not known to an affected party and cannot 31
reasonably be ascertained by the affected party. 32
36 Birth of child must be registered 33
(1) The birth of the child must have been notified or registered in 34
accordance with the requirements of the Births, Deaths and Marriages 35
Registration Act 1995 or a corresponding interstate law. 36
(2) If the child was born outside the Commonwealth and registration of the 37
birth is not permitted under the Births, Deaths and Marriages 38
Registration Act 1995 or a corresponding interstate law, the birth of the 39
Page 15
Clause 37 Surrogacy Bill 2010
Part 3 Parentage orders
child must have been notified or registered in accordance with the 1
requirements (if any) of the law of the jurisdiction in which the child 2
was born. 3
(3) In this section, a corresponding interstate law means a law of another 4
State, or of a Territory, that provides for the registration of births, deaths 5
and marriages. 6
Division 5 Effect of parentage order 7
37 General effect of order 8
(1) On the making of the parentage order in relation to a child: 9
(a) the child becomes a child of the intended parent or parents named 10
in the order and they become the parents of the child, and 11
(b) the child stops being a child of a birth parent and a birth parent 12
stops being a parent of the child. 13
(2) Accordingly: 14
(a) the child of the surrogacy arrangement has the same rights in 15
relation to the intended parent or parents named in the order as a 16
child born to the parent or parents, and 17
(b) the intended parent or parents named in the order have the same 18
parental responsibility as the birth parent had before the making 19
of the order. 20
Note. For example, for the purposes of a distribution on intestacy, a child of a 21
surrogacy arrangement is regarded as a child of the intended parent or parents 22
named in the order and the child's family relationships are determined 23
accordingly. See section 109A of the Succession Act 2006. 24
(3) Other relationships are determined in accordance with subsection (1). 25
(4) However, for the purposes of any law of New South Wales relating to a 26
sexual offence (being a law for which the relationship between persons 27
is relevant), any relationship that would have existed if a parentage 28
order had not been made continues to exist for the purposes of that law 29
in addition to any relationship that exists under this section by virtue of 30
the order. 31
38 Effect on property 32
(1) A parentage order does not have effect so as to deprive a child of a 33
surrogacy arrangement of any vested or contingent property right 34
acquired by the child before the making of the parentage order. 35
(2) Subject to subsection (1), a parentage order has effect in relation to a 36
disposition of property, whether by will or otherwise, and whether made 37
Page 16
Surrogacy Bill 2010 Clause 39
Parentage orders Part 3
before or after the commencement of this section, and to a devolution of 1
property in relation to which a person dies intestate. 2
39 Liability of trustees and legal personal representatives in relation to 3
children 4
(1) If, before conveying, transferring or distributing any property among 5
the persons appearing to be entitled to the property, a trustee or legal 6
personal representative gives a claims notice and the time fixed by the 7
notice has expired, the trustee or legal personal representative is not 8
liable to any person: 9
(a) who claims directly or indirectly an interest in the property by 10
virtue of a parentage order, and 11
(b) of whose claim the trustee or legal personal representative does 12
not have notice at the time of the conveyance, transfer or 13
distribution. 14
(2) Nothing in this section prejudices the right of a person to follow 15
property into the hands of a person, other than a bona fide purchaser for 16
value, who has received it. 17
(3) In this section: 18
claims notice means notice referred to in section 60 of the Trustee Act 19
1925, section 92 of the Probate and Administration Act 1898 or 20
section 93 of the Succession Act 2006. 21
40 Name of child 22
(1) On the making of a parentage order in relation to a child, the child is to 23
have as his or her surname and given name or names such name or 24
names as the Court, in the parentage order, approves on the application 25
of the intended parent or parents. 26
(2) Before changing the surname or given name or names of a child, the 27
Court must have regard to the wishes of the child, if the child is of 28
sufficient maturity to express his or her wishes and the Court considers 29
it appropriate to take those wishes into account. 30
(3) The Court must not approve a name that would be a prohibited name 31
under the Births, Deaths and Marriages Registration Act 1995. 32
(4) Nothing in this section prevents the changing of any name of a child, 33
after the making of a parentage order, under the law of New South 34
Wales. 35
Note. Part 4A of the Births, Deaths and Marriages Registration Act 1995 36
provides for the registration of a parentage order. After a parentage order is 37
registered, a birth certificate issued in respect of the child must show the new 38
name and parentage details of the child. 39
Page 17
Clause 41 Surrogacy Bill 2010
Part 3 Parentage orders
Division 6 Discharge of parentage order 1
41 Application for discharge of parentage order 2
(1) An interested person may apply to the Court for the discharge of a 3
parentage order in relation to a child whose parentage was transferred 4
by the order. 5
(2) An interested person means: 6
(a) a child whose parentage was transferred by the order, if 18 years 7
of age or older, or 8
(b) each of the child's birth parents and intended parents, or 9
(c) the Attorney General. 10
42 Power of Court to discharge parentage order 11
(1) On an application under this Part, the Court may make an order 12
discharging a parentage order in relation to a child. 13
(2) However, the Court may make the order only if it is satisfied of one of 14
the following: 15
(a) the parentage order was obtained by fraud, duress or other 16
improper means, 17
(b) a consent the Court making the parentage order considered had 18
been given to the making of the parentage order was, in fact, not 19
given or was given for payment, reward or other material benefit 20
or advantage (other than the birth mother's surrogacy costs), 21
(c) there is an exceptional reason why the parentage order should be 22
discharged. 23
43 Effect of discharge of parentage order 24
(1) On the discharge of a parentage order, the rights, privileges, duties, 25
liabilities and relationships of the child and all other persons are the 26
same as if the parentage order had not been made. 27
(2) However, the discharge of a parentage order does not affect: 28
(a) anything lawfully done, or the consequences of anything lawfully 29
done, while the parentage order was in force, or 30
(b) a right, privilege or liability acquired, accrued or incurred while 31
the parentage order was in force. 32
(3) For the purposes of any law of New South Wales relating to a sexual 33
offence (being a law for which the relationship between persons is 34
relevant), any relationship that would have existed if a discharge order 35
had not been made continues to exist for the purposes of that law in 36
Page 18
Surrogacy Bill 2010 Clause 44
Parentage orders Part 3
addition to any relationship that exists under this section by virtue of the 1
order. 2
(4) This section applies except to the extent the Court otherwise orders. 3
44 Ancillary orders 4
On the discharge of a parentage order, the Court may make such other 5
orders in relation to the child as it considers appropriate. 6
Division 7 Other provisions relating to parentage order 7
45 Proceedings to be heard in closed court 8
Proceedings in respect of a parentage order are to be heard in closed 9
court, unless the Court otherwise directs. 10
46 Right of appeal 11
(1) Any of the birth parents or intended parents may appeal to the Court of 12
Appeal against a decision refusing an application for a parentage order. 13
(2) Any of the following persons may appeal to the Court of Appeal against 14
a decision granting or refusing an application for discharge of a 15
parentage order: 16
(a) the child of a surrogacy arrangement, if 18 years of age or older, 17
(b) the birth parents, 18
(c) the intended parents, 19
(d) if the Attorney General made the application--the Attorney 20
General, 21
(e) another person who was served with the application. 22
(3) An appeal lies as of right. 23
(4) Fresh evidence or evidence in addition to, or in substitution for, the 24
evidence given in the proceedings in relation to which the appeal is 25
made may be given on the appeal. 26
47 Registrar of Births, Deaths and Marriages to be notified of order 27
(1) The registrar of the Court is to give notice of a parentage order, or a 28
discharge of a parentage order, made by the Court to the Registrar of 29
Births, Deaths and Marriages. 30
(2) The regulations may make provision for the form in which the notice is 31
to be given and the information required to be included in the notice. 32
Page 19
Clause 48 Surrogacy Bill 2010
Part 3 Parentage orders
48 Notice to be given to other States 1
(1) The registrar of the Court is to give notice of a parentage order, or a 2
discharge of a parentage order, made by the Court in relation to a child 3
whose birth the registrar has reason to believe is registered in another 4
State or a Territory to the registering authority of the State or Territory. 5
(2) The regulations may make provision for the form in which the notice is 6
to be given and the information required to be included in the notice. 7
(3) In this section: 8
registering authority has the same meaning as it has in the Births, 9
Deaths and Marriages Registration Act 1995. 10
49 Director-General of Department of Health to be notified of order 11
(1) The registrar of the Court is to give the Director-General of the 12
Department of Health notice of the making of a parentage order or the 13
discharge of a parentage order by the Court. 14
(2) The regulations may make provision for the form in which the notice is 15
to be given and the information required to be included in the notice. 16
Note. The Director-General of the Department of Health keeps a central 17
register of surrogacy information under Part 3 of the Assisted Reproductive 18
Technology Act 2007. 19
Page 20
Surrogacy Bill 2010 Clause 50
Protection of privacy of surrogacy arrangements Part 4
Part 4 Protection of privacy of surrogacy 1
arrangements 2
50 Prohibition on disclosure of information relating to surrogacy 3
arrangements 4
(1) A person must not publish any material that identifies, or is reasonably 5
likely to identify, a person as a person affected by a surrogacy 6
arrangement. 7
Maximum penalty: 25 penalty units or imprisonment for 12 months, or 8
both. 9
(2) For the purposes of this section, each of the following persons is a 10
person affected by a surrogacy arrangement: 11
(a) a child of a surrogacy arrangement, 12
(b) an affected party in relation to a surrogacy arrangement, 13
(c) a party to any proceedings under this Act (other than the Attorney 14
General), 15
(d) a person whose consent to a surrogacy arrangement, or the 16
making of a parentage order, is required under this Act. 17
(3) This section does not prohibit the publication of any material if: 18
(a) the person identified (or reasonably likely to be identified) as a 19
person affected by a surrogacy arrangement consents to being 20
identified, and 21
(b) the material does not identify (and is not reasonably likely to 22
identify) any person affected by the surrogacy arrangement who 23
does not consent to being identified. 24
(4) In this section, a reference to the consent of a person affected by a 25
surrogacy arrangement is, if that person is a child of a surrogacy 26
arrangement who is under 18 years of age, a reference to the consent of 27
the person who has parental responsibility for the child. 28
(5) In this section: 29
publish means disseminate or provide access, by any means, to the 30
public or a section of the public. 31
51 Restricted access to court records 32
(1) A person (including a party to any proceedings before the Court and any 33
news media organisation) is not entitled to access court records that 34
relate to proceedings in respect of a parentage order, except with leave 35
of the Court. 36
Page 21
Clause 51 Surrogacy Bill 2010
Part 4 Protection of privacy of surrogacy arrangements
(2) An application for leave by a child of a surrogacy arrangement who is 1
under 18 years of age can be made only with the consent of the person 2
or persons who have parental responsibility for the child. 3
(3) The Court can impose conditions on access granted by leave of the 4
Court. 5
(4) Section 21 of the Court Information Act 2010 applies in relation to a 6
condition of access imposed under this section in the same way as it 7
applies to a condition of access imposed under that Act. 8
Note. Section 21 of the Court Information Act 2010 makes it an offence to 9
disclose or use information for a purpose or in a manner that the person knows 10
is contrary to a condition of access imposed by the Court. 11
(5) The restriction on access imposed by this section has effect despite 12
anything to the contrary in the Court Information Act 2010. 13
(6) Rules of court may be made for or with respect to the grant of leave 14
under this section. 15
(7) In this section: 16
court record has the same meaning as it has in the Court Information 17
Act 2010. 18
news media organisation has the same meaning as it has in section 10 19
of the Court Information Act 2010. 20
Page 22
Surrogacy Bill 2010 Clause 52
Access to birth information Part 5
Part 5 Access to birth information 1
Note. See also Part 3 of the Assisted Reproductive Technology Act 2007 which gives the 2
affected parties in relation to a surrogacy arrangement, and a person born as a result of a 3
surrogacy arrangement, access to information about the surrogacy arrangement. 4
52 Definitions 5
In this Part: 6
full birth record means a record certifying both particulars relating to 7
the birth of a person registered under section 17 of the Births, Deaths 8
and Marriages Registration Act 1995 and particulars relating to a 9
parentage order or discharge of a parentage order relating to the person 10
registered under Part 4A of that Act. 11
original birth certificate means a certificate certifying the particulars 12
relating to the birth of the person registered under section 17 of the 13
Births, Deaths and Marriages Registration Act 1995. 14
53 Child's right to registered birth information 15
(1) A person who is the child of a surrogacy arrangement and in respect of 16
whom a parentage order is made is entitled to receive, if the person is 17
18 years of age or older: 18
(a) the person's original birth certificate, and 19
(b) the person's full birth record. 20
(2) If the person is less than 18 years of age, the person is not entitled to 21
receive his or her original birth certificate or full birth record except 22
with the consent of the person or persons who have parental 23
responsibility for the person. 24
(3) This section does not affect the discretion conferred on the Registrar of 25
Births, Deaths and Marriages by section 46 of the Births, Deaths and 26
Marriages Registration Act 1995. 27
Note. Section 46 of the Births, Deaths and Marriages Registration Act 1995 28
gives the Registrar discretion to provide a person with information extracted 29
from the Register of Births, Deaths and Marriages if satisfied the person has 30
adequate reason for wanting information from the Register. 31
(4) In this section, a reference to a parentage order includes a reference to 32
an Interstate parentage order. 33
54 Rights of other parties to registered birth information 34
(1) A person who is an affected party in relation to a surrogacy arrangement 35
in respect of which a parentage order is made is entitled to receive: 36
(a) the original birth certificate of the child of the surrogacy 37
arrangement, and 38
(b) the full birth record of the child of the surrogacy arrangement. 39
Page 23
Clause 55 Surrogacy Bill 2010
Part 5 Access to birth information
(2) In this section, a reference to a parentage order includes a reference to 1
an Interstate parentage order. 2
55 Application for supply of birth information 3
(1) An application for the supply of an original birth certificate or full birth 4
record under this Part is to be made in writing to the Registrar of Births, 5
Deaths and Marriages in accordance with any requirements made by or 6
under the Births, Deaths and Marriages Registration Act 1995. 7
(2) An entitlement under this Part is subject to compliance with any such 8
requirements. 9
Page 24
Surrogacy Bill 2010 Clause 56
Miscellaneous Part 6
Part 6 Miscellaneous 1
56 Proceedings for offences 2
Proceedings for an offence under this Act may be dealt with summarily 3
before the Local Court. 4
57 Regulations 5
(1) The Governor may make regulations, not inconsistent with this Act, for 6
or with respect to any matter that by this Act is required or permitted to 7
be prescribed or that is necessary or convenient to be prescribed for 8
carrying out or giving effect to this Act. 9
(2) In particular, the regulations may make provision for any fees to be paid 10
in connection with this Act. 11
(3) A regulation may create an offence punishable by a penalty not 12
exceeding 10 penalty units. 13
58 Review of Act 14
(1) The Minister is to review this Act to determine whether the policy 15
objectives of the Act remain valid and whether the terms of the Act 16
remain appropriate for securing those objectives. 17
(2) The review is to be undertaken as soon as possible after the period of 18
3 years from the date of assent to this Act. 19
(3) A report on the outcome of the review is to be tabled in each House of 20
Parliament within 12 months after the end of the period of 3 years. 21
Page 25
Surrogacy Bill 2010
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Regulations 4
(1) The regulations may contain provisions of a savings or transitional 5
nature consequent on the enactment of the following Acts: 6
this Act 7
(2) Any such provision may, if the regulations so provide, take effect from 8
the date of assent to the Act concerned or a later date. 9
(3) To the extent to which any such provision takes effect from a date that 10
is earlier than the date of its publication on the NSW legislation website, 11
the provision does not operate so as: 12
(a) to affect, in a manner prejudicial to any person (other than the 13
State or an authority of the State), the rights of that person 14
existing before the date of its publication, or 15
(b) to impose liabilities on any person (other than the State or an 16
authority of the State) in respect of anything done or omitted to 17
be done before the date of its publication. 18
Part 2 Provisions consequent on enactment of this 19
Act 20
2 Pre-commencement surrogacy arrangements--enforcement of birth 21
mother's costs 22
(1) Section 6 (1) extends to a surrogacy arrangement entered into before the 23
commencement of that subsection. 24
(2) Section 6 (2) applies only in relation to a surrogacy arrangement entered 25
into on or after the commencement of that subsection. 26
3 Access to court records 27
(1) A person cannot be found guilty of an offence against section 21 of the 28
Court Information Act 2010, as applied by section 51 of this Act, in 29
respect of any contravention of any conditions imposed by the Court on 30
the grant of access to court records under section 51 of this Act that 31
occurs before the commencement of section 21 of the Court 32
Information Act 2010. 33
(2) This clause does not affect any liability for contempt of the Court. 34
Page 26
Surrogacy Bill 2010
Amendment of Acts Schedule 2
Schedule 2 Amendment of Acts 1
2.1 Assisted Reproductive Technology Act 2007 No 69 2
[1] Section 4 Definitions 3
Omit the definition of central ART donor register from section 4 (1). 4
Insert instead: 5
central register means the central register established under 6
Part 3. 7
[2] Section 4 (1) 8
Insert in alphabetical order: 9
surrogacy arrangement has the same meaning as it has in the 10
Surrogacy Act 2010. 11
[3] Section 14 Provision of information--ART services involving donated 12
gametes 13
Omit "central ART donor register" from section 14 (4) (c). 14
Insert instead "central register". 15
[4] Section 15A 16
Insert after section 15: 17
15A Assessment report in relation to surrogacy arrangements 18
(1) An ART provider must not provide treatment to a woman that is 19
intended to assist the woman to achieve pregnancy, and which is 20
sought in connection with a surrogacy arrangement, unless the 21
ART provider has been provided with an assessment report in 22
relation to the surrogacy arrangement. 23
Maximum penalty: 100 penalty units in the case of a corporation 24
or 50 penalty units in any other case. 25
(2) A registered medical practitioner who undertakes or supervises 26
the provision of ART services by an ART provider must ensure 27
that any treatment intended to assist a woman to achieve 28
pregnancy, and which is sought in connection with a surrogacy 29
arrangement, is not provided to the woman unless the medical 30
practitioner is satisfied it is appropriate to do so, having regard to 31
an assessment report. 32
Page 27
Surrogacy Bill 2010
Schedule 2 Amendment of Acts
(3) Contravention of subsection (2) is not an offence, but may 1
constitute improper conduct by the medical practitioner for the 2
purposes of the Health Practitioner Regulation National Law 3
(NSW). 4
(4) For the purposes of this section, an assessment report is a report 5
by an independent counsellor about the surrogacy arrangement, 6
that is based on interviews with the parties to the surrogacy 7
arrangement. 8
(5) An assessment report must include the independent counsellor's 9
opinion as to whether the parties to the surrogacy arrangement 10
understand the surrogacy arrangement, including the possible 11
outcomes of the surrogacy arrangement, and are suitable persons 12
to enter into or continue with the surrogacy arrangement. 13
(6) An assessment report must address such other matters as the 14
regulations require the report to address. 15
(7) An ART provider or medical practitioner does not contravene 16
this section unless it is proved that the ART provider or medical 17
practitioner knew, or should reasonably have suspected, that the 18
treatment concerned was sought in connection with a surrogacy 19
arrangement. 20
(8) In this section: 21
independent counsellor means a qualified counsellor (within the 22
meaning of the Surrogacy Act 2010) who is not employed or 23
engaged by the ART provider. 24
[5] Part 3, heading 25
Omit the heading. Insert instead: 26
Part 3 Central register 27
[6] Part 3, Division 1 28
Insert before section 33: 29
Division 1 Central register 30
32A Establishment of central register 31
(1) The Director-General is to establish and maintain a register called 32
the central register. 33
Page 28
Surrogacy Bill 2010
Amendment of Acts Schedule 2
(2) The Director-General is to enter in the register such information 1
as the Director-General is required to enter in the register by or 2
under this Part. 3
Note. Division 2 requires the Director-General to enter in the register 4
information about ART treatment. Division 3 requires the 5
Director-General to enter in the register information about surrogacy 6
arrangements. 7
32B Disclosure of information must be in accordance with Part 8
The Director-General may disclose information held on the 9
central register only in accordance with this Part. 10
Division 2 Information about ART treatment 11
[7] Section 33 Information about ART treatment to be entered in central 12
register 13
Omit section 33 (1). 14
[8] Section 33 (2) 15
Insert "central" before "register". 16
[9] Section 34 Objectives of central register--ART treatment 17
Omit "objectives of the central ART donor register are". 18
Insert instead "objectives of the central register, in relation to ART treatment, 19
are". 20
[10] Section 35 Disclosure of information must be in accordance with Part 21
Omit the section. 22
[11] Sections 36 (1) and (2), 37 (2), 38 (1) and 39 (1) 23
Omit "central ART donor register" wherever occurring. 24
Insert instead "central register". 25
[12] Section 40 Seeking consent of offspring to disclosure 26
Omit "Part" from section 40 (1). Insert instead "Division". 27
[13] Section 41 Fees 28
Omit "Part" wherever occurring. Insert instead "Division". 29
Page 29
Surrogacy Bill 2010
Schedule 2 Amendment of Acts
[14] Part 3, Division 3 1
Insert after section 41: 2
Division 3 Information about surrogacy arrangements 3
41A Definitions 4
In this Division: 5
affected party, in relation to a surrogacy arrangement, has the 6
same meaning as it has in the Surrogacy Act 2010. 7
biological sibling of a person means a brother or sister of the 8
person, whether the relationship is of the whole blood or half 9
blood. 10
birth parent has the same meaning as it has in the Surrogacy Act 11
2010. 12
gamete provider means a person whose gamete is used under a 13
surrogacy arrangement to conceive a child born as a result of the 14
surrogacy arrangement. 15
parentage order means a parentage order under the Surrogacy 16
Act 2010. 17
41B Information about surrogacy arrangements to be entered in 18
central register 19
(1) The Director-General is to enter in the central register such 20
information about surrogacy arrangements as may be prescribed 21
by the regulations. 22
(2) For the purposes of this Division, a reference to information 23
about a surrogacy arrangement includes a reference to the 24
following: 25
(a) information about affected parties in relation to surrogacy 26
arrangements, 27
(b) information about persons born as a result of surrogacy 28
arrangements, 29
(c) information about gamete providers under surrogacy 30
arrangements, 31
(d) information about the biological siblings of persons born 32
as a result of surrogacy arrangements. 33
Page 30
Surrogacy Bill 2010
Amendment of Acts Schedule 2
41C Provision of surrogacy information by parties to surrogacy 1
arrangement 2
(1) An affected party in relation to a surrogacy arrangement may, by 3
notice to the Director-General, provide to the Director-General 4
any registrable information about the surrogacy arrangement. 5
(2) An affected party in relation to a surrogacy arrangement may at 6
any time, by notice to the Director-General, update any 7
registrable information provided to the Director-General, 8
including after a parentage order has been made in relation to the 9
surrogacy arrangement. 10
(3) A gamete provider under a surrogacy arrangement may at any 11
time, by notice to the Director-General, provide to the 12
Director-General any registrable information about the surrogacy 13
arrangement. 14
(4) A biological sibling of a person born as a result of a surrogacy 15
arrangement may at any time, by notice to the Director-General, 16
provide to the Director-General any registrable information 17
about the surrogacy arrangement. 18
(5) The Director-General is under no obligation to inquire into, or 19
verify, the information provided about a surrogacy arrangement 20
by a person. 21
(6) In this section, registrable information about a surrogacy 22
arrangement is any information about a surrogacy arrangement 23
the Director-General may enter in the central register under this 24
Division. 25
Note. Provision of registrable information about a surrogacy 26
arrangement is a precondition to the making of a parentage order under 27
the Surrogacy Act 2010 in respect of the surrogacy arrangement. 28
41D Objective of central register--surrogacy arrangements 29
The objective of the central register, in relation to surrogacy 30
arrangements, is to ensure that an adult whose parentage has been 31
transferred as a result of a parentage order, affected parties in 32
relation to a surrogacy arrangement and gamete providers under 33
a surrogacy arrangement have access to certain information about 34
the surrogacy arrangement, including identifying information in 35
some circumstances. 36
Page 31
Surrogacy Bill 2010
Schedule 2 Amendment of Acts
41E Disclosure of information to person to whom it relates 1
(1) The Director-General must, on an application by any of the 2
following persons, provide to the person a copy of any 3
information about that person held on the central register: 4
(a) an adult who was born as a result of a surrogacy 5
arrangement, 6
(b) an affected party in relation to a surrogacy arrangement, 7
(c) a gamete provider under a surrogacy arrangement, 8
(d) an adult biological sibling of a person born as a result of a 9
surrogacy arrangement. 10
(2) The Director-General must, on application by the parent of a 11
child under 18 years whose parentage was transferred by a 12
parentage order, provide to the parent a copy of any information 13
about the child held on the central register. 14
(3) This section does not authorise the disclosure of: 15
(a) information about a person other than the applicant (or, in 16
the case of an application under subsection (2), a person 17
other than the child), or 18
(b) information about the applicant's relationship with other 19
persons (or, in the case of an application under 20
subsection (2), the child's relationship with other persons) 21
unless the information was originally provided by the 22
applicant. 23
41F Disclosure of information to person about birth parents, gamete 24
providers and siblings 25
(1) The Director-General must, on application by a person who is an 26
adult and whose parentage was transferred by a parentage order, 27
disclose to the person the name of a birth parent of the person and 28
any other information relating to the birth parent held on the 29
central register that the regulations require the Director-General 30
to disclose. 31
(2) The Director-General must, on application by a person who is an 32
adult and whose parentage was transferred by a parentage order, 33
disclose to the person the name of any gamete provider under the 34
surrogacy arrangement concerned and any other information 35
relating to the gamete provider held on the central register that the 36
regulations require the Director-General to disclose. 37
Page 32
Surrogacy Bill 2010
Amendment of Acts Schedule 2
(3) The Director-General must, on application by an adult person 1
whose parentage has been transferred by a parentage order, 2
disclose to the person the following information held on the 3
central register: 4
(a) such non-identifying information relating to the person's 5
biological siblings as may be prescribed by the regulations, 6
(b) such other information (including identifying information) 7
relating to a biological sibling as the sibling has consented 8
to being disclosed under this section, but only in 9
accordance with that consent. 10
(4) A biological sibling can consent to the disclosure of information 11
under this section only if he or she has attained the age of 12
18 years. 13
41G Disclosure of information to birth parent and gamete provider 14
(1) The Director-General must, on application by a person who is the 15
birth parent, or a gamete provider under a surrogacy arrangement, 16
of a person whose parentage is transferred to another person as a 17
result of a parentage order, disclose to the person the following 18
information held on the central register: 19
(a) such non-identifying information relating to the person 20
whose parentage is transferred as may be prescribed by the 21
regulations, 22
(b) such other information relating to the person whose 23
parentage is transferred, including information that 24
identifies the person, as the person has consented to being 25
disclosed under this section, but only in accordance with 26
that consent. 27
(2) A person whose parentage is transferred as a result of a parentage 28
order can consent to the disclosure of information under this 29
section only if he or she has attained the age of 18 years. 30
41H Seeking consent to disclosure 31
(1) The Director-General may contact a person and ask the person 32
whether he or she wishes to consent to the disclosure of 33
information under this Division. 34
(2) The Director-General may contact a person: 35
(a) at the request of a birth parent of the person or a gamete 36
provider under a surrogacy arrangement that relates to the 37
person, or 38
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Surrogacy Bill 2010
Schedule 2 Amendment of Acts
(b) at the request of any biological sibling of the person, or 1
(c) on the Director-General's own initiative. 2
(3) The Director-General is not to contact a person under this section 3
unless the person is an adult and the Director-General is of the 4
opinion that the contact is justified in order to promote the 5
welfare and best interests of one or more of the persons 6
concerned. 7
(4) The Director-General may consult any person or body that the 8
Director-General believes may assist the Director-General in the 9
exercise of his or her functions under this section. 10
(5) The Director-General may arrange for any one or more of the 11
persons concerned to be provided with such counselling as the 12
Director-General believes is necessary to assist the person and 13
the Director-General in the matter. 14
(6) The Director-General must exercise his or her functions under 15
this section in accordance with any guidelines that may be 16
prescribed by the regulations. 17
41I Consent to registration or disclosure of information 18
(1) A person may consent to the inclusion of information about the 19
person in the central register, or the disclosure of information 20
about the person in the central register to another person, under 21
this Division by giving written notice of that consent to the 22
Director-General. 23
(2) Consent given may be revoked at any time by giving further 24
written notice to the Director-General. 25
41J Form of application or notice 26
(1) An application made or notice given to the Director-General 27
under this Division must be made or given in an approved form. 28
(2) An application or notice must be accompanied by such proof as 29
the Director-General may require of the person's identity. 30
41K Fees 31
(1) The regulations may prescribe fees in relation to any application 32
or notice under this Division. 33
(2) An application or notice under this Division is incomplete unless 34
it is accompanied by the prescribed fee (if any). 35
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Surrogacy Bill 2010
Amendment of Acts Schedule 2
41L Information that relates to both ART treatment and surrogacy 1
arrangement 2
(1) The Director-General can approve such arrangements as he or 3
she considers appropriate to facilitate the joint collection and 4
disclosure of information about a person that relates both to ART 5
treatment and a surrogacy arrangement, including arrangements 6
that permit: 7
(a) a single application or notice of consent to be made or 8
given in relation to information held on the central register 9
both under Division 2 and under this Division, and 10
(b) a single disclosure to be made by the Director-General of 11
information that is required to be disclosed both under 12
Division 2 and under this Division. 13
(2) A provision of this Part that permits the regulations to prescribe 14
a fee in respect of an application or notice given under Division 2 15
or this Division also permits a single fee to be prescribed for an 16
application or notice that relates to both Division 2 and this 17
Division. 18
41M Removal of information from register 19
The Director-General may, on application by an affected party in 20
relation to a surrogacy arrangement or on the Director-General's 21
own initiative, remove information about a surrogacy 22
arrangement from the central register if: 23
(a) the surrogacy arrangement did not involve the provision of 24
ART treatment, and 25
(b) a parentage order has not been granted in relation to the 26
surrogacy arrangement, or has been discharged. 27
[15] Part 4 Surrogacy 28
Omit the Part. 29
[16] Section 55A 30
Insert after section 55: 31
55A Use of enforcement powers in connection with Surrogacy Act 2010 32
(1) An inspector may exercise any function conferred on the 33
inspector by this Part in connection with the enforcement of this 34
Act or the regulations for the purpose of ascertaining whether or 35
not a provision of the Surrogacy Act 2010 or the regulations 36
under that Act is being or has been contravened by an ART 37
provider or in connection with the provision of ART treatment. 38
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Surrogacy Bill 2010
Schedule 2 Amendment of Acts
(2) For that purpose, a reference in this Part to this Act or the 1
regulations includes a reference to the Surrogacy Act 2010 or the 2
regulations under that Act. 3
[17] Section 57 Persons may be prohibited from carrying on business 4
Omit "or" from section 57 (3) (a) (v). 5
[18] Section 57 (3) (a) (vi) 6
Insert after section 57 (3) (a) (v): 7
(vi) the Surrogacy Act 2010, or 8
[19] Schedule 1 Savings, transitional and other provisions 9
Insert at the end of clause 1 (1): 10
Surrogacy Act 2010 11
[20] Schedule 1, Part 3 12
Insert after Part 2: 13
Part 3 Provisions consequent on enactment of 14
Surrogacy Act 2010 15
5 Central register 16
(1) The central register under section 32A is a continuation of, and 17
the same register as, the central ART donor register established 18
under section 33 before the commencement of section 32A, as 19
inserted by the Surrogacy Act 2010. 20
(2) A reference in any Act, any instrument made under an Act or in 21
any document to the central ART donor register is to be read as a 22
reference to the central register. 23
6 Information about surrogacy arrangements to be included in 24
register 25
Division 3 of Part 3, as inserted by the Surrogacy Act 2010, 26
extends to information about surrogacy arrangements entered 27
into before the commencement of that Division, subject to the 28
regulations. 29
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Surrogacy Bill 2010
Amendment of Acts Schedule 2
2.2 Births, Deaths and Marriages Registration Act 1995 No 62 1
[1] Part 4A 2
Insert after Part 4: 3
Part 4A Registration of parentage orders 4
25B How is parentage order registered 5
(1) If a State parentage order is made or an order is made for the 6
discharge of a State parentage order, the order or discharge of 7
order must be registered under this Act. 8
(2) The Registrar is to register a State parentage order or discharge 9
of a State parentage order by registering the notice of the 10
parentage order or discharge of a parentage order given to the 11
Registrar under Part 3 of the Surrogacy Act 2010. 12
(3) If an Interstate parentage order is made in relation to a person 13
whose birth is registered under this Act or an order is made for 14
the discharge of an Interstate parentage order in relation to such 15
a person, the order or discharge of order may be registered under 16
this Act. 17
(4) The Registrar may register an Interstate parentage order or 18
discharge of an Interstate parentage order by registering any 19
notice of the parentage order or discharge of a parentage order 20
given to the Registrar by a registering authority. 21
(5) The Registrar registers a notice by making an entry about it in the 22
Register including the information required by the regulations. 23
(6) If the notice relates to a person in relation to whom such a notice 24
has previously been registered under this Act, the Registrar is 25
also to note a reference to the later notice in the entry in the 26
Register relating to the previous notice. 27
(7) In this section: 28
Interstate parentage order has the same meaning as it has in the 29
Surrogacy Act 2010. 30
State parentage order means a parentage order made under the 31
Surrogacy Act 2010. 32
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Surrogacy Bill 2010
Schedule 2 Amendment of Acts
25C Parentage record to be noted in birth registration 1
(1) If a notice registered under this Part relates to a person whose 2
birth is registered under this Act, the Registrar is to note a 3
reference to the notice in the entry relating to the birth of the 4
person. 5
(2) If a notice of a parentage order or discharge of a parentage order 6
received by the Registrar under the Surrogacy Act 2010 relates to 7
a person whose birth is registered under a corresponding law, the 8
Registrar is to cause a copy of the notice to be sent to the relevant 9
registering authority. 10
25D Issuing birth certificate to person the subject of surrogacy 11
arrangement 12
(1) After a parentage order relating to a person is registered under 13
this Part, a birth certificate issued by the Registrar for the person 14
must contain the relevant information recorded in the Register 15
pursuant to section 25B in place of the corresponding information 16
recorded in the Register pursuant to section 17 (1). 17
(2) In particular, a birth certificate for the person must not include 18
any information that indicates that the person was the child of a 19
surrogacy arrangement. 20
(3) However, the Registrar must, if the Registrar issues a birth 21
certificate to the person to whom it relates, and the person is at 22
least 18 years of age, attach an addendum to the certificate that 23
indicates that further information is available about the entry. 24
(4) This section applies whether or not the person's birth has been 25
registered under this Act. 26
25E Change of name to be notified 27
(1) If at any time the Registrar registers a change of name in relation 28
to a person to whom a registered parentage order relates, the 29
Registrar is to notify the Director-General of the Department of 30
Health of the change of name. 31
(2) The Director-General is authorised to collect and use that 32
information for the purposes of the administration of the central 33
register under the Assisted Reproductive Technology Act 2007. 34
[2] Section 29C Exceptions to certain change of name restrictions 35
Insert ", the Surrogacy Act 2010" before "or the" in section 29C (3) (b). 36
Page 38
Surrogacy Bill 2010
Amendment of Acts Schedule 2
[3] Section 49 Issue of certificate 1
Insert after section 49 (4): 2
(5) If requested to do so by an applicant, and authorised to do so 3
under the Surrogacy Act 2010, the Registrar must issue the 4
applicant with a full birth record, being a single certificate that 5
certifies particulars relating to the birth of a person registered 6
under section 17 and particulars of a parentage order or discharge 7
of a parentage order relating to the person registered by the 8
Registrar under Part 4A. 9
[4] Section 52 10
Omit the section. Insert instead: 11
52 Access to information to be given in accordance with Adoption 12
Act 2000 and Surrogacy Act 2010 13
This Act is subject to the Adoption Act 20001 and the Surrogacy 14
Act 20102 and, to the extent of any inconsistency with this Act, 15
those Acts prevail. 16
Note. 1 The Adoption Act 2000 sets out entitlements to and restrictions 17
on access to adoption information held by the Registrar and other 18
information sources. For instance, that Act sets out the circumstances in 19
which the Registrar is entitled to give an adopted person access to his 20
or her original birth certificate. 21
2 The Surrogacy Act 2010 sets out entitlements to access birth records
22
held by the Registrar that relate to surrogacy arrangements. 23
[5] Schedule 3 Savings, transitional and other provisions 24
Insert at the end of clause 1 (1): 25
Surrogacy Act 2010 26
2.3 Government Information (Public Access) Act 2009 No 52 27
Schedule 1 Information for which there is conclusive presumption of 28
overriding public interest against disclosure 29
Omit "(Central ART donor register)" from the matter relating to the Assisted 30
Reproductive Technology Act 2007 in clause 1 of the Schedule. 31
Insert instead "(Central register)". 32
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Surrogacy Bill 2010
Schedule 2 Amendment of Acts
2.4 Interpretation Act 1987 No 15 1
Section 21C References to de facto partners and de facto relationships 2
Omit section 21C (4). Insert instead: 3
(4) Meaning of "related by family" 4
For the purposes of subsection (2), 2 persons are related by 5
family if: 6
(a) one is the child (including an adopted child) of the other, or 7
(b) one is another descendant of the other (even if the 8
relationship between them is traced through an adoptive 9
parent), or 10
(c) they have a parent in common (including an adoptive 11
parent of either or both of them). 12
(5) Subsection (4) applies: 13
(a) even if an adoption has been declared void or is of no 14
effect, and 15
(b) to adoptions under the law of any place (whether in or out 16
of Australia) relating to the adoption of children. 17
(6) Subsection (4) applies in relation to a child whose parentage is 18
transferred as a result of a parentage order, or an Interstate 19
parentage order, within the meaning of the Surrogacy Act 2010 in 20
the same way as it applies in relation to an adopted child, even if 21
the parentage order is discharged or otherwise ceases to have 22
effect. For that purpose, a reference in that subsection to an 23
adoptive parent is to be read as a reference to a person to whom 24
the parentage of a child is transferred under such a parentage 25
order. 26
2.5 Property (Relationships) Act 1984 No 147 27
Section 5A Family relationship 28
Insert after section 5A (3): 29
(4) Subsection (2) applies in relation to a child whose parentage is 30
transferred as a result of a parentage order, or an Interstate 31
parentage order, within the meaning of the Surrogacy Act 2010 in 32
the same way as it applies in relation to an adopted child. For that 33
purpose, a reference in that subsection to an adoptive parent is to 34
be read as a reference to a person to whom the parentage of a 35
child is transferred under such a parentage order. 36
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Surrogacy Bill 2010
Amendment of Acts Schedule 2
2.6 Relationships Register Act 2010 No 19 1
Section 5 Eligibility for registration 2
Insert after section 5 (5): 3
(6) Subsection (4) applies in relation to a child whose parentage is 4
transferred as a result of a parentage order, or an Interstate 5
parentage order, within the meaning of the Surrogacy Act 2010 in 6
the same way as it applies in relation to an adopted child, even if 7
the parentage order is discharged or otherwise ceases to have 8
effect. For that purpose, a reference in that subsection to an 9
adoptive parent is to be read as a reference to a person to whom 10
the parentage of a child is transferred under such a parentage 11
order. 12
2.7 Status of Children Act 1996 No 76 13
Section 4 Application of Act 14
Insert "or Part 3 of the Surrogacy Act 2010" after "the Adoption Act 2000" in 15
section 4 (2). 16
2.8 Succession Act 2006 No 80 17
Section 109A 18
Insert after section 109: 19
109A Surrogacy arrangements 20
(1) A child of a surrogacy arrangement in respect of whom a 21
parentage order is made is to be regarded, for the purposes of 22
distribution on an intestacy, as a child of the intended parent or 23
parents named in the parentage order and: 24
(a) the child's family relationships are to be determined 25
accordingly, and 26
(b) family relationships that exist as a matter of biological fact, 27
and are not consistent with the relationship created by 28
parentage order, are to be ignored. 29
(2) In this section, a parentage order means a parentage order, or an 30
Interstate parentage order, within the meaning of the Surrogacy 31
Act 2010. 32
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Surrogacy Bill 2010
Schedule 2 Amendment of Acts
2.9 Workplace Injury Management and Workers Compensation 1
Act 1998 No 86 2
Section 4 Definitions 3
Insert after section 4 (5): 4
(5A) Subsection (5) applies in relation to a child whose parentage is 5
transferred as a result of a parentage order, or an Interstate 6
parentage order, within the meaning of the Surrogacy Act 2010 in 7
the same way as it applies in relation to an adopted child. For that 8
purpose, a reference in that subsection to an adoptive parent is to 9
be read as a reference to a person to whom the parentage of a 10
child is transferred under such a parentage order. 11
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