Mechanically, the Act sets rules for deciding who is a child’s legal parent (presumptions, court declarations and parentage orders) and creates a regulatory and criminal framework for surrogacy in the ACT. The Supreme Court is given powers to make parentage declarations and parentage orders (Part 2: see s 6; s 15–22; s 28F–28J). The Act also allows courts to order medical tests relevant to parentage (div 2.6: s 34–37) and to apply specified provisions of the Adoption Act to parentage orders (s 29; s 31C).
The Act sets a list of legal presumptions about parentage (who is treated as a parent unless the court decides otherwise). Examples include presumptions arising from marriage or civil partnership (s 7), domestic partnership (s 8), registrations (s 9), prior court findings (s 10), and from medical or assisted reproduction procedures (s 11). Some presumptions are conclusive (cannot be rebutted) while others are rebuttable on the balance of probabilities (s 12). The Act also limits a child to having no more than two parents at any one time (s 14).
For surrogacy, the Act defines key roles (birth parent, intended parent, presumed parent) and requires written agreements, legal advice and counselling for parties entering surrogacy arrangements (s 23; s 26–28A). It sets minimum ages for parties (intended parents at least 18 (s 28B); birth parents at least 18, with special counselling and maturity checks if under 25 (s 28C)). Reasonable expenses are payable or recoverable but payments beyond reasonable expenses (payments or rewards) fall within the Act’s definition of commercial arrangements (s 24; s 28D; s 40).
The Parentage Act 2004 (ACT), as republished 10 July 2024, sets the statutory framework for establishing legal parentage in the ACT, prescribes the presumptions that determine who is a parent (conclusive and rebuttable), creates a procedure for parentage declarations and annulments by the Supreme Court, regulates surrogacy arrangements and parentage orders arising from them, authorises judicial orders for medical testing in parentage disputes, and creates criminal offences relating to commercial surrogacy activities. The Act supplements other Territory and Commonwealth laws by applying provisions of the Adoption Act 1993 to parentage orders (s 29) and by operating alongside the Criminal Code for offences (s 5 note). The Act also specifies how court orders and declarations are to be notified to the registrar-general (s 47) and how such documents are to be proved in other proceedings (s 48).
Mechanically, the Act:
Establishes presumptions about parentage (ss 7-11) arising from marriage/civil union/domestic partnership (s 7, s 8), entries in registers (s 9), prior court findings (s 10), and reproductive procedures (s 11). It distinguishes which presumptions are conclusive (ss 10, 11) and which are rebuttable (s 12).
Limits the legal position to at most two parents at a time (s 14).
Provides for Supreme Court parentage declarations (ss 15-19), applications for annulment (ss 20-22), and joinder and procedural protections such as adjournment where persons with interests have not been given the opportunity to participate (ss 18, 21; s 46).
Creates a distinct, detailed surrogacy regime (div 2.5) introduced by the Parentage (Surrogacy) Amendment Act 2024 (see endnotes), including definitions (s 23), the definition and verification requirements for reasonable expenses (s 24), mandatory written arrangements (s 26), mandatory legal advice and counselling requirements (ss 28, 28A), age limits for parties (ss 28B-28C), a strict limit to reimbursement only of reasonable expenses (s 28D), and explicit statement that birth parents retain decision-making rights over their pregnancy and birth (s 28E).
Current sections
Direct links to the current provisions in Parentage Act 2004.
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The Act creates a route for intended parents living in the ACT to ask the Supreme Court to make a parentage order that makes them the legal parents of a child born under a surrogacy arrangement (s 28F–28G). The Court must be satisfied of the child’s best interests and other conditions; it may waive some formal requirements where appropriate (s 28H–28I). When a parentage order is made, certain consequences follow (naming the child, application of listed Adoption Act provisions to access records and information — s 28L; s 29; s 31C).
The Act criminalises commercial surrogacy and related conduct: entering into a commercial surrogacy arrangement (s 41), procuring such arrangements (s 42), advertising to induce commercial arrangements (s 43) and knowingly providing professional or technical services to assist a commercial surrogacy (s 44). The Act sets maximum penalties for these offences (see s 41–44 and the note on penalty unit values in the republication header and s 5).
Transitional provisions (Part 7) create time-limited rules for arrangements made before the 2024 surrogacy amendments (including application windows and special rules about which requirements the Court must apply or may disapply in those historic cases — ss 53–60). Part 7 expires after 5 years (s 60).
Who this affects (straightforward statement)
Children whose parentage is in question, people claiming to be parents, people named as parents in registers (s 9), and the Registrar-General (notification obligations — s 47). Courts and medical record holders are affected by powers and duties to order tests and manage medical information (s 34–37; s 30). Medical practitioners, counsellors and lawyers are implicated by counselling and legal-advice requirements (s 25; s 28; s 28A).
Parties to surrogacy arrangements and organisations or individuals who might facilitate commercial surrogacy (including advertisers, intermediaries, and professionals who knowingly assist) face criminal liability for commercial surrogacy conduct (s 40–44). Intended parents living in the ACT are the group given a clear statutory route to secure legal parentage through a parentage order (s 28F–28G).
Why it matters (stated purpose and clear trade-offs)
The Act’s stated mechanical purpose for Part 2 is to set out legal presumptions about parentage and to provide for parentage declarations by the Supreme Court (s 6). The surrogacy provisions add a statutory pathway for intended parents to become the child’s legal parents and create criminal prohibitions against commercial surrogacy conduct (s 28F–28H; s 40–45).
Costs and compliance burdens: parties must obtain legal advice and counselling before entering surrogacy arrangements (s 28; s 28A), and some medical tests and reports ordered by the court are treated as costs of the proceeding (s 37(7)). Courts may require or order medical tests, and failure to comply can lead to adverse inferences or dismissal (s 34–36). These are concrete obligations that impose time, money and procedural burdens on individuals and professionals.
Incentives and private behaviour: the criminal prohibition on payment beyond reasonable expenses (s 40–41; s 24; s 28D) removes a legal market for paid surrogacy services inside the ACT and creates criminal risk for intermediaries, advertisers and professionals who knowingly assist (s 41–44). This legal configuration creates an incentive for arrangements to be structured as “reasonable expenses” only, or to be arranged outside the ACT’s jurisdiction. The Act’s advertising prohibition (s 43) restricts public solicitation for commercial arrangements and limits certain forms of speech relating to surrogacy.
Discretion and implementation risks: the Supreme Court holds significant discretion — for example, to refuse to hear an application on best‑interest grounds (s 17), to adjourn to permit joinder of affected parties (s 18; s 21), to waive some preconditions where in the child’s best interests (s 28H(3)(b)), and to consider a broad set of factors in deciding orders (s 28I). Regulatory detail will be supplied by the Executive under the regulation‑making power (s 50), so administrative practice will shape how medical testing and counselling requirements operate in practice.
Interaction with other laws and limits on private contracting: parentage orders interact with parts of the Adoption Act for record access and related effects (s 29; s 31C). Contracts or agreements that include payment or reward beyond reasonable expenses for surrogacy are, by definition, commercial and engaging in them may be a criminal offence (s 40(1)–(2); s 41). The Act therefore circumscribes the enforceability and legal safety of certain private contracts.
Concrete who-pays points (source-cited)
Parties pay for required legal advice and counselling before entering surrogacy arrangements (s 28; s 28A).
The cost of medical tests ordered under a parentage testing order is treated as costs of the proceeding (s 37(7)).
Persons convicted of offences face the penalties in the Act (see ss 41–44 and the penalty unit values referenced in the republication header and s 5).
Implementation and opportunity-cost notes (brief)
The Act centralises resolution of disputed parentage in the Supreme Court and creates formal preconditions for surrogacy-based parentage transfers, shifting private negotiation into regulated court processes (s 15–22; s 28F–28H). That raises administrative and legal costs and confers discretion on judges and regulators (s 28H; s 50). Transitional provisions (Part 7) add temporary special rules for pre-amendment arrangements, creating a windowed and potentially complex implementation burden (ss 54–59).
Provides for parentage orders in favour of intended parents where statutory requirements are met (ss 28F-28L), including application timing and limits (s 28G), best-interests and other judicial considerations (s 28H-28I), name changes and multiple birth rules (ss 28K-28L), and the statutory effect of such orders via application of prescribed provisions of the Adoption Act 1993 (s 29; s 31C for transitional commercial cases).
Creates criminal offences for entering into or procuring commercial surrogacy arrangements, advertising to induce commercial surrogacy, and facilitating pregnancy for commercial surrogacy (pt 4, ss 40-45), with maximum penalties stated in the Act and penalty unit values declared in the republication front matter.
Authorises courts to order parentage-related medical tests in civil proceedings, sets rules for service and admissibility of test reports, states consequences of non‑compliance and criminalises impersonation and certain improper sample-taking (div 2.6, ss 33-37).
Declares children of equal status (s 38) and updates interpretation of instruments to abolish certain rules that discriminated on legitimacy grounds (s 39).
The Act also contains transitional provisions addressing arrangements made before the 2024 surrogacy amendments (pt 7, ss 53-60) and a general regulation‑making power for medical test procedures and reporting (s 50). Penalty unit values at the republication date are $160 for an individual and $810 for a corporation (republication front matter).
Main concepts
The Act organises a small number of core legal concepts and connects them to concrete procedural and evidentiary mechanisms.
Presumptions about parentage (division 2.2, ss 7-11)
Marriage/civil union presumptions: a child born to a person while married or in a civil union/civil partnership is presumed to be that person’s and their spouse/partner’s child; similar presumptions apply where birth occurs within 44 weeks after death, annulment, or separation (s 7).
Domestic partnership presumptions: a domestic partner who was in partnership during a 44-week-to-20-week window before birth is presumed a parent (s 8).
Registered information: a person named as a parent in specified registers is presumed to be a parent (s 9). “Register” is defined to include the ACT Births, Deaths and Marriages register and prescribed interstate or foreign registers (s 9(3)).
Court findings and procedures: prior judicial findings operate as conclusive presumptions (s 10). Reproductive procedures (artificial insemination and embryo transfer) create conclusive presumptions of parentage for the carrying person and conclusive presumptions of non-parentage for gamete donors who are not the domestic partner at the time; a domestic partner consenting to the procedure is conclusively presumed to be a parent (s 11).
Conclusive versus rebuttable (s 12)
The Act designates presumptions that are conclusive (ss 10 and 11) and other presumptions as rebuttable on the balance of probabilities (s 12). Where presumptions conflict, the hierarchy is: court findings (s 10(1)) prevail, then procedure presumptions (s 11), then the court decides having regard to justice and the child’s best interests (s 13).
Parentage declarations and annulments (div 2.4, ss 15-22)
Who may apply to the Supreme Court and in what circumstances (s 15). The court can refuse to hear an application if it is not in the child’s best interests (s 17). The court may declare who is a parent (s 19) and has processes for reopening where material facts were not disclosed and could not have been discovered with reasonable diligence (ss 16, 22).
Surrogacy framework (div 2.5)
The Act introduces defined roles: birth parent, intended parent, presumed parent, partner, and procedure (s 23); defines reasonable expenses and requires receipts or documents (s 24); requires counselling to be provided by prescribed persons (s 25); requires surrogacy arrangements to be written and to involve specified parties (ss 26-27); requires legal advice and independent legal advice for intended parents (s 28); imposes counselling and age minimums (ss 28A-28C); restricts payment or reward to reimbursement of reasonable expenses only (s 28D); confirms birth parent rights to manage pregnancy and birth (s 28E). Parentage orders are available and governed by criteria including best interests, consent, and judicial discretion to relax formalities in certain circumstances (ss 28F-28J).
Parentage orders and effect (s 28H-29)
The Supreme Court may make parentage orders in favour of intended parents where specified criteria are met (s 28H). Parentage orders have, by operation of s 29, many of the legal effects of adoption orders under the Adoption Act 1993 for property, confidentiality and information access, subject to stated modifications and exclusions (s 29(3)).
Criminal offences (pt 4, ss 40-45)
The Act defines “commercial surrogacy arrangement” (s 40) and criminalises entering into them (s 41), procuring them (s 42), advertising to induce them (s 43), and facilitating pregnancy for them (s 44). A geographical nexus exists for these offences if the person is ordinarily resident in the ACT when the offence is committed (s 45). The Act also preserves that making a parentage order for a child born under a commercial arrangement does not negate criminal responsibility under the offences (s 31(2)).
Medical testing in parentage disputes (div 2.6, ss 32-37)
Where parentage is in issue in a civil proceeding, the court may order parentage tests (s 34), receive regulated reports as admissible evidence (s 36), and take adverse inferences or dismiss proceedings for failure to comply without reasonable excuse (s 35). Certain impersonation and improper sample-taking offences are specified (s 37).
Status and construction of instruments (pt 3, ss 38-39)
Children must be treated equally regardless of parents’ marital status (s 38). The Act abolishes older rules that rendered dispositions in favour of exnuptial children void and provides rules about interpreting instruments (s 39).
Transitional and regulatory scaffolding
Transitional provisions govern arrangements entered into before the 2024 amendments (pt 7, ss 53-60), including time-limited application windows (s 55(3)), and the regulation‑making power covers medical testing and reporting (s 50(2)).
Who it affects
The Act’s reach is primarily to persons involved in status-of-parentage questions and those who participate in or facilitate surrogacy. Identify groups and how the Act engages them:
Birth parents and their partners
Birth parents are defined as the person who intends to give birth or gave birth to the child (s 23). Birth parents retain the same rights to manage pregnancy and birth as any pregnant person (s 28E). If a birth parent is party to a surrogacy arrangement, they must obtain legal advice (s 28(1)) and counselling (s 28A(1)); age-specific counselling is required where the birth parent is under 25 (s 28C(2)-(3)).
Intended parents and presumed parents
Intended parents are defined in s 23 and can apply for parentage orders where the statutory gateway is met (ss 28F-28G). Intended parents must obtain independent legal advice (s 28(2)) and may be jointly required to apply (s 28G(2)). Intended parents are the primary persons who will pay or reimburse reasonable expenses to the birth parent under a surrogacy arrangement (s 28D; s 24 defines verification of expenses).
Children and birth siblings
The Act operates for children whether or not born (s 19(2)) and addresses multiple-birth scenarios: if a parentage order is sought for a child with a living birth sibling, orders must be made for all living birth siblings (s 28K). Children affected by parentage orders receive the applied legal effects of adoption law (s 29), including confidentiality and information-access provisions subject to the listed exceptions (s 29(3)).
Medical and counselling professionals
Doctors and clinics performing reproductive procedures are implicated by the procedural presumptions (s 11) and the counselling independence requirements (s 28A(4), s 28C(4)). Medical record holders are given discretion to refuse to disclose medical/psychiatric information to a “relevant person” if disclosure would be prejudicial, and instead may disclose to a nominated doctor (s 30(2)).
Legal practitioners and registrars
The Act requires legal advice as a precondition to surrogacy arrangements (s 28) and gives the Minister power to approve forms (s 49). The registrar of the Supreme Court must provide sealed copies of parentage declarations and orders to the registrar-general within 28 days (s 47). The registrar-general, and birth registrations in the register under the Births, Deaths and Marriages Registration Act 1997, are implicated by s 9(3)(a) and s 47.
Courts and litigants
The Supreme Court decides parentage declarations (s 19), annulments (s 22), parentage orders (s 28H), and can order medical tests (s 34). Parties to proceedings may be joined if someone else is claimed to be a parent (s 46). The court has discretion to refuse to hear applications not in a child’s best interests (s 17) and to adjourn if persons with affected interests have not had notice (ss 18, 21).
Commercial facilitators and advertisers
Persons who enter commercial surrogacy arrangements, procure or advertise them, or provide professional services to assist pregnancy for the purpose of a commercial surrogacy arrangement face criminal liability under pt 4 (ss 41-44). The Act extends jurisdictional reach where the offender is ordinarily resident in the ACT when the offence is committed (s 45).
Insurers, trustees, personal representatives, estate planners
Parentage orders take on many effects of adoption orders for property disposition and gifts (s 29(3)), and s 38-39 change the construction of instruments and abolish certain rules about exnuptial children, affecting how instruments are interpreted for inheritance and other obligations (s 39).
Who pays and who decides (concise)
Intended parents are the principal payers for reasonable expenses under a surrogacy arrangement; expenses must be documented and are limited to reasonable expenses (s 24(1), s 28D). The Supreme Court decides on declarations and orders (ss 15-19, 28G-28H). Prosecutors decide on criminal charges under pt 4, operating with Criminal Code principles as noted (s 5 note).
Key duties and rights
The Act imposes duties and recognises rights across several domains: procedural duties for surrogacy arrangements, duties in litigation, rights of persons born or affected, and obligations linked to medical testing and records.
Duties pre‑surrogacy and formalities
Written arrangement: A surrogacy arrangement must be in writing (s 26).
Parties and preconditions: The parties must be the birth parent, any birth parent partner, and each intended parent (s 27). Before entering into the arrangement, each party must obtain legal advice about its effect (s 28(1)); intended parents must obtain legal advice independent of the birth parent(s) (s 28(2)). Counselling for each party before entering the arrangement is mandatory (s 28A(1)), with joint or separate counselling allowed for intended parents and the birth parent’s partner (s 28A(2)-(3)).
Counselling independence: If the birth parent is to undergo a procedure to become pregnant, counselling must not be connected with the doctor, the institution, or other entities involved with the procedure (s 28A(4); s 28C(4) for younger birth parents).
Age limits: Intended parents must be at least 18 when entering into arrangement (s 28B). Birth parents must be at least 18; if under 25, they must receive counselling and a counsellor must be satisfied of sufficient maturity (s 28C(1)-(3)).
Financial rights and duties
Reasonable expenses: The Act defines “reasonable expense” for presumed parents, requires verification by receipt or document, and ties what may be reimbursed to specified categories (becoming or trying to become pregnant, pregnancy or birth, and entering into/giving effect to the arrangement) (s 24(1)). Surrogacy arrangements may provide for payment or reimbursement only of reasonable expenses (s 28D). The regulations may prescribe additional expenses as reasonably necessary or incidental (s 24(2)).
Parentage orders, consent and best interests
Parentage orders: Intended parents who qualify may apply for a parentage order; the court will make an order only when satisfied it is in the child’s best interests and that presumed parents freely and with full understanding agree (s 28H(1)). For commercial arrangements that qualify under transitional or specified sections, the court has a different set of considerations including “pressing disadvantage” criteria (s 28H(2)).
Consent exceptions and discretion: The court may dispense with consent requirements if a presumed parent is dead, incapacitated, or cannot be contacted despite reasonable steps (s 28H(3)(a)). The court may also dispense with requirements such as the written arrangement, legal advice, or counselling if satisfied doing so is in the child’s best interests (s 28H(3)(b)).
Medical testing duties and rights in proceedings
Court-ordered tests: In civil proceedings where parentage is in issue, the court may order specific medical tests on specified persons (s 34(1)-(3)). The court must consider objections on medical, religious, or other grounds (s 34(4)).
Service and consent protections: Copy of orders to persons under 18 must be given to the person with custody; if of unsound mind, to the person with care and control (s 34(5)).
Consequences of non‑compliance: If a parentage testing order is not complied with without reasonable excuse, the court may draw inferences and treat non-compliance as corroborating or rebutting evidence or dismiss the proceeding (s 35(1)-(4)). An objection considered under s 34(4) is not a “reasonable excuse” under s 35(3).
Admissibility: Regulated reports of medical tests carried out under an order are admissible as evidence; the person who prepared the report may be called and cross-examined (s 36).
Rights to information and confidentiality
Parentage orders have the adoption‑like effects in respect of information and confidentiality described in the Adoption Act 1993 as applied (s 29(1)-(3), s 29(3) lists applied provisions). For certain transitional parentage orders the applied Adoption Act provisions are specified in s 31C or ss 58-59 (pt 7). Medical record holders may refuse direct disclosure to a “relevant person” if disclosure would be prejudicial, and instead disclose to a nominated doctor (s 30).
Criminal prohibitions and liabilities
Offences: Entering into commercial surrogacy arrangements (s 41), procuring (s 42), advertising (s 43), and facilitating pregnancy for commercial arrangements (s 44) are criminalised with specified maximum penalties. The Act preserves criminal liability regardless of subsequent parentage orders (s 31(2), s 31D).
Administrative duties
Notification: The registrar of the Supreme Court must give sealed copies of parentage declarations, annulments, or parentage orders to the registrar-general within 28 days (s 47).
Forms and regulations: The Minister may approve required forms (s 49), and the Executive may make regulations including those governing medical tests and reports (s 50(1)-(2)).
Penalties and enforcement
The Act establishes specific criminal offences relating to commercial surrogacy and offences tied to parentage testing with stated maximum penalties, and it sets procedural enforcement mechanisms via courts and regulatory instruments.
Enumerated criminal offences and maxima
Commercial surrogacy: Intentionally entering into a commercial surrogacy arrangement is an offence carrying a maximum of 100 penalty units, imprisonment for 1 year, or both (s 41). Procuring another to enter such an arrangement carries the same maximum (s 42).
Advertising: Publishing material intended or likely to induce someone to enter into a commercial surrogacy arrangement, or to seek someone to enter such an arrangement, is an offence with a maximum of 50 penalty units, imprisonment for 6 months, or both (s 43(1), (1) maximum penalty stated).
Facilitating pregnancy: Intentionally providing professional or technical services with knowledge that the recipient intends to be party to a commercial arrangement and with intent of assisting pregnancy for that purpose is an offence with maximum penalty 100 penalty units, imprisonment for 1 year, or both (s 44).
Parentage testing offences: Impersonating someone to undergo a medical test under a parentage testing order is an offence with a maximum penalty of 50 penalty units, imprisonment for 6 months, or both (s 37(1)). Presenting someone else for a test while knowing they are not the person stated is an offence with the same maximum (s 37(2)). Non-prescribed persons (non-doctors/nurses/non-prescribed persons) taking blood or tissue samples for parentage testing is an offence with a maximum penalty of 30 penalty units (s 37(3)).
Penalty unit values and effect
The republication front matter declares the value of a penalty unit at the republication date: $160 for an individual and $810 for a corporation (Legislation Act s 133,republication note). The maximum fines above translate into those monetary amounts multiplied by the stated unit value.
Enforcement mechanics and jurisdiction
Criminal Code application: The Criminal Code chapter 2 applies to all offences under this Act, meaning general principles of criminal responsibility, burdens of proof, and defences apply (s 5 note).
Geographical nexus and extra‑territorial reach: A geographical nexus for offences in pt 4 exists if, when the offence is committed, the offender is ordinarily resident in the ACT. This extends territorial application in relevant cases (s 45). The Act notes this is additional to Criminal Code s 64(2) (Extension of offences if required geographical nexus exists) (s 45(2)).
Court powers: The Supreme Court has the power to make parentage declarations and orders (ss 15-19, 28G-28H) and to order medical tests in civil proceedings where parentage is in issue (s 34). For non-compliance with test orders, courts may draw inferences, treat non-compliance as rebutting evidence of presumptions, dismiss proceedings or impose conditions (s 35).
Administrative enforcement: The registrar of the Supreme Court must supply sealed copies of orders to the registrar-general for registration (s 47). Proof of orders and related certificates is admissible evidence (s 48).
Limits to enforcement effects
Parentage orders do not remove criminal liability arising from commercial surrogacy arrangements: the Act expressly states that making a parentage order about a child born under a commercial surrogacy arrangement does not affect a person’s criminal responsibility under part 4 (s 31(2)). Transitional provisions mirror this for earlier‑made commercial substitute parent agreements (s 31D and s 59).
Practical enforcement considerations
Many enforcement provisions rely on prosecutorial discretion and evidence,e.g., advertising and facilitation prosecutions will hinge on proving intention or likelihood (s 43(1)(a) versus s 43(1)(b)). The Act gives courts broad discretion in civil parentage proceedings to manage applications (adjournments ss 18, 21; refusal to hear ss 17) and to depart from formal preconditions where in the child’s best interests (s 28H(3)(b)). These procedural flexibilities affect the likelihood and form of enforcement outcomes in family law context.
How it interacts with other laws
The Act is expressly designed to operate alongside and to import provisions from other Territory, Commonwealth and interstate/foreign laws in defined ways.
Application of other criminal and interpretive laws
Criminal Code: Offences against this Act are subject to chapter 2 of the Criminal Code for general criminal principles (s 5 note).
Legislation Act cross-references: The Act relies on definitions and interpretive rules in the Legislation Act (see ss 3, 4 notes; dictionary references to Legislation Act definitions such as domestic partner, doctor, nurse, registrar‑general). Penalty unit meaning is referenced to the Legislation Act (republication front matter and s 5 note).
Adoption Act 1993: effect of parentage orders
Parentage orders are given many of the legal effects of adoption orders by expressly applying specified provisions of the Adoption Act 1993 to parentage orders as if the parentage order were an adoption order and the child an adopted child (s 29(1)-(3)). The applied Adoption Act provisions include general effect, disposition and distribution of property, confidentiality (with specified exceptions), and certain information-provision rules. The Act modifies references within those applied provisions to refer to intended parents and registrar-general as necessary (s 29(2)-(3)). Transitional sections dealing with pre-amendment arrangements replicate this applied-Act approach for specified transitional parentage orders (ss 31C(2)-(4) and ss 58-59).
Registers and interstate/foreign records
The Act treats entries in certain registers as creating presumptions of parentage (s 9). The statutory definition of “register” in s 9(3) includes the ACT Births, Deaths and Marriages register under the Births, Deaths and Marriages Registration Act 1997, registers under other Australian jurisdictions, and prescribed foreign jurisdiction registers. This ties parentage presumptions to the operation of registration regimes and allows cross-jurisdictional reliance on registrations.
Evidence and court procedure
The Act contemplates admissibility under the Evidence Act 2011: the note to s 48 points to Evidence Act sections allowing certified copies or extracts as admissible evidence. Section 36 creates specific admissibility rules for medical test reports prepared in accordance with regulations, while preserving the court’s power to call witnesses who prepared or assisted with reports (s 36(3)-(6)). The Criminal Code’s extra‑territorial provisions may extend criminal liability where a required geographical nexus exists (s 45(2) cross-reference).
Family law and inheritance
The status-of-children provisions (pt 3, ss 38-39) require relationships to be decided without regard to parents’ marital or partnership status and abolish certain rules that would void dispositions to exnuptial children (s 39). These provisions modify how other Territory laws will treat parent‑child relationships, with potential downstream effects on wills, trusts, succession and affinity-based rights. The applied Adoption Act provisions (s 29) specifically affect property disposition and rights.
Medical and counselling regulation
The Act requires counselling provided under the surrogacy division to be by persons prescribed by regulation (s 25). It forbids counselling from persons connected with the doctor or institution conducting the reproductive procedure (s 28A(4), s 28C(4)). The Executive’s regulation‑making power explicitly authorises regulations for the carrying out of medical tests and preparation of reports under div 2.6 (s 50(2)). Thus the Act depends on subordinate instruments for detailed standards of counselling, medical testing procedure and report content.
Transitional interaction with prior law
Part 7 sets out transitional arrangements to treat certain pre‑amendment substitute parent or commercial substitute parent agreements under pre‑amendment law, and creates limited application windows and expiry for transitional provisions (pt 7, ss 53-60). It states that parentage orders made in transitional cases have the applied Adoption Act effects specified in those transitional clauses (ss 31B-31D; ss 54-59).
Judicial precedent and high court context
The legislation history notes that the Marriage Equality (Same Sex) Act 2013 was the subject of Commonwealth v Australian Capital Territory [2013] HCA 55 (endnotes), which affected earlier legislative context. The Act itself incorporates federal, interstate and foreign elements and is framed to operate within the constraints of federal constitutional jurisprudence.
Amendment history
The republication includes an explicit amendment history in the endnotes. Key mechanical amendments and their effects as recorded in the endnotes and in-text changes are:
Initial enactment and early amendments
Parentage Act 2004 A2004‑1 was notified 18 February 2004 with the remainder commencing 22 March 2004 (legislation history). Over time, multiple amendments updated definitions, presumptions and cross-references.
Significant subsequent amendments affecting status and procedure
Civil Unions/Civil Partnerships and marriage equality related amendments were reflected in the Act across 2006-2013 amendment instruments (A2006‑22, A2008‑14, A2012‑40, A2013‑39). The republication notes the High Court decision that rendered the ACT Marriage Equality Act 2013 of no effect (Commonwealth v Australian Capital Territory [2013] HCA 55) and that this required reissues and adjustments in subsequent republications (endnotes and legislation history).
2016 Justice Legislation Amendment Act
Justice Legislation Amendment Act 2016 (A2016‑7) made several amendments to presumptions (s 11), legal advice provision (s 28), annulment criteria (s 22) and instrument construction (s 39). The 2016 amendments adjusted procedural rules for parentage declarations and tests.
2024 Parentage (Surrogacy) Amendment Act
Parentage (Surrogacy) Amendment Act 2024 (A2024‑31) is a key recent change: it inserted a comprehensive surrogacy division (div 2.5) including definitions (s 23), reasonable expenses definition (s 24), mandatory counselling and legal advice requirements (ss 25, 28, 28A), age requirements (ss 28B-28C), explicit prohibition of payment beyond reasonable expenses (s 28D), and a new parentage order mechanism for intended parents (ss 28F-28L). It also inserted a transitional Part 7 (ss 53-60) covering arrangements made before commencement day and provided for tailored treatment of commercial arrangements entered into before commencement (ss 31B-31D; pt 7).
The 2024 amendments also adjusted pt 4 offences by restating definitions of commercial surrogacy arrangement (s 40) and recasting the offences in ss 41-44 to reflect the new surrogacy regime (see amendment history entries A2024‑31 s 15-25).
2024 Justice and Community Safety Legislation Amendment Act
A2024‑49 (pt 10) made further amendments that are noted in the republication as having effect from mid‑2024; the endnotes record that part 10 is taken to have commenced 10 July 2024 (legislation history).
Editorial changes
The Parliamentary Counsel’s Office has made editorial changes under the Legislation Act part 11.3 when preparing the republication, noted in the front matter. These are formal and do not change the substance of law but are recorded.
Transitional expiry
Part 7 transitional provisions inserted by the 2024 amendments expire five years after the commencement day (s 60), creating an explicit sunset for transitional paths.
Endnote cross-references
The endnotes set out a full chronology of amendments, the specific sections amended or inserted, and the effective commencement dates for each amendment instrument. For practitioners it is important to consult the endnotes for precise timing, for example noting that the Parentage (Surrogacy) Amendment Act 2024 was notified 9 July 2024 and the remainder commenced 10 July 2024 (legislation history).
Litigation history
The republished Act and its endnotes reference litigation that affected earlier related legislation and the broader statutory landscape; the Act itself does not catalogue private litigation under it. The principal litigation entry in the endnotes is:
Commonwealth v Australian Capital Territory [2013] HCA 55: The legislation history and endnotes note that the High Court held the Marriage Equality (Same Sex) Act 2013 to be of no effect. That decision affected earlier authorised republications and required reissue of the Parentage Act republication materials (endnotes; R9 (RI) reissue). The entry is recorded in the legislation history and the amendment history notes that A2013‑39 never took effect as a result of the High Court decision.
Court processes under the Act
The Act delegates adjudicative functions to the Supreme Court of the ACT: making parentage declarations (s 19), annulling declarations (s 22), making parentage orders (s 28H), and ordering medical tests in civil proceedings about parentage (s 34). The Act gives the Supreme Court considerable procedural discretion: to refuse to hear applications in a child’s best interests (s 17), to adjourn where persons with affected interests have not had the opportunity to be represented (ss 18, 21), and to relax formal preconditions of surrogacy arrangements in the child’s best interests (s 28H(3)(b)). These provisions implicitly create avenues for judicial review and appeals under normal appellate processes, though the Act itself sets no special appellate procedure.
Evidence issues likely to arise
The admissibility of medical test reports carried out in accordance with regulations is addressed in s 36, and s 48 cross-references the Evidence Act rules for certified copies and extracts. Litigation under the Act will therefore engage established evidence rules and the court’s discretion to call and cross‑examine persons who prepared or assisted with reports (s 36(3)-(6)). The Act permits inferences on non-compliance with testing orders (s 35), which shifts litigation strategy and evidential burdens in parentage disputes.
No catalogue of reported ACT decisions applying the Act is provided in the republished text; practitioners must search court databases for reported decisions under the Parentage Act 2004 post‑enactment and post‑amendment to see how courts have applied the new surrogacy provisions and evidentiary rules.
Gotchas
The Act contains several provisions and design choices that produce concrete legal effects practitioners should note precisely.
Conclusive presumptions and irrebuttable effects
Some presumptions are conclusive: prior court findings (s 10) and presumptions arising from reproductive procedures (s 11) are conclusive and not rebuttable (s 12). That means in some fact patterns a court cannot receive evidence to displace the presumption (s 12(a)). Where these presumptions exist, they prevail over others per the conflict rules in s 13.
Two-parent maximum
The Act expressly prohibits more than two parents at any time for any child (s 14). Practitioners should plan accordingly where family structures involve more than two adults with parental roles; the statutory framework will not recognise three or more legal parents simultaneously.
Timing windows for surrogacy parentage applications
Parentage order application windows differ by type: for non-commercial surrogacy arrangements entered into on/after commencement for children under div 2.5.3, applications must be made after the child is at least 4 weeks old but before 6 months for the arrangement described in s 28F(1) (s 28G(3)(a)); for children arising under a commercial arrangement (s 28F(2)) the application timing is any time after the child is at least 4 weeks old (s 28G(3)(b)). Transitional provisions provide a limited five-year window for some pre-commencement arrangements to apply for orders (s 55(3)). Missing these windows may foreclose a parentage order application under those subdivisions, unless the court finds exceptional circumstances (s 28G(4) allows exception for the non-commercial route).
Documentation requirement for reasonable expenses
“Reasonable expense” must be verified by receipts or other documents (s 24(1)(a)). Surrogacy arrangements may provide only for payment or reimbursement of reasonable expenses (s 28D). The Act also permits regulations to prescribe additional types of expenses (s 24(2)). Practically, intended parents should maintain and organise receipts and documentary evidence to support reimbursements; absence of documentary proof could render payments unlawful or expose parties to scrutiny.
Counselling independence and potential conflict
Counselling for parties where a procedure will be undertaken must not be from persons connected to the doctor, institution, or entities involved in the procedure (s 28A(4), s 28C(4)). The Act also requires counselling be provided by a person prescribed by regulation (s 25). Without prescribed counselling providers or clear regulatory guidance, there is practical uncertainty about who qualifies and whether the counselling is sufficiently independent.
Court discretion to waive preconditions
The Supreme Court can dispense with requirements (written arrangement, legal advice, counselling) if satisfied it is in the child’s best interests (s 28H(3)(b)). This gives courts broad remedial discretion but creates uncertainty for parties about enforceability of informal or incomplete pre‑surrogacy arrangements; outcomes will depend on judicial assessment of the child’s best interests and on available evidence.
Parentage orders do not extinguish criminal liability for commercial arrangements
Making a parentage order in respect of a child born under a commercial surrogacy arrangement does not affect criminal responsibility under part 4 (s 31(2)). Similarly, transitional ss 31D and 59 preserve criminal liability for prior commercial substitute parent agreements. Intended parents who obtain a parentage order despite commercial payment arrangements might therefore still be connected to potential criminal liability for the parties who arranged or procured the commercial payment.
Geographical nexus and extra‑territoriality
The Act’s criminal offences include a specific geographical nexus provision: an offence exists if the offender is ordinarily resident in the ACT when the offence is committed (s 45(1)). This can extend the net to ACT residents who arrange or facilitate commercial surrogacy carried out elsewhere. The Criminal Code cross-reference (s 45(2)) further affects territorial reach. Practitioners should not assume that an out-of-state physical act eliminates ACT criminal exposure where the actor is ordinarily resident in the ACT.
Parentage testing and evidence strategy
If a court orders medical tests under s 34 and they are carried out in accordance with regulations, test reports are admissible (s 36). Non-compliance without reasonable excuse allows adverse inferences and can be used to rebut presumptions or corroborate evidence (s 35). An objection considered under s 34(4) (medical, religious, other grounds) is explicitly not a “reasonable excuse” for non-compliance under s 35(3). Careful early planning and legal argumentation are needed when objecting to tests.
Applied Adoption Act provisions and information access
Parentage orders adopt many effects of adoption orders by applying sections of the Adoption Act 1993 (s 29(3)). However, the Act excludes some identifying‑information sections (s 29(3) notes exceptions). The precise effect on access to identifying information and confidentiality will depend on the specific applied provisions cited in s 29(3) and transitional equivalents in pt 7; practitioners should read s 29(3) and the listed provisions to work out what information flows are permitted.
Transitional expiry
Transitional provisions in pt 7 expire five years after commencement day (s 60). Matters relying on transitional paths must be commenced and prosecuted within those windows where applicable (for example s 55(3)). After expiry the transitional scaffolding ceases, although past orders made under transitional provisions retain effect.
Forms, regulations and delegated discretion
The Act delegates important detail to regulations and Ministerial forms (ss 49-50). Counselling qualifications, medical test protocols, and admissible report formats are delegated matters. Until regulations and forms are in place, parties may face uncertainty about compliance standards.
How to comply
For practitioners advising clients, compliance requires attention to documentation, timing, procedural prerequisites, and criminal-law exposure. Below are concrete steps and checklists tied to specific sections.
Surrogacy arrangements (non-commercial and transitional commercial cases)
Put the arrangement in writing: ensure a written surrogacy agreement exists and is signed by required parties (s 26).
Confirm parties and roles: identify the birth parent, any birth parent partner, and each intended parent as parties (s 27).
Independent legal advice: advise each party to obtain legal advice about the arrangement (s 28(1)); intended parents must obtain legal advice independent of the birth parent(s) (s 28(2)). Retain evidence of independent advice (signed letters from separate solicitors).
Counselling: ensure each party receives counselling about the effects of the arrangement before signing (s 28A(1)). For birth parents under 25, secure additional counselling and a written statement from the counsellor that the birth parent is of sufficient maturity (s 28C(2)). Ensure counselling is provided by a person prescribed by regulation (s 25) and is independent of the medical provider if the birth parent is to undergo a procedure (s 28A(4), s 28C(4)). Keep contemporaneous counselling certificates or notes as evidence.
Age verification: confirm intended parents are at least 18 and the birth parent is at least 18 (s 28B, s 28C(1)). Preserve identity documentation.
Expense documentation: limit payments to reasonable expenses only, verify with receipts or other documents, and categorise expenses under the statutory buckets (becoming or trying to become pregnant; pregnancy or birth; entering into/giving effect to the arrangement) (s 24(1), s 28D). Consider pre-authorised expense lists and maintain a ledger with receipts.
Consider the child’s best interests: prepare evidence about why a parentage order would be in the child’s best interests; courts will assess this under s 28H(1)(a). Keep records showing the child’s home and caregiving arrangements (s 28I(1)(a)).
Multiple births: if the arrangement could result in multiple birth siblings, plan to make applications for all living birth siblings together (s 28K(1)-(2)).
Parentage order application procedure
Who may apply: intended parents (s 28G(1)). If there are two intended parents, apply jointly unless the court grants leave (s 28G(2)).
Timing: for arrangements under s 28F(1), file after the child is at least 4 weeks old but before 6 months (s 28G(3)(a)), unless the court permits due to exceptional circumstances (s 28G(4)). For commercial arrangement cases under s 28F(2) the timing begins after the child is 4 weeks old (s 28G(3)(b)). For transitional cases consult ss 55-57 for extended or special windows and the five‑year transitional expiry (s 60).
Evidence package: compile evidence of consent from presumed parents (s 28H(1)(b)-(c)), home arrangements (s 28I(1)(a)), proof of counselling and legal advice, receipts for reasonable expenses, and proof of compliance with any additional statutory steps (for birth parents under 25, the counsellor’s satisfaction under s 28C(2)). If a parent cannot be contacted, document reasonable steps taken to contact them to support any dispensing-of-consent application (s 28I(1)(b)(ii)).
Parentage declarations and annulment applications
Application grounds: parentage declarations may be sought by parents, someone claiming to be a parent, someone claiming a person is their parent, the registrar‑general, or someone with proper interest (s 15). If a prior application was dismissed, a further application is possible only if the applicant can show undisclosed facts or circumstances that could not have been discovered with reasonable diligence (s 16(2)). Preserve evidence supporting such undisclosed facts.
Procedural fairness: ensure all persons whose interests may be affected are notified and given an opportunity to appear; if they are not, the court may adjourn proceedings (s 18). Similarly, for annulment applications ensure notice and rights to be represented (s 21). Document service and notice steps carefully to withstand procedural challenges.
Parentage testing in civil proceedings
Anticipate testing orders: when parentage is in issue in a civil proceeding, the court may order medical tests (s 34). Prepare to apply for or oppose such orders and to make or respond to objections on medical, religious or other grounds (s 34(4)). Remember an objection considered by the court is not a “reasonable excuse” for non‑compliance under s 35(3).
Compliance and costs: if ordered, comply with testing orders within timeframes and conditions; failure without reasonable excuse allows adverse inferences and potential dismissal (s 35(1)-(4)). Costs of tests and associated steps are costs of the proceeding (s 36(7)). Budget and secure funding accordingly.
Avoiding criminal exposure
Commercial payments: ensure any payments to birth parents are limited to “reasonable expenses” properly documented; payments beyond reasonable expenses may create offences under pt 4 if characterised as a commercial surrogacy arrangement (s 28D; s 40 definition). If there is any suggestion of payment beyond reasonable expenses, obtain counsel immediately as it may expose parties to criminal liability (s 41-44).
Advertising and facilitation: avoid advertising or publishing materials likely to induce commercial surrogacy, or providing professional services knowing a person intends to use them for commercial surrogacy, because those acts are specifically criminalised (ss 43-44). Consider legal review of communications and service arrangements.
Geographical nexus: ACT residents should be cautious about involvement in arrangements carried out outside the Territory because the Act creates offences where the offender is ordinarily resident in the ACT when the offence is committed (s 45). Legal advice should consider cross-jurisdictional aspects.
Records and notifications
Registrar-general notification: when the Supreme Court makes a parentage declaration, annulment, or parentage order, ensure the court registrar provides a sealed copy to the registrar-general within 28 days (s 47). For birth registrations and entries that create presumptions, ensure accurate and timely registration given s 9 presumption effects.
Regulatory compliance
Monitor subordinate instruments: counselling providers must be those prescribed by regulation (s 25); medical testing and report formats are the subject of regulations (s 50(2)). Keep up-to-date copies of relevant regulations and approved forms (s 49) to ensure compliance.
Record-keeping and audit trail
Maintain a clear audit trail: keep signed legal-advice certificates, counselling certificates, receipts and documents verifying reasonable expenses (s 24(1)(a)), copies of written surrogacy agreements, and evidence of service and notice in any court application (ss 18, 21). These documents serve both civil and regulatory defence functions.
When to seek immediate legal advice
If there is any payment beyond expense reimbursement, if a parentage testing order is sought, or if a court raises the possibility of dispensing with preconditions, advise clients to seek immediate specialist legal advice because of the intersection of civil parentage processes and criminal exposure under pt 4 (s 31(2) preserves criminal liability).