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Parentage Act 2004
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Australian Capital Territory
Parentage Act 2004
A2004-1
Republication No 11 (RI)
Effective: 10 July 2024
Republication date: 10 July 2024
Reissued: 17 September 2024 for retrospective
amendments made by A2024-49
Last amendment made by A2024-31
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About this republication
The republished law
This is a republication of the Parentage Act 2004 (including any amendment made under the
Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 10 July 2024. It also includes
any commencement, amendment, repeal or expiry affecting this republished law to 10 July 2024.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT
legislation register at www.legislation.act.gov.au):
• authorised republications to which the Legislation Act 2001 applies
• unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made by
an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The
changes are made if the Parliamentary Counsel considers they are desirable to bring the law into
line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the
symbol M appears immediately before the provision heading. The text of the modifying
provision appears in the endnotes. For the legal status of modifications, see the Legislation
Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an
individual and $810 for a corporation (see Legislation Act 2001, s 133).
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Parentage Act 2004
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contents 1
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Australian Capital Territory
Parentage Act 2004
Contents
Page
Part 1 Preliminary
1 Name of Act 2
3 Dictionary 2
4 Notes 2
5 Offences against Act—application of Criminal Code etc 3
Part 2 Establishing parentage
Division 2.1 General
6 Purpose of pt 2 4
Division 2.2 Presumptions about parentage
7 Presumptions arising from marriage, civil union or civil partnership 4
8 Presumption arising from domestic partnership 5
9 Presumptions arising from registered information 5
10 Presumptions arising from findings of courts 6
Contents
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11 Presumptions arising from procedure 7
Division 2.3 Effect of presumptions
12 Whether presumptions conclusive or rebuttable 8
13 Conflicting presumptions 8
14 Presumptions not to allow more than 2 parents 9
Division 2.4 Parentage declarations
15 Application for parentage declaration 9
16 Further application for parentage declaration 10
17 Refusal to hear application 10
18 Adjournment of hearing 11
19 Parentage declaration 11
20 Application for annulment of parentage declaration 11
21 Adjournment of hearing 12
22 Annulment of parentage declaration 12
Division 2.5 Surrogacy
Subdivision 2.5.1 Definitions—div 2.5
23 Definitions—div 2.5 13
24 Meaning of reasonable expense 14
25 Provision of counselling 14
Subdivision 2.5.2 Surrogacy arrangements
26 Surrogacy arrangement must be in writing 15
27 Parties to surrogacy arrangement 15
28 Legal advice 15
28A Counselling 15
28B Age of intended parent 16
28C Age of birth parent 16
28D Reasonable expenses incurred 17
28E Rights of birth parent 17
Subdivision 2.5.3 Parentage orders
28F Application—subdiv 2.5.3 17
28G Application for parentage order 18
28H Making of parentage order 19
28I Relevant considerations for making of parentage order 20
28J Content of parentage order 21
Contents
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28K Multiple births 22
28L Name of child 22
29 Effect of parentage order and access to information 23
30 Medical information 24
31 Effect of surrogacy arrangements 25
Subdivision 2.5.4 Parentage orders—particular arrangements entered
into before Parentage (Surrogacy) Amendment
Act 2024
31A Definitions—subdiv 2.5.4 25
31B Parentage order—commercial arrangement made and child born
before commencement day 26
31C Effect of parentage order mentioned in s 31B and access to
information 27
31D Effect of parentage order on commercial substitute parent agreement 28
Division 2.6 Use of medical tests in establishing parentage
32 Definition for div 2.6 28
33 Application of div 2.6 29
34 Order to carry out medical tests 29
35 Effect of failure to comply with parentage testing order 30
36 Reports of medical tests 30
37 Offences related to medical tests 31
Part 3 Status of children
38 Children all of equal status 33
39 Construction of instruments 33
Part 4 Offences relating to surrogacy arrangements
40 Meaning of commercial surrogacy arrangement 35
41 Commercial surrogacy arrangements prohibited 36
42 Procuring commercial surrogacy arrangements 36
43 Advertising in relation to commercial surrogacy arrangements 36
44 Facilitating pregnancy 37
45 Geographical nexus for offences 38
Part 5 Miscellaneous
46 Joinder of parties 39
Contents
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47 Notification of court orders to registrar-general 39
48 Proof of orders etc about parentage 39
49 Approved forms 40
50 Regulation-making power 40
Part 7 Transitional—Parentage (Surrogacy)
Amendment Act 2024
53 Definitions—pt 7 41
54 Parentage order—substitute parent agreement and no parentage
order before commencement day 41
55 Parentage order—arrangement made and child born before
commencement day 42
56 Parentage order—arrangement made, but child not born, before
commencement day 43
57 Parentage order—commercial arrangement made, but child not born,
before commencement day 44
58 Effect of parentage order mentioned in s 55 (4) and access to
information 45
59 Effect of parentage order on commercial substitute parent agreement 46
60 Expiry—pt 7 46
Dictionary 47
Endnotes
1 About the endnotes 49
2 Abbreviation key 49
3 Legislation history 50
4 Amendment history 52
5 Earlier republications 57
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Parentage Act 2004
An Act relating to parentage, and for other purposes
Part 1 Preliminary
Section 1
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Part 1 Preliminary
1 Name of Act
This Act is the Parentage Act 2004.
3 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this
Act, and includes references (signpost definitions) to other terms defined
elsewhere in this Act.
For example, the signpost definition ‘birth parent, of a child, for
division 2.5 (Surrogacy)—see section 23.’ means that the term ‘birth
parent’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost definition) applies to
the entire Act unless the definition, or another provision of the Act,
provides otherwise or the contrary intention otherwise appears (see
Legislation Act, s 155 and s 156 (1)).
4 Notes
A note included in this Act is explanatory and is not part of this Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Preliminary Part 1
Section 5
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5 Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see
Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used
for offences to which the Code applies (eg conduct, intention,
recklessness and strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
Part 2 Establishing parentage
Division 2.1 General
Section 6
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Part 2 Establishing parentage
Division 2.1 General
6 Purpose of pt 2
This part sets out presumptions about parentage and provides for the
Supreme Court to make a parentage declaration that establishes who
is a parent of a child.
Note Parent is defined in the Legislation Act, dict, pt 1 as follows:
parent, of a child, means—
(a) the child’s mother; or
(b) the child’s father; or
(c) someone else who is presumed under the Parentage Act 2004, part 2 to be a
parent of the child.
Division 2.2 Presumptions about parentage
7 Presumptions arising from marriage, civil union or civil
partnership
(1) A child born to a person while the person is married or in a civil union
or civil partnership is presumed to be a child of the person and the
person’s spouse, civil union partner or civil partner.
(2) A child born to a person within 44 weeks after the death of the
person’s spouse, civil union partner or civil partner is presumed to be
the child of the person and the person’s spouse, civil union partner or
civil partner who died.
(3) A child born to a person within 44 weeks after the annulment of the
person’s purported marriage is presumed to be the child of the person
and the person’s purported spouse.
Establishing parentage Part 2
Presumptions about parentage Division 2.2
Section 8
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(4) A child born to a person after the end of the person’s marriage, civil
union or civil partnership, but within 44 weeks after the person last
separated from the person’s spouse or partner in that marriage, civil
union or civil partnership, is presumed to be the child of the person
and the person’s spouse or partner in that marriage, civil union or civil
partnership.
8 Presumption arising from domestic partnership
(1) A person is presumed to be a parent of a child if the person was in a
domestic partnership with another person who gave birth to the child
at any time during the period beginning not earlier than 44 weeks, and
ending not later than 20 weeks, before the birth of the child.
(2) This presumption applies whether the child was born before or after
the commencement of this Act.
(3) However, this section does not affect the vesting in possession or in
interest of any property that happened before the commencement of
this Act.
9 Presumptions arising from registered information
(1) A person whose name is entered in a register as the name of a parent
of a child is presumed to be a parent of the child.
(2) This section applies to an entry in a register whether the entry was
made before or after the commencement of this Act.
(3) In this section:
register means—
(a) the register under the Births, Deaths and Marriages Registration
Act 1997; or
(b) a register in which births are recorded under the law of—
(i) the Commonwealth, a State or another Territory; or
(ii) a foreign jurisdiction prescribed under the regulations; or
Part 2 Establishing parentage
Division 2.2 Presumptions about parentage
Section 10
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(c) another register in which information about parentage is
recorded under the law of—
(i) the Commonwealth, a State or another Territory; or
(ii) a foreign jurisdiction prescribed under the regulations.
10 Presumptions arising from findings of courts
(1) A person is conclusively presumed to be a parent of a child if—
(a) during the person’s life, a court of the Territory, the
Commonwealth, a State or another Territory has—
(i) found expressly that the person is a parent of the child; or
(ii) made a finding that it could not have made unless the
person was a parent of the child; and
(b) the finding has not been changed, set aside or reversed.
(2) A person is presumed to have been a parent of a child if—
(a) after the death of the person, a court of the Territory, the
Commonwealth, a State or another Territory has—
(i) found expressly that the person was a parent of the child;
or
(ii) made a finding that it could not have made unless the
person was a parent of the child; and
(b) the finding has not been changed, set aside or reversed.
(3) In this section:
finding, of a court, includes an order or direction of the court.
Establishing parentage Part 2
Presumptions about parentage Division 2.2
Section 11
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11 Presumptions arising from procedure
(1) This section sets out presumptions that arise if a person undergoes a
procedure as a result of which the person becomes pregnant.
(2) The person is conclusively presumed to be a parent of any child born
as a result of the pregnancy.
(3) If the ovum used in the procedure was produced by another person
other than the person’s domestic partner at the time of the procedure,
the person who produced the ovum is conclusively presumed not to
be a parent of any child born as a result of the pregnancy.
(4) If semen used in the procedure was produced by another person other
than the person’s domestic partner at the time of the procedure, the
person who produced the semen is conclusively presumed not to be a
parent of any child born as a result of the pregnancy.
(5) If the person undergoes the procedure with the consent of the person’s
domestic partner at the time of the procedure, the domestic partner is
conclusively presumed to be a parent of any child born as a result of
the pregnancy.
(6) For subsection (5), a person is presumed to consent to the carrying
out of a procedure in relation to the person’s domestic partner, but the
presumption is rebuttable.
(7) The presumptions set out in this section apply—
(a) whenever the pregnancy happened and whether or not it resulted
from a procedure carried out in the ACT; and
(b) in relation to any child born as a result of the pregnancy, whether
or not the child was born in the ACT.
(8) However, this section does not affect the vesting in possession or in
interest of any property that happened before the commencement of
this Act.
Part 2 Establishing parentage
Division 2.3 Effect of presumptions
Section 12
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(9) In this section:
procedure means—
(a) artificial insemination; or
(b) a clinical process to transfer into the uterus of a person an
embryo derived from an ovum fertilised outside the person’s
body; or
(c) any other way (whether medically assisted or not) by which a
person can become pregnant other than by having sexual
intercourse with a person.
Division 2.3 Effect of presumptions
12 Whether presumptions conclusive or rebuttable
In a proceeding—
(a) a conclusive presumption under division 2.2 is not rebuttable;
and
(b) a presumption that is not conclusive under that division is
rebuttable by proof on the balance of probabilities.
Note The presumptions arising under s 10 (1) (Presumptions arising from
findings of courts) and s 11 (Presumptions arising from procedure) are
conclusive. The other presumptions arising under div 2.2 are not
conclusive.
13 Conflicting presumptions
(1) This section applies if—
(a) 2 or more presumptions about the parentage of a child are
relevant in a proceeding; and
(b) the presumptions conflict with each other.
Establishing parentage Part 2
Parentage declarations Division 2.4
Section 14
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(2) If 1 of the presumptions arises under section 10 (1) (Presumptions
arising from findings of courts), that presumption prevails over any
other presumption.
(3) If 1 of the presumptions arises under section 11 (Presumptions arising
from procedure), that presumption prevails over any presumption
other than a presumption that arises under section 10 (1).
(4) If no presumption arises under section 10 (1) or section 11, the court
must decide which presumption prevails having regard to the interests
of justice and the best interests of the child.
14 Presumptions not to allow more than 2 parents
Despite anything in this Act or in any other Territory law, a child
cannot have more than 2 parents at any one time.
Division 2.4 Parentage declarations
15 Application for parentage declaration
(1) An application for a parentage declaration may be made to the
Supreme Court by—
(a) a parent of a child who claims that another particular person is
also a parent of the child; or
(b) a person who claims to be a parent of a particular child; or
(c) a person who claims that a particular person is their parent; or
(d) the registrar-general, or someone else having a proper interest in
the matter, if a decision is sought about whether a particular
person is a parent of a particular child.
Part 2 Establishing parentage
Division 2.4 Parentage declarations
Section 16
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16 Further application for parentage declaration
(1) This section applies if—
(a) an application for a parentage declaration (or an appeal against
an order dismissing an application) has been dismissed because
the relationship claimed in the application has not been
established; or
(b) a parentage declaration has been set aside on appeal because the
relationship stated in the declaration has not been established.
(2) The applicant may make another application to the Supreme Court
for the declaration sought in the original application if—
(a) facts or circumstances that existed when the original application
was heard were not disclosed to the court; and
(b) the applicant—
(i) did not know of those facts or circumstances at that time or
(ii) could not, by the exercise of reasonable diligence, have
discovered those facts or circumstances before that time.
(3) On an application under this section, the court must receive the
evidence given at the hearing of the original application as well as
any evidence relating to facts or circumstances mentioned in
subsection (2) (a).
(4) The court must dismiss an application under this section if, at the end
of the evidence presented by the applicant, the court finds that the
evidence relating to the facts and circumstances mentioned in
subsection (2) (a) is not material to establishing the existence of the
relationship that the applicant claims to exist or wishes to be decided.
17 Refusal to hear application
The Supreme Court may refuse to hear an application under
section 15 or section 16 in relation to a child if the court considers it
would not be in the best interests of the child to hear the application.
Establishing parentage Part 2
Parentage declarations Division 2.4
Section 18
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18 Adjournment of hearing
(1) This section applies if—
(a) a person whose interests would, in the Supreme Court’s opinion,
be affected by making a parentage declaration—
(i) is not present or represented at the hearing of the
application; and
(ii) has not been given an opportunity to be present or
represented; and
(b) the court considers the person ought to be given the opportunity
to be present or represented.
(2) The Supreme Court may adjourn the hearing so the person can be
given the opportunity.
19 Parentage declaration
(1) On an application under section 15 or section 16, the Supreme Court
may declare that a particular person is a parent of a particular child.
(2) A parentage declaration may be made about a child whether or not—
(a) the child is born; or
(b) the parent or child is alive.
20 Application for annulment of parentage declaration
An application for an order annulling a parentage declaration may be
made to the Supreme Court by—
(a) the applicant for the declaration; or
(b) a person named in the declaration; or
(c) a person who would, before the declaration was made, have been
entitled to apply for a parentage declaration about a person
named in the declaration.
Part 2 Establishing parentage
Division 2.4 Parentage declarations
Section 21
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21 Adjournment of hearing
(1) This section applies if—
(a) a person whose interests would, in the Supreme Court’s opinion,
be affected by making an order annulling a parentage
declaration—
(i) is not present or represented at the hearing of the
application for the order; and
(ii) has not been given an opportunity to be present or
represented; and
(b) the court considers the person ought to be given the opportunity
to be present or represented.
(2) The Supreme Court may adjourn the hearing so the person can be
given the opportunity.
22 Annulment of parentage declaration
(1) The Supreme Court may, by order, annul a parentage declaration if—
(a) the court considers that facts exist, or circumstances have arisen,
that—
(i) were not disclosed to the court before the declaration was
made; and
(ii) could not, by the exercise of reasonable diligence, have
been disclosed to the court by the applicant when the
application for the declaration was heard; and
(iii) are material to the question whether the relationship stated
in the declaration exists; and
(b) after considering those facts or circumstances the court is not
satisfied that the relationship is established.
Establishing parentage Part 2
Surrogacy Division 2.5
Section 23
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(2) However, subsection (1) (a) (ii) does not apply if the applicant for the
order is—
(a) a person who was a child when the declaration was made; or
(b) the registrar-general.
(3) If the Supreme Court makes an order annulling a declaration—
(a) the declaration ceases to have effect; and
(b) the annulment does not affect anything done relying on the
declaration before the order was made.
(4) If the Supreme Court makes an order annulling a declaration, it may
make the ancillary orders (including orders varying property rights)
that it considers just and equitable to place everyone affected by the
annulment as far as practicable in the position each person would
have been in if the declaration had not been made.
Division 2.5 Surrogacy
Subdivision 2.5.1 Definitions—div 2.5
23 Definitions—div 2.5
In this division:
birth parent, of a child, means the person who intends to give birth
or gave birth to the child.
birth sibling, of a child, means any other child who is born as a result
of the same pregnancy as the child.
intended parent means a person who will be taken to be the parent of
a child born under a surrogacy arrangement.
partner, of a birth parent, means the other person, if any, presumed
under division 2.2 to be a parent of the child.
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 24
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presumed parent, of a child, means—
(a) the birth parent; or
(b) the birth parent’s partner.
procedure means—
(a) artificial insemination; or
(b) a clinical process to transfer into the uterus of a person an
embryo derived from an ovum fertilised outside the person’s
body.
24 Meaning of reasonable expense
(1) In this Act:
reasonable expense, in relation to a presumed parent under a
surrogacy arrangement, means an expense paid or owing that is—
(a) verified by a receipt or other document; and
(b) reasonably necessary or reasonably incidental to any of the
following:
(i) becoming or trying to become pregnant;
(ii) a pregnancy or a birth;
(iii) entering into and giving effect to a surrogacy arrangement.
(2) Without limiting subsection (1) (b), a regulation may also prescribe
an expense as reasonably necessary or reasonably incidental to a
matter mentioned in subsection (1) (b).
25 Provision of counselling
Any counselling a person receives under this division must be
provided by a person prescribed by regulation.
Establishing parentage Part 2
Surrogacy Division 2.5
Section 26
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Subdivision 2.5.2 Surrogacy arrangements
26 Surrogacy arrangement must be in writing
A surrogacy arrangement must be in writing.
27 Parties to surrogacy arrangement
The parties to a surrogacy arrangement are—
(a) the birth parent; and
(b) the birth parent’s partner, if any; and
(c) each intended parent.
28 Legal advice
(1) Each party to a surrogacy arrangement must, before entering into the
arrangement, obtain legal advice about its effect.
(2) The intended parent or parents must obtain legal advice that is
independent to the legal advice obtained by the birth parent and their
partner, if any.
(3) If there are 2 intended parents to the surrogacy arrangement, they may
obtain the legal advice jointly or separately.
(4) If the birth parent’s partner is a party to the surrogacy arrangement,
the birth parent and their partner may obtain the legal advice jointly
or separately.
28A Counselling
(1) Each party to a surrogacy arrangement must, before entering into the
arrangement, receive counselling about its effect.
(2) If there are 2 intended parents to the surrogacy arrangement, they may
receive the counselling jointly or separately.
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 28B
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(3) If the birth parent’s partner is a party to the surrogacy arrangement,
the birth parent and their partner may receive the counselling jointly
or separately.
(4) If the birth parent is to undergo a procedure with the intention of
becoming pregnant as a result of the procedure, the counselling each
party must receive under this section must be from a person who, or
an entity providing counselling services that, is not connected with—
(a) the doctor who will carry out the procedure; or
(b) the institution where the procedure will be carried out; or
(c) another entity involved in carrying out the procedure.
28B Age of intended parent
Each intended parent must be at least 18 years old when they enter
into a surrogacy arrangement.
28C Age of birth parent
(1) A birth parent must be at least 18 years old when they enter into a
surrogacy arrangement.
(2) However, a birth parent who is not yet 25 years old must not enter
into a surrogacy arrangement unless—
(a) the birth parent has received counselling about the surrogacy
arrangement and its social and psychological implications; and
(b) the counsellor was satisfied that the birth parent was of sufficient
maturity to understand the surrogacy arrangement and its social
and psychological implications.
(3) The birth parent must receive counselling from a person who is
different to the person from whom the intended parent or parents to
the surrogacy arrangement receive their counselling under
section 28A (1).
Establishing parentage Part 2
Surrogacy Division 2.5
Section 28D
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(4) If the birth parent is to undergo a procedure with the intention of
becoming pregnant as a result of the procedure, the counselling they
must receive under subsection (2) must be from a person who, or an
entity providing counselling services that, is not connected with—
(a) the doctor who will carry out the procedure; or
(b) the institution where the procedure will be carried out; or
(c) another entity involved in carrying out the procedure.
28D Reasonable expenses incurred
A surrogacy arrangement may provide for the payment or
reimbursement of only the reasonable expenses in relation to the
surrogacy arrangement.
28E Rights of birth parent
A birth parent has the same rights to manage their pregnancy and birth
as any other pregnant person.
Subdivision 2.5.3 Parentage orders
28F Application—subdiv 2.5.3
(1) This subdivision applies to a child if—
(a) there is a surrogacy arrangement, other than a commercial
surrogacy arrangement, under which the intended parent or
intended parents have indicated their intention to apply for a
parentage order about the child; and
(b) the intended parent or intended parents of the child live in the
ACT.
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 28G
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(2) This subdivision also applies to a child if—
(a) there is a commercial surrogacy arrangement of a kind described
in section 40 (1) (a) under which the intended parent or intended
parents have indicated their intention to be taken to be the parent
or parents of the child; and
(b) the intended parent or intended parents of the child live in the
ACT.
28G Application for parentage order
(1) The intended parent or intended parents of a child mentioned in
section 28F may make an application to the Supreme Court for a
parentage order about the child.
(2) If there are 2 intended parents to an arrangement mentioned in
section 28F, the application must be made jointly by both intended
parents, unless the Supreme Court gives leave to only 1 intended
parent to make the application.
(3) The application may only be made—
(a) for a child mentioned in section 28F (1)—after the child is at
least 4 weeks old but before the child is 6 months old; or
(b) for a child mentioned in section 28F (2)—at any time after the
child is at least 4 weeks old.
(4) However, an application for a child mentioned in section 28F (1) may
be made after the end of the time limit specified in subsection (3) (a)
if the Supreme Court is satisfied on reasonable grounds that
exceptional circumstances justify the court deciding the application.
Establishing parentage Part 2
Surrogacy Division 2.5
Section 28H
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28H Making of parentage order
(1) The Supreme Court may make a parentage order about a child
mentioned in section 28F (1) if satisfied that—
(a) the making of the order is in the best interests of the child; and
(b) each presumed parent freely, and with a full understanding of
what is involved, agrees to the making of the order; and
(c) the requirements of subdivision 2.5.2 are met.
(2) The Supreme Court may make a parentage order about a child
mentioned in section 28F (2) if satisfied that—
(a) the making of the order is in the best interests of the child; and
(b) there is a pressing disadvantage facing the child that would be
alleviated by making a parentage order about the child; and
(c) each presumed parent freely, and with a full understanding of
what is involved, agrees to the making of the order; and
(d) the requirements of subdivision 2.5.2, other than the
requirement in section 28D (Reasonable expenses incurred), are
met as if the commercial surrogacy arrangement mentioned in
section 28F (2) (a) were a surrogacy arrangement mentioned in
section 28F (1) (a); and
(e) it is reasonable in all the circumstances to make the parentage
order.
Note The making of a parentage order about a child born under a commercial
surrogacy arrangement does not affect a person’s criminal responsibility
under pt 4—see s 31 (Effect of surrogacy arrangements).
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 28I
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(3) In making an order under subsection (1) or (2), the Supreme Court
may do any of the following:
(a) dispense with the requirement under subsection (1) (b) or (2) (c)
in relation to a presumed parent if satisfied that the presumed
parent is dead or incapacitated or, despite reasonable steps
having been taken, cannot be contacted;
(b) dispense with the following requirements of subdivision 2.5.2 if
satisfied that doing so is in the best interests of the child:
(i) section 26 (Surrogacy arrangement must be in writing);
(ii) section 28 (Legal advice);
(iii) section 28A (Counselling).
28I Relevant considerations for making of parentage order
(1) In deciding whether to make a parentage order, the Supreme Court
may take the following, if relevant, into consideration:
(a) whether the child’s home is, and was at the time of the
application, with the intended parent or intended parents;
(b) if there are 2 intended parents to the arrangement but only
1 intended parent has applied for the order (the applicant
intended parent), and the other intended parent is alive at the
time of the application, whether—
(i) the other intended parent freely, and with a full
understanding of what is involved, agrees to the making of
the order in favour of the applicant intended parent; or
(ii) the applicant intended parent, despite taking reasonable
steps, cannot contact the other intended parent to obtain
their agreement under subparagraph (i);
Establishing parentage Part 2
Surrogacy Division 2.5
Section 28J
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(c) if a presumed parent is dead or incapacitated or cannot be
contacted—any evidence before the court that the parent no
longer agreed or agrees that the intended parent or intended
parents obtain a parentage order about the child;
(d) if the birth parent was not yet 25 years old, but was at least
18 years old, when they entered into the arrangement—any
evidence before the court of compliance with section 28C (2).
(2) The Supreme Court may take into consideration anything else it
considers relevant.
28J Content of parentage order
(1) If the Supreme Court makes a parentage order, the order must state—
(a) for an application made jointly by 2 intended parents to an
arrangement mentioned in section 28F—that the order is in
favour of both intended parents; or
(b) for an application made by only 1 of 2 intended parents to an
arrangement mentioned in section 28F—
(i) if the application was made by the applicant intended
parent because the other intended parent is dead or
incapacitated—
(A) that the order is in favour of both intended parents; or
(B) if the court is satisfied that, at the time of the other
intended parent’s death or incapacitation, the
deceased or incapacitated intended parent no longer
intended or intends to apply for a parentage order
about the child—that the order is in favour of the
applicant intended parent; or
(ii) in any other case—that the order is in favour of the
applicant intended parent; or
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 28K
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(c) for an application made by 1 intended parent who is the only
intended parent to an arrangement—that the order is in favour
of the intended parent.
(2) In this section:
applicant intended parent—see section 28I (1) (b).
28K Multiple births
(1) This section applies if a child about whom an application for a
parentage order has been made has a living birth sibling.
(2) Despite section 28H (1) or (2), the Supreme Court may make a
parentage order about the child only if it also makes a parentage order
about each living birth sibling of the child.
28L Name of child
(1) On the making of a parentage order about a child, the child has as
their surname—
(a) if the order is made in favour of 1 intended parent—the surname
of the intended parent; or
(b) if the order is made in favour of 2 intended parents and they are
both known by the same surname—that surname; or
(c) in any other case—a name the Supreme Court, on the
application of the intended parent or intended parents, approves
in the parentage order.
(2) On the making of a parentage order about a child, the child has as
their given name or names a name or names the Supreme Court, on
the application of the intended parent or intended parents, approves
in the parentage order.
Establishing parentage Part 2
Surrogacy Division 2.5
Section 29
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(3) Despite subsection (2), if the child has been generally known by a
particular name or names, the Supreme Court may, in the parentage
order, order that the child will have that name or those names as their
given name or names.
(4) This section does not prevent a name of a child being later changed
in accordance with territory law.
29 Effect of parentage order and access to information
(1) If a parentage order is made about a child, the provisions of the
Adoption Act 1993 mentioned in subsection (3) (the applied
provisions) apply in relation to the parentage order as if the parentage
order were an order made under that Act for the adoption of the child
and the child were an adopted child.
(2) For that application—
(a) a reference in an applied provision to the adoptive parent or
adoptive parents is a reference to the intended parent or intended
parents in whose favour the parentage order was made; and
(b) a reference in an applied provision to the adopted child or
adopted person is a reference to the child about whom the
parentage order was made; and
(c) a reference in an applied provision to the commencement of the
Adoption Act 1993 were a reference to the commencement of
this Act; and
(d) a reference in section 48 to the director-general were a reference
to the registrar-general; and
(e) any other necessary changes were made.
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 30
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(3) The applied provisions of the Adoption Act 1993 are as follows:
• section 43 (General effect) other than subsections (1) (c) and (2)
• section 44 (Disposition of property)
• section 47 (Distribution of property by trustee or personal
representative)
• section 48 (Bequest by will to unascertained adopted person)
• section 49 (Gifts between living people)
• section 60 (Confidentiality of records) other than
subsection (1) (a)
• section 62 (3) (Provision of information)
• division 5.3 (Identifying information) other than sections 70, 71,
77, 78 and 79.
30 Medical information
(1) This section applies if—
(a) information about the medical or psychiatric condition of a
relevant person may be disclosed by a medical record holder
under a law in force in the Territory; and
(b) the relevant person applies to the medical record holder for the
information; and
(c) the medical record holder considers that the disclosure might be
prejudicial to the physical or mental health or wellbeing of the
relevant person.
(2) The medical record holder may—
(a) refuse to disclose the information to the relevant person
personally; and
(b) instead disclose it (without identifying anyone other than the
relevant person) to a doctor nominated by the relevant person.
Establishing parentage Part 2
Surrogacy Division 2.5
Section 31
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(3) In this section:
relevant person means—
(a) the child about whom a parentage order is made; or
(b) a presumed parent of the child; or
(c) a person who was a grandparent, sibling or sibling of the parents
of the child before the parentage order was made; or
(d) a person who is a grandparent, sibling or sibling of the parents
of the child because of the parentage order; or
(e) a descendant of the child (including their own child).
31 Effect of surrogacy arrangements
(1) The legal effect of a surrogacy arrangement is limited only to this
division.
(2) The making of a parentage order about a child born under a
commercial surrogacy arrangement does not affect a person’s
criminal responsibility under part 4 in relation to the commercial
surrogacy arrangement.
Subdivision 2.5.4 Parentage orders—particular
arrangements entered into before
Parentage (Surrogacy) Amendment
Act 2024
31A Definitions—subdiv 2.5.4
In this subdivision:
commencement day means the day the Parentage (Surrogacy)
Amendment Act 2024, section 8 commences.
Part 2 Establishing parentage
Division 2.5 Surrogacy
Section 31B
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commercial arrangement means an arrangement in the nature of a
surrogacy arrangement that also includes an agreement by any person
to make or give to someone else payment or reward, other than
reasonable expenses incurred in relation to the arrangement.
payment or reward—see section 40 (2).
31B Parentage order—commercial arrangement made and
child born before commencement day
(1) This section applies if—
(a) a commercial arrangement was entered into before the
commencement day; and
(b) a person gave birth to a child, under the commercial
arrangement, before the commencement day; and
(c) there is no parentage order in force in relation to the child before
the commencement day; and
(d) subdivision 2.5.3 would apply to the child had the arrangement
been an arrangement mentioned in section 28F (2) (a) entered
into on or after the commencement day; and
(e) the person or people who intend to be taken to be the parent or
parents of the child under the arrangement live in the ACT.
(2) The person or people may apply to the Supreme Court under
section 28G for a parentage order for the child as if—
(a) the commercial arrangement is a commercial surrogacy
arrangement of a kind described in section 40 (1) (a); and
(b) the person or people were the intended parent or intended
parents of the child under the commercial surrogacy
arrangement.
(3) The Supreme Court may make a parentage order about the child under
section 28H (2) as if the child were a child mentioned in
section 28F (2).
Establishing parentage Part 2
Surrogacy Division 2.5
Section 31C
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(4) In making a parentage order about the child, the Supreme Court need
not be satisfied under section 28H (2) (d) that the requirements of
subdivision 2.5.2 are met.
31C Effect of parentage order mentioned in s 31B and access
to information
(1) This section applies instead of section 29 in relation to a parentage
order mentioned in section 31B (3).
(2) The provisions of the Adoption Act 1993 mentioned in subsection (4)
(the applied provisions) apply in relation to the parentage order as if
the parentage order were an order made under that Act for the
adoption of the child and the child were an adopted child.
(3) For that application—
(a) a reference in an applied provision to the adoptive parent or
adoptive parents is a reference to the intended parent or intended
parents in whose favour the parentage order was made; and
(b) a reference in an applied provision to the adopted child or
adopted person is a reference to the child about whom the
parentage order was made; and
(c) a reference in an applied provision to the commencement of the
Adoption Act 1993 were a reference to the commencement day;
and
(d) a reference in the Adoption Act 1993, section 48 to the
director-general were a reference to the registrar-general; and
(e) any other necessary changes were made.
(4) The applied provisions of the Adoption Act 1993 are as follows:
(a) section 43 (General effect) other than subsections (1) (c) and (2);
(b) section 44 (Disposition of property);
Part 2 Establishing parentage
Division 2.6 Use of medical tests in establishing parentage
Section 31D
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(c) section 47 (Distribution of property by trustee or personal
representative);
(d) section 48 (Bequest by will to unascertained adopted person);
(e) section 49 (Gifts between living people);
(f) section 60 (Confidentiality of records) other than
subsection (1) (a);
(g) section 62 (3) (Provision of information);
(h) division 5.3 (Identifying information) other than sections 70, 71,
77, 78 and 79.
31D Effect of parentage order on commercial substitute
parent agreement
(1) The making of a parentage order about a child born under a
commercial substitute parent agreement does not affect a person’s
criminal responsibility under part 4, as in force immediately before
the commencement day, in relation to the commercial substitute
parent agreement.
(2) In this section:
commercial substitute parent agreement—see section 40, as in force
immediately before the commencement day.
Division 2.6 Use of medical tests in establishing
parentage
32 Definition for div 2.6
In this division:
parentage testing order—see section 34.
Establishing parentage Part 2
Use of medical tests in establishing parentage Division 2.6
Section 33
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33 Application of div 2.6
This division applies if the parentage of a child is in issue in a civil
proceeding in a court.
34 Order to carry out medical tests
(1) The court may make an order (a parentage testing order) requiring
stated medical tests that are relevant to establishing the parentage of
the child to be carried out on a stated person within a stated time and
in accordance with any stated conditions.
(2) The court may make the parentage testing order—
(a) on its own initiative; or
(b) on the application of a party to the proceeding; or
(c) if the child is not a party—on the application of the child.
(3) If the child makes an application, the child must be joined as a party
to the proceeding.
(4) When deciding whether to make the parentage testing order, the court
must take into account any objection made on medical, religious or
other grounds by the person to whom a copy of the order must be
given.
(5) A copy of the parentage testing order must be given—
(a) if the stated person is under 18 years old—to the person who has
custody of the stated person; or
(b) if the stated person is of unsound mind or for any other reason
incapable of consenting to having the medical tests carried out—
to the person who has the care and control of the stated person;
or
(c) in any other case—to the stated person.
(6) The court may at any time revoke or vary the parentage testing order.
Part 2 Establishing parentage
Division 2.6 Use of medical tests in establishing parentage
Section 35
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35 Effect of failure to comply with parentage testing order
(1) If, without reasonable excuse, a parentage testing order is not
complied with the court may draw the inferences from the failure to
comply that it considers appropriate.
(2) In particular, the court may treat the failure—
(a) as evidence corroborating the evidence of a party to the
proceeding; or
(b) if the stated person is a party to the proceeding and is relying in
the proceeding on a rebuttable presumption arising under
division 2.2—as evidence rebutting the presumption.
(3) An objection mentioned in section 34 (4) that has been taken into
account is not a reasonable excuse for subsection (1).
(4) Without limiting subsection (1) or (2), if a parentage testing order is
not complied with the court may—
(a) dismiss the proceeding; or
(b) allow the proceeding to continue on the conditions it considers
appropriate.
36 Reports of medical tests
(1) This section applies if—
(a) the court makes a parentage testing order in a proceeding; and
(b) a medical test required under the order is carried out in
accordance with the regulations.
(2) A report prepared in accordance with the regulations by the person
who carried out the test, and stating the result of the test, is admissible
in the proceeding as evidence of matters stated in the report.
Establishing parentage Part 2
Use of medical tests in establishing parentage Division 2.6
Section 37
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(3) The court may call as a witness—
(a) the person who prepared the report; or
(b) anyone who assisted in carrying out the medical tests mentioned
in the report.
(4) The court may act under subsection (3)—
(a) on its own initiative; or
(b) on the application of a party to the proceeding; or
(c) if the child whose parentage is in issue is not a party—on the
application of the child.
(5) If the child makes an application, the child must be joined as a party
to the proceeding.
(6) A person called as a witness under subsection (3) may be
cross-examined by any party to the proceeding, including a party who
called the person.
(7) The cost of carrying out a medical test under the parentage testing
order (including any expenses reasonably incurred in taking any steps
required for the purpose) and preparing a report in relation to the test
must be regarded as costs of the proceeding.
37 Offences related to medical tests
(1) A person must not impersonate someone else in undergoing a medical
test under a parentage testing order.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Part 2 Establishing parentage
Division 2.6 Use of medical tests in establishing parentage
Section 37
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(2) A person commits an offence if the person—
(a) puts forward a child or someone who is of unsound mind to
undergo a medical test under a parentage testing order; and
(b) knows that the person put forward is not the person stated in the
order.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) A person who is not a doctor, a nurse or a person prescribed under the
regulations must not take a sample of a person’s blood or other body
tissue for the purpose of carrying out a medical test under a parentage
testing order.
Maximum penalty: 30 penalty units.
Status of children Part 3
Section 38
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Part 3 Status of children
38 Children all of equal status
(1) This section applies if the relationship of a person with the person’s
parents, or with either of them, is to be decided under a Territory law,
whether in a proceeding before a court or otherwise.
(2) The relationship must be decided without regard to whether the
parents of the person are or have ever been married to, or in a civil
union or civil partnership with, each other.
(3) All other relationships of or to the person, whether of consanguinity
or affinity, must be decided in the same way.
(4) This section is subject to section 39.
(5) In this section:
affinity means affinity derived through marriage, civil union, civil
partnership or any other domestic partnership.
39 Construction of instruments
(1) Subsections (2) and (3) apply to—
(a) an instrument other than a will or codicil that was signed after
24 March 1989; or
(b) an instrument other than a will or codicil that—
(i) was signed before that date; and
(ii) under the law of the place where the instrument was signed,
would be interpreted without regard to the illegitimacy of
people mentioned in, or taking under, the instrument.
(2) Any rule of law that a disposition in favour of an exnuptial child not
conceived or born when an instrument takes effect is void for being
contrary to public policy is abolished.
Part 3 Status of children
Section 39
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(3) In an instrument other than a will or codicil—
(a) a reference (however expressed) to a child of a person includes
a reference to an exnuptial child of the person; and
(b) a reference (however expressed) to a person related to someone
else in another way includes a reference to anyone who is related
in that way regardless of whether the person or another person
through whom the relationship is traced is or was an exnuptial
child.
(4) An instrument (other than an instrument mentioned in subsection (1)
or a will or codicil) that was executed before 24 March 1989 must be
interpreted as if the Birth (Equality of Status) Act 1988 or this Act had
not been made.
(5) The Birth (Equality of Status) Act 1988, part 3 and part 4 apply in
relation to the interpretation of a will or codicil if the testator died on
or after 24 March 1989 and before the commencement of this Act,
but a will or codicil must otherwise be interpreted as if that Act had
not been made.
(6) This Act applies to the interpretation of a will or codicil if the testator
died on or after the commencement of this Act, but a will or codicil
must otherwise be interpreted as if this Act had not been made.
(7) If an instrument contains a special power of appointment in favour of
a class of people, nothing in the Birth (Equality of Status) Act 1988
or this Act extends the class of people in whose favour the
appointment may be made or causes the exercise of the power to be
interpreted to include anyone who is not a member of that class.
(8) In this section:
exnuptial child means a child whose parents were not married to each
other when the child was conceived and have not later married each
other (other than a child who is a legitimate child, or is taken to be a
legitimate child, under the Marriage Act 1961 (Cwlth), part 6).
Offences relating to surrogacy arrangements Part 4
Section 40
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Part 4 Offences relating to surrogacy
arrangements
Note The making of a parentage order about a child born under a commercial
surrogacy arrangement does not affect a person’s criminal responsibility
under this part—see s 31 (Effect of surrogacy arrangements).
40 Meaning of commercial surrogacy arrangement
(1) In this Act:
commercial surrogacy arrangement means—
(a) a surrogacy arrangement under which a person agrees to make
or give to someone else a payment or reward, other than for
reasonable expenses incurred in relation to the arrangement; or
(b) a contract, agreement, arrangement or understanding under
which—
(i) a person who is pregnant agrees that a child born as a result
of the pregnancy will be taken to be the child of someone
else; and
(ii) a person agrees to make or give to someone else a payment
or reward, other than for reasonable expenses incurred in
relation to the contract, agreement, arrangement or
understanding as if the contract, agreement, arrangement
or understanding was a surrogacy arrangement.
(2) In this section:
payment or reward includes a payment or reward for or in
consideration of—
(a) the making of a parentage order; or
(b) an agreement by each presumed parent to the making of a
parentage order; or
Part 4 Offences relating to surrogacy arrangements
Section 41
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(c) the handing over of a child to the intended parent or intended
parents; or
(d) the making of any arrangements with a view to the making of a
parentage order.
41 Commercial surrogacy arrangements prohibited
A person commits an offence if the person intentionally enters into a
commercial surrogacy arrangement.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
42 Procuring commercial surrogacy arrangements
A person commits an offence if the person procures someone to enter
into a commercial surrogacy arrangement with a third person.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
43 Advertising in relation to commercial surrogacy
arrangements
(1) A person commits an offence if the person—
(a) publishes an advertisement, notice or anything else with the
intention of inducing someone to enter into a commercial
surrogacy arrangement; or
(b) publishes an advertisement, notice or anything else that—
(i) is likely to induce someone to enter into a commercial
surrogacy arrangement; or
(ii) seeks or purports to seek someone who is willing to enter
into a commercial surrogacy arrangement; or
Offences relating to surrogacy arrangements Part 4
Section 44
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(iii) states or implies that someone is willing to enter into a
commercial surrogacy arrangement.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) In this section:
publish—something is published if it is—
(a) included in a newspaper, periodical publication or other
publication; or
(b) publicly exhibited in, on, over or under a building, vehicle or
place (whether or not a public place and whether on land or
water), or in the air in view of people on a street or in a public
place; or
(c) contained in a document given to someone or left on premises
where someone lives or works; or
(d) broadcast by radio or television; or
(e) electronically disseminated in another way (for example, by
inclusion on a web site).
44 Facilitating pregnancy
A person commits an offence if—
(a) the person intentionally provides a professional or technical
service to someone else; and
(b) the person knows the other person is, or intends to be, a party to
a commercial surrogacy arrangement; and
Part 4 Offences relating to surrogacy arrangements
Section 45
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(c) the person provides the service with the intention of assisting the
other person to become pregnant for the purpose of the
arrangement.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
45 Geographical nexus for offences
(1) A geographical nexus exists between the ACT and an offence against
this part if, when the offence is committed, the person who commits
the offence is ordinarily resident in the ACT.
(2) This section is additional to, and does not limit, the Criminal Code,
section 64 (2) (Extension of offences if required geographical nexus
exists).
Miscellaneous Part 5
Section 46
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Part 5 Miscellaneous
46 Joinder of parties
(1) This section applies to a proceeding under this Act in relation to a
child if a party to the proceeding who is claimed to be a parent of the
child claims that someone else is, or may be, a parent of the child.
(2) The other person must be joined as a party to the proceeding.
47 Notification of court orders to registrar-general
If the Supreme Court makes a parentage declaration, an order
annulling a parentage declaration, or a parentage order, the registrar
of the court must give a sealed copy of the declaration or order to the
registrar-general within 28 days after the day on which the declaration
or order is made.
48 Proof of orders etc about parentage
In any proceeding in a Territory court, a document purporting to be
any of the following is evidence of the facts stated in it and the matters
appearing from it:
(a) an order or declaration made under this Act;
(b) an official certificate, entry or record of the making of the order
or declaration.
Note A certified copy or extract from an order, declaration or certificate is
admissible in a proceeding in a Territory court (see Evidence Act 2011,
s 155 and s 156).
Part 5 Miscellaneous
Section 49
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49 Approved forms
(1) The Minister may approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the form must
be used for that purpose.
Note For other provisions about forms, see Legislation Act, s 255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
50 Regulation-making power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative Assembly,
under the Legislation Act.
(2) A regulation may make provision in relation to––
(a) the carrying out of medical tests for division 2.6 (Use of medical
tests in establishing parentage); and
(b) the preparation of reports in relation to the information obtained
because of the carrying out of the medical tests.
Transitional—Parentage (Surrogacy) Amendment Act 2024 Part 7
Section 53
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Part 7 Transitional—Parentage
(Surrogacy) Amendment
Act 2024
53 Definitions—pt 7
In this part:
arrangement means an arrangement in the nature of a surrogacy
arrangement.
commencement day means the day the Parentage (Surrogacy)
Amendment Act 2024, section 8 commences.
commercial arrangement means an arrangement that also includes
an agreement by any person to make or give to someone else payment
or reward, other than reasonable expenses incurred in relation to the
arrangement.
payment or reward—see section 40 (2).
54 Parentage order—substitute parent agreement and no
parentage order before commencement day
(1) This section applies if—
(a) a substitute parent agreement was entered into before the
commencement day; and
(b) the substitute parent or substitute parents under the agreement—
(i) had not made an application for a parentage order
immediately before the commencement day; or
(ii) made an application for a parentage order which had not
been decided by the Supreme Court immediately before the
commencement day; and
Part 7 Transitional—Parentage (Surrogacy) Amendment Act 2024
Section 55
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(c) division 2.5, as in force immediately before the commencement
day, applies to the child under the substitute parent arrangement.
Note See s 24 (Application of div 2.5) as in force immediately before the
commencement day.
(2) Division 2.5, as in force immediately before the commencement day,
continues to apply in relation to—
(a) an application for, or the making of, the parentage order about
the child; and
(b) the effect of the parentage order, if made.
(3) In this section:
parentage order means an order under section 26 as in force
immediately before the commencement day.
substitute parent, of a child—see section 24 (c) as in force
immediately before the commencement day.
substitute parent agreement—see section 23 as in force immediately
before the commencement day.
55 Parentage order—arrangement made and child born
before commencement day
(1) This section applies if—
(a) an arrangement, other than a commercial arrangement, was
entered into before the commencement day; and
(b) a person gave birth to a child, under the arrangement, before the
commencement day; and
(c) there is no parentage order in force in relation to the child before
the commencement day; and
Transitional—Parentage (Surrogacy) Amendment Act 2024 Part 7
Section 56
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(d) division 2.5, as in force immediately before the commencement
day, does not apply to the child, but division 2.5, as in force after
the commencement day, would apply to the child had the
arrangement been an arrangement mentioned in
section 28F (1) (a) entered into on or after the commencement
day; and
(e) the person or people who intend to be taken to be the parent or
parents of the child under the arrangement live in the ACT.
(2) The person or people may apply to the Supreme Court under
section 28G for a parentage order for the child as if—
(a) the arrangement was a surrogacy arrangement; and
(b) the person or people were the intended parent or intended
parents of the child under the surrogacy arrangement; and
(c) section 28G (3) does not apply.
(3) An application mentioned in subsection (2) may only be made in the
5-year period beginning on the commencement day.
(4) The Supreme Court may make a parentage order about the child under
section 28H (1) as if the child were a child mentioned in
section 28F (1).
(5) In making a parentage order about the child, the Supreme Court need
not be satisfied under section 28H (1) (c) that the requirements of
subdivision 2.5.2 are met.
56 Parentage order—arrangement made, but child not born,
before commencement day
(1) This section applies if—
(a) an arrangement, other than a commercial arrangement, was
entered into before the commencement day; and
(b) a person has not given birth to a child under the arrangement
before the commencement day; and
Part 7 Transitional—Parentage (Surrogacy) Amendment Act 2024
Section 57
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(c) the person or people who intend to be taken to be the parent or
parents of the child under the arrangement live in the ACT.
(2) The person or people may apply to the Supreme Court under
section 28G for a parentage order for the child as if—
(a) the arrangement was a surrogacy arrangement; and
(b) the person or people were the intended parent or intended
parents of the child under the surrogacy arrangement.
(3) The Supreme Court may make a parentage order about the child under
section 28H (1) as if the child were a child mentioned in
section 28F (1).
(4) In making a parentage order about the child, the Supreme Court need
not be satisfied under section 28H (1) (c) that the requirements of
subdivision 2.5.2 are met.
57 Parentage order—commercial arrangement made, but
child not born, before commencement day
(1) This section applies if—
(a) a commercial arrangement was entered into before the
commencement day; and
(b) a person has not given birth to a child under the commercial
arrangement before the commencement day; and
(c) the person or people who intend to be taken to be the parent or
parents of the child under the commercial arrangement live in
the ACT.
(2) The person or people may apply to the Supreme Court under
section 28G for a parentage order for the child as if—
(a) the arrangement was a commercial surrogacy arrangement of a
kind described in section 40 (1) (a); and
Transitional—Parentage (Surrogacy) Amendment Act 2024 Part 7
Section 58
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(b) the person or people were the intended parent or intended
parents of the child under the surrogacy arrangement.
(3) The Supreme Court may make a parentage order about the child under
section 28H (2) as if the child were a child mentioned in
section 28F (2).
(4) In making a parentage order about the child, the Supreme Court need
not be satisfied under section 28H (2) (d) that the requirements of
subdivision 2.5.2 are met.
58 Effect of parentage order mentioned in s 55 (4) and
access to information
(1) This section applies instead of section 29 in relation to a parentage
order mentioned in section 55 (4).
(2) The provisions of the Adoption Act 1993 mentioned in subsection (4)
(the applied provisions) apply in relation to the parentage order as if
the parentage order were an order made under that Act for the
adoption of the child and the child were an adopted child.
(3) For that application—
(a) a reference in an applied provision to the adoptive parent or
adoptive parents is a reference to the intended parent or intended
parents in whose favour the parentage order was made; and
(b) a reference in an applied provision to the adopted child or
adopted person is a reference to the child about whom the
parentage order was made; and
(c) a reference in an applied provision to the commencement of the
Adoption Act 1993 were a reference to the commencement day;
and
(d) a reference in the Adoption Act 1993, section 48 to the
director-general were a reference to the registrar-general; and
(e) any other necessary changes were made.
Part 7 Transitional—Parentage (Surrogacy) Amendment Act 2024
Section 59
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(4) The applied provisions of the Adoption Act 1993 are as follows:
(a) section 43 (General effect) other than subsections (1) (c) and (2);
(b) section 44 (Disposition of property);
(c) section 47 (Distribution of property by trustee or personal
representative);
(d) section 48 (Bequest by will to unascertained adopted person);
(e) section 49 (Gifts between living people);
(f) section 60 (Confidentiality of records) other than
subsection (1) (a);
(g) section 62 (3) (Provision of information);
(h) division 5.3 (Identifying information) other than sections 70, 71,
77, 78 and 79.
59 Effect of parentage order on commercial substitute
parent agreement
(1) The making of a parentage order about a child born under a
commercial substitute parent agreement does not affect a person’s
criminal responsibility under part 4, as in force immediately before
the commencement day, in relation to the commercial substitute
parent agreement.
(2) In this section:
commercial substitute parent agreement—see section 40, as in force
immediately before the commencement day.
60 Expiry—pt 7
This part expires 5 years after the commencement day.
Note A transitional provision is repealed on its expiry but continues to have
effect after its repeal (see Legislation Act, s 88).
Dictionary
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Dictionary
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the following
terms:
• civil partner
• civil partnership
• civil union
• civil union partner
• doctor
• domestic partner (see s 169 (1))
• domestic partnership (see s 169 (2))
• foreign country
• nurse
• parent
• registrar-general.
birth parent, of a child, for division 2.5 (Surrogacy)—see
section 23.
birth sibling, of a child, for division 2.5 (Surrogacy)—see
section 23.
commencement day, for subdivision 2.5.4 (Parentage orders—
particular arrangements entered into before Parentage
(Surrogacy) Amendment Act 2024)—see section 31A.
commercial arrangement, for subdivision 2.5.4 (Parentage
orders—particular arrangements entered into before Parentage
(Surrogacy) Amendment Act 2024)—see section 31A.
commercial surrogacy arrangement—see section 40.
foreign jurisdiction means a foreign country or part of a foreign
country.
Dictionary
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genetic parent, of a child, means a person whose gametes were
used to create the embryo.
intended parent, of a child, for division 2.5 (Surrogacy)—see
section 23.
parentage declaration means a declaration under section 19.
parentage order means an order under section 28H.
parentage testing order, for division 2.6 (Use of medical tests in
establishing parentage)—see section 34.
partner, of a birth parent, for division 2.5 (Surrogacy)—see
section 23.
payment or reward, for subdivision 2.5.4 (Parentage orders—
particular arrangements entered into before Parentage
(Surrogacy) Amendment Act 2024)—see section 40 (2).
presumed parent, of a child, for division 2.5 (Surrogacy)—see
section 23.
procedure, for division 2.5 (Surrogacy)—see section 23.
reasonable expense, in relation to a presumed parent under a
surrogacy arrangement—see section 24.
register of births means the register maintained under the Births,
Deaths and Marriages Registration Act 1997 in which births are
registered.
surrogacy arrangement means a contract, agreement,
arrangement or understanding under which a birth parent and an
intended parent or 2 intended parents agree—
(a) that the birth parent will become, or attempt to become,
pregnant; and
(b) that the child born as a result of the pregnancy will be taken
to be (whether by adoption, agreement or otherwise) the
child of the intended parent or intended parents.
Endnotes
About the endnotes 1
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Endnotes
1 About the endnotes
Amending and modifying laws are annotated in the legislation history and the
amendment history. Current modifications are not included in the republished law
but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are
annotated in the amendment history. Full details of any amendments can be
obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details
of these laws are underlined in the legislation history. Uncommenced expiries are
underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered
provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
2 Abbreviation key
A = Act NI = Notifiable instrument
AF = Approved form o = order
am = amended om = omitted/repealed
amdt = amendment ord = ordinance
AR = Assembly resolution orig = original
ch = chapter par = paragraph/subparagraph
CN = Commencement notice pres = present
def = definition prev = previous
DI = Disallowable instrument (prev...) = previously
dict = dictionary pt = part
disallowed = disallowed by the Legislative r = rule/subrule
Assembly reloc = relocated
div = division renum = renumbered
exp = expires/expired R[X] = Republication No
Gaz = gazette RI = reissue
hdg = heading s = section/subsection
IA = Interpretation Act 1967 sch = schedule
ins = inserted/added sdiv = subdivision
LA = Legislation Act 2001 SL = Subordinate law
LR = legislation register sub = substituted
LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced
mod = modified/modification or to be expired
Endnotes
3 Legislation history
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3 Legislation history
Parentage Act 2004 A2004-1
notified LR 18 February 2004
s 1, s 2 commenced 18 February 2004 (LA s 75 (1))
remainder commenced 22 March 2004 (s 2 and CN2004-3)
as amended by
Civil Unions Act 2006 A2006-22 sch 1 pt 1.23
notified LR 19 May 2006
s 1, s 2 commenced 19 May 2006 (LA s 75 (1))
sch 1 pt 1.23 never commenced
Note Act repealed by disallowance 14 June 2006 (see Cwlth
Gaz 2006 No S93)
Civil Partnerships Act 2008 A2008-14 sch 1 pt 1.19
notified LR 15 May 2008
s 1, s 2 commenced 15 May 2008 (LA s 75 (1))
sch 1 pt 1.19 commenced 19 May 2008 (s 2 and CN2008-8)
Adoption Amendment Act 2009 (No 2) A2009-36 sch 1 pt 1.4
notified LR 22 October 2009
s 1, s 2 commenced 22 October 2009 (LA s 75 (1))
sch 1 pt 1.4 commenced 22 April 2010 (s 2 and LA s 79)
Administrative (One ACT Public Service Miscellaneous Amendments)
Act 2011 A2011-22 sch 1 pt 1.118
notified LR 30 June 2011
s 1, s 2 commenced 30 June 2011 (LA s 75 (1))
sch 1 pt 1.118 commenced 1 July 2011 (s 2 (1))
Evidence (Consequential Amendments) Act 2011 A2011-48 sch 1
pt 1.28
notified LR 22 November 2011
s 1, s 2 commenced 22 November 2011 (LA s 75 (1))
sch 1 pt 1.28 commenced 1 March 2012 (s 2 (1) and see Evidence
Act 2011 A2011-12, s 2 and CN2012-4)
Endnotes
Legislation history 3
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Statute Law Amendment Act 2012 A2012-21 sch 3 pt 3.33
notified LR 22 May 2012
s 1, s 2 commenced 22 May 2012 (LA s 75 (1))
sch 3 pt 3.33 commenced 5 June 2012 (s 2 (1))
Civil Unions Act 2012 A2012-40 sch 3 pt 3.21
notified LR 4 September 2012
s 1, s 2 commenced 4 September 2012 (LA s 75 (1))
sch 3 pt 3.21 commenced 11 September 2012 (s 2)
Marriage Equality (Same Sex) Act 2013 A2013-39 sch 2 pt 2.19
notified LR 4 November 2013
s 1, s 2 commenced 4 November 2013 (LA s 75 (1))
sch 2 pt 2.19 commenced 7 November 2013 (s 2 and CN2013-11)
Note The High Court held this Act to be of no effect (see
Commonwealth v Australian Capital Territory [2013] HCA 55)
Justice Legislation Amendment Act 2016 A2016-7 pt 5
notified LR 29 February 2016
s 1, s 2 commenced 29 February 2016 (LA s 75 (1))
pt 5 commenced 29 August 2016 (s 2 and LA s 79)
Parentage (Surrogacy) Amendment Act 2024 A2024-31
notified LR 9 July 2024
s 1, s 2 commenced 9 July 2024 (LA s 75 (1))
remainder commenced 10 July 2024 (s 2 (1))
Justice and Community Safety Legislation Amendment Act 2024
A2024-49 pt 10
notified LR 17 September 2024
s 1, s 2 taken to have commenced 11 June 2024 (LA s 75 (2))
pt 10 taken to have commenced 10 July 2024 (s 2 (3) and see
Parentage (Surrogacy) Amendment Act 2024 A2024-31, s 2 (1))
Endnotes
4 Amendment history
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4 Amendment history
Commencement
s 2 om LA s 89 (4)
Dictionary
s 3 am A2024-31 s 5
Presumptions arising from marriage, civil union or civil partnership
s 7 hdg sub A2006-22 amdt 1.95 (A2006-22 rep before commenced by
disallowance (see Cwlth Gaz 2006 No S93)); A2008-14
amdt 1.65; A2012-40 amdt 3.84
s 7 am A2006-22 amdts 1.96-1.101 (A2006-22 rep before
commenced by disallowance (see Cwlth Gaz 2006 No S93));
A2008-14 amdts 1.66-1.69; A2012-40 amdts 3.85-3.87
sub A2016-7 s 46
Presumption arising from domestic partnership
s 8 am A2016-7 s 47
Presumptions arising from procedure
s 11 sub A2016-7 s 48
am A2024-31 s 6
Application for parentage declaration
s 15 am A2016-7 s 49, s 50
Annulment of parentage declaration
s 22 am A2016-7 s 51
Surrogacy
div 2.5 hdg sub A2024-31 s 7
Surrogacy
sdiv 2.5.1 hdg ins A2024-31 s 7
Definitions—div 2.5
s 23 sub A2024-31 s 8
def birth parent am A2016-7 s 52
sub A2024-31 s 8
def birth sibling sub A2016-7 s 53; A2024-31 s 8
def commercial substitute parent agreement om A2024-31
s 8
def intended parent ins A2024-31 s 8
def parentage order om A2024-31 s 8
def partner ins A2024-31 s 8
def presumed parent ins A2024-31 s 8
def procedure sub A2016-7 s 54; A2024-31 s 8
def substitute parent om A2024-31 s 8
def substitute parent agreement am A2016-7 s 55
om A2024-31 s 8
Endnotes
Amendment history 4
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Meaning of reasonable expense
s 24 (2), (3) exp 22 March 2006 (s 24 (3))
sub A2024-31 s 8
Provision of counselling
s 25 sub A2024-31 s 8
Surrogacy arrangements
sdiv 2.5.2 hdg ins A2024-31 s 8
Surrogacy arrangement must be in writing
s 26 am A2016-7 s 56
sub A2024-31 s 8
Parties to surrogacy arrangement
s 27 sub A2024-31 s 8
Legal advice
s 28 am A2016-7 s 57
sub A2024-31 s 8
Counselling
s 28A ins A2024-31 s 8
am A2024-49 s 20; ss renum R11 (RI) LA
Age of intended parent
s 28B ins A2024-31 s 8
Age of birth parent
s 28C ins A2024-31 s 8
Reasonable expenses incurred
s 28D ins A2024-31 s 8
Rights of birth parent
s 28E ins A2024-31 s 8
Parentage orders
sdiv 2.5.3 hdg ins A2024-31 s 8
Application—subdiv 2.5.3
s 28F ins A2024-31 s 8
Application for parentage order
s 28G ins A2024-31 s 8
Making of parentage order
s 28H ins A2024-31 s 8
Relevant considerations for making of parentage order
s 28I ins A2024-31 s 8
Content of parentage order
s 28J ins A2024-31 s 8
Endnotes
4 Amendment history
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Multiple births
s 28K ins A2024-31 s 8
Name of child
s 28L ins A2024-31 s 8
Effect of parentage order and access to information
s 29 am A2009-36 amdt 1.6; A2011-22 amdt 1.347; A2024-31 s 9,
s 10
Medical information
s 30 am A2016-7 s 58, s 59; A2024-31 s 11
Effect of surrogacy arrangements
s 31 sub A2024-31 s 12
Parentage orders—particular arrangements entered into before Parentage
(Surrogacy) Amendment Act 2024
sdiv 2.5.4 hdg ins A2024-31 s 13
Definitions—subdiv 2.5.4
s 31A ins A2024-31 s 13
def commencement day ins A2024-31 s 13
def commercial arrangement ins A2024-31 s 13
def payment or reward ins A2024-31 s 13
Parentage order—commercial arrangement made and child born before
commencement day
s 31B ins A2024-31 s 13
Effect of parentage order mentioned in s 31B and access to information
s 31C ins A2024-31 s 13
Effect of parentage order on commercial substitute parent agreement
s 31D ins A2024-31 s 13
Children all of equal status
s 38 am A2006-22 amdt 1.102, amdt 1.103 (A2006-22 rep before
commenced by disallowance (see Cwlth Gaz 2006 No S93));
A2008-14 amdt 1.70; A2012-40 amdt 3.88, amdt 3.89;
A2016-7 s 60
Construction of instruments
s 39 am A2016-7 s 61, s 62
Offences relating to surrogacy arrangement
pt 4 hdg sub A2024-31 s 14
Meaning of commercial surrogacy arrangement
s 40 sub A2024-31 s 15
Endnotes
Amendment history 4
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Commercial surrogacy arrangements prohibited
s 41 hdg sub A2024-31 s 16
s 41 am A2024-31 s 17
Procuring commercial surrogacy arrangements
s 42 hdg sub A2024-31 s 18
s 42 am A2024-31 s 19, s 20
Advertising in relation to commercial surrogacy arrangements
s 43 hdg sub A2024-31 s 21
s 43 am A2024-31 s 22, s 23
Facilitating pregnancy
s 44 am A2024-31 s 24, s 25
Proof of orders etc about parentage
s 48 sub A2011-48 amdt 1.45
Approved forms
s 49 am A2012-21 amdt 3.127
Regulation-making power
s 50 am A2012-21 amdt 3.128
Repeals and consequential amendments
pt 6 hdg om LA s 89 (3)
Legislation repealed
s 51 om LA s 89 (3)
Legislation amended—sch 1
s 52 om LA s 89 (3)
Transitional—Parentage (Surrogacy) Amendment Act 2024
pt 7 hdg ins A2024-31 s 26
exp 10 July 2029 (s 60)
Definitions—pt 7
s 53 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Parentage order—substitute parent agreement and no parentage order
before commencement day
s 54 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Parentage order—arrangement made and child born before commencement
day
s 55 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Endnotes
4 Amendment history
page 56 Parentage Act 2004
Effective: 10/07/24
R11 (RI)
17/09/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Parentage order—arrangement made, but child not born, before
commencement day
s 56 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Parentage order—commercial arrangement made, but child not born, before
commencement day
s 57 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Effect of parentage order mentioned in s 55 (4) and access to information
s 58 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Effect of parentage order on commercial substitute parent agreement
s 59 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Expiry—pt 7
s 60 ins A2024-31 s 26
exp 10 July 2029 (s 60)
Consequential amendments
sch 1 om LA s 89 (3)
Dictionary
dict am A2008-14 amdt 1.71; A2012-40 amdt 3.90, A2013-39
amdt 2.50 (A2013-39 never effective (see Commonwealth v
Australian Capital Territory [2013] HCA 55))
def birth parent sub A2024-31 s 27
def birth sibling sub A2024-31 s 27
def commencement day ins A2024-31 s 29
def commercial arrangement ins A2024-31 s 29
def commercial substitute parent agreement om A2024-31
s 28
def commercial surrogacy arrangement ins A2024-31 s 29
def intended parent ins A2024-31 s 29
def parentage order sub A2024-31 s 30
def partner ins A2024-31 s 31
def payment or reward ins A2024-31 s 31
def presumed parent ins A2024-31 s 31
def procedure sub A2024-31 s 32
def reasonable expense ins A2024-31 s 33
def substitute parent om A2024-31 s 34
def substitute parent agreement om A2024-31 s 34
def surrogacy arrangement ins A2024-31 s 35
Endnotes
Earlier republications 5
R11 (RI)
17/09/24
Parentage Act 2004
Effective: 10/07/24
page 57
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
5 Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to
the publication order.
Since 12 September 2001 every authorised republication has been published in
electronic pdf format on the ACT legislation register. A selection of authorised
republications have also been published in printed format. These republications are
marked with an asterisk (*) in column 1. Electronic and printed versions of an
authorised republication are identical.
Republication
No and date
Effective Last
amendment
made by
Republication
for
R1
22 Mar 2004
22 Mar 2004–
22 Mar 2006
not amended new Act
R2
23 Mar 2006
23 Mar 2006–
18 May 2008
not amended commenced expiry
R3
19 May 2008
19 May 2008–
21 Apr 2010
A2008-14 amendments by
A2008-14
R4
22 Apr 2010
22 Apr 2010–
30 June 2011
A2009-36 amendments by
A2009-36
R5
1 July 2011
1 July 2011–
29 Feb 2012
A2011-22 amendments by
A2011-22
R6
1 Mar 2012
1 Mar 2012–
4 June 2012
A2011-48 amendments by
A2011-48
R7
5 June 2012
5 June 2012–
10 Sept 2012
A2012-21 amendments by
A2012-21
R8
11 Sept 2012
11 Sept 2012–
6 Nov 2013
A2012-40 amendments by
A2012-40
R9
7 Nov 2013
never effective A2013-39 (never
effective)
amendments by
A2013-39
R9 (RI)
24 Feb 2014
7 Nov 2013–
28 Aug 2016
A2013-39 (never
effective)
reissued because of
High Court decision
in relation to
A2013-39
R10
29 Aug 2016
29 Aug 2016–
9 July 2024
A2016-7 amendments by
A2016-7
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
© Australian Capital Territory 2024