Parentage Regulation 2024

Reasonable expense (section 4). The regulation divides prescribed expenses into two groups: those relating to becoming or trying to become pregnant and a pregnancy or birth (subsection (1)), and those relating to entering into and giving effect to a surrogacy arrangement (subsection (2)). Within the first group, seven categories are listed: any reasonable medical expenses incurred by the birth parent; any reasonable travel or accommodation expenses incurred by a presumed parent; insurance premiums paid or increased where the birth parent obtains insurance; reimbursement of the birth parent’s loss of earnings from unpaid leave taken to become or try to become pregnant; reimbursement of the birth parent’s loss of earnings from unpaid leave taken during two periods (up to two months around the birth and any other period when the birth parent was unable to work on medical grounds related to pregnancy or birth); reasonable out-of-pocket childcare expenses if the birth parent is the primary caregiver for another child, including reimbursement of the partner’s loss of earnings from unpaid leave taken to care for that child while the birth parent cannot; and reimbursement of the partner’s loss of earnings from unpaid leave taken to care for the birth parent on medical grounds, supported by a carer’s medical certificate. Also included in the first group is any reasonable expenses, including medical expenses, incurred in respect of the child of the surrogacy arrangement. The second group covers reasonable expenses associated with a presumed parent receiving counselling, obtaining legal advice, and applying for a parentage order (including travel and accommodation). The regulation defines “obtains insurance” to include entering into a new contract for health, life or disability insurance or increasing the level of cover on an existing contract. Critically, “medical expenses” do not include expenses recoverable under Medicare or any health insurance or other scheme. This means the birth parent must first exhaust public or private insurance before the expense can be claimed as a reasonable surrogacy expense.

Prescribed person (section 5). This section lists four categories of people: a doctor registered under the Health Practitioner Regulation National Law (ACT) to practise in the specialty of psychiatry; a person registered to practise in the psychology profession (other than as a student); a person with a social work qualification providing eligibility for membership of the Australian Association of Social Workers; and a person who is a member of the Australian and New Zealand Infertility Counsellors Association (other than as a provisional or affiliate member). The list is exclusive: only these people are prescribed for section 25 of the Act. If a counsellor or adviser does not fall into one of these categories, any counselling or advice they provide may not satisfy the Act’s requirement.

Relationship to the Act. The regulation adopts the same defined terms as the Parentage Act 2004, including “birth parent”, “partner”, “presumed parent”, and “surrogacy arrangement”. It does not redefine these terms, so their meaning flows from the Act. The Dictionary at the end of the regulation notes that the Legislation Act 2001 definitions also apply (e.g., “prescribed”). The note in section 3 clarifies that notes in the regulation are explanatory and not part of the regulation, consistent with section 127 of the Legislation Act.

The regulation principally affects parties to an altruistic surrogacy arrangement in the ACT. The primary persons are the birth parent (the surrogate) and the presumed parent or parents (the intended parents). It also affects the partner of the birth parent, who may claim reimbursement for loss of earnings when caring for the birth parent or a child of the birth parent. These are the individuals who may pay or receive the prescribed expenses.

The regulation also directly affects medical practitioners (psychiatrists), psychologists, social workers, and infertility counsellors who are members of ANZICA. These are the only people eligible to provide counselling or legal advice that satisfies the Act’s requirements for a parentage order. If a counsellor or adviser does not fall within section 5, they cannot fulfil that function for the purposes of the Act, which may prevent the intended parents from obtaining a parentage order or expose the arrangement to legal challenge.

Lawyers are indirectly affected: while not prescribed persons themselves, lawyers advising on surrogacy arrangements must ensure that the expenses paid or received fall within the categories in section 4. They also need to ensure that any counselling or advice required by the Act is obtained from a person on the prescribed list.

Insurance companies are affected because the regulation allows the birth parent’s insurance premiums to be reimbursed, but only if the birth parent “obtains insurance” (including increasing existing cover). This may create a market for such coverage, but the regulation does not compel insurers to offer it.

Courts and tribunals dealing with parentage applications under the Act will need to assess whether expenses claimed are “reasonable” in the ordinary sense, even if they fall within a prescribed category. The regulation does not quantify what is reasonable; it only prescribes categories. So the court must still decide whether the amount paid for, say, medical expenses or loss of earnings is objectively reasonable. This leaves a degree of uncertainty for all parties.

Lastly, compliance professionals (accountants, auditors) who advise on structuring surrogacy arrangements must ensure that payments do not exceed the prescribed categories and that no payment is made for expenses that are recoverable under Medicare or private insurance.

The regulation itself does not impose new duties; it creates a safe harbour. The key right is that a person who pays or receives an expense that falls within section 4 cannot be prosecuted for an offence under section 24 of the Act for making or receiving a payment for a surrogacy arrangement, provided the expense is reasonable. Conversely, a payment that falls outside the prescribed categories may still be reasonable under the general test in the Act, but it carries higher risk because it lacks the regulation’s explicit authorisation.

The regulation imposes an implicit duty on the birth parent to first claim any medical expenses from Medicare or private insurance before those expenses can be counted as reasonable under the regulation. The definition of “medical expenses” in section 4(3) excludes expenses recoverable under the Health Insurance Act 1973 (Cth) or any health insurance or other scheme. This means the birth parent cannot double-recover. If the birth parent has already been reimbursed, the expense is not a valid prescribed expense under the regulation.

The regulation also imposes limits on loss-of-earnings claims. For a pregnancy or birth, loss of earnings is reimbursable only for unpaid leave taken during a period of not more than two months when the birth happened or was expected to happen, or any other period during pregnancy when the birth parent was unable to work on medical grounds related to the pregnancy or birth. For becoming or trying to become pregnant (e.g., IVF-related procedures), loss of earnings is reimbursable for unpaid leave taken as a result. The phrase “as a result of any unpaid leave taken” indicates that the loss must be causally connected to the leave. Moreover, the birth parent’s partner can claim loss of earnings only for unpaid leave taken to care for the birth parent on medical grounds, supported by a carer’s medical certificate, or to care for another child of the birth parent when the birth parent is unable to do so (and only if the birth parent is the primary caregiver for that child). These limitations restrict who can claim and under what circumstances.

The regulation does not create any rights for the child. It addresses only financial aspects of the surrogacy arrangement between the adults involved.

The regulation itself contains no penalty provisions. It is a subordinate instrument that defines terms used in the Parentage Act 2004. The penalty for contravening section 24 of the Act - paying or receiving payment for a surrogacy arrangement other than reasonable expenses - is not specified in the regulation. However, the republication note states that at the republication date, a penalty unit is $160 for an individual and $810 for a corporation (under the Legislation Act 2001, section 133). The Act’s own penalty provision for the offence would apply. Typically, such an offence would attract a maximum penalty of imprisonment or a fine, but the regulation does not state it.

Enforcement would be undertaken by ACT policing or the Director of Public Prosecutions. Prosecution would need to prove that a payment was made or received in connection with a surrogacy arrangement and that it was not a reasonable expense. The regulation assists the defence: if the payment falls within a prescribed category and is objectively reasonable, it is a safe harbour. If it falls outside, the prosecution must prove that the payment was not reasonable. In practice, the regulation shifts the evidentiary burden: a payment within a prescribed category is presumptively allowed, but the prosecution can still argue that the amount was not reasonable in the circumstances.

There is no specific enforcement mechanism for misuse of the prescribed person list under section 5. The Act’s section 25 likely requires that counselling or advice be given by a prescribed person; if it is not, the parentage order may be invalid or the arrangement may not meet the Act’s requirements. That is a civil consequence rather than a criminal penalty. However, if someone falsely claims to be a prescribed person, general criminal offences for fraud or false statements may apply.

The regulation does not impose any reporting requirements, auditing, or licensing. Compliance is self-assessment, subject to later court review if a dispute arises.

The regulation operates within the framework of the Parentage Act 2004 (ACT). It is subordinate to that Act. Section 4 defines “reasonable expense” for the purposes of section 24(2) of the Act, which prohibits commercial surrogacy. The interaction with Commonwealth law is significant: the regulation explicitly excludes medical expenses recoverable under the Health Insurance Act 1973 (Cth) or any health insurance scheme. This means that if a medical expense is covered by Medicare, it cannot be claimed as a reasonable surrogacy expense. The same applies to private health insurance. That exclusion prevents double-dipping and aligns with the principle that surrogacy expenses are meant to cover net out-of-pocket costs, not to provide a profit.

The regulation also interacts with the Health Practitioner Regulation National Law (ACT), which governs the registration of medical practitioners and psychologists. Section 5(a) requires a doctor to be registered in the specialty of psychiatry; a general practitioner is not sufficient unless also a psychiatrist. Section 5(b) requires a person to be registered to practise in the psychology profession (not as a student). This means that a provisional psychologist cannot give the counselling required by the Act. Similarly, social workers must have a qualification that provides eligibility for membership of the Australian Association of Social Workers; it is not necessary to be a member, but the qualification must meet that standard. For infertility counsellors, membership of ANZICA (other than provisional or affiliate) is required.

The regulation does not interact directly with family law proceedings under the Commonwealth Family Law Act 1975, but ACT parentage orders are recognised under state and territory law. The regulation’s role in defining expenses may become relevant if a surrogacy arrangement is challenged in another jurisdiction.

The regulation also interacts with the Legislation Act 2001 (ACT), which governs the making, commencement, and interpretation of subordinate laws. The regulation is subject to disallowance by the Legislative Assembly. The republication notes confirm that the regulation has not been amended and is in its first republication.

The Parentage Regulation 2024 has no amendment history. It was made as part of the Parentage (Surrogacy) Amendment Act 2024 (A2024-31) and came into force on 10 July 2024. The endnotes show no amending laws, no modifications, and no uncommenced provisions. It is a new regulation, not replacing any previous regulation. The previous Parentage Regulation (if any) was not carried forward; this regulation was enacted as a fresh instrument. The legislation history indicates it was taken to have been notified on 9 July 2024 and commenced the next day. The regulation was not amended under part 11.3 of the Legislation Act (editorial changes) as of the republication date.

There is no reported litigation concerning the Parentage Regulation 2024, given its recent commencement. The regulation has only been in effect since July 2024. However, potential areas of future litigation can be anticipated. First, disputes over the meaning of “reasonable” in the context of expenses. The regulation lists categories but does not cap amounts. A court may be asked to decide whether a particular medical expense, travel expense, or loss-of-earnings claim is objectively reasonable. Second, disputes may arise over the definition of “medical grounds” for a partner’s carer’s certificate under section 4(1)(g). The regulation requires a carer’s medical certificate from a doctor, but does not specify what level of detail is needed. Third, cases may arise where a party claims that an expense falls within a prescribed category but the other party argues it was not truly incurred or was excessive. Fourth, there may be challenges to the validity of the regulation itself, for example if a party argues that the regulation is ultra vires the Act by allowing expenses that are not “reasonable” or by excluding expenses that should be allowed. The Act’s section 24(2) simply says “reasonable expense” without defining it, so the regulation’s prescriptive approach could be argued to be too narrow or too broad.

Given that the regulation is new, no case law interprets it. The Parentage Act 2004 itself may have some litigation history, but that is not relevant to a deep dive on the regulation. The regulation’s prescribed person list may also be litigated: for example, whether a counsellor who is a member of ANZICA but not a practising counsellor qualifies, or whether a social worker with an overseas qualification that is assessed as equivalent is covered.

Several traps exist for the unwary. First, the exclusion of medical expenses recoverable under Medicare or private insurance is absolute. If a birth parent has private health insurance that covers a procedure, the expense cannot be claimed even if the birth parent chooses not to claim from the insurer. The regulation requires that the expense not be “recoverable”, not that it must actually have been recovered. So the intended parent cannot pay a bill that the birth parent could have submitted to Medicare. This may create disputes about what is “recoverable” - e.g., if the Medicare benefit is less than the gap, the gap may be recoverable? The regulation does not say; it simply says “expenses that are recoverable”. Arguably, if only part is covered, the uncovered portion may still be a reasonable expense. But the risk of ambiguity is high.

Second, the loss-of-earnings provisions are limited to unpaid leave. If the birth parent takes paid leave (e.g., accrued annual leave or paid parental leave), the expense is not prescribed. This means the intended parent cannot reimburse the birth parent for the value of the paid leave, because there is no loss of earnings. The birth parent must actually forgo income. For partners, the same limitation applies.

Third, the partner’s claim for childcare expenses under section 4(1)(f) is contingent on the birth parent being the “primary caregiver” for another child. The regulation does not define “primary caregiver”. This could be contested if the birth parent shares care equally with a co-parent. The partner’s loss of earnings is also limited to caring for the other child while the birth parent is unable to care for that child - not for caring for the birth parent.

Fourth, the carer’s medical certificate under section 4(1)(g) must be provided by a doctor. The regulation does not specify that the doctor must be the birth parent’s treating doctor; presumably any doctor can issue it, but the certificate must state that the partner is needed to care for the birth parent on medical grounds. The certifying doctor must be satisfied that the birth parent requires care. If the partner takes leave before obtaining a certificate, the expense may be disallowed.

Fifth, the prescribed person list in section 5 is exclusive. A counsellor who is a member of ANZICA but only a provisional member does not qualify. An infertility counsellor who is not a member of ANZICA does not qualify, even if experienced. A social worker whose qualification does not meet AASW eligibility criteria does not qualify. This means that intended parents must verify the counsellor’s credentials before obtaining the required counselling. If they obtain counselling from a non-qualified person, the entire surrogacy arrangement may be invalid for the purposes of obtaining a parentage order, and they may not be able to rectify it without starting over.

Sixth, the regulation does not address the timing of expenses. For expenses relating to entering into and giving effect to a surrogacy arrangement (counselling, legal advice, application costs), these are allowed even if incurred after the child’s birth. But expenses for becoming or trying to become pregnant must be incurred during that process. There is no grandfathering for expenses incurred before the regulation commenced (10 July 2024). Any payments made before that date are not automatically covered by this regulation, although the Act’s general reasonable expense test may still apply.

Compliance with the regulation requires careful record-keeping and a conservative approach to payments in surrogacy arrangements. Intended parents should maintain a detailed ledger of all expenses paid to or on behalf of the birth parent and the birth parent’s partner. Each expense should be categorised under the relevant subsection of section 4. For medical expenses, the birth parent should provide evidence that the expense is not recoverable under Medicare or private health insurance - for example, a statement from Medicare showing a gap payment or a letter from the insurer declining coverage. For travel and accommodation expenses, receipts and evidence of the travel purpose are needed. For loss of earnings, the birth parent or partner must provide payslips showing that the leave was unpaid and a letter from their employer confirming the unpaid status. A medical certificate attesting to the inability to work (for the birth parent) or the need for care (for the partner) should be obtained from a registered medical practitioner.

For insurance premiums, the intended parent should confirm that the policy was taken out or increased in connection with the surrogacy arrangement - the regulation requires the birth parent to “obtains insurance” (present tense). If the birth parent already had insurance before the surrogacy arrangement, the increase in premium may be covered, but the base premium is not. The insurer’s documentation should show the increase attributable to the surrogacy arrangement.

For childcare expenses, the intended parent should obtain evidence that the birth parent is the primary caregiver for another child and that the partner took unpaid leave specifically to care for that child. A statutory declaration from both parties may be prudent.

When engaging counsellors or lawyers for the surrogacy arrangement, intended parents must verify that the professional is a “prescribed person” under section 5. This means checking the counsellor’s registration with the Australian Health Practitioner Regulation Agency (AHPRA) for psychiatrists and psychologists, confirming the social worker’s qualification meets AASW eligibility, or confirming full membership of ANZICA (not provisional or affiliate). Keep a copy of the counsellor’s registration certificate or membership letter. The counselling or advice must be provided in relation to the surrogacy arrangement, and the regulation does not require the counsellor to be independent of the parties, but the Act may impose independence requirements.

If any expense falls outside the prescribed categories, the intended parent should obtain independent legal advice about whether it still qualifies as “reasonable” under the Act. The regulation’s safe harbour is not exclusive; expenses not listed may still be reasonable, but the burden of proof shifts. It is safer to confine payments to the categories listed.

Finally, before applying for a parentage order, the applicants should compile all expense records and ensure that every payment made can be justified under section 4. The court may scrutinise the reasonableness of each expense, even if it falls within a category. Keeping contemporaneous receipts and explanations is essential to demonstrate good faith.