The Act creates a regulated, court‑centred pathway in Tasmania for transferring legal parenthood after surrogacy, forbids commercial surrogacy and paid brokerage/advertising, and requires written agreements, independent legal advice, accredited counselling, residency and other evidentiary gates before parentage orders.
It preserves the birth mother’s pregnancy decision‑making, establishes a confidential surrogacy register, and shifts decision authority and compliance costs onto courts, registrars, intended parents, birth mothers and administrators.
This Act creates a statutory framework governing surrogacy arrangements, parentage orders, record-keeping and related offences. Mechanically, it does the following.
Defines the vocabulary used for surrogacy law, including surrogacy arrangement, birth mother, intended parent, birth mother's surrogacy costs, commercial surrogacy arrangement, and medical or social need (see ss 4, 5, 8, 9, 7). The text supplies precise legal meanings that determine eligibility, prohibited conduct and what may be reimbursed.
Declares that surrogacy arrangements are not generally enforceable, while making narrowly defined obligations to reimburse the birth mother enforceable in specified circumstances (s 10).
Establishes who may apply for a parentage order and when, and sets out detailed statutory criteria that the Magistrates Court (Children's Division) must be satisfied of before making a parentage order for children born under surrogacy arrangements made after the commencement of the Division (ss 12 to 16). There is a parallel Division for pre-existing arrangements with its own criteria (ss 19 to 22).
Prescribes procedural features for parentage applications: approved form and prescribed fee, service on birth parents and other intended parents, time limits for applying after birth, and the court’s ability to grant leave in exceptional cases (ss 13, 14, 15).
Provides that, on the making of a parentage order, intended parents named in the order become the legal parents and birth parents cease to be parents, subject to a narrow exception for the purpose of sexual offences laws (s 26).
Requires the Registrar of Births, Deaths and Marriages to create and maintain a surrogacy record, to re-register births where a parentage order is made, and to exchange memoranda with corresponding officers in other States and Territories (ss 32 to 39).
Current sections
Direct links to the current provisions in Surrogacy Act 2012.
The provisions of this Act commence on a day or days to be proclaimed.
Part 2
Interpretative Provisions
Part 2 Interpretative Provisions
3
Guiding principles
3 Guiding principles
(1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
(2) Subject to subsection (1) , this Act is to be administered according to the following principles:
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that –
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child's birth parentage; and
(iii) promotes the development of the child's emotional, mental, physical and social wellbeing;
(b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of –
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the intended parents of the child;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.
4
Interpretation
4 Interpretation
In this Act, unless the contrary intention appears –
accredited counsellor means a person accredited under section 47 ;
child means a child born, or to be born, as a result of a surrogacy arrangement, and includes, where the context requires, an adult who is born as a result of a surrogacy arrangement;
consent means informed consent freely and voluntarily given by a person with the capacity to give the consent;
corresponding law means a law, of another State or a Territory, that corresponds to this Act and includes a prescribed law of another State or a Territory;
corresponding order means an order that is –
(a) a member of a prescribed class of orders; or
(b) in the opinion of the registrar, the equivalent, under a law of another State, a Territory or a foreign country, of a parentage order;
court means the Magistrates Court (Children's Division);
(c) a sexual partner of another person of either sex;
(d) unmarried, not a party to a significant relationship within the meaning of section 4 of theRelationships Act 2003 or not a sexual partner of another person of either sex;
relevant party, in relation to a child, means –
(a) the birth mother of the child; or
(b) the birth mother's spouse, if any; or
(c) the spouse, if any, of the birth mother of the child; or
(d) a birth parent, if any, of the child; or
(e) each of the intended parents of the child;
spouse, in relation to a person, means –
(a) the husband or wife of the person; or
(b) if the person is a party to a significant relationship within the meaning of section 4 of theRelationships Act 2003 , the other party to that relationship;
surrogacy record means the surrogacy record established under section 32 .
5
Meaning of surrogacy arrangement, birth mother and intended parent
5 Meaning of surrogacy arrangement, birth mother and intended parent
(1) In this Act, a surrogacy arrangement is an arrangement for –
(a) a female person (the birth mother) to seek to become pregnant and give birth to a child; and
(b) the child to be treated as the child of a person or persons other than the birth mother (the intended parent or intended parents).
(2) The birth mother and the intended parent or intended parents in relation to a child must be parties to a surrogacy arrangement in relation to the child.
(3) There may be other parties to a surrogacy arrangement, for example, a birth mother's spouse.
(4) Also, there may be other matters dealt with in a surrogacy arrangement.
(5) To remove any doubt, it is declared that a surrogacy arrangement –
(a) does not include an arrangement made after the birth mother becomes pregnant; but
(b) may include a variation, made after the birth mother becomes pregnant, of an obligation under the arrangement to pay or reimburse the birth mother's surrogacy costs.
(6) A surrogacy arrangement may be made orally or in writing.
6
Meaning of birth mother's spouse and birth parent
6 Meaning of birth mother's spouse and birth parent
(1) A birth mother's spouse, for a surrogacy arrangement, is a spouse of the birth mother at the time when the birth mother entered into the surrogacy arrangement.
(2) A birth parent, of a child, is a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born.
7
Meaning of medical or social need
7 Meaning of medical or social need
(1) For the purposes of this Act, there is a medical or social need for a surrogacy arrangement if –
(a) there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman; or
(b) there are 2 intended parents under the surrogacy arrangement and the intended parents are –
(i) a man and an eligible woman; or
(ii) two men; or
(iii) two women, each of whom is an eligible woman.
(2) For the purposes of subsection (1) , an eligible woman is a woman who –
(a) is unable, on medical grounds, to conceive a child; or
(b) is likely to be unable, on medical grounds, to carry a pregnancy or give birth; or
(c) is unlikely to survive a pregnancy or birth or is likely to have her health significantly affected by a pregnancy or birth; or
(d) if she were to conceive a child, is likely to conceive –
(i) a child who is likely to be affected by a genetic condition or genetic disorder, the cause of which is attributable to the woman; or
(ii) a child who is unlikely to survive the pregnancy or birth or whose health is likely to be significantly affected by the pregnancy or birth.
8
Meaning of commercial surrogacy arrangement
8 Meaning of commercial surrogacy arrangement
A surrogacy arrangement is a commercial surrogacy arrangement if it provides for a person to receive a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother's surrogacy costs) for the person or another person –
(a) agreeing to enter into, or entering into, the surrogacy arrangement; or
(b) giving up a child born as a result of the surrogacy arrangement to be raised by the intended parent or intended parents; or
(c) consenting to the making of a parentage order in relation to a child born as a result of the surrogacy arrangement.
9
Meaning of birth mother's surrogacy costs
9 Meaning of birth mother's surrogacy costs
(1) In this section –
legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage;
medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.
(2) A birth mother's surrogacy costs are the birth mother's reasonable costs associated with any of the following matters in relation to a surrogacy arrangement to which the birth mother is a party:
(a) becoming, or trying to become, pregnant;
(b) a pregnancy or birth;
(c) the birth mother and the birth mother's spouse, if any, being a party to the surrogacy arrangement or proceedings in relation to the obtaining of a parentage order or a parentage order that has been obtained.
(3) Without limiting subsection (2) , the following amounts are a birth mother's surrogacy costs in relation to a surrogacy arrangement to which the birth mother is a party:
(a) a reasonable medical cost, for the birth mother, associated with any of the matters mentioned in subsection (2) ;
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (2) , including the cost of counselling, in relation to the surrogacy arrangement, obtained by the birth mother or the birth mother's spouse, if any;
(e) a reasonable legal cost for the birth mother and the birth mother's spouse, if any, relating to the surrogacy arrangement, the obtaining of a parentage order or a parentage order that has been obtained;
(f) the value of the birth mother's actual lost earnings because of leave taken –
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during or after the pregnancy when the birth mother was unable to work on medical grounds associated with the pregnancy or the end of a pregnancy;
(g) travel and accommodation costs associated with the surrogacy arrangement;
(h) another reasonable cost associated with the surrogacy arrangement, the obtaining of a parentage order or a parentage order that has been obtained.
Part 3
Surrogacy Arrangements
Part 3 Surrogacy Arrangements
10
Enforcement
10 Enforcement
(1) A surrogacy arrangement is not enforceable.
(2) However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother's surrogacy costs is enforceable if –
(a) the birth mother has tried to become pregnant for the purposes of the surrogacy arrangement, but no child is born as a result of the surrogacy arrangement; or
(b) the birth mother has become pregnant for the purposes of the surrogacy arrangement but the pregnancy ceases for a relevant reason; or
(c) a child is born as a result of the surrogacy arrangement, unless –
(i) the birth parent or birth parents have not consented to the making of a parentage order in relation to the child; or
(ii) no parentage order is made in relation to the child without the consent of the birth parent or birth parents; or
(d) a child is born as a result of the surrogacy arrangement and any of the following has occurred:
(i) no intended parent has made an application under section 13 in relation to the child within 6 months after the child is born;
(ii) no intended parent has made an application under section 20 in relation to the child within 6 months after the commencement of Division 2 of Part 4 ;
(iii) all applications made under section 13 or section 20 in relation to the child have been withdrawn;
(iv) no intended parent consents to the making of a parentage order in respect of the child.
(3) For the purposes of subsection (2)(b) , a birth mother's pregnancy ceases for a relevant reason only if –
(a) the pregnancy has miscarried; or
(b) the pregnancy is terminated because –
(i) the birth mother was unlikely to survive the pregnancy or a birth arising from the pregnancy; or
(ii) the health of the birth mother was likely to be significantly affected by the pregnancy or a birth arising from the pregnancy; or
(c) the pregnancy is terminated because –
(i) the child was likely to be affected by a genetic condition or genetic disorder; or
(ii) the child was unlikely to survive the pregnancy or its birth; or
(iii) the health of the child was likely to be significantly affected by the pregnancy or birth.
11
Right of birth mother to manage pregnancy
11 Right of birth mother to manage pregnancy
(1) This section applies in relation to a surrogacy arrangement despite anything that the parties to the arrangement may have agreed, whether orally or in writing.
(2) A birth mother has, while pregnant with a child, the same right to make decisions, and to take actions, which decisions or actions –
(a) relate to the child or may affect the child; and
(b) determine the circumstances in which she gives birth, or does not give birth, to the child –
as does a woman pregnant with a child to which no surrogacy arrangement relates.
Part 4
Parentage Orders
Part 4 Parentage Orders
Division 1
New surrogacy arrangements
Division 1 New surrogacy arrangements
12
Application of this Division
12 Application of this Division
This Division applies only in relation to a surrogacy arrangement made on or after the commencement of this section.
13
Applications for parentage orders
13 Applications for parentage orders
(1) The intended parent, or intended parents, in relation to a child may apply to the court for a parentage order in relation to the child.
(4) An intended parent who makes an application under subsection (1) in relation to a child must serve on the birth parent, or birth parents, of the child a copy of the application.
14
Persons who may apply for parentage orders
14 Persons who may apply for parentage orders
(1) A person who is, under a surrogacy arrangement, the only intended parent in relation to a child may apply under section 13(1) for a parentage order in relation to the child.
(2) Subsection (1) only applies in relation to a person if, at the time the surrogacy arrangement is made –
(a) the person does not have a spouse; or
(b) the person is living separately and apart from the person's spouse.
(3) If there are, under a surrogacy arrangement in relation to a child, 2 intended parents who were, at the time the arrangement was made, and are, at the time of the application, spouses of one another, an application under section 13(1) for a parentage order in relation to the child may only be made by both intended parents jointly.
(4) If there are 2 intended parents under a surrogacy arrangement in relation to a child who were, at the time the arrangement was made, spouses of one another, but who are, at the time of the application, no longer spouses of one another –
(a) the application may be made under section 13(1) by both intended parents jointly; or
(b) each of the intended parents may separately apply under section 13(1) for a parentage order naming him or her as becoming a parent in relation to the child.
(5) If there are 2 intended parents under a surrogacy arrangement in relation to a child who were not, at the time the arrangement was made, spouses of one another, neither intended parent may apply under section 13(1) for a parentage order in relation to the child.
(6) An intended parent who makes, in accordance with subsection (4)(b) , an application under section 13(1) for a parentage order in relation to a child must ensure that, at least 14 days before the date of the hearing in respect of the application, the other intended parent is servedwith a copy of the application.
(7) If both intended parents, in accordance with subsection (4)(b) , make separate applications under section 13(1) for a parentage order in relation to the child, the court must deal with the applications together.
(8) If there are 2 intended parents under a surrogacy arrangement in relation to a child and one of them has died, the surviving intended parent may apply under section 13(1) for a parentage order in relation to the child.
15
When applications for parentage orders may be made
15 When applications for parentage orders may be made
(1) An application under section 13 for a parentage order in relation to a child –
(a) may be made not less than 30 days, and not more than 6 months, after the day on which the child is born; or
(b) may, if the application is to be made by a person on whom a copy of an application is served under section 14(6) , be made within 14 days after the copy is so served; or
(c) may be made at a later time, with the court's leave.
(2) The court may only grant leave under subsection (1)(c) for an application to be made under section 13 in relation to a child after 6 months after the day on which the child is born if it considers that –
(a) there are exceptional circumstances that justify the making of such an application after that period; and
(b) granting leave is in the best interests of the child.
16
Making of parentage orders
16 Making of parentage orders
(1) The court may make a parentage order on an application under section 13 .
(2) The court may make a parentage order under subsection (1) only if it is satisfied as to all of the following matters:
(a) the surrogacy arrangement –
(i) was made after each person who was a relevant party at the time the arrangement was entered into received independent legal advice about the arrangement and its implications and the implications of a parentage order; and
(ii) was not a commercial surrogacy arrangement;
(b) the intended parent or, if there are 2 intended parents, both of the intended parents were 21 years of age or more when the surrogacy arrangement was made;
(c) the birth mother was 25 years of age or more when the surrogacy arrangement was made;
(d) the birth mother has previously given birth to a live child;
(e) the surrogacy arrangement is in writing, contains the names of the birth mother and the intended parent or intended parents, contains clauses in relation to the prescribed matters, if any, and is signed by each of the parties to the agreement;
(f) each person who, at the time the surrogacy arrangement was made, was a relevant party received –
(i) before the arrangement was entered into; and
(ii) after the birth of the child and before the application for a parentage order was made –
counselling from an accredited counsellor about the arrangement and its social and psychological implications;
(g) each party to the surrogacy arrangement, at the time the arrangement was entered into, was resident in Tasmania;
(h) there is a medical or social need for the surrogacy arrangement;
(i) if there were 2 intended parents under the surrogacy arrangement and they have not applied jointly for the parentage order, the intended parent who is to be named in the order as becoming a parent of the child has served the other intended parent under section 14(6) with a copy of the application within the period referred to in that subsection;
(j) at the time of the hearing –
(i) the child is living with the intended parent, or one of the intended parents, who is to be named in the order as becoming a parent of the child; and
(ii) each intended parent who is to be named in the order as becoming a parent of the child is resident in Tasmania; and
(iii) each person who is a relevant party at the time of the hearing consents to the making of the parentage order;
(k) the proposed order is in the best interests of the child.
(3) Despite subsection (2) , the court may make a parentage order even though it is not satisfied –
(b) that a birth parent (apart from the birth mother or birth mother's spouse) has consented to the making of the parentage order as required under subsection (2)(j)(iii) ; or
(c) that, where there were 2 intended parents, both of them have consented to the making of the parentage order as required under subsection (2)(j)(iii) –
if the court considers that making the parentage order is in the best interests of the child.
(4) Despite subsection (2) , the court may make a parentage order even though the birth mother, or the birth mother's spouse, has not consented, at the time of the hearing, to the making of the order, if –
(a) the birth mother or birth mother's spouse –
(i) does not have the mental capacity to give consent; or
(ii) has died; or
(iii) cannot be contacted, despite reasonable efforts having been made to do so; and
(b) the child is living with an intended parent who applied for a parentage order in relation to the child; and
(c) the court considers that making the parentage order is in the best interests of the child.
(5) Subject to Division 3 , in deciding whether to make the parentage order, the court may have regard to any other matter it considers relevant.
17
Additional requirements if multiple births
17 Additional requirements if multiple births
(1) In this section –
birth sibling, of a child, means a brother or sister of the child who is born as a result of the same pregnancy as the child.
(2) This section applies if a child has a living birth sibling.
(3) Despite any other provision of this Act, the court may make a parentage order under which the child becomes a child of the intended parent or parents named in the order only if –
(a) the court also makes a parentage order, about each living birth sibling of the child, under which the birth sibling becomes a child of the intended parent or parents; or
(b) the court considers the order will be in the best interests of the child even if a parentage order about each living birth sibling of the child is not made as mentioned in paragraph (a) .
18
Court may request report from independent counsellor
18 Court may request report from independent counsellor
(1) The court may make an order that an independent counsellor, specified in the order, is to provide to the court, within a period, and in a form, specified in the order, a report as to the counsellor's assessment of the matters, specified in the order, in relation to a surrogacy arrangement.
(2) The matters, in relation to a surrogacy arrangement, that may be specified in an order under subsection (1) include, but are not limited to including, the following matters:
(a) the understanding, of the social and psychological implications of the making of a parentage order, of each relevant party to the surrogacy arrangement;
(b) each relevant party's understanding of the principle that openness and honesty about a child's birth parentage is in the best interests of the child;
(c) the care arrangements proposed by the intended parents in relation to the child;
(d) any arrangements proposed for the child to have contact with his or her birth parent or birth parents or a person, other than an intended parent, who has provided some of the child's genetic material;
(e) the capacity of the intended parent or intended parents to care for the child;
(f) whether any consent given by the birth parent or birth parents is informed consent that has been given freely and voluntarily;
(g) the wishes of the child, if the counsellor is of the opinion that the child is of sufficient maturity to express his or her wishes;
(h) any other matters the counsellor thinks fit.
(3) The provisions of any law or rules of court relating to the adducing of opinion evidence apply in relation to a report provided in accordance with an order under subsection (1) , unless such a provision is inconsistent with the requirements of this section.
(4) For the purposes of this section, an independent counsellor, in relation to a surrogacy arrangement, is an accredited counsellor who –
(a) is not the accredited counsellor who counselled any relevant party in relation to the surrogacy arrangement for the purposes of section 16(2)(f) ; or
(b) is not, and is not associated with, a medical practitioner who carried out a procedure that resulted in the conception or birth of the child to which the arrangement relates; or
(c) is not, and is not associated with, a medical practitioner or other person who has been providing health care, or other care, to the person to whom the counselling is to be provided.
Division 2
Pre-existing surrogacy arrangements
Division 2 Pre-existing surrogacy arrangements
19
Application of this Division
19 Application of this Division
This Division applies only in relation to a surrogacy arrangement made before the commencement of section 12 .
20
Applications for parentage orders
20 Applications for parentage orders
(1) The intended parent, or intended parents, in relation to a child may apply to the court for a parentage order in relation to the child.
(1) A person who is, under a surrogacy arrangement, the only intended parent in relation to a child may apply under section 20(1) for a parentage order in relation to the child.
(2) Subsection (1) only applies in relation to a person if, at the time the surrogacy arrangement is made –
(a) the person does not have a spouse; or
(b) the person is living separately and apart from the person's spouse.
(3) If there are, under a surrogacy arrangement in relation to a child, 2 intended parents who were, at the time the arrangement was made, and are, at the time of the application, spouses of one another, an application under section 20(1) for a parentage order in relation to the child may only be made by both intended parents jointly.
(4) If there are 2 intended parents under a surrogacy arrangement in relation to a child who, at the time the arrangement was made, were spouses of one another, but who are, at the time of the application, no longer spouses of one another –
(a) the application may be made under section 20(1) by both intended parents jointly; or
(b) each of the intended parents may separately apply under section 20(1) for a parentage order naming him or her as becoming a parent in relation to the child.
(5) An intended parent who makes, in accordance with subsection (4)(b) , an application under section 20(1) for a parentage order in relation to the child must ensure that, at least 14 days before the date of the hearing in respect of the application, the other intended parent is served with a copy of the application.
(6) If there are 2 intended parents under a surrogacy arrangement in relation to a child who were not, at the time the arrangement was made, spouses of one another, neither intended parent may apply under section 20(1) for a parentage order in relation to the child.
(7) A person on whom a copy of an application is served under subsection (5) may make an application under section 20(1) in accordance with subsection (4)(b) within 14 days after the copy is so served or, with the court's leave, at a later time.
(8) If both intended parents, in accordance with subsection (4)(b) , make separate applications under section 20(1) for a parentage order in relation to the child, the court must deal with the applications together.
(9) If there are 2 intended parents under a surrogacy arrangement in relation to a child and one of them has died, the surviving intended parent may apply under section 20(1) for a parentage order in relation to the child.
22
Making of parentage orders
22 Making of parentage orders
(1) The court may make a parentage order on an application under section 20 .
(2) The court may make a parentage order under subsection (1) only if it is satisfied as to all of the following matters:
(a) the surrogacy arrangement was not a commercial surrogacy arrangement;
(b) if there were 2 intended parents under the surrogacy arrangement and they have not applied jointly for the order, the intended parent who is to be named in the order as becoming a parent of the child has served the other intended parent under section 21(5) with a copy of the application within the period referred to in that subsection;
(c) at the time of the hearing –
(i) the child is being raised by the intended parent, or one of the intended parents, who is to be named in the order as becoming a parent of the child; and
(ii) each intended parent who is to be named in the order as becoming a parent of the child is resident in Tasmania; and
(iii) the child is under 18 years of age; and
(iv) each person who is a relevant party at the time of the hearing consents to the making of the parentage order;
(d) where the court is satisfied that the child is able to adequately form and express the child's opinion as to whether the child wishes to become the child of one or both of the intended parents, the child consents to becoming the child of the intended parent who is to be named in the order as becoming a parent of the child;
(e) the proposed order is in the best interests of the child.
(3) Despite subsection (2) , the court may make a parentage order even though it is not satisfied –
(b) that a birth parent (other than the birth mother or the birth mother's spouse) has consented to the making of the parentage order as required under subsection (2)(c)(iv) ; or
(c) that, where there were 2 intended parents, both of them have consented to the making of the parentage order as required under subsection (2)(c)(iv) –
if the court considers that making the parentage order is in the best interests of the child.
(4) Despite subsection (2) , the court may make a parentage order in relation to a child even though the birth mother, or the birth mother's spouse, has not consented, at the time of the hearing, to the making of the order, if –
(a) the birth mother or birth mother's spouse –
(i) does not have the mental capacity to be able to consent; or
(ii) has died; or
(iii) cannot be contacted, despite reasonable efforts having been made to do so; and
(b) the child is being raised by an intended parent who applied for a parentage order in relation to the child; and
(c) the court considers that making the parentage order is in the best interests of the child.
(5) Subject to Division 3 , in deciding whether to make the parentage order, the court may have regard to any other matter it considers relevant.
Division 3
Matters to be taken into account
Division 3 Matters to be taken into account
23
Method of conception, &c., irrelevant to whether parentage order ought to be made
23 Method of conception, &c., irrelevant to whether parentage order ought to be made
The manner by which a child was conceived is not to be taken into account in determining whether a parentage order is to be made in relation to the child.
Division 4
Miscellaneous
Division 4 Miscellaneous
24
Other orders
24 Other orders
If the court makes a parentage order under section 16 or section 22 it may make any other order (including any orders as to the disposition of property) that it considers is required in order to deal with matters relating to, or arising from, the order or the surrogacy arrangement to which the order relates.
25
Appeal against decision in relation to application for parentage order
25 Appeal against decision in relation to application for parentage order
(1) A relevant party may, under section 20 of theMagistrates Court (Children's Division) Act 1998 ,appeal to the Supreme Court against a decision under this Act granting or refusing an application for a parentage order, as if the relevant party were a party to the proceedings under that Act.
(2) An application under this section may only be made by a person within 30 days after the day on which notice of the decision appealed against was received by the person.
26
Effect of parentage orders on legal relationships
26 Effect of parentage orders on legal relationships
(1) On the making of a parentage order in relation to a child –
(a) the child becomes a child of the intended parent or parents named in the order as becoming parents of the child and the intended parent or parents named in the order become theparents of the child; and
(b) the child ceases to be a child of a birth parent; and
(c) each birth parent of the child ceases to be a parent of the child.
(2) Other relationships are determined in accordance with subsection (1) .
(3) Despite subsection (1) , if the relationship between persons is relevant for the purposes of any law relating to a sexual offence –
(a) a parentage order in relation to a child, or the discharge of such an order, does not cause the cessation of a relationship that would have existed if the order, or its discharge, as the case may be, had not been made; and
(b) any such relationship is to be taken to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that order or by virtue of that discharge.
Part 5
Discharge of Parentage Orders
Part 5 Discharge of Parentage Orders
27
Applications for discharge of parentage orders
27 Applications for discharge of parentage orders
(1) In this section –
interested person, for an application for discharge of a parentage order, means –
(a) the child, if he or she is 18 years of age or more; or
(b) a relevant party in relation to the child; or
(c) the Attorney-General.
(2) An interested person may apply to the court for discharge of a parentage order in relation to a child on the ground that –
(a) the parentage order was obtained by fraud, duress or other improper means; or
(b) a consent that the court making the parentage order considered had been given to the making of the parentage order was, in fact, not given or was given for payment, reward or other material benefit or advantage (other than the birth mother's surrogacy costs); or
(c) there is an exceptional reason why the parentage order should be discharged.
(1) On an application under section 27 , the court may make an order discharging a parentage order.
(2) A court may only make an order discharging a parentage order if the court is satisfied of one of the grounds mentioned in section 27(2) .
(3) The court may, on an application under section 27 , make any other orders it thinks fit.
29
Effect of discharge of parentage order
29 Effect of discharge of parentage order
(1) This section applies except to the extent that the court orders otherwise.
(2) On the making of an order discharging a parentage order, the rights, privileges, duties, liabilities and relationships of the child and all other persons are the same as if the parentage order had not been made.
(3) However, the making of an order discharging a parentage order does not affect –
(a) anything lawfully done, or the consequences of anything lawfully done, while the parentage order was in force; or
(b) a right, privilege or liability acquired, accrued or incurred while the parentage order was in force.
30
Appeal against decision granting or refusing discharge of parentage order
30 Appeal against decision granting or refusing discharge of parentage order
(1) Any of the following persons may, under section 20 of theMagistrates Court (Children's Division) Act 1998 ,appeal to the Supreme Court against a decision under this Act granting, or refusing, an application for discharge of a parentage order, as if the person were a party to the proceedings under that Act:
(a) the child, if he or she is 18 years of age or more;
(b) the birth parents;
(c) the intended parents named in the parentage order as becoming parents of the child;
(d) the Attorney-General, if he or she made the application;
(e) another person served with the application.
(2) An application under this section may only be made by a person within 30 days after the day on which notice of the decision appealed against was received by the person.
Part 6
Registration of Orders
Part 6 Registration of Orders
31
Duty of parents not abrogated by Act
31 Duty of parents not abrogated by Act
Nothing in this Act affects the responsibility of the persons who are parents of a child before a parentage order is made in relation to the child to have the child's birth registered under the Births, Deaths and Marriages Registration Act 1999 .
32
Surrogacy record
32 Surrogacy record
(1) The registrar is to establish and maintain a surrogacy record.
(2) The surrogacy record is to contain the information the registrar is required to enter in the record under this Act.
(3) The surrogacy record is to be maintained in the form the registrar thinks fit.
33
Copy of parentage orders and orders discharging parentage orders to be sent to registrar
33 Copy of parentage orders and orders discharging parentage orders to be sent to registrar
The registrar of the court must, as soon as reasonably practicable after the making of –
(a) a parentage order; or
(b) an order discharging such an order –
cause to be sent to the registrar, within the meaning of this Act, a copy of the order.
34
Record of parentage orders, &c., of child born in Tasmania to be made in birth register
34 Record of parentage orders, &c., of child born in Tasmania to be made in birth register
(1) The registrar is to re-register, in accordance with this section, the birth of a child whose birth is registered in Tasmania, if the registrar receives –
(a) a copy of a parentage order, sent to the registrar under section 33 , in respect of the child; or
(b) a memorandum, sent to the registrar under a provision, of a corresponding law, that corresponds to section 37 , of the making of a corresponding order in respect of the child; or
(c) an application under subsection (2) for the re-registration of a child to whom a corresponding order relates.
(2) Any of the following persons may apply to the registrar for the re-registration of a child, to whom a corresponding order relates, whose birth is registered in Tasmania:
(a) the child;
(b) a person, referred to in a corresponding order, who was named inthe order as becoming a parent of the child.
(3) An application under subsection (2) is to be accompanied by a certified copy of the corresponding order in relation to the child.
(4) For the purposes of this section, the re-registration of the birth of a child is to be made –
(a) by the registrar making an entry in the surrogacy record and by endorsing that entry with –
(i) a reference to this section; and
(ii) a reference identifying the entry of birth of that person as shown in the register before the parentage order or corresponding order was made; and
(b) by altering the entry of birth and endorsing the entry of the birth of the child as shown in the register with –
(i) a reference to this section; and
(ii) a reference identifying the entry, made in relation to the child, in the surrogacy record; and
(c) if there is a previous entry relating to the child in the surrogacy record, by endorsing it with a reference to the entry of the birth of that person as re-registered under this section.
35
Record of parentage orders of persons born outside Tasmania
35 Record of parentage orders of persons born outside Tasmania
The registrar, on receiving under section 33 a copy of a parentage order in relation to a child whose birth is not registered in Tasmania, must cause an entry to be made in the surrogacy record.
36
Alteration of records, &c., where parentage orders discharged
36 Alteration of records, &c., where parentage orders discharged
(1) In this section –
relevant document means –
(a) a copy, of an order discharging a parentage order, that is received under section 33 ; or
(b) information received under section 38 from the Registrar of the Supreme Court about the discharge of a parentage order; or
(c) a memorandum, of an order discharging a corresponding order, sent to the registrar under a provision, of a corresponding law, that corresponds to section 37 .
(2) The registrar, on receiving a relevant document in relation to a child whose birth is registered in Tasmania, must –
(a) cause the entry made in relation to that person in the surrogacy record to be cancelled; and
(b) cause the endorsement, if any, made under section 34(4)(b) on the entry of the birth of that person in the register to be cancelled and reinstate the original entry of birth as shown on the register before the parentage order or corresponding order was made.
(3) The registrar, on receiving under section 33 a copy of an order discharging a parentage order in relation to a child whose birth is not registered in Tasmania, must cause any entry made in relation to the child in the surrogacy record to be cancelled.
37
Sending of memoranda, &c., of orders to other States, &c.
37 Sending of memoranda, &c., of orders to other States, &c.
(1) In this section –
corresponding officer means a person in another State or a Territory who has functions in relation to the registration of births that correspond to those of the registrar.
(2) If the registrar –
(a) has received under section 33 a copy of a parentage order, or of an order discharging a parentage order, in relation to a child; and
(b) has reason to believe the birth of the child is registered in another State or a Territory –
the registrar must cause a memorandum, certified to contain a true copy of the order, to be sent to the corresponding officer of that State or Territory.
38
Registrar of Supreme Court may provide registrar with certain information
38 Registrar of Supreme Court may provide registrar with certain information
The Registrar of the Supreme Court may provide information to the registrar in relation to the making or discharge of parentage orders.
39
Copies of entries in register or surrogacy record
39 Copies of entries in register or surrogacy record
(1) On application, the registrar must issue, subject to the same terms, conditions and regulations as to the payment of fees and otherwise as are applicable under the Births, Deaths and Marriages Registration Act 1999 , an extract from, or certified copy of, an entry in the register or the surrogacy record.
(2) Despite subsection (1) , the registrar may only issue, to a child in relation to whom a surrogacy record is made, an extract from, or certified copy of, an entry, in the surrogacy record, in relation to the child if the registrar sights a relevant document in relation to the child.
(3) For the purposes of subsection (2) , a relevant document in relation to a child is –
(a) if the child is resident in Tasmania, a statutory declaration signed by a person who is an accredited counsellor; or
(b) if the child is not resident in Tasmania, a statutory declaration, or its equivalent in the jurisdiction in which the child is resident, signed by a person who is, in the opinion of the registrar, a suitable person to provide counselling in respect of surrogacy arrangements –
stating that the child has received from the person counselling in relation to the surrogacy arrangement in relation to the child.
(4) Subsection (2) does not apply in relation to a child if the registrar is satisfied that the child knows the name of his or her birth parents.
(5) An extract from, or certified copy of an entry in, the register or the surrogacy record is not to contain a reference to any matter referred to in section 34(4)(a) .
Part 7
Offences and Prosecutions
Part 7 Offences and Prosecutions
40
Commercial surrogacy arrangements prohibited
40 Commercial surrogacy arrangements prohibited
A person must not enter into, or offer to enter into, a commercial surrogacy arrangement.
Penalty: Fine not exceeding 100 penalty units.
41
Commercial brokerage or advertising of surrogacy arrangements prohibited
41 Commercial brokerage or advertising of surrogacy arrangements prohibited
(1) In this section –
payment means –
(a) payment in money or money's worth, other than payment of the birth mother's reasonable surrogacy costs; and
(b) for reward or other material benefit or advantage, other than payment of any of the birth mother's reasonable surrogacy costs.
(2) A person must not, for payment, or in anticipation of receiving payment –
(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement; or
(b) offer or agree to negotiate the making of a surrogacy arrangement; or
(c) compile any information with a view to its use in making, or negotiating the making of, any surrogacy arrangements; or
(d) knowingly cause another person to do any of the acts referred to in paragraph (a) , (b) or (c) .
Penalty: Fine not exceeding 100 penalty units.
42
Reporting of applications prohibited
42 Reporting of applications prohibited
(1) In this section –
relevant matter means –
(a) a consent given, or dispensed with, under this Act or under a law of another State or a Territory, for a parentage order, acorresponding order, or the discharge of either such order; or
(b) an application made under this Act, or under a law of another State or a Territory, for a parentage order, a corresponding order, or the discharge of either such order; or
(c) the proceedings on an application referred to in paragraph (b) .
(2) A person must not at any time publish, or cause to be published, in relation to a relevant matter –
(a) the name of any intended parent; or
(b) the name of a child; or
(c) the name of the birth mother, the birth mother's spouse, a birth parent or a guardian of the child; or
(d) any matter reasonably likely to enable any of those persons to be identified.
(3) In subsection (2) , to publish means to publish in a newspaper or periodical, or by means of broadcasting, television, on the internet or public exhibition.
(4) Subsection (2) does not apply in relation to the publishing of matter –
(a) with the authority of the court –
(i) to which the application for a parentage order, a corresponding order, or the discharge of either such order, is made; or
(ii) to which an application is made under subsection (5) ; or
(b) that consists of information that has been obtained under Part 6 by the person publishing it.
(5) A person who is a relative of a child may apply to the court for authority to publish matter, in relation to a child, to which subsection (2) applies, if the child is 18 years of age or more.
43
Prosecutions and enforcement of certain surrogacy arrangements
43 Prosecutions and enforcement of certain surrogacy arrangements
(1) Section 10 applies in relation to a surrogacy arrangement (other than a commercial surrogacy arrangement) made before the commencement of this section even though the arrangement was, under the Surrogacy Contracts Act 1993 , illegal and void.
(2) A person is not liable to be prosecuted for an offence against the Surrogacy Contracts Act 1993 , other than an offence for which the person could have, under this Act, been found guilty, if this Act had been in force at the relevant time.
Part 8
Miscellaneous
Part 8 Miscellaneous
44
Hearings to be private
44 Hearings to be private
(1) An application under this Act must not be heard in open court.
(2) Persons who are not parties to proceedings in relation to an application under this Act, or their legal representatives, are, except as otherwise directed by the court, to be excluded during the hearing of such an application.
(3) A court may, at the hearing of an application under this Act –
(a) at any time during the hearing, order a child to leave the room or other place in which the court is hearing the application if it is of the opinion that such an order should be given in the interests of the child; and
(b) order a person to leave the room or other such place during the examination of a witness.
45
Representation of child
45 Representation of child
(1) In any proceedings before a court under this Act, whether or not the child is represented by a legal practitioner, if the court thinks it is in the best interests of the child to do so, the court may –
(a) order that the child is to be separately represented; and
(b) make any other orders it considers necessary or appropriate to secure that separate representation.
(2) In any proceedings before a court under this Act, a legal practitioner representing a child is to act in the best interests of the child, having regard to any evidence reasonably available to the legal practitioner.
46
Access to court records
46 Access to court records
(1) In this section –
record of proceedings includes –
(a) a written transcript of the proceedings; and
(b) the documents in the court file for the proceedings; and
(c) an appeal book in relation to the proceedings.
(2) A person may not have access to the record of proceedings in the court or the Supreme Court in relation to a proceeding under this Act or an appeal under the Magistrates Court (Children's Division) Act 1998 under section 25 or section 30 unless the court or Supreme Court, respectively, has, on application by the person, given approval to the access.
(3) Only the following persons may apply to a court for approval to the access to a record in proceedings referred to in subsection (2) in relation to a child:
(a) the child;
(b) a birth parent;
(c) an intended parent;
(d) the Attorney-General.
(4) The court may give access to all or part of the record of proceedings.
(5) The court may only give access, to all or part of a record of proceedings, to a child to whom the proceedings relate if the court sights a relevant document in relation to the child.
(6) For the purposes of subsection (5) , a relevant document in relation to a child is –
(a) if the child is resident in Tasmania, a statutory declaration signed by a person who is an accredited counsellor; or
(b) if the child is not resident in Tasmania, a statutory declaration, or its equivalent in the jurisdiction in which the child is resident, signed by a person who is, in the opinion of the court, a suitable person to provide counselling in respect of surrogacy arrangements –
stating that the child has received from the person counselling in relation to the surrogacy arrangement in relation to the child.
(7) Subsection (5) does not apply in relation to a child if the court is satisfied that the child knows the name of his or her birth parents.
47
Accreditation of counsellors
47 Accreditation of counsellors
The Secretary of the Department may, by notice in writing, accredit as a counsellor for the purposes of this Act a person who –
(a) has a tertiary qualification or its equivalent in social work, psychology, counselling or another relevant field; and
(b) in the opinion of the Secretary, has appropriate experience.
48
Regulations
48 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) The regulations may require any information or document that is required to be provided or given to any person, for the purposes of the regulations, to be verified by statutory declaration.
(3) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.
(4) The regulations may –
(a) provide that a contravention of any of the regulations is an offence; and
(b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units.
(5) The regulations may authorise any matter to be from time to time determined, applied, approved or regulated by the registrar or any other person or body specified in the regulations.
(a) the administration of this Act is assigned to the Minister for Justice; and
(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Justice.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Surrogacy Act 2012 .
2 Commencement
2 Commencement
The provisions of this Act commence on a day or days to be proclaimed.
Part 2 Interpretative Provisions
Part 2 Interpretative Provisions
3 Guiding principles
3 Guiding principles
(1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
(2) Subject to subsection (1) , this Act is to be administered according to the following principles:
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that –
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child's birth parentage; and
(iii) promotes the development of the child's emotional, mental, physical and social wellbeing;
(b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of –
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the intended parents of the child;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.
4 Interpretation
Prohibits commercial surrogacy and criminalises commercial brokerage or advertising for payment, with fines specified (ss 8, 40, 41). The Act also restricts publication of identifying information about proceedings and consents (s 42).
Regulates access to information: certified extracts from the surrogacy record are available, but a child’s access is gated by proof of counselling or evidence that the child already knows birth parents; court records are closed unless access is approved (ss 39, 46).
Provides the court with powers to request independent counselling reports, to make ancillary orders when granting parentage orders, and to discharge parentage orders on defined grounds (ss 18, 24, 27 to 29).
Authorises the Governor to make regulations, and the Secretary to accredit counsellors (ss 47, 48). Administration is assigned to the Minister for Justice unless administrative arrangements provide otherwise (s 49).
The Act states a single guiding principle that the wellbeing and best interests of the child born as a result of a surrogacy arrangement are paramount, and lists subsidiary principles such as promoting openness about parentage and respecting adult autonomy (s 3). Those principles are expressed as administrative guidance rather than operational obligations to third parties, but they underpin the statutory discretion given to the court (s 3, and see s 16(5) on matters the court may regard as relevant).
This is a statute that combines eligibility rules, procedural gates, privacy protections and criminal prohibitions. Who pays, who decides and what behaviour changes are set out in the operative provisions that follow. The remainder of this deep dive explains the main concepts, who is affected, the duties and rights created, enforcement and penalties, interactions with other laws referenced in the text, amendment and litigation history from the source, operational pitfalls, and practical compliance steps grounded in the Act.
Main concepts
The Act builds from several core statutory concepts, each carrying direct procedural and substantive consequences.
Surrogacy arrangement (s 5). The Act defines a surrogacy arrangement as an arrangement in which a woman seeks to become pregnant and to give birth, and the child is to be treated as the child of another person or persons. The definition excludes arrangements made after the birth mother becomes pregnant, though it allows post-conception variation of obligations to pay or reimburse surrogacy costs (s 5(5)). A surrogacy arrangement may be oral or in writing (s 5(6)), but for the purposes of obtaining a parentage order the Act requires the surrogacy arrangement to be in writing, containing names and prescribed clauses, and signed by the parties (s 16(2)(e); see the interplay below between flexibility of formation and documentary requirements for parentage relief).
Birth mother, birth parent and intended parent (ss 5, 6). The Act distinguishes the birth mother from other birth parents and from intended parents. A birth parent is someone recognised at law as a parent of the child at the time of birth, excluding intended parents (s 6(2)). Those definitions determine who must be served with applications, whose consent is required, and who is recorded in the register.
Commercial surrogacy (ss 8, 40-41). A commercial surrogacy arrangement is one that provides for payment, reward or any material benefit to a person for entering the arrangement, giving up the child, or consenting to a parentage order, excepting reimbursement of the birth mother’s surrogacy costs (s 8). Entering into, or offering to enter into, a commercial arrangement is a criminal offence with a fine up to 100 penalty units (s 40). The Act separately criminalises commercial brokerage, advertising and related preparatory acts for payment (s 41).
Birth mother's surrogacy costs (s 9). The Act provides an express list of reimbursable surrogacy costs, including medical costs not recoverable under Medicare, reasonable legal costs, counselling, reasonable lost earnings for short periods, travel and accommodation, insurance premiums that would not otherwise have been obtained, and other reasonable costs associated with the arrangement (s 9(2)-(3)). This list matters because the definition of commercial surrogacy excludes reimbursement of these costs, and s 10 makes certain reimbursement obligations enforceable.
Medical or social need (s 7). The Act defines when a surrogacy arrangement has a medical or social need, with specific formulations that depend on the sexes and circumstances of intended parents and whether an intended woman is an eligible woman. The eligible woman definition includes a number of medical conditions such as inability to conceive, inability to carry a pregnancy, substantial risk to her survival or health from pregnancy, or high risk of a genetic condition attributable to her (s 7(1)-(2)). This definition is a statutory gate for the court when considering whether to make a parentage order (s 16(2)(h); s 22(2)(a) for pre-existing).
Parentage orders and their effects (Parts 4 and 5). Parentage orders transfer legal parentage to intended parents and extinguish birth parents’ legal parentage on the making of the order (s 26). The court’s powers to make, refuse, appeal and discharge parentage orders are carefully circumscribed by eligibility and consent criteria, timing rules and best-interests considerations (ss 13 to 16, 20 to 22, 27 to 30).
Privacy and controlled access to information (ss 39, 42, 44, 46). The Act restricts publication of names and identifying information about applications or consents, and restricts access to court files and surrogacy record extracts. Access to identifying information for a child is conditional on the registrar sighting a statutory declaration by an accredited counsellor attesting to counselling having been provided, unless the registrar is satisfied the child already knows the birth parents’ names (ss 39(2)-(4), 46(5)-(7), 42).
Accreditation and counselling (ss 16(2)(f), 18, 47). The Act mandates counselling for relevant parties before entering the arrangement and after the child’s birth, from an accredited counsellor, as a precondition for parentage relief (s 16(2)(f)). The Secretary may accredit counsellors (s 47). The court may also order an independent counsellor to report on specified matters (s 18).
Procedurally important subsidiary concepts include the approved form for applications and prescribed fees (ss 4, 13, 20), the court for parentage proceedings being the Magistrates Court (Children's Division) (s 4), and the registrar’s functions in maintaining the surrogacy record and exchanging documents with other registration officers (ss 32 to 38). The Act also explicitly disapplies enforcement for ordinary surrogacy arrangements (s 10(1)), but provides limited enforceability for reimbursement obligations in enumerated situations (s 10(2)).
These definitions and tests create a regime where documentary compliance, residency, informed legal and psychological counselling, timing and consent are the central operational levers determining whether intended parents can secure a parentage order, and whether intermediaries or commercial actors may lawfully participate.
Who it affects
The Act affects a defined set of actors, and imposes actions and constraints on each. The statute names who pays, who decides and who must act.
Birth mother and birth mother's spouse. The birth mother is the woman who carries and gives birth under the arrangement (s 5). The birth mother's spouse is the spouse of the birth mother at the time she entered the arrangement (s 6(1)). The birth mother has express autonomy while pregnant, with a statutory right to make decisions affecting pregnancy and birth as if the pregnancy were unrelated to any surrogacy arrangement (s 11). The Act requires the birth mother, and her spouse if any, to receive counselling from an accredited counsellor both before the arrangement and after the child's birth as a condition for a parentage order (s 16(2)(f)).
Intended parents. Intended parents are persons the child is to be treated as being the child of under the arrangement (s 5). The Act constrains who may apply: single intended parents may only apply if they did not have a spouse at the time of the arrangement or were living apart (ss 14(1)-(2), 21(1)-(2)). Where intended parents were spouses at the time of arrangement and remain spouses, they must apply jointly (ss 14(3), 21(3)). If formerly spouses, either joint application or separate applications naming the applicant as parent are permitted subject to service requirements (ss 14(4), 21(4)-(5)). Intended parents are required to be aged 21 or over at the time the arrangement was made (s 16(2)(b)). For pre-existing arrangements the child must be under 18 at hearing (s 22(2)(c)(iii)).
Other birth parents. Persons legally recognised as parents at the time of the child’s birth, other than intended parents, are treated as birth parents (s 6(2)). Their consent to a parentage order is generally required at the time of hearing (ss 16(2)(j)(iii), 22(2)(c)(iv)), although the court may dispense with consent in specified circumstances such as inability to contact or incapacity, if the child is living with an intended parent and the court considers the order is in the child's best interests (ss 16(4), 22(4)).
Parties involved in counselling and registration. The Secretary of the Department (for the Act’s administration) accredits counsellors (s 47). The Registrar of Births, Deaths and Marriages maintains the surrogacy record and handles re-registration on parentage orders (ss 32-36). The Registrar of the Supreme Court may provide information to the births registrar about parentage orders (s 38).
Courts and their officers. The Magistrates Court (Children's Division) is the court designated to hear applications for parentage orders (s 4). The court has procedural and substantive discretion: to require independent counselling reports (s 18), to receive and examine evidence (s 18(3)), to hear matters in private (s 44), to order separate legal representation for the child if necessary (s 45), and to allow appeals to the Supreme Court (s 25, s 30).
Intermediaries and advertisers. Commercial intermediaries, brokers and advertisers who act for payment in initiating or negotiating surrogacy arrangements, compiling or using information for such purposes, or causing others to do these acts, are criminalised (s 41). The definition of commercial surrogacy and the offence in s 40 also extend to anyone who enters into or offers to enter into such an arrangement for payment.
Registrars and corresponding officers in other jurisdictions. The registrar has duties to share records and send certified memoranda of orders to corresponding officers in other States and Territories when the registrar has reason to believe the birth is registered elsewhere (s 37). The Act contemplates corresponding law and order concepts from other States and Territories when registering or recognising orders (s 4).
Who pays. The Act sets costs and payment-related rules. It permits reimbursement of the birth mother’s surrogacy costs as defined in s 9. It criminalises payments outside that scheme, by defining commercial surrogacy and exposing parties to fines under s 40 and s 41. It places administrative and evidentiary burdens on applicants and the child seeking access to records; those actors bear the time and costs of obtaining accredited counselling, legal advice, statutory declarations and certified copies to comply with the Act (ss 13, 16(2)(a), 39(2)).
Who decides. The Magistrates Court (Children's Division) makes parentage orders, with discretion to regard any matter it considers relevant, subject to statutory criteria and best interests of the child (s 16(5), s 22(5)). The registrar exercises discretion in maintaining the surrogacy record and in assessing whether a child knows the names of birth parents for access exceptions (ss 32, 39(4)). The Secretary accredits counsellors (s 47). The Governor may make regulations (s 48). These decision-makers are the administrative nodes for eligibility, privacy and registration outcomes.
Behavioural change. To obtain a parentage order, parties must follow the Act’s procedural and substantive requirements: obtain independent legal advice and accredited counselling, prepare a written and signed surrogacy agreement containing the necessary information, comply with residency and age thresholds where possible, serve notices and lodge applications within statutory timeframes, and avoid any payment beyond reimbursable surrogacy costs. Commercial actors must refrain from brokerage for payment or face criminal fines. Access to identifying information is conditional on proof of counselling, or on the registrar’s satisfaction the child already knows birth parent identities.
The Act therefore creates a tightly structured pathway for intended parents and birth mothers who wish to use the statutory parentage mechanism, while criminalising commercial and brokered pathways and tightly controlling identifying information.
Key duties and rights
The Act sets out expressly enforceable duties, conditional rights, and discretionary powers that determine legal status, procedural requirements and privacy controls. Each is grounded in a specific provision.
Key duties
Non-commercial rule. A duty not to enter into, or offer to enter into, a commercial surrogacy arrangement is imposed on any person (s 40). The Act also forbids for-payment brokerage, negotiating, compiling of information or causing others to do so (s 41(2)). These are criminal statutory duties enforceable by fines.
Counselling requirement. Before a parentage order will be made, each relevant party must have received counselling from an accredited counsellor before entering the arrangement and after the birth and before the application is made (s 16(2)(f)). The Secretary has the duty to accredit counsellors by notice in writing (s 47).
Registration obligations. The registrar must establish and maintain a surrogacy record, enter information required by the Act, re-register births on receipt of parentage orders and make entries when parentage orders for children born outside Tasmania are received (ss 32-35). The registrar must also send memoranda of orders to corresponding officers in other jurisdictions when appropriate (s 37).
Confidentiality obligations. A person must not publish identifying details of intended parents, the child, the birth mother or other birth parents in relation to a relevant matter (s 42(2)). The registrar and court must control access to records to authorised persons only (ss 39, 46). There are statutory preconditions for issuing a child an extract from the surrogacy record (s 39(2)-(3)).
Service and procedural duties. Applicants must use approved forms, pay prescribed fees, lodge with the court, and serve copies of applications on birth parents and other intended parents as required (ss 13(3), 13(4), 14(6), 21(5)). These are procedural duties that the court requires for the application to proceed.
Key rights
Right of birth mother to manage pregnancy. The birth mother has the same decision-making autonomy about matters that affect the child and the circumstances of birth as any woman pregnant with a child to which no surrogacy arrangement relates (s 11). This is an explicit statutory protection of the birth mother’s bodily decision-making.
Access to parentage relief. Intended parents have the statutory right to apply for a parentage order subject to the eligibility criteria, time limits and service rules (ss 13-16, 20-22). The Act sets out the content of a parentage order and its legal consequence that intended parents named as parents become the child’s legal parents (s 26).
Right to appeal. Relevant parties may appeal to the Supreme Court against decisions granting or refusing parentage or discharge applications, within 30 days of notice of the decision (ss 25, 30).
Conditional right to information. A child, birth parents, intended parents and certain others may obtain certified extracts or copies of entries in the register or the surrogacy record, subject to the Registrar sighting proof that the child has received counselling (s 39(1)-(3)). The child may be issued an extract without the counselling documentary requirement where the registrar is satisfied the child already knows the names of birth parents (s 39(4)).
Privacy protections in proceedings. Applications are to be heard in private and persons not parties to proceedings or their legal representatives are to be excluded, subject to court direction (s 44(1)-(2)). The court may also order restriction on who remains in the room during child or witness examination (s 44(3)).
Discretionary powers that affect duties and rights
Judicial discretion to depart from technical criteria. The court may make a parentage order despite non-fulfilment of some statutory prerequisites if it considers the order is in the best interests of the child (s 16(3), s 22(3)). It may also make the order without the birth mother’s consent in prescribed circumstances, such as incapacity or death, again subject to best interests (s 16(4), s 22(4)).
Registrar’s discretion. The registrar decides the form and maintenance of the surrogacy record (s 32(3)) and whether to issue extracts, including satisfaction that the child knows birth parents’ identities (s 39(2)-(4)). The registrar also determines whether a corresponding order from another State is treated as a corresponding order for the purposes of re-registration (s 4 definition and s 34).
Executive and regulatory discretion. The Governor may make regulations for the Act and may authorise matters to be determined, approved or regulated by the registrar or other specified persons (s 48(1), (5)). The Secretary’s accreditation of counsellors is governed by criteria set out in the Act but ultimately rests on the Secretary’s opinion of appropriate experience (s 47).
Consequential consequences
Legal parentage transfer. On a parentage order, the intended parents become the child’s parents and birth parents cease to be parents under the law (s 26(1)). This creates clear obligations and rights regarding custody, care, inheritance and other legal relationships, subject to the limited exception for sexual offence laws (s 26(3)).
Enforcement of limited reimbursement obligations. Although surrogacy arrangements generally are not enforceable (s 10(1)), obligations to reimburse the birth mother’s surrogacy costs are enforceable in specified situations, for example where conception attempts have failed, pregnancy ceases for relevant reasons, or a child is born but no parentage order is made for particular reasons (s 10(2)).
Those duties, rights and discretionary powers are the structure within which parties must operate. The Act makes compliance with documentary, counselling, service and residency elements the practical pathway to legal parentage, while criminalising commercialised and brokered surrogacy conduct.
Penalties and enforcement
The Act provides criminal sanctions, civil enforceability for specified reimbursement obligations, and procedural enforcement mechanisms through the court and registrar.
Criminal penalties
Commercial surrogacy. It is an offence to enter into, or offer to enter into, a commercial surrogacy arrangement (s 40). The maximum penalty specified is a fine not exceeding 100 penalty units. The Act defines a commercial surrogacy arrangement as one that provides for payment, reward or other material advantage for entering the arrangement, giving up the child, or consenting to a parentage order, excluding reimbursement of birth mother’s surrogacy costs (s 8).
Commercial brokerage and advertising. Section 41 criminalises, for payment or in anticipation of payment, initiating or taking part in negotiations with a view to making a surrogacy arrangement, offering or agreeing to negotiate, compiling information for use in making or negotiating surrogacy arrangements, and knowingly causing another person to do these acts. The penalty is a fine not exceeding 100 penalty units (s 41).
Regulatory offences. The Governor may make regulations that specify contraventions as offences and impose fines up to 50 penalty units for such regulatory offences (s 48(4)).
Enforcement of contractual obligations and civil remedies
Non-enforceability of surrogacy arrangements. The Act states as a general rule that a surrogacy arrangement is not enforceable (s 10(1)). That removes ordinary contractual remedies for most surrogacy agreements.
Limited enforceability of reimbursement obligations. The Act identifies specific circumstances in which obligations to pay or reimburse the birth mother’s surrogacy costs are enforceable (s 10(2)). Those circumstances include when the birth mother tried to become pregnant but no child is born, when pregnancy ceases for a relevant reason (miscarriage, termination for specified maternal or foetal health reasons), or when a child is born unless certain reasons prevent enforcement such as lack of consent to parentage order or failure to apply within six months (s 10(2), (3)). The Act therefore carves out an enforceable repayment remedy for a narrow set of outcomes.
Prosecution protection for historical arrangements. Section 43 provides that s 10 applies to non-commercial surrogacy arrangements made before the commencement of s 43 even if they were illegal and void under the prior Surrogacy Contracts Act 1993. It further states that a person is not liable to be prosecuted under the Surrogacy Contracts Act 1993 for conduct that, if this Act had been in force, would not have constituted an offence under this Act, except where the person could have been found guilty under this Act (s 43(1)-(2)). This addresses retrospective exposure for conduct that would now be lawful under the present Act.
Court powers to make ancillary orders. When making a parentage order, the court may make any other order it considers required to deal with matters arising from the order or the surrogacy arrangement, including disposition of property (s 24). The court may also discharge parentage orders on specific grounds such as fraud, duress or improper means, payment-related invalid consent, or exceptional reasons (ss 27-29). Appeals are available to the Supreme Court under the Magistrates Court (Children's Division) Act 1998 for decisions granting or refusing parentage or discharge applications (ss 25, 30).
Procedural enforcement and privacy sanctions
Private hearings and exclusion of non-parties. The Act requires that applications under the Act not be heard in open court and allows the court to exclude persons who are not parties, with limited exceptions and the court’s general directions (s 44). That creates a procedural enforcement mechanism protecting privacy and discouraging public disclosure.
Publication prohibition. Publishing identifying details of intended parents, birth mother, birth parents or the child in relation to relevant matters is an offence under s 42(2), with an exception for publication by authority of the court or information obtained under Part 6. The text does not prescribe an express fine in s 42; instead, s 48 allows regulations to create regulatory offences and fines up to 50 penalty units. The existence of a publication prohibition, combined with court privacy orders and limited issuance of extracts, strengthens confidentiality enforcement through court powers.
Enforcement risk and operational consequences
The criminal prohibition on commercial arrangements and the broad definition of “payment” in s 41 create enforcement exposure not only for direct payments but for other forms of material advantage, unless plainly within the reimbursable costs listed at s 9. Parties and intermediaries must therefore structure payments carefully and maintain documentation about reimbursable surrogacy costs to avoid criminal exposure.
The non-enforceability rule for surrogacy arrangements removes contract-based remedies for many disputes, shifting enforcement and remedy-seeking into the statutory channels of s 10 (reimbursement exceptions), parentage proceedings and possibly other civil claims not governed by the Act. Where parties rely on informal or oral arrangements, the Act’s rule that a surrogacy arrangement may be oral (s 5(6)) sits in tension with the parentage order requirement for a written signed agreement (s 16(2)(e)), creating potential procedural dead-ends for parties seeking parentage orders.
All penalties and enforcement mechanisms in this section are taken from the Act’s provisions as cited above.
How it interacts with other laws
The Act explicitly references and interacts with several other laws and institutional frameworks. The interactions are limited to the specific cross-references contained in the text.
Births, Deaths and Marriages Registration Act 1999. The Act relies on the Registrar of Births, Deaths and Marriages and the register created under that Act for re-registration of births on parentage orders, for maintenance of the surrogacy record and for issuance of extracts (see ss 4, 31, 32, 34, 39). Section 31 expressly states that nothing in this Act affects the responsibility of persons who are parents to have the child's birth registered under the Births, Deaths and Marriages Registration Act 1999.
Relationships Act 2003. The definition of “relationship status” and “spouse” in s 4 refers to section 4 of the Relationships Act 2003 for the meaning of significant relationship, and explicitly includes spouses and parties to significant relationships in the Act’s tests and service and residence rules (s 4).
Magistrates Court (Children's Division) Act 1998. Appeals from the Magistrates Court decisions under this Act are to be conducted under section 20 of the Magistrates Court (Children's Division) Act 1998, as if the relevant party were a party to proceedings under that Act (s 25, s 30). This creates a statutory appellate route to the Supreme Court.
Surrogacy Contracts Act 1993. Section 43 addresses the legal status of pre-existing surrogacy arrangements that were prosecuted or illegal under the Surrogacy Contracts Act 1993. The new Act applies s 10 to non-commercial pre-commencement arrangements and limits prosecution for prior conduct where the current Act would not have made it an offence.
Administrative Arrangements Act 1990. Section 49 ties administrative responsibility until such time as an order under the Administrative Arrangements Act 1990 is made, assigning administration to the Minister for Justice and the Department of Justice. This situates the Act within the executive administrative framework.
Corresponding laws, other States and Territories. The Act contemplates recognition of corresponding orders and laws in other States, Territories or foreign countries by defining “corresponding law” and “corresponding order” (s 4). It requires the registrar to send memoranda of parentage orders to corresponding officers in other States and Territories where the registrar has reason to believe the birth is registered elsewhere (s 37). It also provides for re-registration of births in Tasmania on receipt of corresponding orders or memoranda (s 34).
Laws relating to sexual offences. Section 26(3) contains a specific saving. Despite the operation of parentage orders and the cessation of legal parentage of birth parents, the Act preserves the existence of relationships for the purposes of any law relating to sexual offences, preventing a parentage order or its discharge from altering relevant sexual-offence relationships. That is the single explicit interaction with sexual offence laws set out in the Act.
Operational interactions and limits
The Act delegates considerable administrative function to the registrar created under the Births, Deaths and Marriages Registration Act 1999. Practical operation of parentage orders and information flows therefore depends on existing registration systems and practices used under the 1999 Act (ss 32-39).
The accreditation of counsellors is an administrative function assigned to the Secretary of the Department, not to courts, but the court requires evidence of counselling as a precondition for parentage orders (s 47). That creates an operational interface between executive accreditation and judicial evidentiary expectations.
Regulation-making power is broad enough to require statutory declarations for information, to create regulatory offences (up to 50 penalty units), and to authorise determinations by the registrar or other persons under the regulations (s 48). Delegated instruments under the regulations will therefore determine detailed interaction points with administrative processes referenced in other Acts.
The Act’s cross-references are limited and specific, and it integrates with existing births registration, family relationship and court appellate systems. It does not create a free-standing national recognition mechanism, but it provides for memoranda exchanges and the registrar’s judgment about corresponding orders and laws of other jurisdictions.
Amendment history
The source text contains a single explicit amendment note.
Section 4 was amended by No. 38 of 2015, s. 53, applied on 13 October 2015. The amendment inserted the definition of “approved form” as a form approved by the Chief Magistrate in the interpretation section (s 4) (see the marginal note in the source at s 4).
No other amendments, commencement proclamations or version notes are contained within the text supplied. The Act itself provides that provisions commence on days to be proclaimed (s 2); therefore some parts may have staggered commencements dependent on proclamation, but the supplied text does not list commencement dates. Section 12 signals that Division 1 of Part 4 applies only to surrogacy arrangements made on or after the commencement of that section, and section 19 applies Division 2 only to arrangements made before that commencement; these are structural transitional provisions built into the Act.
Aside from the s 4 amendment note, the source includes cross-references to other Acts that have been referred to with their own internal amendment markers, but no further chronological amendment history for the Surrogacy Act itself is present in the supplied material.
Litigation history
The supplied Act text contains no judicial decisions, case law references or examples of litigation under the Act. The only mentions of appeals and court proceedings are procedural: a relevant party may appeal to the Supreme Court against decisions on parentage order applications and decisions to grant or refuse discharge of parentage orders, under section 20 of the Magistrates Court (Children's Division) Act 1998, and within a 30-day window (ss 25, 30). The Act also specifies the court for original proceedings, the Magistrates Court (Children's Division) (s 4).
Because the statutory text provided contains no cases or reported decisions, there is no litigation history in the source to summarise. Any judicial interpretation, application of the statutory tests such as “best interests of the child”, the residency and consent requirements, or the operation of the criminal prohibitions, would need to be sourced from court decisions which are not contained in the Act text supplied.
Gotchas
The Act contains a number of traps for the unwary and operational frictions that parties, advisers and administrators should note.
Oral surrogacy arrangements vs documentary requirement for parentage orders. The Act allows a surrogacy arrangement to be oral (s 5(6)), but for the court to be satisfied that the arrangement is in writing, containing the names of the birth mother and intended parent(s), containing clauses in relation to prescribed matters, if any, and being signed by each party is a statutory precondition to a parentage order for new arrangements (s 16(2)(e)). In practical terms, parties relying on oral arrangements may find themselves unable to secure a parentage order because the written agreement requirement is mandatory for s 16(2)(e), although the court has a residual discretion to make orders in the child’s best interests despite non-fulfilment of certain matters (s 16(3)). This is a procedural mismatch that can defeat expectations.
Time limits for applications. For new arrangements, intended parents must apply not less than 30 days and not more than six months after birth to apply for a parentage order (s 15(1)(a)), with narrow exceptions. If an intended parent misses the 6-month timeframe, the court’s power to grant leave is discretionary and requires exceptional circumstances and a best-interests test (s 15(2)). For pre-existing arrangements the Act contains separate application pathways but also sets child age limits in s 22(2)(c)(iii). Late applications create evidential and legal hurdles.
Residency gate. For new arrangements, each party to the arrangement must have been resident in Tasmania when the arrangement was entered into, and each intended parent and intended parent named in the order must be resident in Tasmania at the time of the hearing (s 16(2)(g), s 16(2)(j)(ii)). For pre-existing arrangements, the court must be satisfied that intended parents named as becoming parents are resident in Tasmania at the hearing (s 22(2)(c)(ii)). These residency rules can exclude interstate or international intended parents unless they can meet the residence requirement. The Act also deals with corresponding orders from other jurisdictions, but the recognition process involves the registrar and is not automatic (s 37).
Age and parity thresholds. The Act stipulates age thresholds and a prior childbirth requirement for the birth mother: birth mother must have been 25 or older and have previously given birth to a live child for a parentage order under new arrangements (s 16(2)(c)-(d)). Intended parents must have been 21 or older when the arrangement was made (s 16(2)(b)). The court may, however, depart from some criteria when satisfied that making the order is in the child’s best interests (s 16(3)). Advisers should not assume these requirements are hard bars; they are statutory presumptions subject to judicial discretion.
Narrow definition of reimbursable costs. The Act provides an explicit list of birth mother’s surrogacy costs (s 9(3)); any payment outside that definition risks characterisation as commercial and exposure to criminal penalty under s 40. The Act allows variation of reimbursement obligations after the birth mother becomes pregnant (s 5(5)(b)) but warns parties that payments beyond the statutory list could attract criminal liability.
Publishing and access restrictions. Publication of identifying details about applications or consents is prohibited (s 42(2)). Access to a child’s entry in the surrogacy record is gated by documentary evidence that the child has received counselling, normally a statutory declaration from an accredited counsellor (s 39(2)-(3)). The court must approve access to court records (s 46). These limitations require advisers to plan communications and record requests carefully. Publishing or negligent disclosure could incur legal consequences.
Non-enforceability of surrogacy arrangements generally. Parties often expect contractual enforceability. Section 10(1) makes surrogacy arrangements not enforceable in general. Only limited reimbursement obligations are enforceable in specified circumstances (s 10(2)). Advisers must plan for the absence of ordinary contractual remedies and be mindful of the available statutory enforcement path.
Criminal exposure for intermediaries. Section 41 criminalises broad categories of brokerage, negotiation and information compilation for payment. Organisations or individuals facilitating introductions or matching for payment must exercise caution, document the absence of payment beyond reimbursable costs, and consider compliance with s 41 if any fee is charged.
Discretionary elements and uncertainty. The court has broad discretion to make parentage orders where it considers doing so in the child’s best interests, despite non-fulfilment of several statutory preconditions (s 16(3), s 22(3)). That discretion introduces case-by-case uncertainty about likely outcomes where technical requirements are not met.
Relying on corresponding laws. Recognition of corresponding orders from other jurisdictions depends on the registrar’s view and a process of sending and receiving memoranda (s 34, s 37). Parties who intend to use interstate or overseas surrogacy arrangements should not assume automatic recognition; they must engage with the registrar’s processes.
Evidence of counselling and legal advice. The court requires that each relevant party received independent legal advice about the arrangement and a parentage order before the arrangement was entered into (s 16(2)(a)(i)), and counselling both before and after birth (s 16(2)(f)). The Act uses these as statutory prerequisites. Failure to obtain and document independent legal advice and accredited counselling may prevent a successful parentage application.
These “gotchas” are all grounded in the statutory text. They show points where parties’ expectations about informality, timing, interstate arrangements or payment structures can collide with the Act’s procedural and criminal rules.
How to comply
The Act creates a sequence of documentary, evidentiary and behavioural steps to secure a parentage order and to avoid criminal exposure. Below is a compliance-oriented checklist grounded in the statutory requirements and the registrar and court processes the Act establishes.
Determine whether the arrangement is commercial or non-commercial.
Apply the statutory definition in s 8. Payments, rewards or material benefits beyond reimbursement of the birth mother’s surrogacy costs (as defined in s 9) convert the arrangement into a commercial one and fall foul of the offence in s 40. If any fees, brokerage or advertising are involved, confirm the conduct is not covered by s 41.
Document all payments and ensure they fall within s 9’s list of reimbursable costs, including medical costs not recoverable by Medicare, reasonable legal costs, counselling costs, reasonable lost earnings for the short specified periods, travel and accommodation, insurance premiums required because of the arrangement, and other reasonable costs (s 9(2)-(3)).
Obtain independent legal advice and accredited counselling before entering the arrangement.
Ensure each relevant party obtains independent legal advice about the arrangement and the implications of a parentage order before the arrangement is entered into (s 16(2)(a)(i)). Keep dated and signed certificates or confirmations of such advice for court filing.
Arrange accredited counselling for each relevant party before the arrangement and again after the birth and before making a parentage application, using a counsellor accredited by the Secretary under s 47 (s 16(2)(f)). Retain written records from the accredited counsellor confirming counselling was provided.
Use a written, signed surrogacy agreement where parentage relief is intended.
Although the Act recognises oral arrangements (s 5(6)), a parentage order for new arrangements requires a written agreement that contains the names of the birth mother and intended parents, includes clauses with respect to prescribed matters if any, and is signed by each party (s 16(2)(e)). Prepare the agreement in an approved form if required, and check for any prescribed matters under forthcoming regulations (s 48). Keep copies for court filing.
Check eligibility thresholds and residency requirements.
Verify age thresholds: intended parents should be at least 21 when the arrangement was made, and the birth mother at least 25 and have previously given birth to a live child for the statutory presumption (s 16(2)(b)-(d)). Where these are not met, be prepared to present a best-interests case to the court, because the court may make orders despite non-fulfilment if convinced the order is in the child’s best interests (s 16(3)).
Ensure residency requirements are met: for new arrangements, parties should be resident in Tasmania at the time of the arrangement and intended parents named in the order must be resident at the time of hearing (s 16(2)(g), (j)(ii)). For pre-existing arrangements, ensure the child is under 18 at the hearing where required (s 22(2)(c)(iii)).
Prepare and file the application correctly.
Use the approved form (s 4 definition) and pay the prescribed fee, lodging the application with the Magistrates Court (Children's Division) (s 13(3); s 20(3)). Serve a copy on the birth parent or parents as required (s 13(4)).
If making a unilateral application in cases where two intended parents existed but are no longer spouses, ensure service of the other intended parent at least 14 days before the hearing (ss 14(6), 21(5)). Be ready to ask the court to join or deal with multiple applications together if separate applications are filed (ss 14(7), 21(8)).
Observe statutory time windows.
For new arrangements, apply not less than 30 days and not more than six months after the child is born unless the court grants leave for exceptional circumstances with a best-interests finding (s 15(1)-(2)). For pre-existing arrangements follow the timeframes and service rules set out in Division 2.
If an application is planned outside the statutory window, prepare case material showing exceptional circumstances and best-interests reasoning for the court’s leave (s 15(2)).
Maintain documentation for the court and registrar.
Retain signed legal advice confirmations and accredited counsellor certificates, written agreement in compliance with s 16(2)(e), records of payments and receipts of reimbursed costs tied to the s 9 categories, and evidence of residency for the parties involved.
After a parentage order is made, ensure the court registrar sends a copy of the order to the births registrar promptly as required by s 33, so the registrar can re-register the child’s birth and make surrogacy record entries under s 34.
Manage privacy and publication risk.
Do not publish identifying information about intended parents, birth parents, or the child in relation to relevant matters without court authority or unless the registrar’s Part 6 materials have been lawfully obtained and published in accordance with the Act (s 42(2), (4)). For family members seeking to publish information about an adult child, use s 42(5) to apply to the court for authority if the child is 18 or older.
For children or others seeking extracts from the surrogacy record, prepare the statutory declaration by an accredited counsellor required under s 39(2) or be ready to show the registrar that the child already knows the names of birth parents for the registrar to dispense with the requirement (s 39(4)).
Avoid commercial brokerage exposure.
If acting as an intermediary, avoid charging, accepting, or anticipating payment for negotiation, compilation or initiation activities that might be captured by s 41. If fees are to be charged for legitimate administrative or legal services, document clearly that no payment is for forming a surrogacy arrangement and that fees are for distinct lawful services unrelated to brokerage of a surrogacy arrangement.
Prepare for possible independent counsellor inquiries or court discretion.
Be aware that the court may order an independent counsellor to report on specified matters in relation to the arrangement, and the independent counsellor must be accredited and independent of prior counselling or health providers for involved parties (s 18). Prepare to respond to such enquiries, by ensuring independence of advisers and counselling records.
Plan for interstate and international elements.
If any party, gamete provider or birth is outside Tasmania, engage early with the registrar’s processes for corresponding orders and memoranda, and obtain certified copies of foreign orders for re-registration under s 34. Do not assume automatic recognition; the registrar and court processes control re-registration and recognition (ss 34, 37).
Post-order actions and obligations.
On obtaining a parentage order, confirm the births registrar has re-registered the birth and updated the surrogacy record (s 34). Advise the child’s custodial arrangements and any property or ancillary orders the court may make under s 24. If seeking a discharge of a parentage order later, applicants must be an interested person as defined in s 27 and follow the approved form and fee rules (ss 27-29).
This compliance checklist maps directly to statutory provisions. Parties should record each step, preserving certificates of legal advice and accredited counselling, signed agreements and receipts for reimbursed costs, and proceed through the court and registrar processes deliberately. Where statutory criteria cannot be fully met, prepare best-interests evidence for judicial discretion and anticipate the court may request independent counselling reports under s 18.
In this Act, unless the contrary intention appears –
accredited counsellor means a person accredited under section 47 ;
[Section 4 Amended by No. 38 of 2015, s. 53, Applied:13 Oct 2015]approved form means a form approved by the Chief Magistrate;
birth mother – see section 5 ;
birth mother's spouse – see section 6 ;
birth mother's surrogacy costs – see section 9 ;
birth parent – see section 6 ;
child means a child born, or to be born, as a result of a surrogacy arrangement, and includes, where the context requires, an adult who is born as a result of a surrogacy arrangement;
consent means informed consent freely and voluntarily given by a person with the capacity to give the consent;
corresponding law means a law, of another State or a Territory, that corresponds to this Act and includes a prescribed law of another State or a Territory;
corresponding order means an order that is –
(a) a member of a prescribed class of orders; or
(b) in the opinion of the registrar, the equivalent, under a law of another State, a Territory or a foreign country, of a parentage order;
court means the Magistrates Court (Children's Division);
intended parent – see section 5 ;
parentage order means a parentage order made under section 16 or section 22 ;
register means the Register maintained under section 40 of theBirths, Deaths and Marriages Registration Act 1999 ;
registrar means the Registrar of Births, Deaths and Marriages appointed under the Births, Deaths and Marriages Registration Act 1999 ;
relationship status means the status of being, having been, or becoming, any of the following:
(a) a husband or a wife;
(b) a party to a significant relationship within the meaning of section 4 of theRelationships Act 2003 ;
(c) a sexual partner of another person of either sex;
(d) unmarried, not a party to a significant relationship within the meaning of section 4 of theRelationships Act 2003 or not a sexual partner of another person of either sex;
relevant party, in relation to a child, means –
(a) the birth mother of the child; or
(b) the birth mother's spouse, if any; or
(c) the spouse, if any, of the birth mother of the child; or
(d) a birth parent, if any, of the child; or
(e) each of the intended parents of the child;
spouse, in relation to a person, means –
(a) the husband or wife of the person; or
(b) if the person is a party to a significant relationship within the meaning of section 4 of theRelationships Act 2003 , the other party to that relationship;
surrogacy arrangement – see section 5 ;
surrogacy record means the surrogacy record established under section 32 .
5 Meaning of surrogacy arrangement, birth mother and intended parent
5 Meaning of surrogacy arrangement, birth mother and intended parent
(1) In this Act, a surrogacy arrangement is an arrangement for –
(a) a female person (the birth mother) to seek to become pregnant and give birth to a child; and
(b) the child to be treated as the child of a person or persons other than the birth mother (the intended parent or intended parents).
(2) The birth mother and the intended parent or intended parents in relation to a child must be parties to a surrogacy arrangement in relation to the child.
(3) There may be other parties to a surrogacy arrangement, for example, a birth mother's spouse.
(4) Also, there may be other matters dealt with in a surrogacy arrangement.
(5) To remove any doubt, it is declared that a surrogacy arrangement –
(a) does not include an arrangement made after the birth mother becomes pregnant; but
(b) may include a variation, made after the birth mother becomes pregnant, of an obligation under the arrangement to pay or reimburse the birth mother's surrogacy costs.
(6) A surrogacy arrangement may be made orally or in writing.
6 Meaning of birth mother's spouse and birth parent
6 Meaning of birth mother's spouse and birth parent
(1) A birth mother's spouse, for a surrogacy arrangement, is a spouse of the birth mother at the time when the birth mother entered into the surrogacy arrangement.
(2) A birth parent, of a child, is a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born.
7 Meaning of medical or social need
7 Meaning of medical or social need
(1) For the purposes of this Act, there is a medical or social need for a surrogacy arrangement if –
(a) there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman; or
(b) there are 2 intended parents under the surrogacy arrangement and the intended parents are –
(i) a man and an eligible woman; or
(ii) two men; or
(iii) two women, each of whom is an eligible woman.
(2) For the purposes of subsection (1) , an eligible woman is a woman who –
(a) is unable, on medical grounds, to conceive a child; or
(b) is likely to be unable, on medical grounds, to carry a pregnancy or give birth; or
(c) is unlikely to survive a pregnancy or birth or is likely to have her health significantly affected by a pregnancy or birth; or
(d) if she were to conceive a child, is likely to conceive –
(i) a child who is likely to be affected by a genetic condition or genetic disorder, the cause of which is attributable to the woman; or
(ii) a child who is unlikely to survive the pregnancy or birth or whose health is likely to be significantly affected by the pregnancy or birth.
8 Meaning of commercial surrogacy arrangement
8 Meaning of commercial surrogacy arrangement
A surrogacy arrangement is a commercial surrogacy arrangement if it provides for a person to receive a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother's surrogacy costs) for the person or another person –
(a) agreeing to enter into, or entering into, the surrogacy arrangement; or
(b) giving up a child born as a result of the surrogacy arrangement to be raised by the intended parent or intended parents; or
(c) consenting to the making of a parentage order in relation to a child born as a result of the surrogacy arrangement.
9 Meaning of birth mother's surrogacy costs
9 Meaning of birth mother's surrogacy costs
(1) In this section –
legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage;
medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.
(2) A birth mother's surrogacy costs are the birth mother's reasonable costs associated with any of the following matters in relation to a surrogacy arrangement to which the birth mother is a party:
(a) becoming, or trying to become, pregnant;
(b) a pregnancy or birth;
(c) the birth mother and the birth mother's spouse, if any, being a party to the surrogacy arrangement or proceedings in relation to the obtaining of a parentage order or a parentage order that has been obtained.
(3) Without limiting subsection (2) , the following amounts are a birth mother's surrogacy costs in relation to a surrogacy arrangement to which the birth mother is a party:
(a) a reasonable medical cost, for the birth mother, associated with any of the matters mentioned in subsection (2) ;
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (2) , including the cost of counselling, in relation to the surrogacy arrangement, obtained by the birth mother or the birth mother's spouse, if any;
(e) a reasonable legal cost for the birth mother and the birth mother's spouse, if any, relating to the surrogacy arrangement, the obtaining of a parentage order or a parentage order that has been obtained;
(f) the value of the birth mother's actual lost earnings because of leave taken –
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during or after the pregnancy when the birth mother was unable to work on medical grounds associated with the pregnancy or the end of a pregnancy;
(g) travel and accommodation costs associated with the surrogacy arrangement;
(h) another reasonable cost associated with the surrogacy arrangement, the obtaining of a parentage order or a parentage order that has been obtained.
Part 3 Surrogacy Arrangements
Part 3 Surrogacy Arrangements
10 Enforcement
10 Enforcement
(1) A surrogacy arrangement is not enforceable.
(2) However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother's surrogacy costs is enforceable if –
(a) the birth mother has tried to become pregnant for the purposes of the surrogacy arrangement, but no child is born as a result of the surrogacy arrangement; or
(b) the birth mother has become pregnant for the purposes of the surrogacy arrangement but the pregnancy ceases for a relevant reason; or
(c) a child is born as a result of the surrogacy arrangement, unless –
(i) the birth parent or birth parents have not consented to the making of a parentage order in relation to the child; or
(ii) no parentage order is made in relation to the child without the consent of the birth parent or birth parents; or
(d) a child is born as a result of the surrogacy arrangement and any of the following has occurred:
(i) no intended parent has made an application under section 13 in relation to the child within 6 months after the child is born;
(ii) no intended parent has made an application under section 20 in relation to the child within 6 months after the commencement of Division 2 of Part 4 ;
(iii) all applications made under section 13 or section 20 in relation to the child have been withdrawn;
(iv) no intended parent consents to the making of a parentage order in respect of the child.
(3) For the purposes of subsection (2)(b) , a birth mother's pregnancy ceases for a relevant reason only if –
(a) the pregnancy has miscarried; or
(b) the pregnancy is terminated because –
(i) the birth mother was unlikely to survive the pregnancy or a birth arising from the pregnancy; or
(ii) the health of the birth mother was likely to be significantly affected by the pregnancy or a birth arising from the pregnancy; or
(c) the pregnancy is terminated because –
(i) the child was likely to be affected by a genetic condition or genetic disorder; or
(ii) the child was unlikely to survive the pregnancy or its birth; or
(iii) the health of the child was likely to be significantly affected by the pregnancy or birth.
11 Right of birth mother to manage pregnancy
11 Right of birth mother to manage pregnancy
(1) This section applies in relation to a surrogacy arrangement despite anything that the parties to the arrangement may have agreed, whether orally or in writing.
(2) A birth mother has, while pregnant with a child, the same right to make decisions, and to take actions, which decisions or actions –
(a) relate to the child or may affect the child; and
(b) determine the circumstances in which she gives birth, or does not give birth, to the child –
as does a woman pregnant with a child to which no surrogacy arrangement relates.
Part 4 Parentage Orders
Part 4 Parentage Orders
Division 1 New surrogacy arrangements
Division 1 New surrogacy arrangements
12 Application of this Division
12 Application of this Division
This Division applies only in relation to a surrogacy arrangement made on or after the commencem
This is an opening excerpt, not the complete document.