Surrogacy Act 2012

A surrogacy arrangement is an arrangement for a female person (the birth mother) to seek to become pregnant and give birth to a child, and for the child to be treated as the child of a person or persons other than the birth mother (the intended parent or intended parents) (section 5(1)). The birth mother and intended parent(s) must be parties to the arrangement; other parties such as the birth mother’s spouse may also be included (section 5(2)-(3)). The arrangement must be made before the birth mother becomes pregnant; variations of an obligation to pay surrogacy costs made after pregnancy are permitted (section 5(5)). The arrangement may be oral or written (section 5(6)), but for parentage orders under new arrangements the arrangement must be in writing containing prescribed matters and signed by the parties (section 16(2)(e)). A commercial surrogacy arrangement is one that provides for a person to receive a payment, reward or other material benefit or advantage (other than reimbursement of the birth mother’s surrogacy costs) for agreeing to enter the arrangement, giving up the child, or consenting to a parentage order (section 8). The birth mother’s surrogacy costs are defined as her reasonable costs associated with becoming pregnant, pregnancy, birth, being a party to the arrangement or parentage order proceedings, and include medical costs (not recoverable under Medicare or health insurance), legal costs, counselling costs, lost earnings (up to 2 months during birth or additional medical grounds), travel and accommodation, and insurance premiums (section 9). A medical or social need for the arrangement exists if there is only one intended parent (a man or an eligible woman) or two intended parents who are a man and an eligible woman, two men, or two eligible women (section 7(1)). An eligible woman is one who is unable to conceive, likely unable to carry a pregnancy or give birth, unlikely to survive pregnancy, or likely to conceive a child affected by a genetic condition attributable to her (section 7(2)). A parentage order is an order made under section 16 (for new arrangements) or section 22 (for pre-existing arrangements) that transfers legal parentage from the birth parents to the intended parent(s). The court is the Magistrates Court (Children’s Division) (section 4). The registrar is the Registrar of Births, Deaths and Marriages. The surrogacy record is a record maintained by the registrar containing information required under the Act (section 32). Consent means informed consent freely and voluntarily given by a person with capacity (section 4). A relevant party includes the birth mother, her spouse, any birth parent, and each intended parent (section 4). The Act also defines spouse to include a husband, wife, or a party to a significant relationship under the Relationships Act 2003 (section 4). Relationship status covers being married, a party to a significant relationship, a sexual partner, or unmarried/not in a significant relationship (section 4).

The Act affects a defined set of individuals and entities involved in surrogacy arrangements in Tasmania. The birth mother must be at least 25 years old at the time the surrogacy arrangement is made and must have previously given birth to a live child (section 16(2)(c)-(d)). She must be resident in Tasmania at the time the arrangement is entered into (section 16(2)(g)), and at the time of the hearing the intended parent must be resident and the child must be living with that intended parent (section 16(2)(j)). The birth mother’s spouse, if any, is also a relevant party whose consent is required unless an exception applies (section 16(2)(j)(iii)). Intended parents must be at least 21 years old at the time the arrangement is made (section 16(2)(b)). If there are two intended parents, they must be spouses of each other at the time the arrangement is made in order to apply jointly; if they were not spouses at that time, neither may apply (section 14(5)). If one intended parent dies, the surviving intended parent may apply (section 14(8)). Intended parents must be resident in Tasmania at the time of the arrangement and at the time of the hearing (section 16(2)(g), (j)(ii)). The child born as a result of the arrangement is the central subject of the parentage order; the Act applies throughout the child’s life, including adulthood, where the context requires (section 4 definition of child). Other affected persons include accredited counsellors, who must provide counselling to all relevant parties before the arrangement and after the birth (section 16(2)(f)); the court (Magistrates Court Children’s Division) which hears applications and may request independent counsellor reports (section 18); the registrar who maintains the surrogacy record and re-registers births (sections 32-39); and the Secretary of the Department who accredits counsellors (section 47). The Attorney-General is an interested person who may apply for discharge of a parentage order (section 27(1)(c)). Legal practitioners are involved in providing independent legal advice to each relevant party before the arrangement is entered into (section 16(2)(a)(i)). The Act also affects persons in other states or territories through provisions for corresponding laws and corresponding orders (sections 4, 37). Birth parents (persons other than intended parents recognised at law as parents at birth) are affected as their parental rights cease upon making of a parentage order (section 26). The Act also affects relatives of a child who may apply for authority to publish information once the child is 18 (section 42(5)). Finally, any person who engages in commercial surrogacy, brokerage, advertising, or prohibited reporting is affected by the criminal penalties (sections 40-42).

The Act imposes specific duties and confers important rights on parties to surrogacy arrangements. A key right of the birth mother is the right to manage her pregnancy: despite any agreement to the contrary, a birth mother while pregnant has the same right to make decisions and take actions relating to the child or that determine the circumstances in which she gives birth (or does not give birth) as any other pregnant woman (section 11). This right cannot be contracted out of. Another important provision is that a surrogacy arrangement is not enforceable (section 10(1)), but an obligation to pay or reimburse the birth mother’s surrogacy costs is enforceable in limited circumstances: if the birth mother tried to become pregnant but no child is born; if pregnancy ceases for a relevant reason (miscarriage, or termination on medical grounds for mother or child); or if a child is born but no parentage order is made because of lack of consent or application (section 10(2)). The duty of intended parents includes ensuring that each relevant party receives independent legal advice before the arrangement is entered into (section 16(2)(a)(i)), and that each relevant party receives counselling from an accredited counsellor both before the arrangement and after the birth but before the application for a parentage order (section 16(2)(f)). The surrogacy arrangement must be in writing, contain the names of the birth mother and intended parents, include clauses on prescribed matters, and be signed by all parties (section 16(2)(e)). Intended parents must apply for a parentage order within the time limits: not less than 30 days and not more than six months after the child is born (section 15(1)(a)), unless later leave is granted on exceptional circumstances and best interests grounds (section 15(2)). They must serve a copy of the application on the birth parents (section 13(4)) and, if separate applications are made by separated intended parents, serve the other intended parent at least 14 days before the hearing (section 14(6)). The court has a duty to apply the guiding principles, particularly the paramountcy of the child’s best interests (section 3). The court may request a report from an independent counsellor assessing matters such as the parties’ understanding, care arrangements, contact proposals, and whether consent is informed and voluntary (section 18). The court may also order separate representation for the child (section 45). Upon making a parentage order, the child becomes the child of the intended parent(s) named and ceases to be the child of any birth parent; other relationships are determined accordingly, except for the purposes of sexual offence laws where the pre-existing relationship continues to exist in addition (section 26). The Act also confers a duty on the registrar to establish a surrogacy record (section 32) and on the registrar of the court to send copies of orders to the registrar (section 33). Access to court records and extracts from the surrogacy record is restricted: the child must have received counselling from an accredited counsellor (evidenced by a statutory declaration) before access is granted, unless the child knows the name of his or her birth parents (sections 39, 46). A key right of the child (if 18 or older) and other interested persons is to apply for discharge of a parentage order on grounds of fraud, duress, improper means, lack of or paid consent, or exceptional reasons (section 27). The court may then make orders restoring the pre-order legal relationships, subject to any order otherwise (sections 28-29).

The Act creates several criminal offences with significant penalties. It is an offence to enter into, or offer to enter into, a commercial surrogacy arrangement; the penalty is a fine not exceeding 100 penalty units (section 40). It is also an offence to engage in commercial brokerage or advertising of surrogacy: a person must not, for payment or in anticipation of payment, initiate or take part in negotiations, offer or agree to negotiate, compile information for use in making surrogacy arrangements, or knowingly cause another to do those acts; the penalty is a fine not exceeding 100 penalty units (section 41(2)). “Payment” is defined broadly as payment in money or money’s worth (other than the birth mother’s reasonable surrogacy costs) and for reward or other material benefit or advantage (other than those costs) (section 41(1)). Another offence concerns prohibited reporting: a person must not publish (in a newspaper, periodical, broadcasting, television, on the internet, or by public exhibition) the name of any intended parent, child, birth mother, birth mother’s spouse, birth parent, or guardian, or any matter likely to identify them, in relation to a consent, application, or proceedings for a parentage order, corresponding order, or discharge (section 42(2)). Publication with court authority, or of information obtained under Part 6, is excepted (section 42(4)). A relative of a child who is 18 or older may apply to the court for authority to publish (section 42(5)). The penalty for breach of section 42 is not specified in the Act text (the penalty clause appears to be general, but the Act provides a fine not exceeding 100 penalty units for commercial surrogacy and brokerage; for reporting, the provision states the prohibition without an explicit penalty - the Act’s general offence provisions may apply, but the text does not set an amount; however, section 48 allows regulations to create offences with fines up to 50 penalty units). Enforcement of surrogacy arrangements is limited: the arrangement itself is unenforceable (section 10(1)), but obligations to pay surrogacy costs are enforceable in specific scenarios set out in section 10(2). The Act also provides transitional enforcement: section 10 applies to surrogacy arrangements made before commencement (other than commercial ones) even if they were illegal and void under the Surrogacy Contracts Act 1993, and a person is not liable for prosecution under that repealed Act for an offence for which they could not have been guilty if this Act had been in force (section 43). Prosecutions under this Act would be in the ordinary courts. The Act does not create imprisonment penalties; all specified penalties are fines. Additionally, the court has power to make orders ancillary to parentage orders, including disposition of property (section 24). The discharge provisions (sections 27-30) allow the court to set aside a parentage order obtained by fraud, duress, improper means, or without proper consent, which acts as a remedy for parties harmed by non-compliance. The Act also restricts public access to proceedings: applications must not be heard in open court and non-parties are excluded (section 44). Access to court records is limited to the child, birth parents, intended parents, and the Attorney-General, and only with court approval (section 46). These provisions reinforce privacy and confidentiality but also act as a form of enforcement by limiting public scrutiny.

The Surrogacy Act 2012 expressly interacts with several other Tasmanian Acts and laws from other jurisdictions. The Births, Deaths and Marriages Registration Act 1999 is fundamental to the registration scheme: the registrar under that Act maintains the Register of births and the surrogacy record (section 4 definitions, sections 31-39). The Act requires that before a parentage order is made, the responsibility to register the child’s birth under that Act is not affected (section 31). Re-registration of a child’s birth is done by altering the entry in the Register and making an entry in the surrogacy record (section 34). The Act defines spouse by reference to the Relationships Act 2003: a spouse includes the other party to a significant relationship within the meaning of section 4 of that Act (section 4). The court is the Magistrates Court (Children’s Division), and appeals against decisions granting or refusing parentage orders or discharge are made under section 20 of the Magistrates Court (Children’s Division) Act 1998 (sections 25, 30). The Administration of the Act is assigned to the Minister for Justice and the Department of Justice until an order under the Administrative Arrangements Act 1990 provides otherwise (section 49). The Act replaces the earlier Surrogacy Contracts Act 1993: section 43 provides that surrogacy arrangements (other than commercial ones) made before commencement are no longer illegal and void under that repealed Act, and persons are not liable for prosecution under that Act for offences that would not be offences under this Act. The Act also contemplates interaction with corresponding laws of other States and Territories: corresponding law means a law of another State or Territory that corresponds to this Act, and includes a prescribed law (section 4). Corresponding order means an order that is a member of a prescribed class or is equivalent of a parentage order under another State, Territory, or foreign country (section 4). The registrar is required to send memoranda of Tasmanian parentage orders to corresponding officers in other States or Territories if the child’s birth is registered there (section 37). Conversely, re-registration of births for children born in Tasmania but subject to a corresponding order is provided for (section 34). The Act does not expressly interact with the Family Law Act 1975 (Cth) but the effect of a parentage order on legal relationships (section 26) would be relevant to federal family law matters such as parenting orders and child support, though those matters are not dealt with in the Act. The Act also does not affect any law relating to sexual offences: despite a parentage order, the pre-existing relationship continues to exist for the purposes of sexual offence laws (section 26(3)). The Act references regulations that may prescribe matters, forms, fees, and offences (section 48), and these regulations may interact with other legislative instruments. The definition of approved form was amended by No. 38 of 2015 to be a form approved by the Chief Magistrate rather than prescribed by regulation (section 4). The Act also implicitly interacts with the law of contract: surrogacy arrangements are unenforceable, but obligations to pay costs are enforceable in limited circumstances, creating a partial contractual remedy.

The Act was passed in 2012 and commenced on a day or days to be proclaimed (section 2). The text as provided shows one specific amendment: section 4 (interpretation) was amended by No. 38 of 2015, section 53, applied from 13 October 2015. That amendment changed the definition of approved form from “prescribed by regulation” to “means a form approved by the Chief Magistrate”. No other amendment history is evident from the provided source. The Act replaced the Surrogacy Contracts Act 1993, which was repealed (see section 43). The Act creates two divisions for parentage orders: Division 1 applies to surrogacy arrangements made on or after the commencement of section 12 (new arrangements), and Division 2 applies to arrangements made before that commencement (pre-existing arrangements) (sections 12, 19). This indicates a staged commencement: Part 4 Division 2 (pre-existing) likely commenced at proclamation, and section 12 (new arrangements) may have commenced on a later date or the same date. The Act also includes transitional provisions in section 43 that deem previously illegal non-commercial arrangements as no longer illegal and void. The Act itself is cited as the Surrogacy Act 2012 (Tas) and is currently in force as at 12 April 2026 (as indicated in the source metadata). The regulations made under section 48 may have been amended over time, but the source text does not detail that. The Act was amended by No. 38 of 2015, which was the Surrogacy (Consequential Amendments) Act 2015 or similar, but the source only notes that single amendment. No subsequent amendments are provided. Practitioners should check the current Tasmanian legislation database for any further amendments beyond 2015.

The Act provides a statutory framework for litigation primarily through applications for parentage orders (sections 13-22) and applications for discharge of parentage orders (sections 27-30). Appeals against decisions granting or refusing a parentage order may be made to the Supreme Court by a relevant party under section 20 of the Magistrates Court (Children’s Division) Act 1998 (section 25). Appeals against decisions on discharge may be made by the child (if 18 or older), birth parents, intended parents, the Attorney-General, or another person served with the application (section 30). Both appeal rights must be exercised within 30 days after receiving notice of the decision (sections 25(2), 30(2)). The Act does not explicitly cite any case law. However, the Act itself is likely to generate litigation on issues such as the meaning of “medical or social need” (section 7), whether a surrogacy arrangement is commercial (section 8), whether consent was informed and voluntary (section 16(2)(j)(iii) read with section 4 definition of consent), and whether the court should grant leave for late applications under the “exceptional circumstances” test (section 15(2)). The discretion in section 16(3) to dispense with certain requirements if the order is in the best interests of the child may also be litigated. The grounds for discharge (fraud, duress, improper means, lack of consent, paid consent, or exceptional reason) under section 27(2) will likely be the subject of contested proceedings. The Act also provides for the court to request an independent counsellor report (section 18) and to order separate representation for the child (section 45), which may be used in contested cases. The prohibition on publishing identifying information (section 42) may be litigated in the context of applications for court authority to publish. The restricted access to court records (section 46) and the requirement for counselling before access (section 46(5)) are procedural protections that may be tested. Although no specific cases are named in the provided source, practitioners should be aware of the Tasmanian Magistrates Court and Supreme Court decisions that interpret this Act. Given the relatively narrow scope of the Act, litigation is expected to be infrequent but could involve complex factual issues about the parties’ residency, the timing of the arrangement, and the nature of payments. The Act does not create a right to a parentage order; it vests discretion in the court, guided by the best interests of the child. Therefore, appeals will likely focus on whether the court properly exercised its discretion.

The Surrogacy Act 2012 contains several provisions that can easily trip up practitioners and parties. First, a surrogacy arrangement is unenforceable (section 10(1)), meaning that neither the birth mother nor the intended parents can sue to enforce the core agreement to transfer the child or to perform the arrangement. The only enforceable obligation is the payment or reimbursement of the birth mother’s surrogacy costs, and even that is limited to specific scenarios (section 10(2)). This can leave intended parents exposed if the birth mother changes her mind. Second, the strict eligibility criteria for parentage orders: the birth mother must be at least 25 years old and must have previously given birth to a live child (section 16(2)(c)-(d)). If she is younger or has not previously given birth, the court may dispense with these requirements only if it is in the best interests of the child (section 16(3)), but this is not guaranteed. Third, intended parents must be at least 21 at the time the arrangement is made (section 16(2)(b)). Fourth, the requirement that the surrogacy arrangement be in writing, contain prescribed matters, and be signed by all parties (section 16(2)(e)) is mandatory for new arrangements. An oral agreement will not support a parentage order. Fifth, the residency requirement: all parties must be resident in Tasmania at the time the arrangement is entered into, and the intended parent(s) must be resident in Tasmania at the time of the hearing (section 16(2)(g), (j)(ii)). If a party moves interstate, the court may not be satisfied. Sixth, there must be a medical or social need for the arrangement (section 16(2)(h)). This is a substantive requirement that must be proven. The definition of “eligible woman” is narrow and requires medical grounds (section 7(2)). Seventh, if there are two intended parents, they must be spouses of each other at the time the arrangement is made to apply jointly; if they were not spouses at that time, neither may apply for a parentage order at all (section 14(5)). This can be a trap for couples who enter a surrogacy arrangement before formalising their relationship. Eighth, the time limit for applications: generally, applications must be made between 30 days and six months after the child’s birth (section 15(1)(a)). Late applications require exceptional circumstances and best interests satisfaction (section 15(2)). Missing this window can be fatal. Ninth, the multiple birth sibling rule: if a child has a living birth sibling, the court may only make a parentage order if it also makes one about each sibling, or considers it in the best interests of the child not to (section 17). This can complicate matters if intended parents only want to adopt one of twins or triplets. Tenth, the confidentiality and access restrictions: a child cannot obtain an extract from the surrogacy record or access court records unless they have received counselling from an accredited counsellor and provide a statutory declaration, unless they already know the name of their birth parents (sections 39, 46). This can create practical hurdles for adult children seeking information. Eleventh, the prohibition on payment beyond reasonable surrogacy costs: any payment, reward, or material benefit beyond the defined surrogacy costs makes the arrangement commercial and illegal (sections 8, 40). Even the offer to enter a commercial arrangement is an offence. Twelfth, the birth mother’s right to manage pregnancy cannot be waived (section 11); she retains full decision-making authority despite any agreement. This is a non-negotiable protection. Thirteenth, the court may dispense with some requirements (e.g., independent legal advice, counselling, age, residency, etc.) if it is in the best interests of the child (section 16(3)), but this is discretionary and should not be relied upon. Fourteenth, a pre-existing arrangement made before commencement of section 12 is subject to Division 2 (sections 19-22), which has less stringent requirements (e.g., no requirement for written agreement, counselling, or independent legal advice), but the court must still find the arrangement was not commercial and that the child is under 18 at the time of hearing (section 22(2)(c)(iii)). Fifteenth, the discharge grounds are limited to fraud, duress, improper means, lack of or paid consent, or exceptional reason (section 27(2)); a simple change of mind by a party is not enough.

Compliance with the Surrogacy Act 2012 requires careful attention to procedure from the outset. The surrogacy arrangement should be made in writing before the birth mother becomes pregnant (sections 5(5), 16(2)(e)). The written agreement must contain the names of the birth mother and intended parents, clauses dealing with prescribed matters (if any), and be signed by all parties. The parties should ensure there is a medical or social need as defined in section 7; this may require medical certificates or reports to establish that the intended mother (if any) is an eligible woman. The birth mother must be at least 25 years old and have previously given birth to a live child (section 16(2)(c)-(d)). Intended parents must be at least 21 (section 16(2)(b)). All parties must be resident in Tasmania at the time the arrangement is made (section 16(2)(g)). Before entering the arrangement, each relevant party (birth mother, her spouse, intended parents) must receive independent legal advice about the arrangement and its implications, and about the implications of a parentage order (section 16(2)(a)(i)). The advice should be documented in writing. Each relevant party must also receive counselling from an accredited counsellor about the arrangement and its social and psychological implications, both before the arrangement is entered into and after the birth but before the parentage order application (section 16(2)(f)). The counsellor must be accredited by the Secretary of the Department (section 47). After the child is born, the intended parents should ensure the child is living with them and that they are resident in Tasmania (section 16(2)(j)(i)-(ii)). The application for a parentage order must be made no earlier than 30 days and no later than six months after the child’s birth (section 15(1)(a)). The application must be in the approved form (approved by the Chief Magistrate), accompanied by the prescribed fee, and lodged with the Magistrates Court (Children’s Division) (section 13(3)). A copy of the application must be served on the birth parents (section 13(4)). If the intended parents are no longer spouses, separate applications may be made with service on the other intended parent at least 14 days before the hearing (section 14(4)-(6)). The court must be satisfied that all relevant parties consent to the order at the time of the hearing (section 16(2)(j)(iii)). If the birth mother or her spouse cannot consent due to incapacity, death, or being uncontactable, the court may still make the order if it is in the child’s best interests and the child is living with the applicant (section 16(4)). The surrogacy arrangement must not be commercial; only the birth mother’s reasonable surrogacy costs (as defined in section 9) may be paid. No other payment, reward, or material benefit may be provided. Compliance with this requires careful record-keeping of all costs and ensuring they fall within the statutory categories (medical, legal, counselling, lost earnings up to two months, travel, accommodation, insurance premiums, and other reasonable costs). Intended parents should avoid any brokerage or advertising for payment (section 41). Confidentiality must be maintained: no publication of identifying information about the parties or proceedings without court authority (section 42). After the order is made, the registrar of the court must send a copy to the Registrar of Births, Deaths and Marriages, who will re-register the birth (sections 33-34). The intended parents should also register the child’s birth in the usual way before the order (section 31). If the intended parents later wish to access court records or surrogacy record extracts for the child, they must arrange for the child to receive counselling from an accredited counsellor and provide a statutory declaration, unless the child already knows their birth parents’ names (sections 39, 46). Practitioners should also be aware of the possibility of applying for discharge if the order was obtained improperly, but such applications are limited and should be grounded in fraud, duress, improper means, or lack of proper consent (section 27). Overall, the key to compliance is meticulous documentation, early engagement with accredited counsellors, independent legal advice, and adherence to the strict timeframes and eligibility criteria.