Surrogacy Act 2022 (Northern Territory)

This Act creates a comprehensive regulatory scheme for surrogacy in the Northern Territory. It does four things explicitly in the purposes clause: regulate surrogacy arrangements; criminalise commercial surrogacy conduct except for reimbursement of defined “reasonable costs”; enable transfer of parentage by court order where minimum requirements are met; and recognise the legal status of a child born under such an arrangement that meets those requirements (s 4). The Act makes parentage orders the mechanism to transfer parentage from birth parents to intended parents (Pt 3, especially ss 26-37). Parentage orders are final (non‑appealable) once made, subject only to revocation on specified grounds (ss 35, 41-42, 45(1)).

Mechanically, the statute prescribes pre‑conception, pre‑entry, and post‑birth procedural steps that a surrogacy arrangement and any parentage order must meet. These include written form and certificates (ss 14, 21-22), counselling before and after birth and a counsellor’s report for the Local Court (ss 22-24), independent legal advice with a certificate (ss 20-21), timing requirements (s 15), age and residency requirements for surrogate and intended parents (ss 17-18, 33), and limits on parties who may be included (s 16). The Local Court decides whether to make a parentage order after checking statutory predicates and whether the order is in the best interests of the child (ss 31, 34).

The Act creates a set of criminal offences aimed at preventing commercialisation and unauthorised intermediation in surrogacy: offering or making a commercial surrogacy arrangement (s 48), assisting others to enter arrangements for material reward (s 49), advertising commercial surrogacy (s 50), providing fertility services for commercial arrangements (s 51), and publication or unauthorised disclosure of identifying or confidential information (ss 52-53). Penalties are expressed in penalty units and imprisonment ranges, and prosecutions require the consent of the Director of Public Prosecutions (ss 48-54).

NORTHERN TERRITORY OF AUSTRALIA SURROGACY ACT 2022 As in force at 21 December 2022 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Definitions ........................................................................................ 1 4 Purposes of Act ............................................................................... 2 5 Best interests of child ...................................................................... 3 6 Guiding principles ............................................................................ 3 7 Administration and operation ........................................................... 3 8 Application of Criminal Code ........................................................... 3 9 Relationship with Status of Children Act 1978 ................................. 3 10 Rights of surrogate mother to manage pregnancy and birth ............ 4 Part 2 Regulation of surrogacy arrangements Division 1 Enforceability and reasonable costs 11 Enforceability ................................................................................... 4 12 Reasonable costs ............................................................................ 4 Division 2 Requirements for surrogacy arrangement 13 Purpose of Division .......................................................................... 5 14 Form of surrogacy arrangement ...................................................... 5 15 Timing of surrogacy arrangement .................................................... 5 16 Parties to surrogacy arrangement ................................................... 6 17 Requirements for surrogate mother ................................................. 6 18 Requirements for intended parent ................................................... 6 19 Reason for surrogacy arrangement ................................................. 6 20 Legal advice .................................................................................... 7 21 Legal certificate ............................................................................... 7 22 Counselling before entering into surrogacy arrangement ................ 8 23 Counselling after birth of child ......................................................... 8 24 Report for Local Court ..................................................................... 9 25 Requirements related to counsellors ............................................. 10 Part 3 Parentage orders Division 1 Application for parentage order 26 Application for parentage order ..................................................... 10

Surrogacy Act 2022 ii 27 Residence of child ......................................................................... 11 28 Contents of application .................................................................. 11 29 Separate legal representation of child ........................................... 11 30 Multiple children............................................................................. 12 Division 2 Making parentage order 31 Purpose of parentage order ........................................................... 12 32 Consent ......................................................................................... 12 33 Residence of each applicant.......................................................... 13 34 Making parentage order ................................................................ 14 35 Contents of parentage order .......................................................... 15 36 Child's names ................................................................................ 15 Division 3 Effect of parentage order 37 Effect of parentage order ............................................................... 15 38 Duty of trustee and personal representative .................................. 16 39 Sexual offence – familial relationship ............................................ 16 Division 4 Revocation of parentage order 40 Application to revoke parentage order ........................................... 17 41 Revocation of parentage order ...................................................... 17 42 Effect of revocation of parentage order ......................................... 18 Division 5 Procedural and other matters 43 Procedure for applications ............................................................. 18 44 Closed proceedings ....................................................................... 18 45 Appeals.......................................................................................... 19 46 Notice to Registrar of Births, Deaths and Marriages...................... 19 47 Access to court records ................................................................. 20 Part 4 Offences 48 Offering or making commercial surrogacy arrangement ................ 21 49 Offering or providing assistance to enter into surrogacy arrangement .................................................................................. 21 50 Advertising commercial surrogacy arrangement............................ 22 51 Fertility services for commercial surrogacy arrangement .............. 22 52 Offence to publish identifying information ...................................... 23 53 Offence to disclose certain information .......................................... 24 54 Prosecutions .................................................................................. 25 Part 5 Miscellaneous 55 Regulations.................................................................................... 25 56 Review of Act................................................................................. 25

Surrogacy Act 2022 iii Part 6 Transitional provisions 57 Prior surrogacy arrangements ....................................................... 26 ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 21 December 2022

SURROGACY ACT 2022 An Act to regulate surrogacy arrangements and for related purposes Part 1 Preliminary matters 1 Short title This Act may be cited as the Surrogacy Act 2022. 2 Commencement (1) Subject to subsection (2), this Act commences on the day fixed by the Administrator by Gazette notice. (2) If a provision of this Act does not commence before 21 March 2024, it commences on that day. 3 Definitions In this Act: birth includes still-birth. birth parent, in relation to a child, means a person recognised by law as a parent of the child when the child is born. child includes a still-born child. consent means free and voluntary agreement. commercial surrogacy arrangement, means a surrogacy arrangement with the elements specified in section 48(c). counsellor means a person who provides counselling under section 22 or 23 or prepares a report under section 24. intended parent means a person who is to become a parent of and assume custody of a child born under a surrogacy arrangement. parentage order means an order made under section 34.

Part 1 Preliminary matters Surrogacy Act 2022 2 partner, in relation to a person, means the spouse or de facto partner of the person when the surrogacy arrangement is entered into. party, in relation to a surrogacy arrangement, means a person who enters into the arrangement. surrogacy arrangement means an agreement, understanding or other arrangement entered into by a woman and one or more other persons under which: (a) a child born as a result of the woman's pregnancy is to be treated as a child of the other person or persons instead of the woman; and (b) the other person or persons are to become the parents of and assume custody of the child instead of the woman. Note for definition surrogacy arrangement The partner, if any, of the surrogate mother may also enter into a surrogacy arrangement but is not required to do so, see section 16. surrogate mother means the woman who has, or is to have, a child or children under a surrogacy arrangement. Note for section 3 The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act. 4 Purposes of Act The purposes of this Act are the following: (a) to regulate surrogacy arrangements; (b) to create offences for conduct related to surrogacy arrangements in which a payment, reward or other material benefit or advantage is offered or received, other than payment or reimbursement for certain reasonable costs; (c) to allow the transfer of parentage for a child born under a surrogacy arrangement that meets minimum standards; (d) to recognise the status of a child born under a surrogacy arrangement that meets minimum standards.

Part 1 Preliminary matters Surrogacy Act 2022 3 5 Best interests of child The paramount consideration in respect of the administration and operation of this Act is the best interests of any child born under a surrogacy arrangement. Note for section 5 The best interests of a child include the child's safety and wellbeing and the right to know the child's origins. 6 Guiding principles Subject to section 5, the following principles apply to the administration and operation of this Act: (a) a woman should be able to make a free and informed decision about whether to be a surrogate mother; (b) the parties to a surrogacy arrangement should be protected from exploitation; (c) a surrogate mother should not be financially disadvantaged as a result of her involvement in a surrogacy arrangement. 7 Administration and operation Each person or body engaged in the administration or operation of this Act must exercise their powers and perform their functions to give effect to sections 5 and 6. 8 Application of Criminal Code Part IIAA of the Criminal Code applies to an offence against this Act. Note for section 8 Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. 9 Relationship with Status of Children Act 1978 The provisions in the Status of Children Act 1978 relating to the parentage of a child are not affected by a surrogacy arrangement, unless the Local Court makes a parentage order that provides otherwise.

Part 2 Regulation of surrogacy arrangements Division 1 Enforceability and reasonable costs Surrogacy Act 2022 4 10 Rights of surrogate mother to manage pregnancy and birth A surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman. Part 2 Regulation of surrogacy arrangements Division 1 Enforceability and reasonable costs 11 Enforceability Subject to section 12(3), no surrogacy arrangement is enforceable. 12 Reasonable costs (1) A surrogacy arrangement, other than a commercial surrogacy arrangement, may provide for the payment or reimbursement of the reasonable costs associated with the following: (a) the surrogate mother trying to become pregnant, being pregnant and giving birth; (b) the surrogate mother and her partner, if any, entering into or being a party to the surrogacy arrangement; (c) the surrogate mother and her partner, if any, being a party to proceedings under this Act. (2) Without limiting subsection (1), reasonable costs include the following: (a) reasonable medical expenses incurred by the surrogate mother associated with the surrogacy arrangement, whether incurred prior to conception, during the pregnancy or because of the birth of the child, that are not recoverable under Medicare, health insurance or any other scheme; (b) reasonable counselling costs incurred by the surrogate mother and her partner, if any, associated with the surrogacy arrangement, including the counselling under sections 22 and 23 and preparation of the report under section 24; (c) reasonable legal costs incurred by the surrogate mother and her partner, if any, associated with the surrogacy arrangement, including the advice under section 20, the certificate under section 21 and the costs associated with being a party to proceedings under this Act;

Part 2 Regulation of surrogacy arrangements Division 2 Requirements for surrogacy arrangement Surrogacy Act 2022 5 (d) reasonable costs for a child born as a result of the surrogacy arrangement, including reasonable medical costs for the child; (e) reasonable out of pocket costs incurred by the surrogate mother associated with the surrogacy arrangement or the child; (f) income lost by the surrogate mother caused by being unable to work on medical grounds associated with the pregnancy and by taking up to 2 months unpaid leave for the birth; (g) insurance premiums for health, life or disability insurance for the surrogate mother, or for increasing the cover of an existing policy for the surrogate mother, for the period from entering into the surrogacy arrangement until the surrogate mother's postnatal recovery. Examples for subsection (2)(e) Costs of travel, accommodation, childcare and housekeeping and postnatal expenses. (3) A provision in a surrogacy arrangement to provide for the payment or reimbursement of reasonable costs allowed under subsections (1) and (2) is enforceable if: (a) the cost was incurred; and (b) the cost is not recoverable under Medicare, health insurance or any other scheme. Division 2 Requirements for surrogacy arrangement 13 Purpose of Division This Division sets out the requirements that must be met before a parentage order may be made in relation to a surrogacy arrangement. 14 Form of surrogacy arrangement (1) The surrogacy arrangement must be in writing. (2) The certificates required under sections 21 and 22(3) must be attached to the surrogacy arrangement. 15 Timing of surrogacy arrangement The surrogacy arrangement must be entered into by the parties before the surrogate mother becomes pregnant with the child expected under the surrogacy arrangement.

Part 2 Regulation of surrogacy arrangements Division 2 Requirements for surrogacy arrangement Surrogacy Act 2022 6 16 Parties to surrogacy arrangement The surrogacy arrangement must not include any party other than the following: (a) the surrogate mother; (b) the partner, if any, of the surrogate mother; (c) one or 2 intended parents. 17 Requirements for surrogate mother The surrogate mother must, when she enters into the surrogacy arrangement: (a) be at least 25 years of age, unless the Local Court makes an exception under section 34(2) because exceptional circumstances exist to justify her entering into the surrogacy arrangement; and (b) be an Australian citizen or a permanent resident of Australia. 18 Requirements for intended parent (1) Each intended parent must, when they enter into the surrogacy arrangement: (a) be at least 25 years of age, unless the Local Court makes an exception under section 34(3) because the intended parent is sufficiently mature to understand the implications of the parentage order; and (b) be an Australian citizen or a permanent resident of Australia. (2) If there are 2 intended parents, they must be partners of each other. 19 Reason for surrogacy arrangement The reason for the intended parent or intended parents entering into the surrogacy must be one of the following: (a) the intended parent or intended parents are unlikely for any medical reason to become pregnant, be able to carry a pregnancy or give birth;

Part 2 Regulation of surrogacy arrangements Division 2 Requirements for surrogacy arrangement Surrogacy Act 2022 7 (b) it is unlikely because of other circumstances that the intended parent or intended parents would become pregnant, be able to carry a pregnancy or give birth (whether because of gender identity, sexuality or any other reason). Examples for paragraph (a) 1 A risk of transmission of a serious genetic defect, serious disease or serious illness to a child born to an intended parent. 2 A risk that a woman, who is an intended parent, is unlikely to survive childbirth or will suffer significant harm from childbirth. 20 Legal advice (1) Each party to a surrogacy arrangement must receive legal advice from a legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement. (2) The legal advice must include advice on the following matters: (a) the unenforceable nature of the arrangement, other than for reasonable costs under section 12; (b) the party's legal obligations under the arrangement and this Act; (c) the legal implications if the surrogate mother does not relinquish the child, including whether child support would be payable by the child's biological father under the Child Support (Assessment) Act 1989 (Cth); (d) the legal implications if, after the birth of the child, no birth parent or intended parent wants to be permanently responsible for the child's custody and guardianship; (e) the legal implications of a parentage order; (f) the reasons why the party should be open and honest about the child's birth parentage. (3) The legal practitioner providing the advice must be independent of any business providing fertility services. (4) The intended parents must receive legal advice from a legal practitioner who is independent of the one providing legal advice to the surrogate mother and her partner, if any. 21 Legal certificate (1) A person providing legal advice under section 20 must prepare a certificate on that advice and give it to the person advised.

Part 2 Regulation of surrogacy arrangements Division 2 Requirements for surrogacy arrangement Surrogacy Act 2022 8 (2) The certificate must certify the following matters: (a) the qualifications of the person giving the legal advice; (b) the names of the persons who were given legal advice; (c) the day or days when the advice was given; (d) that advice was given on the matters listed in section 20(2) and whether the recipient of the advice appeared to understand it. 22 Counselling before entering into surrogacy arrangement (1) Each party to the surrogacy arrangement must undertake counselling about the surrogacy arrangement and its implications before entering into the surrogacy arrangement. (2) The counselling required under subsection (1) may be provided by more than one counsellor. (3) A counsellor who provides the counselling must prepare a certificate on the counselling and give it to the person counselled. (4) The certificate must certify the following matters: (a) the qualifications of the counsellor; (b) that the counsellor is independent of any business providing fertility services; (c) the names of the persons who were counselled; (d) the dates of the counselling; (e) that counselling on the required matters was provided; (f) in the case of a surrogate mother under 25 years of age – that exceptional circumstances exist to justify her entering into the surrogacy arrangement; (g) in the case of an intended parent under 25 years of age – that the intended parent is sufficiently mature to understand the implications of the surrogacy arrangement. 23 Counselling after birth of child (1) The surrogate mother, her partner, if any, and any other birth parent must undertake counselling about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order.

Part 2 Regulation of surrogacy arrangements Division 2 Requirements for surrogacy arrangement Surrogacy Act 2022 9 (2) The counselling required under this section may be provided by the same counsellor that provided counselling to any of the parties before they entered into the surrogacy arrangement. 24 Report for Local Court (1) Each party and any birth parent of the child who is not a party to the surrogacy arrangement must submit to an interview by a counsellor for the purpose of a report for the Local Court. (2) The interviews must take place after the birth of a child under the surrogacy arrangement but before any application is made for a parentage order. (3) The counsellor must prepare a report on the interviews that states the following matters: (a) the qualifications of the counsellor; (b) that the counsellor is independent of any business providing fertility services; (c) the names of the persons who were counselled; (d) the dates of the counselling; (e) the counsellor's opinion on the best interests of the child born under the surrogacy arrangement and the grounds for that opinion. (4) The counsellor's report may include the counsellor's opinion on the following matters: (a) each person's understanding of the social and psychological implications of a parentage order on themselves and the child; (b) each person's level of acceptance that openness and honesty about the child's birth parentage is in the best interests of the child; (c) the arrangements that the intended parent or intended parents propose for the care and nurture of the child; (d) any other matter relevant to the wellbeing of the child. (5) The counsellor, under this section, must not have provided any previous counselling to the parties. (6) A copy of the report must be given to each person interviewed before an application is made for a parentage order.

Part 3 Parentage orders Division 1 Application for parentage order Surrogacy Act 2022 10 25 Requirements related to counsellors (1) A counsellor must be: (a) a member, or a person eligible for full membership, of the Australian and New Zealand Infertility Counsellors Association; or (b) a person with other qualifications prescribed by regulation. (2) A counsellor must be independent of any business providing fertility services. (3) The counselling provided by a counsellor must be consistent with any guidelines relevant to surrogacy, in effect as of the time of the counselling, issued by: (a) the Australian and New Zealand Infertility Counsellors Association; and (b) the National Health and Medical Research Council. Part 3 Parentage orders Division 1 Application for parentage order 26 Application for parentage order (1) The intended parent or intended parents of a child may apply to the Local Court for a parentage order. (2) An application for a parentage order must be made: (a) no earlier than 30 days after the birth of the child; and (b) no later than 180 days after the birth of the child, unless the Local Court is satisfied that there are exceptional circumstances to justify a later application. (3) If there are 2 intended parents in the surrogacy arrangement, the application must be made by both intended parents jointly unless: (a) they are no longer partners; or (b) one of them has died; or (c) one of them does not have the legal capacity to make decisions in relation to the proceedings; or

Part 3 Parentage orders Division 1 Application for parentage order Surrogacy Act 2022 11 (d) one of them cannot be located after reasonable efforts to do so; or (e) the Local Court is satisfied that there are exceptional circumstances to justify an application by only one intended parent. (4) If the intended parents are no longer partners: (a) each intended parent may apply separately for a parentage order instead of jointly; and (b) if both intended parents do apply separately – the applications must be heard together. (5) Notice of the application must be served on: (a) every other party to the surrogacy arrangement; and (b) any birth parent of the child who is not a party to the surrogacy arrangement. 27 Residence of child Neither an application for a parentage order nor a parentage order may be made unless the child born under the surrogacy arrangement resides with at least one intended parent at the time of both the application and the making of the parentage order. 28 Contents of application The application must include the following: (a) a copy of the surrogacy arrangement, including the certificates required under sections 21 and 22(3); (b) the report from the counsellor required under section 24; (c) a certified copy of the birth certificate of the child born under the surrogacy arrangement. 29 Separate legal representation of child (1) The Local Court may, if it considers it appropriate: (a) order that a child who is the subject of a proceeding under this Act have separate legal representation in the proceeding; and (b) make any ancillary order for that purpose.

Part 3 Parentage orders Division 2 Making parentage order Surrogacy Act 2022 12 (2) A legal practitioner representing a child in proceedings under this Act must act in the best interests of the child, having regard to any evidence reasonably available to the practitioner. 30 Multiple children (1) This section applies to proceedings for a parentage order if 2 or more children are born under the surrogacy arrangement. (2) The application for the parentage order must include all the children alive at the time of the application. (3) If a parentage order is to be made for one child, a separate parentage order must be made for each other child transferring parentage to the same intended parent or intended parents, unless the Local Court considers it not to be in the best interests of the children. Division 2 Making parentage order 31 Purpose of parentage order The purpose of a parentage order is to transfer the parentage of a child born under a surrogacy arrangement to the intended parent or intended parents if the requirements of this Act are met. 32 Consent (1) Subject to this section, each party and any birth parent of the child who is not a party to the surrogacy arrangement must consent to the making of a parentage order. (2) The Local Court may dispense with the consent of an intended parent only if: (a) the person has died; or (b) the person does not have legal capacity to consent; or (c) the person cannot be located after reasonable efforts to do so; or (d) the person is no longer a partner of the applicant and dispensing with consent in the circumstances is in the best interests of the child.

Part 3 Parentage orders Division 2 Making parentage order Surrogacy Act 2022 13 (3) The Local Court may dispense with the consent of a surrogate mother only if: (a) the child is living with an intended parent who is an applicant; and (b) one of the following circumstances exist: (i) the person has died; (ii) the person does not have legal capacity to consent; (iii) the person cannot be located after reasonable efforts to do so; and (c) dispensing with consent in the circumstances is in the best interests of the child. (4) The Local Court may dispense with the consent of a partner of the surrogate mother or a birth parent of the child who is not a party to the surrogacy arrangement only if: (a) the child is living with an intended parent who is an applicant; and (b) the Local Court is satisfied that: (i) the person has died; or (ii) the person does not have legal capacity to consent; or (iii) the person cannot be located after reasonable efforts to do so; or (iv) dispensing with consent in the circumstances is in the best interests of the child. 33 Residence of each applicant (1) A parentage order must not be made unless each applicant resides in the Territory at the time of the hearing of the application. (2) Despite subsection (1), the Local Court may dispense with the requirement that an applicant reside in the Territory in exceptional circumstances.

Part 3 Parentage orders Division 2 Making parentage order Surrogacy Act 2022 14 34 Making parentage order (1) The Local Court may make a parentage order if satisfied of the following: (a) the surrogacy arrangement is not a commercial surrogacy arrangement; (b) the requirements of Part 2, Division 2 are met; (c) the place of residence of the child required under section 27; (d) the consents required under section 32 were given or dispensed with; (e) the place of residence of each applicant required under section 33; (f) the parentage order is in the best interests of the child. (2) In the case of a surrogate mother who was under 25 years of age when entering into the surrogacy arrangement, the Local Court may make a parentage order if: (a) the surrogate mother was at least 18 years of age when she entered into surrogacy arrangement; and (b) the counsellor's certificate required under section 22(3) certified that exceptional circumstances existed to justify the surrogate mother entering into the surrogacy arrangement; and (c) the Local Court is satisfied that exceptional circumstances exist to justify making the parentage order. (3) In the case of an intended parent who was under 25 years of age when entering into the surrogacy arrangement, the Local Court may make a parentage order if: (a) the intended parent was at least 18 years of age when the intended parent entered into the surrogacy arrangement; and (b) the counsellor's certificate required under section 22(3) certified that the intended parent was sufficiently mature to understand the implications of the surrogacy arrangement; and (c) the Local Court is satisfied that the intended parent is sufficiently mature to understand the implications of the parentage order.

Part 3 Parentage orders Division 3 Effect of parentage order Surrogacy Act 2022 15 35 Contents of parentage order A parentage order must provide for the following matters in relation to a child born under the surrogacy arrangement: (a) the transfer of the parentage of the child to the intended parent or intended parents; (b) the date of the order; (c) the full name and address of the surrogate mother and any other birth parent; (d) the full name, address and occupation of the intended parent or intended parents; (e) the names by which the child was known before, and is to be known after, the order is made; (f) the date and place of birth of the child; (g) any consequential or ancillary matters. 36 Child's names (1) The names by which the child is to be known, are as specified in a parentage order. (2) To avoid doubt, the determination of the names of a child in a parentage order does not prevent them being changed later under the Births, Deaths and Marriages Registration Act 1996 or other applicable law. (3) A name by which the child is to be known must not be a prohibited name, as defined in section 4 of the Births, Deaths and Marriages Registration Act 1996. Division 3 Effect of parentage order 37 Effect of parentage order (1) This section provides for the effect of a parentage order made in relation to a child. (2) On and from the date the parentage order is made: (a) the child becomes the child of the intended parent or intended parents; and

Part 3 Parentage orders Division 3 Effect of parentage order Surrogacy Act 2022 16 (b) the intended parent or intended parents become the parent or parents of the child; and (c) the child is no longer the child of the surrogate mother and any other birth parent; and (d) the surrogate mother and any other birth parent are no longer the parent or parents of the child. (3) The relationships between the child and all other persons are determined in accordance with subsection (2). (4) Any disposition or devolution of property dependent on the relationship between the child and another person is determined in accordance with subsections (2) and (3). (5) A person may vary an instrument disposing of property, made before a parentage order, to exclude a child who is the subject of the parentage order. (6) Nothing in this Act affects the operation of a provision in a will or other instrument distinguishing between a child who is the subject of a parentage order and other children. 38 Duty of trustee and personal representative (1) Subject to this section, a trustee or other personal representative may convey, transfer or distribute real or personal property to the persons appearing to be entitled to the property without ascertaining whether a parentage order is in effect. (2) A trustee or personal representative conveying, transferring or distributing real or personal property is not liable to a person claiming directly or indirectly by virtue of a parentage order, unless the trustee or personal representative has notice of the claim before the time of the conveyance, transfer or distribution. (3) Nothing in this section prejudices the right of a person to follow property into the hands of a person who received it, other than a purchaser for value without notice of the claim. 39 Sexual offence – familial relationship (1) For the purpose of applying a law relating to a sexual offence for which a familial relationship is relevant, a child who is the subject of a parentage order is taken to have the familial relationships that existed before the parentage order as well as the familial relationships that resulted from the parentage order.

Part 3 Parentage orders Division 4 Revocation of parentage order Surrogacy Act 2022 17 (2) Subsection (1) is not affected by any revocation of a parentage order. (3) In this section: sexual offence, see section 3 of the Sexual Offences (Evidence and Procedure) Act 1983. Division 4 Revocation of parentage order 40 Application to revoke parentage order (1) The following persons may apply to the Local Court to revoke a parentage order relating to a child: (a) the surrogate mother; (b) any other birth parent; (c) if 18 years of age or older – the child; (d) a parent, who was formerly an intended parent; (e) the Attorney-General. (2) The application may be made on any of the following grounds: (a) the parentage order was obtained by fraud, duress or other improper means; (b) a consent to the parentage order was: (i) not given freely and voluntarily; or (ii) given in return for a payment, reward or other material benefit or advantage; (c) there are exceptional circumstances to justify revoking the parentage order. (3) Notice of the application must be served on the other persons referred to in subsection (1), unless the court dispenses with service for a person who is dead or cannot be located after making reasonable enquiries. 41 Revocation of parentage order (1) The Local Court may, by order, revoke a parentage order relating to a child if satisfied that: (a) any of the grounds required under section 40(2) exist; and

Part 3 Parentage orders Division 5 Procedural and other matters Surrogacy Act 2022 18 (b) the revocation is in the best interest of the child. (2) An order of the Local Court revoking a parentage order relating to a child may also provide for: (a) subject to section 36(3), the name of the child; and (b) any consequential or ancillary matters. 42 Effect of revocation of parentage order (1) This section provides for the effect of an order revoking a parentage order made in relation to a child. (2) On and from the date the order is made, the rights, privileges, duties, liabilities and relationships of the child under the law of the Territory and of all other persons are to be determined as if the parentage order had not been made. (3) Subject to the terms of the order, subsection (2) does not affect: (a) anything lawfully done under the parentage order or while the parentage order was in force; or (b) any right, privilege, duty or liability that vested while the parentage order was in effect. (4) Nothing in this section prevents the name of the child being subsequently changed under the Births, Deaths and Marriages Registration Act 1996 or other applicable law. Division 5 Procedural and other matters 43 Procedure for applications An application for a parentage order or its revocation must comply with any rules or practice directions of the Local Court applicable to the application. 44 Closed proceedings (1) Proceedings under this Act must not be heard in open court. (2) Anyone who is not one of the following persons must be excluded from the proceedings, unless the court orders otherwise: (a) a child who is the subject of the application; (b) a party to the proceedings;

Part 3 Parentage orders Division 5 Procedural and other matters Surrogacy Act 2022 19 (c) a party to the surrogacy arrangement; (d) a legal practitioner representing a person referred to in paragraphs (a) to (c); (e) a witness giving evidence. 45 Appeals (1) A parentage order may not be appealed. Note for subsection (1) While a parentage order is final, it can be revoked under section 41. (2) A decision to refuse to make a parentage order may be appealed to the Supreme Court by the following persons: (a) the surrogate mother; (b) an intended parent. (3) A decision to revoke a parentage order or to refuse to revoke a parentage order may be appealed to the Supreme Court by the following persons: (a) the surrogate mother; (b) any other birth parent; (c) if 18 years of age or older – the child; (d) an intended parent; (e) in the case of an appeal of a decision in relation to an application to revoke a parentage order made by the Attorney-General – the Attorney-General. (4) An appeal referred to in subsection (2) or (3) is of right and is to be by way of rehearing. 46 Notice to Registrar of Births, Deaths and Marriages (1) A registrar of the Local Court must give the Registrar of Births, Deaths and Marriages, appointed under the Births, Deaths and Marriages Registration Act 1996, a copy of the following orders as soon as practicable after it is made: (a) a parentage order; (b) an order revoking a parentage order.

Part 3 Parentage orders Division 5 Procedural and other matters Surrogacy Act 2022 20 (2) When giving a copy of a parentage order, the registrar of the Local Court must attach a written notice with the following information: (a) if known – the identity of any person, other than the surrogate mother or an intended parent, who donated human reproductive material resulting in the birth of the child; (b) any other information prescribed by regulation. (3) If the child who is the subject of an order referred to in subsection (1) was born in a State or another Territory, the registrar of the Local Court must also give a copy of the order and the notice referred to in subsection (2) to the person responsible for registering births in the State or other Territory. 47 Access to court records (1) Subject to this section, a person must not have access to the record of proceedings under this Act in relation to a child born under a surrogacy arrangement unless the court, on application by the person, approves the access. (2) The parties to an application to revoke a parentage order or an appeal may have access to the record of proceedings for the purposes of the application or appeal without the approval of the court. (3) The court may approve access to all or part of the record of proceedings to the following persons on application: (a) if the child is 18 years of age or older – the child; (b) if the child is under 18 years of age – the child with the consent of a person with parental responsibility; (c) the surrogate mother; (d) any other birth parent; (e) an intended parent; (f) the Attorney-General. (4) This section prevails to the extent of any inconsistency with any other law of the Territory.

Part 4 Offences Surrogacy Act 2022 21 Part 4 Offences 48 Offering or making commercial surrogacy arrangement A person commits an offence if: (a) the person intentionally enters into, or intentionally offers to enter into, an arrangement; and (b) the arrangement is a surrogacy arrangement; and (c) under the surrogacy arrangement: (i) a person is offered or is to receive a payment, reward or other material benefit or advantage, other than reasonable costs allowed under section 12; and (ii) the payment, reward or other material benefit or advantage is for the person or another person doing one or more of the following: (A) agreeing to enter into, or entering into, the surrogacy arrangement; (B) permanently relinquishing custody of a child born under the surrogacy arrangement; (C) consenting to the making of a parentage order for a child born under the surrogacy arrangement; and (d) the person has knowledge of the circumstances in paragraphs (b) and (c). Maximum penalty: 100 penalty units or imprisonment for 12 months. 49 Offering or providing assistance to enter into surrogacy arrangement (1) A person commits an offence if: (a) the person intentionally provides services or intentionally offers services; and (b) the services consist of assistance for another person to enter into a surrogacy arrangement; and (c) the person has knowledge of the circumstance specified in paragraph (b); and

Part 4 Offences Surrogacy Act 2022 22 (d) the person is not a legal practitioner representing a person seeking legal assistance in relation to the surrogacy arrangement; and (e) the person asks to receive or receives payment, reward or other material benefit or advantage for the conduct specified in paragraph (a). Maximum penalty: 100 penalty units or imprisonment for 12 months. Examples for subsection (1)(b) 1 Introducing people who are looking to enter into a surrogacy arrangement. 2 Arranging a surrogacy arrangement or negotiating a surrogacy arrangement. (2) Strict liability applies to subsection (1)(d) and (e). 50 Advertising commercial surrogacy arrangement A person commits an offence if: (a) the person intentionally publishes information; and (b) the information: (i) purports to seek another person to enter into a commercial surrogacy arrangement; or (ii) states or implies that a person is willing to enter into a commercial surrogacy arrangement; and (c) the person is reckless in relation to the circumstance specified in paragraph (b). Maximum penalty: 100 penalty units or imprisonment for 12 months. 51 Fertility services for commercial surrogacy arrangement A person commits an offence if: (a) the person intentionally provides services or intentionally offers services; and (b) the services consist of assistance for a woman to become pregnant; and

Part 4 Offences Surrogacy Act 2022 23 (c) the services are provided or offered to another person who: (i) is a party to a commercial surrogacy arrangement; or (ii) is expected to be a party to a commercial surrogacy arrangement; and (d) the person has knowledge of the circumstances specified in paragraphs (b) and (c). Maximum penalty: 100 penalty units or imprisonment for 12 months. 52 Offence to publish identifying information (1) A person commits an offence if: (a) the person intentionally publishes information; and (b) the information identifies, or is likely to lead to the identification of, any of the following: (i) a child born under a surrogacy arrangement; (ii) a child who is the subject of an application for a parentage order; (iii) a party to a surrogacy arrangement; (iv) a party to a proceeding under this Act; (v) a person whose consent is required for a surrogacy arrangement or a parentage order; and (c) the person is reckless in relation to the result specified in paragraph (b). Maximum penalty: 100 penalty units or imprisonment for 12 months. (2) It is a defence to a prosecution for an offence against subsection (1) if the defendant has written consent to publish information identifying the person from: (a) the person identified; or

Part 4 Offences Surrogacy Act 2022 24 (b) in the case of a person who is under 18 years of age – the person with parental responsibility for the person identified. Note for subsection (2) The defendant has an evidential burden in relation to the matters required under this subsection (see section 43BU of the Criminal Code). Note for section 52 In addition to the circumstances specified in this section, a person who discloses information specified in this section will not be criminally responsible for an offence if the disclosure is justified or excused by or under a law (see section 43BE of the Criminal Code). 53 Offence to disclose certain information (1) A person commits an offence if: (a) the person obtains information in the course of performing a function connected with the administration of this Act or exercising a power under this Act; and (b) the information is confidential and the person is reckless in relation to that circumstance; and (c) the person intentionally engages in conduct; and (d) the conduct results in the disclosure of the information and the disclosure is not: (i) for a purpose connected with the administration of this Act, including a legal proceeding arising out of the operation of this Act; or (ii) to a person who is otherwise entitled to the information; and (e) the person is reckless in relation to the result and circumstance referred to in paragraph (d). Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) Strict liability applies to subsection (1)(a).

Part 5 Miscellaneous Surrogacy Act 2022 25 (3) If the information referred to in subsection (1) relates to a person, it is a defence to a prosecution for an offence against that subsection if the person has consented to the disclosure of the information. Note for subsection (3) The defendant has an evidential burden in relation to the matters required under this subsection (see section 43BU of the Criminal Code). Note for section 53 In addition to the circumstances specified in this section, a person who discloses information specified in this section will not be criminally responsible for an offence if the disclosure is justified or excused by or under a law (see section 43BE of the Criminal Code). 54 Prosecutions A prosecution for an offence against this Act must not be commenced without the consent of the Director of Public Prosecutions. Part 5 Miscellaneous 55 Regulations (1) The Administrator may make regulations under this Act. Note for subsection (1) See section 65 of the Interpretation Act 1978. (2) The regulations may apply, adopt or incorporate (with or without changes) the whole or part of a document as in force or existing at a particular time or from time to time. 56 Review of Act (1) The Minister must review this Act to determine whether its purposes remain valid and whether its provisions remain appropriate for achieving those purposes. (2) The review must be undertaken as soon as possible after 5 years from the commencement of this Act. (3) A report on the outcome of the review must be tabled in the Assembly within 6 years from the commencement of this Act.

Part 6 Transitional provisions Surrogacy Act 2022 26 Part 6 Transitional provisions 57 Prior surrogacy arrangements (1) Subject to subsection (2), a parentage order may be made in relation to a surrogacy arrangement entered into before the commencement. (2) The provisions of this Act apply in relation to the surrogacy arrangement and any subsequent parentage order, subject to the following: (a) the surrogacy arrangement is not required to comply with section 14; (b) no legal advice or certificate is required to be given in accordance with sections 20 and 21; (c) no counselling is required to be given in accordance with sections 22 and 23; (d) a surrogate mother may be under 25 years of age, contrary to section 17(a), if at least 18 years of age at the time the surrogacy arrangement was entered into; (e) an intended parent may be under 25 years of age, contrary to by section 18(1)(a), if at least 18 years of age at the time the surrogacy arrangement was entered into; (f) the application for the parentage order may be made later than 180 days after the birth of the child, contrary to section 26(2)(b), if made within 2 years from the commencement or such longer period as the Local Court may allow in exceptional circumstances. (3) In this section: commencement means the commencement of section 2.

ENDNOTES Surrogacy Act 2022 27 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Surrogacy Act 2022 (Act No. 8, 2022) Assent date 26 May 2022 Commenced 21 December2022 (Gaz S66, 20 December 2022) 3 LIST OF AMENDMENTS pt 7 hdg rep No. 8, 2022, s 77 pt 7 div 1 hdg rep No. 8, 2022, s 77 ss 58 – 59 rep No. 8, 2022, s 77 pt 7 div 2 hdg rep No. 8, 2022, s 77 ss 60 – 61 rep No. 8, 2022, s 77 pt 7 div 3 hdg rep No. 8, 2022, s 77 ss 62 – 64 rep No. 8, 2022, s 77 pt 7 div 4 hdg rep No. 8, 2022, s 77 ss 65 – 66 rep No. 8, 2022, s 77 pt 7 div 5 hdg rep No. 8, 2022, s 77 ss 67 – 68 rep No. 8, 2022, s 77 pt 7 div 6 hdg rep No. 8, 2022, s 77 ss 69 – 70 rep No. 8, 2022, s 77 pt 7 div 7 hdg rep No. 8, 2022, s 77 ss 71 – 76 rep No. 8, 2022, s 77 pt 7 div 8 hdg rep No. 8, 2022, s 77 s 77 rep No. 8, 2022, s 77

1 Surrogacy Act 2022

The Act sets up a vocabulary and structure that determine eligibility, process and legal effect. Core defined terms are surrogacy arrangement, surrogate mother, intended parent, parentage order, commercial surrogacy arrangement, reasonable costs and consent (s 3). A surrogacy arrangement is an agreement where a woman’s pregnancy results in a child treated as the child of other person(s) instead of the woman, and those other persons are to assume custody (s 3). The statute distinguishes the surrogate mother, her partner, and up to two intended parents as permissible parties to an arrangement (s 16).

“Commercial surrogacy arrangement” is defined by reference to s 48(c), meaning the presence of an offer or receipt of payment, reward or other material benefit (beyond the defined allowed reasonable costs in s 12) tied to entering into the arrangement, relinquishing custody, or consenting to a parentage order (s 48). The Act therefore creates a binary regulatory distinction between non‑commercial arrangements that permit reimbursement of enumerated reasonable costs (s 12) and commercial arrangements that are criminalised (Pt 4, especially ss 48-51).

Parentage order is the statutory device that transfers parentage (s 3). The Act sets prerequisites for such an order: requirements in Part 2 Division 2 (written arrangement, certificates, timing, parties, age and residency, legal advice, counselling and a counsellor’s report) and consents or dispensation of consent (ss 14-25, 32-34). The Local Court must be satisfied that the arrangement is not commercial, the Part 2 requirements are met, residence conditions are met, consents obtained or dispensed with, and that order is in the child’s best interests (s 34).

“Reasonable costs” are boxed explicitly in s 12(2) and include medical expenses not covered by Medicare or insurance, counselling, legal costs associated with complying with the Act and court proceedings, reasonable child medical costs, out‑of‑pocket costs such as travel and childcare, lost income for medical reasons plus up to two months unpaid leave for birth, and insurance premiums for the surrogate for the period from entry into the arrangement until postnatal recovery. Only reimbursements for such costs are enforceable, and then only if the cost was incurred and not recoverable under other schemes (s 12(3)).

Other key operational concepts: counsellor qualifications and independence requirements (s 25), closed court proceedings to protect privacy (s 44), restrictions on publication and disclosure of identifying or confidential information with criminal penalties (ss 52-53), and the interface provisions that preserve the Status of Children Act 1978 unless displaced by a parentage order (s 9). The Act ties offences to mental states , intentional or reckless as specified , uses strict liability for some procedural matters (s 49(2), s 53(2)), and requires DPP consent to commence prosecutions (s 54). The Criminal Code Part IIAA applies (s 8).

These concepts structure who can lawfully transfer parentage, what payments may be made, what procedural safeguards must be undertaken, and how privacy and confidentiality are protected. They also channel enforcement through the criminal law for commercialisation and unauthorised disclosure, while using family court procedures to effect parental status changes.

The Act affects several discrete groups directly and indirectly. Primary affected private persons are surrogate mothers and their partners, intended parents (one or two), any other birth parent, and persons who might provide services or act as intermediaries in surrogacy arrangements (ss 3, 16, 48-51). Surrogate mothers and intended parents are subject to age and citizenship/residency eligibility requirements at the time of entering the arrangement: generally at least 25 years old and Australian citizens or permanent residents, with narrow exceptions under court discretion for those 18-24 (ss 17-18, 34(2)-(3), 57(2)(d)-(e)).

The Local Court is the decision maker for parentage orders, consent dispensations, revocation proceedings and procedural controls including closed hearings and records access (ss 26, 32-34, 40-45, 47). Court registrars and the Registrar of Births, Deaths and Marriages are operationally implicated, because orders must be sent to the Registrar with prescribed information (s 46). Counsellors and legal practitioners are regulated by qualification and independence requirements; counsellors must be members or eligible for membership of the Australian and New Zealand Infertility Counsellors Association or hold prescribed qualifications and must be independent of fertility services providers (s 25). Legal practitioners providing advice must be independent of fertility service businesses, and intended parents must be advised by a different practitioner to the one advising the surrogate (s 20(3)-(4)).

Fertility services providers are indirectly affected by prohibitions on providing fertility services for commercial surrogacy (s 51) and independence requirements for counsellors and lawyers, which prevent fertility clinics from supplying or controlling the counselling and legal advice that the Act requires (ss 20(3), 22(3), 24(5), 25(2)). Persons or businesses that introduce, arrange, negotiate or otherwise assist others to enter surrogacy arrangements for payment are criminalised (s 49), while those who advertise commercial surrogacy activity are also criminalised (s 50).

Government actors are named: the Attorney‑General may apply to revoke a parentage order (s 40(1)(e)); the Director of Public Prosecutions must consent to prosecutions under the Act (s 54); regulations may be made by the Administrator (s 55); and the Minister must review the Act within specified timeframes (s 56). The Criminal Code Part IIAA governs general criminal responsibility for offences under the Act (s 8).

Finally, children born under surrogacy arrangements are affected: a parentage order transfers parentage and legal relationships to intended parents and severs them with birth parents from the date of the order (ss 37-38). Records and disclosure rules limit public identification of these children and of parties to proceedings (ss 44, 47, 52-53). Transitional provisions also affect persons with pre‑existing surrogacy arrangements by relaxing some new formal requirements for a limited period (s 57).

The Act creates procedural duties and substantive rights for parties, professionals and public officials. Paramount among substantive duties is the Local Court’s statutory obligation to consider the best interests of the child as the paramount consideration in administering the Act (s 5). Administrators and bodies operating the Act must exercise powers to give effect to the best interests principle and the guiding principles that a woman should make a free and informed decision, parties should be protected from exploitation, and surrogate mothers should not be financially disadvantaged by involvement (ss 5-7).

Duties on parties are procedural and documentary. A surrogacy arrangement must be in writing and include certificates of legal advice and counselling (s 14). The arrangement must be entered into before the surrogate mother becomes pregnant (s 15). Parties must obtain legal advice from independent practitioners on specified matters and receive a legal certificate from the advising practitioner (ss 20-21). Each party must undertake counselling before entering, with a counsellor’s certificate attached (ss 22-22(3)). After birth and before consenting to the parentage order, parties must undertake counselling (s 23), and the court requires a counsellor’s report based on interviews after birth and before application (s 24). Counsellors must meet qualification and independence standards and follow professional guidelines (s 25).

Intended parents have duties relating to timing and residence: an application for a parentage order must be made no earlier than 30 days and no later than 180 days after birth, except in exceptional circumstances (s 26). The child must reside with at least one intended parent at the time of both application and making the order (s 27). Each applicant must reside in the Territory at time of hearing, subject to exceptional dispensation (s 33). Where there are two intended parents, both must generally apply jointly unless specific conditions obtain (s 26(3)).

Rights include the surrogate mother’s right to manage her pregnancy and birth as any pregnant woman (s 10). A parentage order confers legal parentage on intended parents and removes it from birth parents from the date of the order, with concomitant rights and liabilities transferred (s 37). A person who is affected by court proceedings has restricted but conditional rights of access to the record of proceedings; the court may permit access to parties, the child, the Attorney‑General, or others as listed (s 47).

Legal and counselling professionals have duties to be independent of fertility providers and to record qualifications and that required advice or counselling was given on certificates or in reports (ss 20-25). Trustees and personal representatives may act on appearances unless they have notice of a claim based on parentage orders (s 38).

Criminal duties are enforced through prohibitions: no person may enter into, assist in, advertise, or provide fertility services for commercial surrogacy arrangements as defined, with specified mental elements and penalties (ss 48-51). Persons who handle confidential administrative information have duties to avoid unauthorised disclosure, with higher penalties where reckless and unauthorised disclosures occur (s 53).

Collectively, these duties allocate decision rights to the parties for private arrangements but place documentary, counselling, legal and court gatekeeping obligations on them and on professionals, while reserving enforcement of commercial restrictions to the criminal law and to prosecutorial discretion.

The Act creates several criminal offences with specified maximum penalties and mental elements, and it channels prosecutions through prosecutorial consent. Major offences carry a maximum penalty of 100 penalty units or 12 months imprisonment; the unauthorised disclosure offence under s 53 carries a higher maximum penalty of 200 penalty units or 2 years imprisonment (ss 48-53). Prosecutions require the consent of the Director of Public Prosecutions (s 54), which centralises charging discretion and creates a procedural gate for enforcement.

Offences and mental elements:

Offering or making a commercial surrogacy arrangement is an intentional offence requiring knowledge that the arrangement is a surrogacy and includes material benefit tied to entering, relinquishing custody or consenting to a parentage order (s 48). Maximum penalty: 100 penalty units or 12 months imprisonment.
Assisting or offering assistance for another person to enter a surrogacy arrangement for payment is an offence when conducted intentionally for payment, except for legal practitioners representing clients (s 49). Strict liability applies to two elements: whether the assistant is a legal practitioner and whether the assistant asks for or receives payment (s 49(2)). Maximum penalty: 100 penalty units or 12 months imprisonment.
Advertising commercial surrogacy is an offence where a person intentionally publishes information that purports to procure or implies willingness to enter commercial arrangements, with recklessness as to the circumstances (s 50). Maximum penalty: 100 penalty units or 12 months imprisonment.
Providing fertility services for commercial surrogacy is an intentional offence where a person provides or offers fertility services to a party to or prospective party to a commercial surrogacy arrangement with knowledge of those circumstances (s 51). Maximum penalty: 100 penalty units or 12 months imprisonment.
Publishing identifying information about a child, parties, or persons involved in surrogacy proceedings, with recklessness about likely identification, is an offence (s 52). Defence available if written consent obtained from the identified person or a person with parental responsibility if under 18. Maximum penalty: 100 penalty units or 12 months imprisonment.
Disclosing confidential information obtained through performing functions under the Act is an offence if disclosure is reckless and not for administration purposes or to entitled persons, with a maximum penalty of 200 penalty units or 2 years imprisonment. Strict liability applies to whether the information was obtained in the course of doing that function (s 53).

The Criminal Code Part IIAA applies to offences against this Act (s 8), meaning established Code principles govern matters such as intention, recklessness and defences. The requirement for DPP consent to prosecute (s 54) creates a public law control over private prosecutions and potentially reduces ad hoc enforcement.

Enforcement is also non‑criminal for certain civil‑administrative elements. The Local Court controls making and revoking parentage orders, including dispensing with consent in narrow circumstances if in the child’s best interests (ss 32-34, 40-41). Closed proceedings and record access restrictions (ss 44, 47) limit public scrutiny but also delimit who can seek remedies. The Registrar of Births, Deaths and Marriages receives notice of parentage orders and must be provided additional identity information where known (s 46), enabling registry and administrative follow‑through.

Procedural risks and compliance incentives arise from the mix of criminal sanctions and civil court controls. The criminal penalties are aimed primarily at intermediaries, commercial conduct and unauthorised disclosure, while parentage rights and revocation are litigated in the Local Court. The requirement for DPP consent centralises charging discretion, and the Local Court has broad discretion to dispense with consents or residency in exceptional circumstances, subject to a best interests test (ss 32-34, 33). These features define enforcement pathways and who decides whether statutory violations will be pursued.

The Act explicitly cross‑references and interacts with several existing statutes and legal instruments. Section 8 brings offences under this Act within the scope of Part IIAA of the Criminal Code, so general principles of criminal responsibility, defences and burden of proof in the Criminal Code apply to prosecutions under the Surrogacy Act (s 8 and note). The Act preserves the effect of the Status of Children Act 1978 on parentage unless a Local Court parentage order provides otherwise (s 9), meaning the statutory parentage regime continues to operate in parallel except where displaced by an order made under this Act.

The Act references federal family law contexts indirectly. Section 20(2)(c) requires legal advice include the legal implications if a surrogate mother does not relinquish the child, including whether child support would be payable by the child's biological father under the Child Support (Assessment) Act 1989 (Cth). That signals an intended interface between this territorial regime and Commonwealth child support obligations, but the Act itself does not modify Commonwealth law; it only requires parties be advised about certain Commonwealth consequences.

Registry and name change interactions are explicit. Section 36 permits names specified in a parentage order but confirms that names can later be changed under the Births, Deaths and Marriages Registration Act 1996 or other applicable law, and section 46 requires the Local Court registrar to give the Registrar of Births, Deaths and Marriages a copy of parentage and revocation orders and an attached notice with identity of any donor where known and other prescribed information (s 36, s 46). Thus the Act establishes a procedural flow to the territorial registration system.

Confidentiality and sexual offence rules interact with other statutes. Section 39 defines for the purpose of laws relating to sexual offences that familial relationships pre and post parentage order are both taken into account; it references the Sexual Offences (Evidence and Procedure) Act 1983 for the defined term sexual offence (s 39). The disclosure offences and evidential burden notes explicitly reference the Criminal Code provisions on evidential burdens and justified or excused disclosure (ss 52-53 notes, referencing sections 43BE and 43BU of the Criminal Code in the notes).

Regulation‑making power allows the Administrator to adopt or incorporate other documents and to prescribe counsellor qualifications and additional regulated matters (s 55). The Act requires compliance with the Interpretation Act 1978 for definitions and effect (s 3 note), and the counsel and practitioner independence rules refer to professional guidelines in effect from bodies such as the Australian and New Zealand Infertility Counsellors Association and the National Health and Medical Research Council (s 25).

Transitional provisions require specific interactions with prior arrangements: parentage orders may be made for pre‑commencement arrangements, but sections 14, 20-23, the age minima and time limits are relaxed as specified for transitional arrangements (s 57). This creates an overlap window where historical contractual forms interact with new statutory standards.

Overall, the Act operates as a specialised territorial overlay that interacts with criminal law principles under the Criminal Code, with Commonwealth child support law as a consequential consideration for legal advice, and with registry and sexual offence frameworks in existing territorial statutes.

The printed statute includes an endnote listing legislative metadata including assent and commencement dates and a list of amendments as recorded in the endnotes (Endnotes 2-3). The Act received assent on 26 May 2022 and commenced 21 December 2022 (Endnote 2). The endnotes include a list of internal heading repeals and renumberings referencing No. 8, 2022, s 77 (Endnote 3), recording that various part and division headings and sections 58-76 were repealed or adjusted; the endnote shows a history of textual revisions to parts and divisions but does not indicate substantive amendments to the principal operational provisions as printed in the body text. The endnotes are explicit that certain headings and sections were repealed or renumbered; however the body supplied appears current as at 21 December 2022.

Substantive amendment mechanisms are available through the regulations power in s 55. The Administrator may make regulations and may adopt or incorporate documents by regulation (s 55(1)-(2)), which provides administrative flexibility to calibrate professional qualifications and procedural details (for example, counsellor qualifications or particulars to be prescribed under s 46(2)). The Act also mandates a statutory review by the Minister as soon as possible after five years from commencement, with a report to be tabled within six years (s 56). That review clause creates a scheduled legislative checkpoint for reconsideration of the Act’s purposes and provisions.

Transitional provisions (s 57) function as a form of limited retroactive accommodation for pre‑commencement arrangements, modifying compliance requirements for a time. For instance, prior arrangements need not comply with written form or legal advice and counselling certificates (s 57(2)(a)-(c)), and age minima and application time limits are relaxed for pre‑commencement situations (s 57(2)(d)-(f)). Those transitional allowances are a built‑in mechanism to reduce immediate disruption to existing private arrangements when the regime commenced.

The Act does not within its text include a schedule of delegated amendment powers beyond s 55, nor does it record any later Acts amending its text beyond the endnotes’ references to No. 8, 2022 s 77 adjustments to internal headings. For practitioners advising clients or regulators, the statutory review timetable and the regulation power are the mechanisms by which future substantive or technical amendments are most likely to be introduced.

The Act’s text contains no court decisions or judicial interpretations. The statute references court processes (Local Court and Supreme Court appeals by way of rehearing in certain circumstances, ss 43-45), but as enacted it has no recorded litigation history within the provided material. Section 45 contains a specific bar: parentage orders may not be appealed, though decisions refusing to make a parentage order or decisions on revocation may be appealed to the Supreme Court by specified persons, by way of rehearing (s 45(1)-(3)). That procedural design characterises which decisions are subject to appellate review and which are not.

Where litigation may arise based on the Act, the likely loci will be Local Court proceedings for the making and revocation of parentage orders, and appeals to the Supreme Court concerning refusals to make orders or decisions about revocation (s 45). The Act also contemplates criminal prosecutions for commercial surrogacy offences and disclosure offences, which require DPP consent (s 54), but no prosecutions are recorded in the text provided.

Practitioners should note the statutory architecture for judicial control: the Local Court has dispositive powers on parentage and revocation and broad discretion to dispense with consents and residency requirements in specified circumstances where that is in the best interests of the child (ss 32-34, 41). The non‑appealability of a parentage order itself (s 45(1)) places emphasis on initial procedure and the possibility of revocation under s 41 where errors or wrongful procured orders are alleged. Section 40 lists who may apply for revocation and the grounds available, connecting civil relief to issues such as fraud or consent induced by payment.

Because the Act is recent as of the printed date and no cases are named in the statute, there is no primary judicial interpretation to cite from the provided material. The statutory language establishes the procedural avenues and limitations that will structure any future litigation: closed proceedings (s 44), restricted access to records (s 47), and the availability of representation for the child at court discretion (s 29). These are the contexts in which litigation will occur, but the Act itself does not record outcomes or precedent.

Several specific compliance pitfalls and operational risks arise directly from the text. First, the strict documentary and timing requirements for parentage orders create procedural traps: the surrogacy arrangement must be in writing, include legal and counselling certificates, and be entered into before pregnancy (ss 14-15, 21-22). Missing any of those certificates or failing to meet the pre‑pregnancy timing can defeat eligibility for a parentage order, unless narrow transitional or exceptional court dispensations apply (s 57, s 34(2)-(3)). The Local Court may dispense with certain requirements only in limited circumstances and must be satisfied consents can be dispensed with and the order is in the child’s best interests (ss 32-34).

Second, the Act draws a fine line between permissible reimbursement of “reasonable costs” and prohibited commercialisation. Section 12 enumerates what qualifies as reasonable costs, including precise categories such as medical costs not recoverable under Medicare, counselling and legal costs, out‑of‑pocket expenses, income lost for medical reasons plus up to two months unpaid leave, and insurance premiums. Payments that fall outside those bounds, or payments that are for agreeing to enter into an arrangement or to relinquish custody, convert a non‑commercial arrangement into a criminalised commercial arrangement under s 48. Parties and advisers must document costs carefully and ensure reimbursements are for the enumerated categories and are not structured as rewards or benefits in exchange for agreement or relinquishment.

Third, independence requirements are strict and will affect service delivery models. Legal advice must be provided by a practitioner independent of fertility services (s 20(3)), and intended parents must receive advice from a different lawyer than the surrogate (s 20(4)). Counsellors must be independent of fertility service businesses and in many cases must not have previously counselled the parties for the Local Court report (s 24(5), s 25(2)). Fertility clinics that currently bundle counselling and legal facilitation will need to adapt operations to avoid being in breach of the independence rules and related criminal prohibitions on assisting for material reward (ss 20, 22, 24, 25, 49-51).

Fourth, confidentiality and disclosure rules carry criminal exposure. Publication of identifying information about children, parties or proceedings is an offence unless consented to in writing (s 52). Administrative officers who obtain confidential information in the course of administering the Act face an offence for reckless disclosure unless the disclosure is for administration purposes or to entitled persons (s 53). Strict liability applies to whether the information was obtained in performing a function under the Act (s 53(2)), which raises a documentation imperative for public officers.

Fifth, jurisdictional and residency requirements may be less flexible than parties expect. Parentage orders require that at least one intended parent be living with the child at application and at the hearing and that each applicant reside in the Territory at the time of the hearing unless the Local Court dispenses with residency in exceptional circumstances (ss 27, 33). International or interstate intended parents should plan for the residency and timing constraints if they expect to seek a Territorial parentage order.

Finally, parentage orders are generally final and cannot be appealed (s 45(1)), creating high stakes for initial applications. Revocation is possible but subject to strict grounds including fraud, consent given in return for material benefit, or exceptional circumstances, and revocation itself requires satisfaction that the revocation is in the child’s best interests (ss 40-41). Practitioners should plan for evidentiary care at the outset, robust documentation of consents, legal advice and counselling, and careful structuring of reimbursements.

Practical compliance requires attention to documentary, procedural and substantive obligations in the Act, and to the distinct roles and responsibilities of parties and professionals.

Before entering a surrogacy arrangement:

Ensure the surrogate mother and intended parent(s) meet age and residency/citizenship eligibility (s 17, s 18). If any party is under 25 but over 18, obtain a counsellor’s certificate certifying exceptional circumstances or sufficient maturity as appropriate, and anticipate a Local Court discretionary assessment (ss 22(4)(f)-(g), 34(2)-(3)).
Ensure the arrangement is drafted in writing and will be entered into before the surrogate becomes pregnant (ss 14-15). Include attachments for certificates under ss 21 and 22(3).
Arrange independent legal advice for each party, provided by legal practitioners independent of fertility service businesses, and ensure intended parents receive advice from a different practitioner to the surrogate (ss 20(1), 20(3)-(4)). Secure a legal certificate from each advising practitioner that confirms advice on the matters listed in s 20(2) and the recipient’s understanding (s 21).

Counselling and counsellor services:

Each party must undertake pre‑entry counselling and receive a counsellor’s certificate that includes qualifications, independence and confirmation that required matters were covered (s 22(1)-(4)). Post‑birth counselling for surrogate, her partner and any other birth parent is required before consenting to the parentage order (s 23).
For the Local Court report, arrange interviews by a counsellor who has not previously counselled the parties and who meets qualification and independence rules, and prepare a report stating the counsellor’s opinion on the child’s best interests and other optional matters listed in s 24 (s 24(1)-(5), s 25).

Financial arrangements:

Reimburse only “reasonable costs” as defined in s 12(2). Document each cost, confirm it was incurred and that it is not recoverable under Medicare, private insurance or other schemes to preserve enforceability (s 12(3)). Avoid any payments that could be characterised as a reward or material benefit in return for entering, relinquishing custody, or consenting to a parentage order.

Court application and residence requirements:

File an application for a parentage order no earlier than 30 days and no later than 180 days after birth, unless exceptional circumstances justify a later application (s 26(2)). Ensure the child resides with at least one intended parent at the time of application and at the time the order would be made (s 27).
Serve notice of application on every other party to the surrogacy arrangement and any birth parent not party to the arrangement (s 26(5)). Ensure each applicant resides in the Territory at hearing time or be prepared to demonstrate exceptional circumstances for dispensation (s 33).

Privacy, records and disclosures:

Do not publish identifying information about children or parties involved in arrangements or proceedings unless written consent exists (s 52). For public officers and those performing functions under the Act, avoid unauthorised disclosure of confidential information and document lawful purposes for any internal disclosures (s 53).
Expect the Local Court registrar to forward parentage and revocation orders to the Registrar of Births, Deaths and Marriages along with prescribed notices; be prepared to provide identity of any known donor and other prescribed information (s 46).

Professional compliance:

Counsellors must be members or eligible for membership of the Australian and New Zealand Infertility Counsellors Association or otherwise have prescribed qualifications; they must follow relevant ANZICA and NHMRC guidelines for surrogacy counselling (s 25).
Legal practitioners advising parties must be independent of fertility service providers and must prepare and deliver certificates of advice (ss 20-21).

Responding to disputes and revocations:

If concerns arise post‑order, be aware of revocation grounds (fraud, consent not freely given, consent obtained for material benefit, or exceptional circumstances) and that the Local Court will revoke only if revocation is in the child’s best interests (ss 40-41). Appellate routes are limited; parentage orders themselves cannot be appealed (s 45).

Transitional cases:

For surrogacy arrangements entered into before commencement, understand that some formalities are relaxed under s 57, but applications must still follow the Public Law pathway. Transitional flexibility includes relaxed requirements on written form, legal advice and counselling certificates, age minima for under‑25 participants if at least 18 at the time, and extended timelines for application up to two years or longer by court order in exceptional circumstances (s 57).

Risk management:

Keep contemporaneous records of all legal advice, counselling certificates, itemised reasonable costs and proof of non‑recoverability under public or private schemes. Ensure fertility clinics, legal advisers and counsellors operate with separation of duties to satisfy independence requirements and reduce risk of being captured by the Act’s prohibitions on assisting for payment or offering fertility services for commercial arrangements (ss 20-25, 49-51).

Complying with the Act therefore requires coordinated steps: independent legal advice with certificates, certified counselling and a post‑birth counsellor’s report, written arrangements entered before conception, accurate and defensible cost reimbursement records, and adherence to residency and timing constraints for court applications. Failure to meet these procedural and documentary obligations risks denial of a parentage order, exposure to criminal penalties for commercial conduct or unauthorised assistance, and privacy breaches under ss 52-53.

Surrogacy Act 2022

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Current sections

Surrogacy Act 2022

Source text: opening excerpt

1 Surrogacy Act 2022

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Who it affects

Key duties and rights

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How it interacts with other laws

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