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