Surrogacy Lawyers

Surrogacy is the arrangement between a couple or an individual (the intended parent/s) and a woman (the surrogate mother) in which the surrogate mother agrees to become pregnant and surrender the custody and rights to the child born as a result of a Lawful Surrogacy Agreement to the intended parents. For surrogacy agreements to be legal, they must meet specific conditions set out in the Surrogacy Act 2019 (SA). Entering into a Lawful Surrogacy Agreement and understanding your obligations can be a confusing and emotional time. At Culshaw Bishop Lawyers, our surrogacy lawyers are here to guide you through this process.

How our surrogacy lawyers can help you

• Culshaw Bishop have acted for intended parents, and surrogate mothers, with respect to altruistic surrogacy agreements. 
• At our initial meeting, our surrogacy lawyer  will discuss the legal process involved, your rights and your obligations, and your desired outcomes – whether you are an intended parent, or a potential  surrogate mother, it is important that you have not started the fertilisation process until you have sought legal advice and have a Lawful Surrogacy Agreement in place.
• Our surrogacy lawyers  work together with you, your fertilisation clinic, your chosen counsellors, and your doctors to assist you achieve your goal.
• If you are the intended parent/s, we work with your surrogate’s lawyer, to ensure a seamless process. Likewise if you are the surrogate mother.
• Our surrogacy lawyers have experiencing drafting Lawful Surrogacy Agreements and are able to provide you with the requisite written legal advice and Lawyer’s Certificate.
• Following the birth of a child, we will prepare the Youth Court Application for Parentage Orders, including all Court required forms, affidavits and oral submissions.
• We will attend at the Youth Court of South Australia before a Senior Judge and make oral submissions in respect to the proposed Parentage Orders and the request to amend the child’s birth certificate.

Our surrogacy legal fees

• We charge a fixed fee for Part 1: if you are the intended parent/s, we will attend to drafting the Lawful Surrogacy Agreement, providing written legal advice, providing the Lawyer’s Certificate, all attendances on you, and all communications with third parties (such as counsellors and lawyers).
• Likewise, if you are the surrogate mother, we charge a fixed fee for reviewing the Lawful Surrogacy Agreement, ensuring your rights are accounted for, and providing the requisite written legal advice and Lawyer’s Certificate. 
• Following the birth of a child born as a result of the Recognised Surrogacy Agreement, we charge a fixed fee for Part 2: preparing all legal documents for the Application to the Youth Court, and attendance at the Youth Court to make submissions in respect to Parentage Orders.

How do you do surrogacy in South Australia?

South Australian law permits altruistic surrogacy. Commercial surrogacy arrangements, where the surrogate mother is paid or compensated for her services, are prohibited in South Australia.

The overarching requirement for an altruistic surrogacy agreement to be lawful is that the surrogate mother does not receive any financial compensation, other than for “reasonable” expenses such as medical, psychology, and legal. Such reasonable expenses are found in the Legislation and the supporting Regulations.

The Surrogacy Act 2019 (SA) permits married couples, de facto couples, same sex couples and single persons to be intended parents.

Culshaw Bishop Lawyers prepare and advise in respect to altruistic surrogacy arrangements in a two-step process: pre-birth legal services and post-birth legal services.

Lawful Surrogacy Agreements

For a surrogacy agreement to be legal, it must meet specific conditions set out in the Surrogacy Act 2019. 

Step 1

In South Australia, those legislative requirements include the following (this list is non-exhaustive and should not be wholly relied upon):

• The surrogate mother and the intended parent/s must be at least 25 years of age;
• The surrogate mother and the intended parent/s must be Australian citizens or permanent residents of Australia;
• The intended parent/s must have a social or medical need for surrogacy. This includes infertility, same-sex relationships where a pregnancy is simply not an option, medical issues preventing conception or pregnancy in the female intended parent, or a risk of serious genetic defect or illness.
• All parties must undergo counselling with an appropriately qualified counsellor prior to commencing IVF treatment.
• All parties must, prior to commencing the fertilisation process, have obtained written legal advice as to the effects of the Lawful Surrogacy Agreement.
• The Lawful Surrogacy Agreement must be written, and must state that the agreement is altruistic and that the surrogate mother’s reasonable expenses will be paid.
• The Lawful Surrogacy Agreement must be signed by all parties, and include lawyer’s declarations (for both the intended parent/s and the surrogate mother) that the relevant advice has been provided.

Step 2

Not less than 30 days, but no more than 12 months following the birth of a child, an application must be made to the Youth Court of South Australia seeking Parentage Orders (not to be confused with Family Court Parenting Orders).

Subject to the legislative requirements being fulfilled and consent of all the parties to the Lawful Surrogacy Agreement, the Youth Court will make an Order directing the department of Births, Deaths, and Marriages to issue a new birth certificate recording the intended parent/s as the lawful parent/s of the child. The overarching consideration of the Youth Court is to ensure that in making the parentage order, the best interests of the child are being satisfied. In doing so, the Youth Court must also take into consideration whether the intended parent/s are fit and proper persons to assume the role of parents of the child.

Culshaw Bishop Lawyers have extensive experience in preparing Lawful Surrogacy Agreements, preparing Youth Court Parentage Applications, and appearances in the Youth Court. Please contact Kate Bishop to discuss your surrogacy matter.

Please note that Culshaw Bishop Lawyers do not assist in the preparation of Commercial Surrogacy Agreements, whether overseas or within the jurisdiction of Australia.