Is Surrogacy Legal in South Australia?

Yes – but only if the agreement satisfies every requirement in Part 3 of the Surrogacy Act 2019 (SA). An agreement that does not comply is “void and of no effect” (s9) and any commercial arrangement attracts criminal penalties (s 23).

Who can Enter a Lawful Surrogacy Agreement?

Section 10 sets outstrict eligibility rules:

Surrogate mother – must be at least 25 years of age, an Australian citizen or permanent resident, not pregnant when the agreement is signed and must have completed accredited counselling (s 10(3)).

Intended parent(s) – single people, de-facto partners or married couples may apply (s 10(2)(b)). Each intended parent must also be at least 25, an Australian citizen or permanent resident and, in most cases, able to show a medical or social need for surrogacy (s 10(4)(f)).

At least one intended parent must be domiciled in South Australia (s 10(4)(d)).

Key steps before signing

Independent legal advice – every party must obtain their own legal advice and a lawyer’s certificate must be attached to the agreement (s 10(5)(b)).

Comprehensive counselling – accredited counselling is compulsory for the surrogate and each intended parent (s 14).

Police checks – each party must provide a criminal-history report obtained within the preceding 12 months (s 10(3)(f) & s 10(4)(g)).

Written agreement – the agreement must be in writing, cover payment of reasonable surrogacy costs and specify the Court orders the intended parents plan to seek (s 10(5)). Surrogacy Act 2019(SA)

Payments and expenses – what is allowed?

Section 11 prohibits any payment other than reasonable surrogacy costs – for example:

• medical, counselling and legal expenses
• genuine out-of-pocket costs
• loss of income where permitted by regulation.

Any term that goes beyond these limits is void. Paying or receiving a fee to “broker” a surrogacy arrangement is a criminal offence (s 24–26). Surrogacy Act 2019 (SA) SurrogacyAct 2019 (SA)

Protecting the Surrogate’s Rights

Even after the agreement is signed, the surrogate mother retains full control over her pregnancy and medical decisions (s 16–17). A clause that tries to override this right has no legal effect. Surrogacy Act 2019 (SA) Surrogacy Act 2019 (SA)

Transferring Parentage – the Court’s Role

After the birth, the intended parents must apply to the Youth Court of South Australia for a parentage order (s 18). The application must be lodged:

• Not earlier than 30 days and not later than 12 months after the birth, unless exceptional circumstances exist (s 18(2)). Surrogacy Act 2019 (SA) Surrogacy Act 2019 (SA)

Once the Court is satisfied that the agreement was lawful and the order is in the child’s best interests (s 6), it can declare that the intended parents are the child’s legal parents and direct Births, Deaths and Marriages to issue a new birth certificate (s 18(1)(a) & s 21). Surrogacy Act 2019 (SA) Surrogacy Act 2019 (SA)

National Recognition of Parentage

Section 60HB of the Family Law Act 1975 (Cth) ensures that a child born under a valid State surrogacy order is treated, for all federal law purposes, as the child of the person or couple named in that order Surrogacy Act 2019 (SA) Surrogacy Act 2019 (SA). This means:

• ‍Parental responsibility under Part VII of the FLA automatically vests in the intended parents
• Parenting orders, child support assessments and inheritance rights follow accordingly throughout Australia.

Married, De-Facto or Single – Does it Matter?

Couples who are legally married can enter a lawful surrogacy agreement just as de-facto partners or single intended parents can. The key federal definition of marriage is found in s 5 of the Marriage Act 1961 (Cth), which now includes unions irrespective of gender. What matters for South Australian surrogacy is meeting the State eligibility criteria and obtaining the parentage order.

Interstate or Overseas Arrangements

If you are contemplating treatment interstate or offshore, remember:

• A South Australian resident who enters a commercial surrogacy arrangement overseas may commit an offence under s 23.
• A child born overseas will not benefit from s 60HB unless an equivalent order is recognised in Australia. Extra steps – sometimes adoption – may be required.

Specialist legal advice is vital before signing any cross-border agreement.

Offences to Avoid

The Act creates several criminal offences, including:

Commercial surrogacy (s 23)

Arranging or inducing an unlawful agreement (s 24–25)

Advertising surrogacy services for payment (s 26). Family Law Act 1975 - V…Surrogacy Act 2019 (SA)

Penalties run to hefty fines and possible imprisonment, so strict compliance is essential.

Why Engage a Family-Law Solicitor?

Drafting an agreement that satisfies every statutory detail

Advising on counselling, medical and financial disclosure requirements

Preparing and filing the parentage-order application

Liaising with IVF clinics, counsellors and the YouthCourt

Ensuring national recognition of your parental status.

Stanley & Co Lawyers combine deep knowledge of family law with practical experience guiding both intended parents and surrogates through this life-changing journey.