1. Legal Framework: Surrogacy Act 2012 (Tasmania)
Tasmania’s regulatory regime is established under the Surrogacy Act 2012, which provides for legally recognised surrogacy arrangements. Key elements include:
- Altruistic surrogacy only: Commercial surrogacy is prohibited. Only reasonable expenses may be reimbursed to the surrogate.
- Gestational surrogacy required: Traditional surrogacy (using the surrogate’s own egg) is not permitted.
- Residency and eligibility:
- Intended parents and surrogates must be residents of Tasmania.
- Surrogates must be at least 25 years old and have given birth to a live child.
Principles of the Act
The Act emphasises that:
- The best interests of the child are paramount; the welfare and rights of the child throughout their life take priority.
- Openness and honesty about birth parentage should be promoted.
- Child protection is consistent regardless of genetic relationship, conception method, or intended parents’ relationship status.
2. Surrogacy Process in Practice
Two-Stage Process:
- Stage 1: Pre-Pregnancy to 30 Days Post-Birth
- A written surrogacy agreement must be in place before pregnancy begins.
- Though the Act allows oral agreements initially, a written agreement is mandatory to proceed.
- Stage 2: 30 Days to 6 Months Post-Birth
- Intended parents can apply to the Magistrates Court (Children’s Division) for a parentage order, which makes them the legal parents of the child. Without this court order—and the underlying written agreement—the intended parents are not legally recognised.
3. State and Federal Coordination
Under federal law (Family Law Act), surrogacy parentage orders made under Tasmanian law are recognised across Australia. Recent regulations ensure that both current and pre-2012 (prior legislation) parentage orders are valid under national family law.
4. Summary Table
| Aspect | Tasmanian Law |
|---|---|
| Surrogacy Type | Altruistic only; no commercial surrogacy |
| Surrogate Requirements | ≥25 years old, must have birthed a live child, Tasmanian resident |
| Written Agreement | Mandatory before pregnancy; required to seek parentage order |
| Parentage Order | Made by Magistrates Court (Children’s Division) post-birth |
| Principles | Child’s best interests, openness, equity regardless of genetics or family type |
| Federal Recognition | Surrogacy orders under Tasmanian law are validated under Family Law across Australia. |
5. Why It Matters
- Protection for children: By prioritising the child’s welfare and legal clarity from birth.
- Safeguarding surrogates: Ensuring informed consent and discouraging coercion or commercial deals.
- Legal certainty for parents: Ensuring intended parents are recognised and the child’s records reflect parentage.
Reference:
https://www.legislation.tas.gov.au/view/whole/html/asmade/act-2012-034