All surrogacy arrangements in Victoria must be altruistic, that is, the surrogate cannot be paid to act as a surrogate. Commercial surrogacy is prohibited in Victoria.
In Australia each State has its own law in relation to surrogacy so it is important that you are aware of, and receive advice in relation to, the relevant laws in the state in which you are planning on undertaking your surrogacy arrangement.
In Victoria the steps that should be followed when embarking on your surrogacy journey are:
The initial consultation. Anyone considering surrogacy should consult with a suitable medical practitioner who can provide specialist information on surrogacy in Victoria.
Finding the surrogate. There is a prohibition in Australia on publishing an advertisement or notice, or attempting to publicly seek a surrogate. It is important to reiterate that you are not permitted to pay the surrogate any more than certain “prescribed costs” incurred as a direct result of the surrogacy and it would be a good idea to seek legal advice as to what constitutes “prescribed costs”. It is also very important to have detailed discussions with the surrogate (and her partner, if any) of the full implications of her involvement.
Medical assessments – Your fertility specialist will undertake medical assessments of both the commissioning parent(s) and the surrogate. This is satisfy the eligibility requirements for surrogacy. Initial blood tests will be taken from all parties to check for infection, including Hepatitis and HIV.
Register – The commissioning parent(s), together with their surrogate will need to be registered with an Assisted Reproductive Treatment clinic.
Counselling – Counselling and an independent psychological assessment of all parties to the surrogacy need to be undertaken prior to the surrogacy commencing. During the counselling process many of the advantages and disadvantages (including health risks) of surrogacy will be discussed with all parties.
Legal advice – All surrogacy arrangements in Victoria must be approved by the Patient Review Panel. When considering whether to approve a surrogacy arrangement, in addition to various other factors, the Panel mustbe satisfied that all parties have received counselling and legal advice and that all parties are aware of and understand the personal and legal consequences of the arrangement.
In addition to the legal advice you are required to obtain, there are various other legal issues which require important consideration.
For these reasons, it is very important that you obtain legal advice from the outset, and throughout the surrogacy process so that when it comes time to obtain approval from the Patient Review Panel, you can easily satisfy that you have received legal advice and that you understand fully the legal consequences of the surrogacy arrangement.
Nicholes Family Lawyers have several experts in surrogacy arrangements and can provide the necessary legal advice for a surrogacy arrangement, whether that arrangement takes place in Victoria or elsewhere. Please do not hesitate to contact us on 9670 4122 if we can be of assistance in this regard.