South Australia surrogacy agreements: are they unlawful?

Under South Australia's Surrogacy Act 2019, an interstate couple using a South Australian surrogate is, on the face of it, entering into an unlawful surrogacy agreement — even though no offence has been committed. In this episode of the Australian Family and Fertility Law Podcast, Multi-Award Winning Surrogacy & Fertility Lawyer Stephen Page unpacks a little-known gap in South Australian law that catches out interstate intended parents.

Stephen explains that South Australia's Surrogacy Act recognises only two categories of valid surrogacy agreement: South Australian altruistic agreements, and interstate arrangements made under "prescribed laws." The problem is that those prescribed laws were never actually written — meaning any interstate surrogacy arrangement involving a South Australian surrogate falls outside the law's protection. Stephen shares what happened when he raised this with the South Australian Attorney-General expecting it to be corrected as an oversight, and the surprising answer he received.

In This Episode:

• Why South Australia treats "surrogacy agreements" differently from every other state's "surrogacy arrangements"
• What makes a surrogacy agreement "lawful" under South Australia's Surrogacy Act 2019
• Why the "prescribed laws" for interstate agreements don't actually exist
• What happens, legally, when a South Australian surrogate carries for interstate intended parents
• Why the South Australian government confirmed this gap was a deliberate policy decision, not an oversight
• Why intended parents, surrogates, and their partners all need tailored legal advice before entering a cross-border arrangement involving South Australia

If you're considering surrogacy involving South Australia and an interstate intended parent, get advice tailored to your situation before you proceed. Visit https://pageprovan.com.au/ to speak with our team.

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