Eligibility for treatment
1. The Infertility Treatment Act should set out the following principles to guide the administration of the Act and the carrying out of activities regulated by the Act:
• The welfare and interests of children to be born as a result of the use of assisted reproductive technologies are paramount.
• At no time should the use of reproductive technologies be for the purpose of exploiting (in trade or otherwise) either the reproductive capabilities of men and women or the children born as a result of the use of such technologies.
• All children born as a result of the use of donated gametes have a right to information about their genetic parents.
• The health and wellbeing of people undergoing treatment procedures must be protected at all times.
• People seeking to undergo assisted reproductive procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion.
Clinical ethics committees
2. It should be a condition of licence that each licensed clinic establish a clinical ethics committee for the purpose of considering cases where there is a concern that a prospective child will be at risk of abuse or neglect.
3. If, before a woman undergoes treatment, a doctor or counsellor believes that any child that might be born as a result of a treatment procedure may be at risk of abuse or neglect, he or she should seek advice about whether or not to proceed with treatment from the clinical ethics committee operating within the licensed clinic.
4. Clinical ethics committees should be empowered to make decisions about whether treatment should be provided to a person or couple where there is a concern that a prospective child will be at risk of abuse or neglect.
5. Clinical ethics committees should include a child development expert, a psychologist or psychiatrist with expertise in prediction of risk of harm to children and a doctor with experience in ART.
6. Clinical ethics committees should develop their own procedural guidelines and processes, and should have regard to the guiding principles of the Infertility Treatment Act.
7. Clinical ethics committees should be able to convene quickly to ensure cases are dealt with expeditiously.
8. Clinical ethics committees should be provided with training and support.
9. The Infertility Treatment Authority (ITA) should review the operation of clinical ethics committees after five years.
10. Where a clinical ethics committee decides that a person or couple should not be treated:
(a) the person or couple may apply to the ITA review panel to have the decision reviewed
(b) a clinic must not treat that person or couple unless the committee’s decision is reviewed by the ITA review panel and the panel decides there is no barrier to treatment or decides that subject to compliance with certain conditions, there is no barrier to treatment.
11. Where a clinical ethics committee decides that there is no barrier to a person or couple being treated, a clinician should not be compelled to provide treatment.
Presumptions against treatment
12. A licensee should not treat a person without the approval of the ITA review panel if the licensee is aware that the person seeking treatment and/or his/her spouse or partner (if any):
(a) has had charges proven against them for a sexual offence as defined in clause 1 of Schedule 2 to the Sentencing Act 1991 or
(b) has been convicted of a violent offence as defined in clause 2, Schedule 1 to the Sentencing Act 1991 or
(c) has had a child protection order (but not an interim order) made in respect of one or more children in their care under a child welfare law of Victoria or any equivalent law of the Commonwealth, or any place outside Victoria (whether or not in Australia).
13. In order to determine whether a presumption against treatment applies, clinics should require people seeking treatment to make a statutory declaration as to the existence or otherwise of facts or circumstances giving rise to a presumption against treatment.
14. A review panel should be established to decide whether or not a person or couple is eligible for treatment where:
• one of the presumptions against treatment in Recommendation 12 applies or
• the person or couple seeks review of a clinical ethics committee recommendation that they not be treated because of a concern about the health and wellbeing of any child that might be born as a result of a treatment procedure or
• the person or couple seeking treatment does not satisfy the requirements in recommendation 28.
15. A person whose case is being heard by the review panel shall have:
• the right to be heard
• the right to be represented by a lawyer
• the right to call evidence.
16. The review panel should otherwise determine its own processes and procedures.
17. In making its decisions the review panel should have regard to the guiding principles of the Infertility Treatment Act.
18. If the review panel decides that a person or couple should not be treated, a clinic must not treat that person or couple.
19. If the review panel decides that a person should not be treated unless he or she (or a partner) meet certain conditions, a clinic must not treat that person (or couple) until those conditions have been met.
20. Where the review panel decides there is no barrier to treatment, or there is no barrier to treatment once certain conditions have been met, the decision of the panel must be conveyed to all licensed clinics in Victoria and to the person (or couple) seeking treatment. In such circumstances a clinic will not be compelled to treat the person (or couple).
21. The review panel should comprise five members, including:
• a lawyer with experience in the conduct of hearings and knowledge of relevant areas of law, to sit as chair of the panel
• a person with expertise in child development and welfare and the prediction of risk of harm to children
• a person with expertise in the clinical medical practice of ART
• a psychologist or psychiatrist with expertise in families
• a person with knowledge of the ethics of clinical medical practice.
22. The review panel should be able to seek expert advice about the case before it from people:
• with understanding of the concerns of people with ongoing disability or illness
• with expertise in the rehabilitation of people who have committed sexual offences and/or offences involving violence.
23. There should be a gender balance in the membership of the review panel.
24. Members of the review panel should receive training about the conduct of hearings and the principles of natural justice and procedural fairness.
25. Decisions of the review panel should be reviewable by the Supreme Court of Victoria in accordance with the Administrative Law Act 1978.
26. The requirement that a woman who undergoes an assisted reproduction treatment procedure be ‘married and living with her husband on a genuine domestic basis’, or ‘living with a man in a de facto relationship’ should be removed.
27. The Infertility Treatment Act should otherwise be amended to recognise that some people to whom the Act applies will be married or in heterosexual de facto relationships, some will be in same-sex relationships and others will not have partners.
Unlikely to become pregnant
28. Before a woman undergoes a assisted reproduction treatment procedure a doctor must be satisfied that the woman is:
(a) in the circumstances in which she finds herself, unlikely to become pregnant other than by a treatment procedure or
(b) unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure or
(c) at risk of transmitting a genetic abnormality or a disease to a person born as a result of a pregnancy conceived other than by a treatment procedure (including where the woman’s partner is the carrier of the genetic abnormality or disease which is likely to be passed on to a child conceived other than by a treatment procedure).
For the purpose of (a), the doctor may be satisfied that a woman is unlikely to become pregnant other than by a treatment procedure if she does not have a male partner.
For the purpose of (c), the doctor must seek advice from another doctor who has specialist qualifications in human genetics or infectious diseases.
29. Where a woman does not satisfy these requirements she may apply to the review panel, which may authorise the clinic to provide the treatment procedure.
30. In deciding such applications, the review panel should have regard to:
• the guiding principles of the Act
• whether the treatment being sought is for a therapeutic goal and is consistent with the best interests of the child to be born.
Eligibility for donated gametes
31. In circumstances where donated gametes are not available, treatment with donated embryos should be permitted even where one partner in a couple has viable gametes.
New developments in treatment
32. An ethics committee should be established to consider the ethical implications of new developments in treatment or new applications of existing techniques.
33. The ITA should provide administrative support to the ethics committee and should be responsible for convening the committee.
34. Where the ITA becomes aware of a new development in treatment, or a new application of an existing technique, the matter must first be considered by the ethics committee before it permits clinics to make those treatments available pursuant to the Authority’s conditions for licence.
35. Where an approved doctor, scientist or counsellor considers that a new development in treatment or a new use of treatment raises ethical concerns, the matter must be referred to the ITA’s ethics committee for advice.
36. In reaching a decision about whether clinics should be able to make the new development in treatment available, the ethics committee:
• must have regard to the guiding principles of the Act
• may choose to undertake public consultation.
37. The ITA should act on the advice of the ethics committee when making decisions about applications and conditions for licence.
38. The ethics committee should comprise five members appointed by the Minister, including:
• a representative from the Fertility Society of Australia
• a senior clinician not involved in ART, with experience in research
• an ethicist
• a person with expertise in public health policy and research, including the broad social determinants of health
• a person with expertise in child development and families.
39. The committee should be able to consult with experts in particular areas, for example a person with knowledge of and expertise in disability policy, as the need arises.
Name of Act and Authority
40. The Infertility Treatment Act should be renamed the Assisted Reproductive Technology Act.
41. The Infertility Treatment Authority should be renamed the Assisted Reproductive Technology Authority.
42. Clinics should continue to be permitted to screen and store sperm for use by women who wish to self-inseminate with sperm from known donors.
43. The ITA should develop information resources for people who use self-insemination to conceive. Such resources should:
• include information about the implications of donor conception for parents and children
• refer people to available support services including counsellors, doctors and lawyers
• be made available for distribution by the Registry of Births, Deaths and Marriages, obstetricians and gynaecologists, and gay and lesbian health services and resource centres.
44. The ITA should be empowered to accredit non-clinic-based counsellors who have received specialist training in relation to donor conception and same-sex parented families. Training should cover same-sex parenting, family arrangements, health issues, legal implications, disclosure of donor information, and children’s outcomes.
45. Counselling should:
• be available to all women who are contemplating or engaged in conception through assisted reproduction, irrespective of whether they are undergoing treatment in a clinic or not
• be available before conception and throughout the process as required
• discuss options, clarify rights and responsibilities of all parties and ensure informed consent
• be affordable
• be provided by trained and accredited counsellors working both inside and outside the clinic system.
46. It should not be an offence for a woman to carry out self-insemination, nor an offence for her spouse, domestic partner (if any) or friend to assist her to carry out self-insemination.
47. No person should be permitted to carry out assisted insemination as a service unless he or she is licensed to do so.
Donation of gametes
48. The questions asked of donors in the tissue donation statement should relate directly to identifiable risk factors, and should be no more intrusive of the donor’s privacy than is necessary to be able to identify those factors. The form of the declaration should be reviewed periodically to ensure it is consistent with current medical knowledge.
49. Clinics should provide information to potential donors about the use of information given in answers to questions in the tissue donation statement.
50. The time period for which sperm should be quarantined before it can be used in a treatment procedure should be prescribed by the Infertility Treatment Authority, rather than by legislation. The period should reflect current medical knowledge about risk factors, and should be reviewed periodically.
51. Donors should not be permitted to specify the qualities or characteristics of the unknown recipients of their donated gametes and embryos.
52. If, and only if, a person has expressly consented to the posthumous use of their gametes (or embryos formed with the gametes) by their partner, a clinic should be able to use those gametes or embryos in a treatment procedure in accordance with any conditions stipulated by the deceased (unless those conditions are contrary to law).
53. It should not be possible to use donated gametes in a treatment procedure if a clinic is aware that the donor has died.
54. Each application to use the gametes of a deceased person should be considered by the clinical ethics committee to assess the possible impact on any child to be born, with particular regard to any research findings on outcomes for children conceived after the death of one parent. The assessment process should take account of the sensitive nature of the application.
55. If a person intends to use the gametes of his or her deceased partner in a treatment procedure, the person must receive appropriate counselling before the treatment procedure is carried out. Counselling must address the grieving process and its impact on conception, and in particular the appropriate period of time which should elapse between the deceased’s death and attempts at conception.
56. Where a person is seeking treatment using the gametes of a person who has died, the counselling and information provisions in the Act should not apply in respect of the deceased person.
57. The ITA should monitor any available research on the effects on children born as a result of posthumous use of gametes and embryos.Retrieval
58. A medical practitioner should be able to remove gametes from a living person where that person has expressly consented to such removal, but not in any other circumstances.
59. A medical practitioner should be able to remove gametes from a person who is dead if the deceased person expressly consented to posthumous retrieval and to their use by the surviving partner to create a child.
60. Where express consent to retrieval of gametes after death exists but cannot be located, the spouse or next-of-kin should be required to make a statutory declaration that written consent exists before a medical practitioner can retrieve the gametes. The written document must be produced before the gametes can be used in a treatment procedure.
Notification of wishes
61. Clinics should ensure that people’s wishes about posthumous use of their gametes are recorded.
62. Clinics should contact all people whose gametes or embryos are already in storage to ascertain their wishes with respect to posthumous use.
63. Donors should be counselled about the limits on posthumous use of gametes and must be advised to make arrangements for the clinic to be notified if they die.
64. In making decisions about whether approval should be given to export gametes or embryos outside Victoria, the ITA should be required to take into account whether the gametes or embryos will be used in a manner which is consistent with Victorian law.
Status of child and deceased
65. Where a woman gives birth to a child conceived with gametes contributed by her deceased partner, the child should be regarded as the child of the deceased for the purpose of birth registration, but not for any other purpose under Victorian law (in particular the laws of succession).
66. Where a couple in a treatment program is contemplating posthumous use of gametes or embryos, they should be counselled to seek legal advice about making provision for any posthumously conceived child in their wills.
67. The Adoption Act 1984 should be amended to allow the County Court to make adoption orders in favour of same-sex couples.
68. The same-sex partner of the parent of a child should be able to apply to adopt the child in accordance with the same criteria that apply to opposite-sex partners.
69. The Department of Human Services should review the Adoption and Permanent Care Procedures Manual to accommodate applications by same-sex couples.
70. Adoption agency staff should receive training to provide education about parenting by same-sex couples.
71. The Adoption Act 1984 should be amended to allow the County Court to make an adoption order in favour of a single person in accordance with the same criteria that apply to couples.
Recognition of birth mothers
72. The law should recognise a birth mother’s female partner as a parent of the child.
73. A non-birth mother should be presumed for all purposes to be a parent of the child where:
• she is the domestic partner of the mother of the child
• she consented to the treatment procedure by which the mother conceived the child at the time the procedure was carried out.
74. The existence of a non-birth mother’s consent at the relevant time should be presumed, but able to be rebutted. The presumption of parentage should otherwise be conclusive.
75. The presumption of parentage should apply in respect of children born both before and after the introduction of the presumption. However, it should not affect any property rights or interests which existed prior to the introduction of the presumption.
76. The Supreme Court should be empowered to make declarations of parentage in relation to donor-conceived children to whom presumptions of parentage apply.
77. Consequential amendments should be made to the Births, Deaths and Marriages Registration Act 1996 and, where appropriate, to all other Victorian legislation which contains provisions relating to parent–child relationships, to recognise that a child may have two parents of the same sex.
78. The Attorney-General should work with the Standing Committee of Attorneys-General and Family Law Council to seek reform of the Family Law Act to ensure that non-birth mothers are recognised as parents for the purposes of the Family Law Act 1975 and Child Support (Assessment) Act 1989.
Status of donors
79. Where a woman becomes pregnant as the result of a treatment procedure using donor sperm (whether carried out in a licensed clinic or not), the man who donated the sperm should be presumed for all purposes not to be the father of any child born as a result of the pregnancy.
80. Where a woman becomes pregnant as the result of a fertilisation procedure using a donated egg, she should be conclusively presumed to be the mother of any child born as a result of the pregnancy. The woman who donated the egg should be presumed for all purposes not to be the mother of any child born as a result of the pregnancy.
81. Where a woman is presumed to be a parent of a child she should be entitled to be registered on the register of births.
82. The Registry of Births, Deaths and Marriages should be required to produce revised birth registration forms and birth certificates giving people the choice of the terms ‘mother’, ‘father’ and ‘parent’. Parents should be provided with information explaining these options.
83. Where a woman is presumed to be a parent of a child as a result of the retrospective application of the presumption in Recommendation 75, and wishes to have her name recorded on the child’s birth certificate, she should be able to apply to amend the child’s birth certificate to name her as a parent.
84. If the birth certificate lists only one parent, the application should be made by the child’s mother and non-birth mother and should be accompanied by a statutory declaration verifying that the non-birth mother consented to the procedure by which the child was conceived.
85. If the birth certificate already includes the name of the donor as the child’s father, a court order should be required before the births register can be amended.
86. The staff of the Registry of Births, Deaths and Marriages should receive training on these changes.
Access to information
Disclosure of donor status
87. Parents who have children born through the use of donated gametes should be provided with access to ongoing counselling and support and resources to enable them to inform their children about their genetic origins. New and emerging ways of encouraging and equipping parents to tell their children should be investigated by the ITA, counsellors and clinicians.
Donor access to information
88. Donors should not be able to apply for identifying information about children conceived using their gametes.
89. Donors should be able to register with the ITA their wishes for identifying information about, or contact with, any children conceived using their gametes, in the event that a child initiates an inquiry.
90. Donors should be encouraged to advise the ITA if, after the donation has been made, they become aware of a genetic illness or condition which may have been transmitted to any person conceived using their gametes.
91. If the ITA receives a medical report containing such information, it should pass the information on to the parents of the donor-conceived child, if under 18. If 18 or over, the information should be provided directly to the donor-conceived person.
92. When passing on the information to the donor-conceived person, the ITA should offer him or her information and counselling about the significance of the information.
93. If a clinic becomes aware of relevant genetic information about donors, it should pass that information on to the ITA.
94. People who have already donated gametes which have been used in the conception of a child should have a window period of 12 months in which to make an application under existing provisions for information about people conceived with their gametes. After this time period, all donors should be subject to the new procedures, regardless of the date on which they made their donation.
Children concieved outside the clinic system
95. Women who conceive children by self-inseminating with sperm from known donors should be encouraged to register the donors’ name on donor registers.
96. If the Registry of Births, Deaths and Marriages is aware that a child whose birth is being registered is donor-conceived, it should encourage the parents of the child to register the name of the donor with the ITA, if they have not already done so.
Children’s access to information
97. Donor-conceived children under the age of 18 should be able to apply for information identifying donors, but access to the information should only be granted if an accredited counsellor is of the opinion that the child has sufficient maturity to be able to understand the nature of the information.
98. If a donor-conceived child applies for information identifying the donor before he or she is 18 years old, that information should be able to be released to the child without the consent of the donor.
Retrospective access to information
99. If a person conceived with gametes donated prior to 1 January 1998 wishes to obtain identifying information about the donor and the donor has not registered his or her wishes on a voluntary register:
• The donor-conceived person should contact the ITA to request that it facilitate an approach to the donor.
• The ITA should contact the clinic where the person’s mother received treatment (if it can be identified) and ask the clinic to forward a letter from the ITA to the donor.
• The letter from the ITA to the donor should explain the donor’s options in respect of providing identifying information to the person conceived with his or her gametes, and should draw attention to the availability of counselling to explore those options further.
100. A service, independent of the ITA and connected to the Registry of Births, Deaths and Marriages—similar to the Adoption Information Service—should be established to manage donor registers. Donor registers should be transferred from the ITA to this new service.
Eligibility for surrogacy
101. If a person or couple wishes to commission a woman (surrogate mother) to carry a child on their behalf, a doctor must be satisfied that they are:
• in the circumstances in which they find themselves, unlikely to become pregnant, be able to carry a pregnancy or give birth or
• likely to place her life or health, or that of the baby, at risk if she becomes pregnant, carries a pregnancy or gives birth.
102. If, before a person or couple commission a woman to carry a child on their behalf, a doctor or counsellor believes that any child that might be born as a result of the arrangement may be at risk of abuse or neglect, he or she should seek advice about whether or not to proceed with treatment from the clinical ethics committee operating within the licensed clinic.
103. Where a clinical ethics committee decides that a person or couple should not be able to commission a surrogacy, or the surrogate mother and her partner (if any) should not be able to participate in a surrogacy arrangement:
(a) the person concerned may apply to the ITA review panel to have the decision reviewed
(b) a clinic must not take any steps in relation to the surrogacy unless the committee’s decision is reviewed by the ITA review panel and the panel decides that there is no barrier to treatment or that, subject to compliance with certain conditions, there is no barrier to treatment.
104. A licensed clinic should not assist in a surrogacy arrangement without the approval of the ITA review panel where the person or couple commissioning the surrogacy, or the surrogate mother and/or her partner (if any):
(a) has had charges proven against him or her for a sexual offence as defined in clause 1 of Schedule 2 to the Sentencing Act 1991 or
(b) has been convicted of a violent offence as defined in clause 2, Schedule 1 to the Sentencing Act 1991 or
(c) has had a child protection order (but not an interim order) made in respect of one or more children in his or her care under a child welfare law of Victoria, any equivalent law of the Commonwealth or any place outside Victoria (whether or not in Australia).
105. A person or couple should be able to commission a surrogacy arrangement regardless of relationship or marital status or sexual orientation.
Counselling and legal advice
106. Before entering into a surrogacy arrangement the person or couple commissioning the surrogacy and the woman intending to act as the surrogate mother and her partner (if any) should receive:
• counselling about the social and psychological implications of entering into the arrangement
• advice and information about the legal consequences of entering into a surrogacy arrangement.
107. The regulations should specify the following matters to be addressed during counselling:
• the implications of surrogacy for a relationship between members of a commissioning couple and between the surrogate mother and any partner
• the implications of surrogacy for the relationship between commissioning parent(s) and the surrogate mother
• the implications of surrogacy for any existing children of the surrogate and/or the commissioning parent(s)
• the possibility of medical complications
• the possibility that any of the parties may change their mind
• refusal of the surrogate mother to relinquish the child
• refusal of the commissioning parent(s) to accept the child
• the motivation and attitudes of the surrogate mother
• attitudes of all parties towards the conduct of the pregnancy
• attitudes of the commissioning parent(s) to the possibility that the child may have a disability
• attitudes of all parties to investigation of a genetic abnormality, the possibility of termination of pregnancy or other complications
• a process for the resolution of disputes
• the commissioning parent(s)’ intentions for custody of the child, if one of them should die
• possible grief reactions on the part of the surrogate mother and/or her partner
• ways of telling the child about the surrogacy
• attitudes to an ongoing relationship between the surrogate mother and the child
• access to support networks.
108. The ITA should develop guidelines about the application of these regulations, in consultation with clinics, and should evaluate and monitor their effectiveness over time.
109. If the counsellor considers it appropriate, independent psychological testing (in accordance with accepted professional standards) or a home study should be permitted.
110. In each surrogacy arrangement, the clinical ethics committee at the licensed clinic where treatment is proposed to be carried out must decide whether treatment can proceed.
111. In making a decision about whether the surrogacy can proceed, the clinical ethics committee must be satisfied that the parties:
• are aware of and understand the personal and legal consequences of the surrogacy arrangement
• are prepared for the consequences of the arrangement if it does not proceed in accordance with the parties’ original intentions
• are able to make informed decisions about proceeding with the arrangement.
112. The clinical ethics committee’s decision should be based on a report from a counsellor and an acknowledgement from the parties that they have received all the required and relevant information and advice.
113. A decision made by the clinical ethics committee about whether the surrogacy can proceed should be reviewable by a review panel.
114. A woman intending to act as a surrogate mother should not be subject to the requirement that she is unlikely to become pregnant other than by a treatment procedure.
115. Apart from the above recommendation, a woman intending to act as a surrogate mother should be subject to the same criteria that apply to all women undergoing ART services.
116. A woman intending to act as a surrogate mother should be at least 25 years old.
117. In assessing whether a woman is able to give informed consent to act as a surrogate mother, consideration should be given to whether she has already experienced pregnancy and childbirth, however, this should not be a prerequisite.
118. Partial surrogacy should be permitted. That is, it should be possible for the surrogate mother’s egg to be used in the conception of the child.
119. If the surrogate mother’s egg is used in the conception of the child, counselling must address the implications of this for:
• the relinquishment of the child
• the relationship between the surrogate mother and the child once it is born.
The certification should confirm these matters have been the subject of counselling.
120. A genetic connection between the child and the commissioning parent(s) is to be preferred, but people should not be excluded from commissioning a surrogacy arrangement if they are unable to contribute their own gametes.
121. A woman must not receive any material benefit or advantage as the result of an arrangement to act as a surrogate mother.
122. Consistent with the principle that a woman should not receive any material benefit or advantage for acting as a surrogate mother, reimbursement of prescribed payments actually incurred should be permitted.
123. Prescribed payments should be limited to:
• any reasonable medical expenses associated with the pregnancy which are not otherwise provided for through Medicare, private health insurance or any other benefit
• in the absence of any entitlement to paid maternity or other leave, lost earnings up to a maximum period of two months
• any additional lost earnings or medical expenses incurred as a result of special circumstances arising during pregnancy or immediately after birth, for example, where the surrogate mother has been advised by her doctor that she should stop working earlier than anticipated
• any reasonable legal expenses associated with the surrogacy arrangement.
124. Surrogacy agreements should continue to be void. However, where parties to a surrogacy arrangement have agreed to the reimbursement of prescribed payments, that part of the agreement should be enforceable.
Surrogacy and parentage
125. The Status of Children Act 1974 should be amended to empower the County Court to make substitute parentage orders in favour of a person or couple who have commissioned a surrogacy arrangement (the applicant(s)), subject to the conditions that:
• the court is satisfied that the order would be in the best interests of the child
• the application was made no earlier than 28 days and no later than six months after the birth of the child
• at the time of the application, the child’s home is with the applicant(s)
• the applicants have met the eligibility criteria for entering into a surrogacy arrangement
• the surrogate mother and/or her partner (if she has one) has not received any material advantage from the arrangement save for reimbursement of expenses permitted by the legislation
• the surrogate mother freely consents to the making of the order.
126. In deciding whether to make a substitute parentage order, the court should also take into consideration whether the surrogate’s partner (if she has one) consents to the making of the order.
127. If the application is made by a person whose partner consented to the arrangement before the child was conceived but has not consented to the application for a substitute parentage order, there should be a presumption that that person will also become a legal parent of the child.
128. A substitute parentage order should have the same status and effect as an adoption order made under the Adoption Act 1984.
Completed surrogacy arrangements
129. The court should have discretion to make substitute parentage orders in favour of people who have already had children through surrogacy. In exercising its discretion, the court should be satisfied that:
• the order would be in the best interests of the child
• the child’s home is with the applicants
• the applicants have to the extent possible met the eligibility criteria for entering into a surrogacy arrangement
• the surrogate mother and/or her partner (if she has one) has not received any material advantage from the arrangement, save for reimbursement of expenses permitted by the legislation
• the surrogate mother freely consents to the making of the order.
130. Once a substitute parentage order has been made, the birth register should be amended to record the commissioning parent(s) as the parents of the child and a new birth certificate should be issued.
131. The central register maintained under the Infertility Treatment Act 1995 should be expanded to allow identifying information about a surrogate mother and commissioning parent(s) to be registered and released to the child in the same way as information about donors is registered and released.
132. The commissioning parent(s) and the surrogate mother should be counselled about the importance of informing children of their genetic origins and the circumstances of their birth. They should be provided with ongoing counselling and support to enable them to inform children about their origins.