The law in South Australia recognises only those surrogacy agreements that conform to the requirements outlined in the Family Relationships Act 1975. Amongst other things, a recognised surrogacy agreement requires that:
- the female parent commissioning the agreement is infertile or there is a serious genetic defect, disease or illness that would be transmitted to a child if the female parent were to proceed with a pregnancy;
- the surrogate mother has been assessed and approved as a surrogate by an accredited counselling service;
- the agreement states that the parties intend the pregnancy is to be achieved by the use of a fertilisation procedure carried out in South Australia and at least one of the commissioning parents will provide human reproductive material for the creation of an embryo;
- no valuable consideration is payable under the agreement (other than for expenses connected with the pregnancy and birth of the child);
- the agreement states that the parties intend the commissioning parents will apply for an order recognising them as parents (under s 10HB) after the child is born.
Despite the provisions now recognising surrogacy agreements, an agreement entered into for consideration and outside the requirements as listed in s 10HA of the Family Relationships Act 1975 is void. It is an offence to enter into a surrogacy contract or a contract to procure a surrogate for payment and in circumstances that do not meet the criteria for a recognised surrogacy agreement. The maximum penalty is $4 000 or 12 months imprisonment (s 10G).
How is a birth registered?
A birth registration statement must be lodged with the Registrar of Births, Deaths and Marriages ('the Registrar') within 60 days of the child's birth.The maximum penalty for not doing so is $1 250.
See Births, Deaths and Marriages Registration Act 1996 s 16(1).
What if a birth is registered late?
A birth can still be registered outside the 60 day period and the Registrar must accept a birth registration statement even if lodged outside of this period.
See Birth, Deaths and Marriages Registration Act 1996 s 16(2).
Who is responsible for registering a birth?
Both parents are jointly responsible for registering the birth of their child and both must sign the birth registration statement. However, the Registrar may accept a statement signed by only one parent if satisfied it is impossible, impracticable or inappropriate for the other parent to sign whether because of death, disappearance, ill health, unavailability or the need to avoid unwarranted distress.
If only one parent signs the birth registration statement, he or she must attach an explanation of why the other parent has not signed. The Registrar has the authority to make further enquiries if not satisfied with the explanation given.
See Birth, Deaths and Marriages Registration Act 1996 s 15.
Can details of parentage be altered after the birth has been registered?
There are provisions to allow alterations about a child's parentage under the following circumstances:
- where the father and mother of the child make a joint application for the addition of the information; or
- one parent of the child makes an application for the addition of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason; or
- if a court directs the inclusion or correction of information in the Register; or
- the Registrar is advised of a finding by a court that a particular person is a parent of the child.
Must the birth registration include the name of the child?
Yes, the birth registration statement must include the name of the child. Although the name is a matter of choice for the parents lodging the statement, the Registrar can assign a name to a child if the name stated in the birth registration statement is a prohibited name or the birth registration is lodged by both parents and they satisfy the Registrar that they are unable to agree on the child's name.
See Births, Deaths and Marriages Registration Act 1996 s 21.
What happens if there is a dispute about the child's name?
In the event of a dispute between parents as to the child's name either parent may apply to the Magistrates Court for orders resolving the dispute. For more information, see 'Change of name'.
In Australia adoptions are the responsibility of the State governments. In South Australia, the adoption process is governed by the Adoption Act 1988.
All adoptions of children by residents of South Australia are conducted through the Adoption and Family Information Service (AFIS) of the Department for Families and Communities.
Because very few babies and children are relinquished for adoption in South Australia there has been a marked increase in interest in adopting a child from overseas countries see Adopting an overseas child.
Adoption is a legal process where the rights and responsibilities of the birth parents are transferred to the adoptive parents. There are two types of adoption: local (i.e. from within Australia) and intercountry (i.e. from other countries).
Private adoptions (i.e. adoptions where a child is placed with adoptive parents without the involvement of an agency) are illegal in South Australia.
Who can be adopted
Only children up to 18 years of age may be adopted.
Where a person over 18 requires care and guardianship, a power of guardianship is the appropriate solution. This is an entirely different legal process and is not an adoption, nor can an adoption be undergone as an alternative.
Aboriginal children and adoption
Aboriginal children can only be adopted if, in the interests of the child, an adoption order is preferable to a guardianship order. This is because the legal process of adoption conflicts with Aboriginal culture, in particular, beliefs about family, kinship and the preservation of cultural ties. As a result there are strict rules governing the circumstances under which adoption of Aboriginal children can occur. An adoption order will only be granted where the applicant is a member of the child's Aboriginal community and where, by Aboriginal customary law, they have the correct relationship with the child. If there is no such person wanting to adopt the child, only another Aboriginal person[Adoption Act 1988 s 11].
Who can adopt
Only those people who are listed on the Prospective Adopters Register are eligible to adopt a child. The Prospective Adopters Register lists all people who have expressed an interest in adoption and who have satisfied the requirements under the Adoption Act.
Only couples in a marriage relationship eligible to adopt
Normally only two people in a heterosexual relationship (either married or de-facto) who have lived together continuously for at least five years can adopt a child unless there are special circumstances [Adoption Act 1988 s 12]. Same sex relationships are not included in the definition of a marriage relationship.
An adoption order may be made in favour of two persons who have been cohabiting together in a marriage relationship for a continuous period of less than five years, if the Court is satisfied that there are special circumstances justifying the making of the order. Normally, the Chief Executive cannot select a person from the Adoption Register unless they have been cohabiting with another in a marriage relationship for a continuous period of at least 3 years [Adoption Regulations 2004 reg 19(3)(d)].
Circumstances under which only one person may adopt
Adoption orders in favour of one person can only be made in the following circumstances:
- Where the person has cohabited with a birth or adoptive parent of the child in a marriage relationship for a continuous period of at least 5 years, or
- Where the Court is satisfied that there are special circumstances justifying the making of the order
Who cannot adopt
Unless there are particular circumstances relating to the child to be placed and where those needs can be best met by other applicants, a person will not be considered as a suitable applicant for adoption if she or he:
- is under 25 or over 50 years of age
- is more than 45 years older than the child to be adopted
- has a child residing with her or him and the child has so resided for a period less than the immediately preceding 2 years
- will or is likely to have any other child residing with her or him in the period of 2 years following selection as an applicant for an adoption.
An adoption order will only be made if each parent or guardian gives their consent.
The consent of the father of a child born outside of lawful marriage is required if his paternity is recognised under the law of South Australia, see: PATERNITY. If it appears that a particular person may be able to establish paternity of a child, the Court will not make an adoption order without allowing that person reasonable opportunity to establish paternity [Adoption Act 1988 s 15(7)].
Counselling must occur before consent can be given
The relinquishing parent must have been counselled at least three days before signing a consent to the adoption. Written information on the following must be provided to the relinquishing parent:
- information on counselling and other support services available
- the implications of adoption
- the consequences of consenting to the adoption
- the procedures and time limits for revocation of consent
- arrangements that may be made for the care of the child as alternatives to adoption
The consent must be in writing, be witnessed and endorsed by an authorised officer with a counsellor providing endorsement that counselling has occurred. The witness must also satisfy himself or herself that the relinquishing parent understands the nature of the consent they are giving.
When consent can be given
The mother's consent can only be taken at least fourteen days after the birth of the child. The consent may be revoked within twenty five days although the Chief Executive may approve, during the twenty five day period, for this time to be extended by another fortnight [Adoption Act 1988 s 15].
Types of consent
The consent may be in general terms authorising the child to be adopted by anyone. If both parents consent in general terms, the Chief Executive becomes the child's guardian and must place the child for adoption with a couple previously placed on the Prospective Adopters Register [Adoption Act 1988 s 15].
When a limited consent is signed, the Chief Executive does not become the child's guardian and has no responsibility for placing the child. The consent may be limited authorising the adoption of the child by:
- a relative of the child
- a person who has been appointed guardian of the child by a court
- a step-parent or
- a foster parent in whose care the child was placed by the Chief Executive.
Consent of child required for children over age of 12
Adoptions of children over the age of 12 years cannot occur without the formal consent of the child to his or her own adoption. As with parents, the child must be counselled at least three days before consenting, must be given written information about counselling and support services available, about the implications of adoption and the consequences of consenting and the procedures and time limits for revocation of consent. The adoption application should not be heard until twenty five days have lapsed after the consent was given and can be revoked by the child at any time up until the making of an order.
The court must be satisfied after interviewing the child in private that the consent is genuine and that the child does not wish to revoke it.
Dispensation of consent
Where a parent does not or cannot consent to an adoption the Chief Executive or the applicant for an adoption order may apply to the Youth Court to dispense with that parent's consent. The court may dispense with a parent's consent if there are other circumstances that allow the consent to be properly dispensed with or, if satisfied that the parent:
- cannot be found or identified after reasonable enquiry
- due to a physical or mental condition is not capable of properly consenting
- has abandoned, deserted or persistently neglected or ill-treated the child
- has failed, for at least one year, without reasonable excuse, to carry out his or her obligations as a parent.
To protect the rights of a natural parent the Act provides that notice of the application must be given to a parent whose consent is required and who has not consented to the adoption. The court does not dispense lightly with the consent of a parent (or guardian) and will provide every opportunity to parents to present arguments why their consent should not be dispensed with.
Before a court considers the application for adoption by a step-parent, the Family Court must first give approval for the adoption to proceed under s 60G of the Family Law Act 1975 (Cth). Approval is rarely given therefore legal advice should be sought if intending to adopt in such circumstances.
Although the Adoption Act 1988 provides for the adoption of a child by a step-parent the legislation discourages inappropriate applications. A step-parent or relative can only adopt a child if, in the interests of the child, an adoption order is clearly preferable to a parenting order [s 10]. The child's parent and step-parent must have lived together for at least five years unless the court is satisfied there are special circumstances [Adoption Act 1988 s 12]. The relationship between a child and a parent whose spouse adopts the child is not affected by the adoption order.
Intercountry adoption is a very time consuming and complicated process. Due to the complexity of these matters a considerable amount of time can pass between making the application and the finalisation of the adoption.
Australia is a signatory to the Hague Convention with Respect to Intercountry Adoption, the purpose of which is to protect children against abduction and child trafficking. Under the Hague Convention all intercountry adoptions must be coordinated through a central government agency. In Australia this is the Commonwealth Attorney-Generals’ Department. However, as the processing of adoptions is done by the relevant state government authority, all intercountry adoptions in South Australia are administered by the Department of Families and Communities’ Adoption and Family Information Service (AFIS). As a result, privately arranged adoptions are not recognised under Australian law.
The only exception to this is for expatriate Australian citizens, residing and working in an overseas country, who are eligible to adopt a child under that country’s laws (see Intercountry adoptions not involving an Australian state adoption authority).
It is important to understand that the Department of Immigration and Citizenship will refuse a child an entry visa unless adoption arrangements meet migration requirements. This may be the case even if the adoption has been lawfully arranged in the overseas country. It is important to obtain legal advice both in Australia and in the overseas country before considering an adoption not involving the South Australian adoption authority (i.e. Adoption and Families Information Service).
The Adoption and Families Information Service will not normally give approval to adopt a relative or a child known to the prospective adoptive parents. In these cases there may be other options, such as applying for an orphan relative visa. For further information contact the Department of Immigration and Citizenship.
Step 1: Determining eligibility
After attending an information session conducted by the Adoption and Family Information Service prospective applicants lodge an Expression of Interest. An interview is then arranged with an AFIS worker to determine country eligibility and suitability.
Step 2: Orientation, Application and Assessment
Applicants will attend an Education workshop prior to being invited to lodge a formal application. After the application is received a Family Assessment will be conducted and a report prepared for the purpose of assessing the suitability of the applicants as prospective adoptive parents.
Applicants who are not approved will be advised of this and of their rights to appeal the decision. Those applicants who are approved are allocated an AFIS social worker who will be their contact point throughout the adoption process.
Step 3: Applying to the overseas country
The application is sent to the chosen overseas country where it is evaluated by the overseas adoption authority. At this stage nothing can happen until the overseas authority makes the decision that a child can be adopted to a foreign country.
Step 4: Matching and placement of child
The overseas adoption authority will make a determination about whether the applicants are suitable adoptive parents for the child. This decision will also be considered by AFIS before a formal allocation is approved.
After approval is given legal and administrative processes in the child’s country must be finalised. The child must also be medically examined and granted an Australian resident visa.
Step 5: Arriving home
After arriving home it may be necessary to apply for an adoption order if the adoption was not finalised overseas. In most cases the Department of Families and Communities will be the legal guardian until the adoption process has been finalised. Some countries require ongoing reports about the child’s progress until they legally become an adult. Families are allocated an AFIS worker to assist with providing progress reports.
Intercountry adoptions not involving an Australian state adoption authority
The Hague Convention prohibits privately arranged adoptions. However, the only exception to this is expatriate Australian citizens or permanent residents who are living and working in an overseas country. If they are eligible to adopt a child under the law of that country they may be eligible to apply for an adoption visa to bring the child back to Australia.
To be eligible for a visa for the adopted child the following criteria must be met:
- the adoptive parents must have been living overseas for more than 12 months at the time of lodging the visa application;
- they must be able to show that their residence overseas was not solely to circumvent the adoption requirements under Australian law;
- the adoption is in accordance with the laws of the country in which the child lives;
- the adoption grants full and permanent parental rights (i.e. the legal ties between the child and its birth parents are severed)
Immigration issues to be aware of
- An adoption visa cannot be granted to a child who has been adopted in circumstances other than those detailed above, even if the child has been adopted lawfully in another country (e.g. if Jane and John who are living in South Australia arrange a private adoption in China without the involvement of the Adoption and Families Information Service, a visa will not be issued, even if the adoption is lawful in China).
- State adoption authorities will not usually give approval for the adoption of a child who is a relative, nor will they support the adoption of a specific child where the adoption has not been arranged by them
- In some countries it is not possible to be granted full parental rights in the adoption process. Where an adoption order fails to grant full parental rights to the adoptive parents a visa will not be granted.
- You should seek legal advice, both in Australia and in the relevant overseas country, to ensure that the adoption will be recognised and that the child will be able to be granted a visa before proceeding with an adoption that is not being arranged by the South Australian adoption authority i.e. Adoption and Families Information Service (AFIS)
When making an adoption order the court usually instructs the Registrar of Births, Deaths and Marriages to cancel the original birth registration and to issue a new registration, which names the applicants as parents as if the child had been born to them [Adoption Act 1988 s 41].
The applicants can ask the court not to cancel the original birth certificate but add their names to it. The child can then apply for a birth certificate with the names of the natural and adoptive parents recorded on it or a copy which only names the applicants as the lawful parents. However, if a natural parent is still alive the original birth registration must be cancelled unless the child knows the natural parents or the natural parents approve of the child having access to this information [Adoption Act 1988 s 41].
Once an adopted child turns 18, he or she is entitled to information concerning his/her birth parents held by the Department for Communities and Social Inclusion.
The information that can be released includes:
- the names and dates of birth of the birth parents
- any other information in the possession of the Department for Communities and Social Inclusion relating to the birth parents and the circumstances of the adoption
- any message, information or item given to the Department for Communities and Social Inclusion by a birth parents with instructions to provide it to the adopted child
- information relating to a sibling (whether whole or half) of the person who has been adopted and who has also turned 18
The information may be given to a lineal descendant of the adopted child if they consent or where they are deceased or cannot be located.
Similarly, where the adopted child has reached eighteen years, birth parents may also obtain any information, messages, or items held by Department of Human Services relating to the adoptive parents or the adopted child.
Adoptive parents may also obtain information, messages, or items held by Department of Human Services relating to the birth parent or the adopted child, provided the adopted child has reached eighteen years and consents.
Where an adoption occurred prior to the commencement of the Adoption Act 1988, an adopted child, adoptive parent or birth parent has the ability to veto the release of identifying information. It is necessary to renew the veto every five years [Adoption Act 1988 s 27B] if the person wishes the restriction to remain in place. Despite this veto power, the Minister may authorise the release of information (even if the necessary consents have not been given) if it is necessary for the welfare of an adopted person [Adoption Act 1988 s 27D].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.