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Surrogacy agreements (SJ) and reasonable expenses
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94. (1) An obligation under a surrogacy agreement (SJ) to pay or reimburse the surrogate mother’s reasonable expenses is enforceable if the agreement was made before the transfer of the embryo to the surrogate mother.
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(2) For the purposes of this Part, the reasonable expenses are the surrogate mother’s reasonable expenses associated with any of the following matters that are part of the surrogacy agreement (SJ):
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(a) becoming or trying to become pregnant;
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(b) pregnancy or birth;
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(c) entering into and giving effect to the agreement.
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(3) The reasonable expenses of a surrogate mother associated with the pregnancy or birth referred to in subsection (2)(b) include the following:
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(a) any pre-natal or post-natal medical expenses associated with the pregnancy or birth;
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(b) any travel or accommodation expenses associated with the pregnancy or birth;
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(c) the expense of reimbursing the surrogate mother for any net loss of income entailed in being the surrogate mother but only for the following periods:
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(i) a period of not more than 6 months during which the birth happened or was expected to happen;
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(ii) any other period during the pregnancy or thereafter, not exceeding 12 months in total, when the surrogate mother was unable to work on medical grounds related to pregnancy or birth.
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(4) The reasonable expenses associated with entering into and giving effect to a surrogacy agreement (SJ) referred to in subsection (2)(c) include the following:
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(a) the expenses associated with the surrogate mother receiving AHR counselling (SJ) in relation to the agreement (whether before or after she entered into the agreement);
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(b) the expenses associated with the surrogate mother receiving independent legal advice in relation to the agreement or a parental order related to the agreement;
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(c) the expenses, including the reasonable travel and accommodation expenses, associated with the surrogate mother being a party to proceedings in relation to making a parental order related to the agreement.
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(5) Subject to subsection (8), the reasonable expenses of the surrogate mother under any of subsections (2) to (4) shall include any other matters that may be prescribed.
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(6) Where the Minister prescribes matters under subsection (5), he or she shall, in addition to having regard to the other provisions of this Act, have regard to reasonable expenses that may be incurred by the surrogate mother in relation to any one or more than one of the following:
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(a) maternity clothing;
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(b) paid housework or childcare undertaken by persons other than the surrogate mother and her spouse, civil partner or cohabitant (if any);
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(c) pregnancy aids that assist in the comfort and well-being of the surrogate mother;
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(d) any other expenses typically incurred in the course of a pregnancy.
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(7) An expense is reasonable under any of subsections (2) to (5) only if—
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(a) the expense is actually incurred, and
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(b) the amount of the expense can be verified by receipts or other documentation.
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(8) On and after the establishment day, the Minister shall not prescribe matters under subsection (5) except after consultation with the AHRRA.
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