Surrogacy laws in Australia are a matter for each state. The Federal Government has no constitutional authority to legislate in regards to reproductive technologies. Although control over medical benefits, including Medicare has given the Commonwealth somewhat of a power in this area. Each state has considered and adopted a different legal stance in regards to surrogacy. New South Wales has for many years outlawed commercial surrogacy and has applied limited regulation to altruistic surrogacy. That is where a surrogate acts in good will for no financial gain. In November 2010 the New South Parliament passed The Surrogacy Act 2010 (NSW). This Act has made clearer the law in regards to surrogacy in NSW and can be seen as a significant example of law reform. The Act took effect from 1 March 2011.
The laws concerning surrogacy in Australia are state or territory-based. Until recently, these laws have been inconsistent and provided inadequate protections and guidance. Some state and territory laws prohibited both altruistic and commercial surrogacy, some allowed altruistic but prohibited commercial surrogacy, or some laws were silent on the issue. In 2008, the Standing Committee of Attorneys General, a ministerial council drawn from state and Commonwealth parliaments and including the New Zealand Minister of Justice, agreed that a national model law regulating surrogacy is needed.
In May 2009, the NSW Legislative Council Standing Committee on Law and Justice had tabled a report on altruistic surrogacy topic in NSW, which aimed to clarify the legal rights and responsibilities of commissioning parents and birth parents, and clarify the rights of children born through surrogacy. Drawing on the recommendations of the national and state committees, the NSW Parliament introduced new legislation in 2010 to regulate surrogacy arrangements in NSW. The NSW Parliament passed the Surrogacy Act 2010 (NSW), to commence in early in 2011.
Prior to the commencement of the Act, in most cases in NSW, the Status of Children Act 1996 (NSW) meant that a child’s legal parents were presumed to be the birth parents. This meant that commissioning parents in a surrogacy arrangement, although in practice parenting the child, would not be recognised as the parents and could face difficulties if trying to enrol the child in a school, access certain government benefits or apply for a passport for the child. Where the child is conceived in a stable relationship, the male partner is assumed to be the father even if he was not the biological parent. This would mean that the child’s biological father had no rights in regards to his child. It was also illegal for the surrogate mother to ‘give’ her child to the commissioning parents, as placing a child with a person who is not a relative for more than 28 days is illegal under the Children (Care and Protection) Act 1987 (NSW). If, however, one of the commissioning parents were also the biological parent of the child, this would be permitted. Under the new legislative framework, the Surrogacy Act 2010 (NSW) introduces a system of parenting orders, where parties can apply to the NSW Supreme Court for an order to transfer full legal parentage of the child from the birth parent in a surrogacy arrangement to the commissioning parent. The new parentage orders grant the commissioning parents full legal capacity to make decisions in the child’s interests and aim to provide relief and certainty for parties involved in surrogacy arrangements.
Various organizations and lobby groups have opposed surrogacy on moral grounds, usually based on religious principles. These concerns center on the concept of a traditional family, especially as surrogacy may provide an avenue for same-sex couples to have children. These lobby groups have expressed a desire that surrogacy be restricted to infertile heterosexual couples. They have claimed that families with parents of the same