Review of Surrogacy Laws in NSW Announced

Tuesday 29 September 2015 @ 1.24 p.m. | Legal Research

The NSW Attorney General, Gabrielle Upton, has announced a review of the Surrogacy Act 2010 (NSW). According to the SMH, she has said she is "determined to improve the act."

Review of the Surrogacy Act 2010

According to the Department of Justice Website, The NSW Attorney General is reviewing the Surrogacy Act 2010 pursuant to section 60 of the Act. The purpose of the review is to determine whether the policy objectives of the Surrogacy Act 2010 remain valid and whether the terms of the Act remain appropriate for securing those objectives.

The current policy objectives of the Surrogacy Act 2010 are to:

  • protect the interests of children born as a result of surrogacy arrangements;
  • provide legal certainty for parties to surrogacy arrangements, and
  • prevent the commercialisation of human reproduction.

Australian Surrogacy Laws

Australian laws permit surrogacy in situations which are usually referred to as “altruistic” arrangements - Surrogates can't be paid for carrying a baby, and commissioning parents aren't allowed to advertise for a surrogate. However, commercial arrangements, which are sometimes referred to as “compensated” surrogacy are generally prohibited in Australia. This is an arrangement in which the surrogate receives payment for taking part.

In New South Wales, Tasmania, Queensland and Victoria any person, regardless of sex, relationship status or sexual orientation can be an intended parent. In contrast, in the other States and the ACT only heterosexual married or de facto couples, or single women, are eligible. Tasmania, Victoria and Western Australia only allow surrogacy if the surrogate has given birth to a child before, and in all States except the ACT the surrogate must be at least 25.

"We'll continue to see an increase in domestic surrogacy as more and more people talk about it," surrogacy lawyer Stephen Page said. According to him, it costs $25,000 to $60,000 to have a baby via altruistic surrogacy in Australia. A commercial surrogacy arrangement can cost up to $80,000 in India and as much as $250,000 in the US. He also stated, via the SMH that Mexico and Nepal had become the new international surrogacy frontiers for Australians. Thailand has closed its borders to Australians after the Baby Gammy case, while India will permit  only married couples from states other than NSW, QLD and the ACT (which have explicitly banned commercial surrogacy) to engage a surrogate there.

Changes Required to Surrogacy

According to the  House of Representatives Standing Committee on Social Policy and Legal Affairs recent report (released on 24 March 2015) titled "Roundtable on Surrogacy", the focus of any inquiry into the legislative and regulatory arrangements surrounding surrogacy should be national and should include references to:

  • Domestic surrogacy arrangements including issues such as:
    • medical and welfare guidelines;
    • differences in domestic legislative arrangements;
    • informed consent, compensatory payments and protections for all parties involved; and
  • International surrogacy arrangements involving Australian nationals including issues such as:
    • Australia’s international obligations;
    • informed consent of surrogates, compensatory payments and protections for all parties involved;
    • requirements for immigration, citizenship, determining parentage and ongoing welfare; and
    • adequacy of current information on risks, rights and protections.

For now, NSW has started the process of reviewing their own surrogacy laws with the Attorney General stating to the SMH:

"Surrogacy helps people for a variety of reasons have a child. I am determined to ensure our laws makes surrogacy easy, and most importantly put the interests of the child front and centre."

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