Commercial Surrogacy in NSW

This essay explores the legal framework surrounding commercial surrogacy in New South Wales, Australia. It analyzes the Surrogacy Act 2010, including its provisions prohibiting commercial surrogacy and the penalties associated with it. The essay also explores the relevant rules of statutory interpretation and the impact of the legislation on intended parents, surrogate mothers, and the child born through surrogacy.

LAW

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
PART A...........................................................................................................................................1
Defining NSW statutory provision prohibiting commercial surrogacy.......................................1
Indicating when it was enacted....................................................................................................2
Other provision replacing it.........................................................................................................2
Research strategy.........................................................................................................................2
PART B...........................................................................................................................................2
Second reading speech for the Bill..............................................................................................2
Relevant rules of statutory interpretation and impact of provision.............................................3
PART C...........................................................................................................................................4
Identifaction and location of selected sources and importance of each one of them...................4
Summarising, analysing and evalutaion of arguments in both articles.......................................5
REFERNCES...................................................................................................................................6

INTRODUCTION
Commercial surrogacy is the agreement between surrogate mother and the other person to
be able to compensate for service which she will be giving to the other of medical
reimbursement. There is also alternate to this type of surrogacy within which surrogate mother
would be carrying baby without receiving any kind of monetary compensation and it is called to
as altruistic surrogacy. So within Australia except the Northern Territory (which is not having
any regulation to govern it) this commercial surrogacy is criminal offences. In this essay
discussion will be made on provisions governing the prohibiting of commercial surrogacy within
New South Wales. Furthermore, interpretation will be done on these provisions including second
reading speech for the Bill of Surrogacy 2010.
PART A
Defining NSW statutory provision prohibiting commercial surrogacy
The Northern Territory of Australia is not having any clear provision regarding
commercial surrogacy which includes parts like that of New South Wales, Queensland and
Australian Capital1. All these parts are not allow to enter into international commercial surrogacy
which is having potential penalties like that of 1-3 years of imprisonment. Within the area of
New South Wales and Queensland in year 2010 altruistic surrogacy was made legal but only to
opposite sex. Surrogacy Bill of 2010 which is governing NSW will be having 6 Parts with
having various divisions or clause all of them would be including prohibition or penalties
regarding these.
Clause 8 of Surrogacy Bill of 2010 is making it clear offence in entering into any
commercial surrogacy agreement with having imprisonment of at least 2 years and penalty of
1000-2500 units. While the Clause 9 of Bill will be including definition of commercial surrogacy
agreement which is including if there is any provision of fee or compensation to birth mother and
if she is agreeing to enter into this arrangement.
The Clause 10 of bill is including prohibition to any person who is willing to enter into
the agreement of commercial surrogacy and making it any kind of adverstiment or statement
1 Surrogacy Act 2010 No 102. 2018. [Online]. Accessed through:
<https://www.legislation.nsw.gov.au/acts/2010-102.pdf >
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which is exhibiting it2. That person if is including in any way that she is willing to act as birth
mother or she is seeking for it under the surrogacy agreement. Within this Bill Assisted
Reproductive Technology (ART) act of 2007 which means any kind of medical treatment to
procure pregnancy in woman with the help of artificial insemination, gamete intrafallopian
transfer and fertilisation or other then these. This ART act is been included within Schedule 2 of
Surrogacy bill 2010 which prohibit if any person is carrying out business which is related to
ART. So any person must not be indulging into any agreement of surrogacy which include both
entering and offering to enter in commercial surrogacy which is laid down into Clause 8 of
Division 2 which is offence related to surrogacy arrangement.
Indicating when it was enacted
The whole Surrogacy bill of 2010 was enacted on 16th November 2010 with making
certain amendments within the act.
Other provision replacing it
This Bill was amending Assisted Reprodutive Technology Act of 2007 with mking
certain changes and modifications.
Research strategy
In undertaking this reseach of topic Commerical Surrogacy all secondary data was used
to explore this topic various sites were visited with including articles and reading materials
provided. These includes Surrogacy bill of 2010 and Assisted Reprodutive Technology Act of
2007.
PART B
Second reading speech for the Bill
On 21st May 2010 the Honourable John Hatzistergos who was the Attorney General
Minister for Citizenship announce intention of NSW government in regard to introducing new
law for surrogacy. This law will be protecting interest of child who is born by surrogacy with
creation of new parentage orders. The transfer of parentage to intended parent by birth parent
which is order made by court would be called to as parentage order in surrogacy. Then on
November 2009 draft was created including 15 principles of provisions regulating surrogacy and
Standing Committee of Attorney- General discussed over these drafted principles in meeting of
May only.
2 Page, S., 2017. Family Court recognises parents under US surrogacy order. Proctor, The. 37(3). p.22.
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This in August 2008 was advertised for submissions from various affected or involved
parties like that of government, religious organisations, parents of child born by surrogacy,
doctors, lawyers, fertility clinics, psychologist and community groups. All these stakeholders of
surrogacy bill were included to be hear through various hearings from period of November 2008
to March 20093. After this in January 2009 the work of Standing Committee of Attorney-
General made consultation paper with overall 109 submissions from all stakeholders of bill. The
Status of Children Act 1996 which is including that legal parents of child will be his or her birth
parent only. Like if any woman is giving birth to child her husband or de facto partner and she
will be actual parents of child. But if any other couple is trying or intending in becoming parents
through help of surrogacy can be facing many legal, practical and emotional difficulties in way
of obtaining complete parental rights4.
These issues or obstacles are like those of taking passport for that child, admission of
child and other legal benefits of parents are included within. There are certain clauses and
sections which are including or governing legal parentage of children and granting full right to
parents who gave birth to child under this surrogacy agreement. The advertising in respect to this
commercial agreements is offence as laid down in both bill and second reading speech. This also
extended till altruistic surrogacy if the promotion is clearly stating giving compensation or fee in
respect to it5. The bill is great step towards forming legal regulations for those who is opting
surrogacy as option when they are not able to have children and also interest of child who is born
out of surrogacy arrangement.
Relevant rules of statutory interpretation and impact of provision
The new legislations or act will be in favour of altruistic surrogacy and is against use or
implementation of commercial surrogacy main aim is to protect interest and right of child. This
is also be caused due to giving legal protection to those parents who are planning or opting to
3 Martin, C., 2015. Overseas commercial surrogacy: Legal parentage and the statutory gap. Bulletin (Law Society of
South Australia). 37(11). p.32.
4 Second Reading. 2018. [Online]. Accessed through:
http://bulletin/prod/parlment/hansart.nsf/8bd91bc90780f150ca256e630010302c/343cd.
5 Cullen, D., 2017. Family law: One steo at a time. LSJ: Law Society of NSW Journal. (35). p.34
3

have child by surrogacy6. The parents who are willing to take up choice of surrogacy will be
applying for taking up child within 30 days to 6 months from birth of child. Laid down within
Clause 16 which is telling about that it is required to have one report of counsellor stating that
parentage application could be best suited or within interest of child and not including any kind
of gender restriction.
Commercial is more expensive than altruistic surrogacy as the couple who is applying to
take custody of child must be giving more amount to surrogate mother in form of compensation
plus the medical allowance or legal cost7. Impact of surrogacy on intended parents who could be
both member of LGBT community and single parents as well who would not be able to have
children. In case of surrogate mother who would be getting monetary benefits and other medical
compensation so this could be impact of surrogacy. The bill or act of 2010 will be providing
legal rights to parentage parents to be able to get the right of birth parents to intended ones. All
kinds of commercial surrogacy is criminalise and penalise in whole of Northern Australia as this
will not be including consideration of any interest of child if he or she is born by commercial
arrangements. All the surrogacy agreements which are caused outside Australia would not be
legalised as they are not able to transfer legal parentage within state or territory law. So the
transfer of legal parentage on international bases would not be available into Australia8.
PART C
Identifaction and location of selected sources and importance of each one of them
Articles or
reports
Identification and location of source Importance of
source
Surrogacy
Act 2010 No
102
<https://www.legislation.nsw.gov.au/acts/2010-102.pdf> All important
provisions or
amendments
related to act of
6 Johnson, L., 2014. Regulation of assisted reproductive treatment (ART) in Australia & current ethical issues. The
Indian Journal of Medical Research. 140(Suppl 1). p.S9.
7 Ludlow, K., 2015. Genes and gestation in Australian regulation of egg donation, surrogacy and mitochondrial
donation.
8 Richards, B., Madden, B. and Cockburn, T., 2015. Untangling the surrogacy web and exploring legal duties
following the discharge of mental health patients. Journal of bioethical inquiry. 12(1). pp.25-29.
4

bill was been
included within
the source. This
is the reason as
to why it was
selected to carry
out research on
Commercial
Surrogacy
within NWS
Second
Reading
<http://bulletin/prod/parlment/hansart.nsf/
8bd91bc90780f150ca256e630010302c/343cd.>
It includes
second reading
or drafting
related to this
topic of
commercial
surrogacy by
Hon. John
Hatzistergos
who was
Attorney
General,
Minister for
Citizenship,
Minister for
Regulatory
Reform
Summarising, analysing and evalutaion of arguments in both articles.
Surrogacy Act 2010 No 102- in this article all related to surrogacy in Australia which
includes that commercial surrogacy is prohibited and it is providing status for the child who is
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born out of surrogacy9. Into this act there are some affected parties like that of birth mother,
intended parents, child and partner of birth mother.
Second Reading- while this is regarded to as drafting of bill with taking in thoughts and
ideas of all stakeholders who are likely to get affected due to this Surrogacy bill 2010. With
intention of government of Australia to introduce new surrogacy law for NSW so that right of
child is secured and parents.
9 Wang, A.Y., Dill, S.K., Bowman, M. and Sullivan, E.A., 2016. Gestational surrogacy in Australia 2004‐2011:
treatment, pregnancy and birth outcomes. Australian and New Zealand Journal of Obstetrics and Gynaecology.
56(3). pp.255-259.
6

REFERNCES
Books and Journals:
Cullen, D., 2017. Family law: One steo at a time. LSJ: Law Society of NSW Journal. (35). p.34.
Johnson, L., 2014. Regulation of assisted reproductive treatment (ART) in Australia & current
ethical issues. The Indian Journal of Medical Research. 140(Suppl 1). p.S9.
Ludlow, K., 2015. Genes and gestation in Australian regulation of egg donation, surrogacy and
mitochondrial donation.
Martin, C., 2015. Overseas commercial surrogacy: Legal parentage and the statutory gap. Bulletin
(Law Society of South Australia). 37(11). p.32.
Page, S., 2017. Family Court recognises parents under US surrogacy order. Proctor, The. 37(3).
p.22.
Richards, B., Madden, B. and Cockburn, T., 2015. Untangling the surrogacy web and exploring
legal duties following the discharge of mental health patients. Journal of bioethical
inquiry. 12(1). pp.25-29.
Wang, A.Y., Dill, S.K., Bowman, M. and Sullivan, E.A., 2016. Gestational surrogacy in Australia
2004‐2011: treatment, pregnancy and birth outcomes. Australian and New Zealand Journal of
Obstetrics and Gynaecology. 56(3). pp.255-259.
Online:
Second Reading. 2018. [Online]. Accessed through:
<http://bulletin/prod/parlment/hansart.nsf/8bd91bc90780f150ca256e630010302c/343cd.>
Surrogacy Act 2010 No 102. 2018. [Online]. Accessed through:
<https://www.legislation.nsw.gov.au/acts/2010-102.pdf >
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