Foundations of Law: Analysis of Commercial Surrogacy under NSW Law

This report provides a detailed analysis of commercial surrogacy under the Surrogacy Act 2010 in New South Wales. It identifies the specific legislative provisions that prohibit commercial surrogacy, including Section 8, and discusses the act's commencement date and its replacement of provisions in the Family Law Act 1975. The report interprets the definition of commercial surrogacy as outlined in Section 9, focusing on fees, rewards, and benefits. It also documents the research strategy used to locate relevant legislation and speeches, such as the second reading speech for the Surrogacy Bill 2010. The analysis incorporates rules of statutory interpretation and references scholarly articles to support its contentions, emphasizing the ethical and legal implications of commercial surrogacy within a global context. The report concludes with a bibliography of cited statutes and articles. Desklib offers a wealth of similar solved assignments and study tools for students.

Running head: FOUNDATIONS OF LAW
FOUNDATIONS OF LAW
Name of the Student
Name of the University
Author Note

1FOUNDATIONS OF LAW
Part A
In New South Wales commercial surrogacy is governed and regulated by the provisions
of the Surrogacy Act, 20101. As stated in the provisions of Section 8 of the Surrogacy Act, 2010
commercial surrogacy is prohibited under law thus this is the provision that eliminates the
legality of commercial surrogacy2. Thus this is the provision which specifically prohibits
commercial surrogacy. Surrogacy and rights of a child born under such surrogacy agreements
were governed and regulated by the provisions of the Family Law Act, 19753. Family Law Act,
1975 had provisions that regulated commercial surrogacy and thus the same were repealed by the
enactment of the Surrogacy Act, 2010 and Section 8 has since governed the prohibition on
commercial surrogacy. The Surrogacy Act, 2010 came into force on the 16th of November 2010
and thus Section 8 has been in force since that date4. The research strategy in locating these
provisions is intricately related to the understanding of the basis on which such legislation is
enacted and the purport of the same. The purpose of surrogacy is the furtherance of a family.
Surrogacy refers to the process of an individual acting as a host for an embryo belonging to
another person due to various reasons that may be preventing that person from conceiving a
child. Thus the preceding fact makes it evident that the laws governing the same would be
specifically related to family laws. Through this analysis it is possible to conclude that the act
would be the Family Law Act, 19755. Locating the Family Law Act, 1975 would also lead to the
1 Millbank, Jenni. "Resolving the dilemma of legal parentage for Australians engaged in international surrogacy."
(2013).
2 Trimmings, Katarina, and Paul Beaumont, eds. International surrogacy arrangements: legal regulation at the
international level. Bloomsbury Publishing, 2013.
3 Gerber, Paula, and Katie O'Byrne. "Souls in the house of tomorrow: The rights of children born via
surrogacy." Surrogacy, law and human rights. Routledge, 2016. 93-124.
4 Mason, Kenyon, Graeme Laurie, and Alexander McCall Smith. Mason and McCall Smith's law and medical ethics.
Oxford University Press, 2013.
5 Fenton-Glynn, Claire. "Outsourcing ethical dilemmas: Regulating international surrogacy arrangements." Medical
law review 24.1 (2016): 59-75.

2FOUNDATIONS OF LAW
inference that the surrogacy provisions in the same are no longer in force and the same have been
replaced by the act that currently governs and regulates all agreements related to surrogacy
which is the Surrogacy Act, 20106. The act is in force in the state of New South Wales and thus
only extends to surrogacy agreements within the state of New South Wales. Other states such as
Queensland have enacted similar legislations to govern and regulate surrogacy agreements and
commercial surrogacy.
Part B
The Surrogacy Act, 2010 defines and regulates commercial surrogacy within the
jurisdiction of New South Wales. In the act the meaning of commercial surrogacy is defined in
Section 97. As per the provisions of Section 9 we can infer that a commercial surrogacy
agreement is one where an individual is entitled to a fee, reward or benefit of some kind for the
provision of surrogacy services to another8. The section however clarifies that when the surrogate
is entitled to a fee, reward or benefit in terms of the costs incurred to rendered to provide
surrogacy services then the same would not constitute a commercial surrogacy agreement9. As
per the provisions of Section 8 of the Surrogacy Act, 2010 all commercial surrogacy agreements
are prohibited by law, thus in an agreement for surrogacy where the surrogate is entitled to a fee
or any form for the serviced rendered by her which go beyond the costs incurred by her in
rendering these services the same would be barred by law and thus would be illegal10. The bill
6 Wilson, Debra. "Avoiding the Public Policy and Human Rights Conflict in Regulating Surrogacy: The Potential
Role of Ethics Committees in Determining Surrogacy Applications." UC Irvine L. Rev. 7 (2017): 653.
7 Johnson, Louise. "Regulation of assisted reproductive treatment (ART) in Australia & current ethical issues." The
Indian Journal of Medical Research 140.Suppl 1 (2014): S9.
8 Pathak, Padmini, and Shashikala Gurpur. "Rights of Children in Surrogacy and Art: Debating Challenges to
Healthcare Justice." Indian Journal of Public Health Research & Development 8.4 (2017).
9 Richards, Bernadette, Bill Madden, and Tina Cockburn. "Untangling the surrogacy web and exploring legal duties
following the discharge of mental health patients." Journal of bioethical inquiry 12.1 (2015): 25-29.
10 Llewellyn, Shelby. "Surrogacy Law Reform in South Australia: Are Surrogacy Registers a New Way Forward in
Australia." U. Tas. L. Rev. 34 (2015): 130.

3FOUNDATIONS OF LAW
which was assented to which led the enactment of the Surrogacy Act, 2010 was the Surrogacy
Bill, 2010. The same was introduced in the legislative assembly by John Hatzistergos on 21st
October 201011. The second reading of the same was held on the 29th of October 2010. The
speech was also titled “Agreement in Principle” speech. The same can be located on the official
parliament website at the designated section for bills. Once the act is located as mentioned in the
steps enumerated in “Part A” it would be evident that the bill that the act originated would have
the same name and subject matter. On a precursory search on the official website of the
parliament the same can be located and all the steps involved in the passing of the bill are clearly
enumerated and explained. The transcripts for the speech are also available in this section of the
official website of the Parliament and the same clearly sets out the contentions put forward for
the enactment of such an act and the implications of the same in light of the current global
scenario relating to surrogacy agreements and commercial surrogacy12. The provisions of the act
can be interpreted based on the rule of literal construction as the provisions are specific and do
not have room for ambiguous and arbitrary interpretation.
Part C
Nelson, Erin. "Global trade and assisted reproductive technologies: regulatory challenges
in international surrogacy." The Journal of Law, Medicine & Ethics 41.1 (2013): 240-253.
This article deals with the viability of commercial surrogacy in the global context. It emphasizes
on the unethical aspects of commercial surrogacy agreement and explains them in light of the
rights of children born out of surrogacy agreements. In light of the same it must be clarified that
all forms of fees paid to the surrogate parent does not qualify as commercial agreements. This is
11 Wales, New South. "Surrogacy Bill 2010." (2014).
12 Martin, Chanel. "Overseas commercial surrogacy: Legal parentage and the statutory gap." Bulletin (Law Society of
South Australia) 37.11 (2015): 32.

4FOUNDATIONS OF LAW
because payment of the costs incurred in order to render surrogacy services do not qualify as a
benefit or an additional fee paid. However, all other forms of payment would constitute a
commercial surrogacy agreement and would be void under law. In the global context as well the
same qualifies as unethical and illegal. The article uses various statues which are primary sources
of law and in the interpretation of the same it applies precedents which are a secondary source of
law. Judicial pronouncements lay down how primary sources of law are interpreted and thus the
article makes concrete contentions which would make it extremely credible. The article further
emphasizes the relevance of surrogacy in light of technological advancements in the field of
medicine and how it is frequently opted for in the present day.
Trimmings, Katarina, and Paul Beaumont, eds. International surrogacy arrangements: legal
regulation at the international level. Bloomsbury Publishing, 2013.
This book enumerates and highlights the importance of regulating agreements relating to
commercial surrogacy. The unethical use of such technology for commercial purposes is also
reiterated here. Commercial surrogacy in the global context is considered unethical and thus does
cannot be given legal sanction. All acts relating to such unethical conduct can be curbed by
applying well defined and precise regulations. These cannot be governed by standard contract
laws and thus require specific provisions that can adequately ensure that the same is prohibited.
Enforcement of such regulations would also be required here and the rights of all parties
involved in the agreement must also be set out. This is why surrogacy legislation such as the
Surrogacy Act, 2010 was enacted. These legislations seek to sufficiently identify and define the
rights of all parties to such agreements and also ensure that all forms of unethical conduct in light
of the same are avoided. The book refers to various legislations enacted in various jurisdictions
and also makes references to various judicial precedents which aid in interpreting the same. Thus

5FOUNDATIONS OF LAW
the book is a highly credible source and can be relied upon when interpreting statutory
provisions relating to surrogacy agreements and commercial surrogacy. The book also
emphasizes on the rights of children who are born out of such agreements and the rights of the
birth mother in such a case. Thus this book is a comprehensive look at surrogacy agreements.

6FOUNDATIONS OF LAW
Bibliography
Statutes
Surrogacy Act, 2010
Family Law Act, 1975
Articles
Fenton-Glynn, Claire. "Outsourcing ethical dilemmas: Regulating international surrogacy
arrangements." Medical law review 24.1 (2016): 59-75.
Gerber, Paula, and Katie O'Byrne. "Souls in the house of tomorrow: The rights of children born
via surrogacy." Surrogacy, law and human rights. Routledge, 2016. 93-124.
Johnson, Louise. "Regulation of assisted reproductive treatment (ART) in Australia & current
ethical issues." The Indian Journal of Medical Research 140.Suppl 1 (2014): S9.
Llewellyn, Shelby. "Surrogacy Law Reform in South Australia: Are Surrogacy Registers a New
Way Forward in Australia." U. Tas. L. Rev. 34 (2015): 130.
Martin, Chanel. "Overseas commercial surrogacy: Legal parentage and the statutory
gap." Bulletin (Law Society of South Australia) 37.11 (2015): 32.
Mason, Kenyon, Graeme Laurie, and Alexander McCall Smith. Mason and McCall Smith's law
and medical ethics. Oxford University Press, 2013.
Millbank, Jenni. "Resolving the dilemma of legal parentage for Australians engaged in
international surrogacy." (2013).

7FOUNDATIONS OF LAW
Pathak, Padmini, and Shashikala Gurpur. "Rights of Children in Surrogacy and Art: Debating
Challenges to Healthcare Justice." Indian Journal of Public Health Research & Development 8.4
(2017).
Richards, Bernadette, Bill Madden, and Tina Cockburn. "Untangling the surrogacy web and
exploring legal duties following the discharge of mental health patients." Journal of bioethical
inquiry 12.1 (2015): 25-29.
Trimmings, Katarina, and Paul Beaumont, eds. International surrogacy arrangements: legal
regulation at the international level. Bloomsbury Publishing, 2013.
Wales, New South. "Surrogacy Bill 2010." (2014).
Wilson, Debra. "Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees in Determining Surrogacy
Applications." UC Irvine L. Rev. 7 (2017): 653.