Investigate contemporary issues in family law including surrogacy, assisted reproductive technology, and same-sex parenting

What this dot point is asking

NESA wants you to know how the law has responded to changes in how families are formed: surrogacy, assisted reproductive technology and same-sex parenting. Expect this as a Section IV extended response component.

The answer

Surrogacy in Australia

Surrogacy is regulated at state level. Commercial surrogacy is prohibited in every Australian jurisdiction, but altruistic surrogacy is permitted in most states.

NSW: Surrogacy Act 2010 (NSW)

Permits altruistic surrogacy. Commercial surrogacy is an offence under s 8 (maximum penalty 2 years imprisonment or $110,000 fine for an individual). Section 11 of the Act prohibits NSW residents from entering commercial surrogacy arrangements overseas; this is one of the few jurisdictions in the world with extra-territorial reach.

Victoria: Assisted Reproductive Treatment Act 2008 (Vic)

Queensland: Surrogacy Act 2010 (Qld)

Western Australia: Surrogacy Act 2008 (WA)

After the birth, the intended parents apply to the relevant state Supreme Court (or Children's Court in some states) for a parentage order transferring legal parenthood from the surrogate to the intended parents. The court applies the best interests of the child as the paramount consideration.

International commercial surrogacy

Australians who enter commercial surrogacy arrangements overseas face significant legal complications:

• the child may not be a citizen of either country at birth;
• the intended parents must apply for an Australian citizenship by descent under the Australian Citizenship Act 2007 (Cth);
• NSW, Queensland and the ACT prohibit residents from entering commercial surrogacy arrangements overseas;
• the Family Court of Australia in Mason and Mason (2013) FLC 93-547 declined to make parenting orders following an international commercial surrogacy arrangement that had not complied with state law.

Assisted reproductive technology

Assisted reproductive technology (ART) is regulated at state level. The relevant Acts include:

• NSW: Assisted Reproductive Technology Act 2007 (NSW).
• Victoria: Assisted Reproductive Treatment Act 2008 (Vic).

Key provisions typically include consent requirements, a presumption of parenthood for the consenting partner of the birth mother, and donor registry obligations.

Same-sex parenting

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cth) gave same-sex couples equal treatment under Commonwealth law for most purposes, including:

• presumption of parenthood for the consenting same-sex partner of a birth mother who conceives through ART (Family Law Act 1975 (Cth) s 60H);
• adoption rights (state-by-state; NSW recognised same-sex adoption in 2010 through the Adoption Amendment (Same Sex Couples) Act 2010 (NSW));
• access to subsidised IVF.

Same-sex marriage has been recognised since the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).

Recognition of transgender people

In Re Kevin (Validity of Marriage of Transsexual) (2001) FLC 93-087 (upheld by the Full Court of the Family Court in Attorney-General for the Commonwealth v Kevin (2003) FLC 93-127), the court held that the marriage of a man who had undergone gender affirmation surgery was valid: the question of sex for the purposes of the Marriage Act 1961 (Cth) was determined by the person's identity at the time of the marriage, not at birth.

State and territory registration laws (e.g. the Births, Deaths and Marriages Registration Act 1995 (NSW)) now allow changes to recorded sex without the requirement of surgery in most jurisdictions.

Adoption

Adoption is governed by state legislation. In NSW, the Adoption Act 2000 (NSW) governs. The Adoption Amendment (Same Sex Couples) Act 2010 (NSW) permitted same-sex couples to adopt. The Aboriginal child placement principle (s 35) requires Aboriginal children to be placed with Aboriginal carers wherever possible.

Issues and reform proposals

• Surrogacy uniformity. The Standing Council of Attorneys-General has periodically considered a uniform national surrogacy law. To date, no national scheme has emerged.
• Overseas commercial surrogacy. The Australian Family Association and others have called for tighter enforcement of the extra-territorial provisions of the NSW, Queensland and ACT Acts.
• Donor anonymity. The 2024 NSW review of the Assisted Reproductive Technology Act 2007 (NSW) is considering retrospective access to donor information for children born from pre-2010 donations.