Contemporary issues in family law: surrogacy and same-sex parenting

What this dot point is asking

The Legal Studies Stage 6 Syllabus (2009) lists four contemporary issues in family law that must be studied: recognition of same-sex relationships, the changing nature of parental responsibility, surrogacy and birth technologies, and care and protection of children. For each, you must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses.

This page covers surrogacy and birth technologies, plus same-sex parenting (where birth technologies and same-sex recognition meet). The 2024 HSC asked directly about surrogacy and birth technologies, and markers' comments noted that few students used specific provisions and cases such as Masson v Parsons. The live development for 2026 is the ALRC Review of Surrogacy Laws.

The answer

Why this is a contemporary issue

Birth technologies (IVF, donor sperm, eggs and embryos) and surrogacy separate genetic, gestational and social parenthood. A child can have a genetic mother, a birth mother, a genetic father and two intended parents. The law has traditionally defined parents by birth and marriage, so it struggles to answer who is a legal parent, what rights children have to know their origins, and how to protect surrogates from exploitation. Changing values (acceptance of same-sex and single-parent families) and globalisation (overseas surrogacy) keep pushing the law to change.

Surrogacy in NSW

Altruistic surrogacy only

The Surrogacy Act 2010 (NSW) permits altruistic surrogacy, where the birth mother receives only reimbursement of reasonable costs (medical, legal, counselling, travel and lost earnings). Commercial surrogacy (a fee or reward) is an offence, as is advertising for commercial surrogacy. Surrogacy agreements are not enforceable, except for the obligation to reimburse costs: the birth mother cannot be forced to hand over the child.

Extraterritorial offence

Section 11 extends the commercial surrogacy offence to people ordinarily resident in NSW who enter commercial arrangements overseas. Queensland (since 1988) and the ACT have similar laws.

Parentage orders

After the birth, the intended parents apply to the Supreme Court of NSW for a parentage order transferring legal parentage from the birth mother (and her partner) to them. The court must be satisfied that:

• the order is in the best interests of the child (the paramount consideration);
• the arrangement was altruistic and made before conception;
• the birth mother was at least 25 when the arrangement was made;
• all parties received counselling and independent legal advice;
• the intended parents have a medical or social need for surrogacy (for example, a single man or a male couple has a social need);
• the birth mother and her partner consent to the order; and
• the application is made when the child is between 30 days and 6 months old.

The court can dispense with some requirements in exceptional cases if the order is in the child's best interests. Since 1 July 2025, following the Equality Legislation Amendment (LGBTIQA+) Act 2024 (NSW), the court can also make a parentage order for a child born through a commercial surrogacy arrangement entered into overseas if it is satisfied the order is in the child's best interests; this does not remove the s 11 offence. The child's birth is then re-registered to show the intended parents.

Federal recognition. The Family Law Act 1975 (Cth) recognises a state parentage order: the child is the child of the intended parents for federal purposes (s 60HB).

Other states. Every jurisdiction bans commercial surrogacy but its rules differ: Victoria (Assisted Reproductive Treatment Act 2008 (Vic) with approval by the Patient Review Panel), Queensland (Surrogacy Act 2010 (Qld)), South Australia (Surrogacy Act 2019 (SA)) and WA (Surrogacy Act 2008 (WA)). WA's law excludes single men and male couples. The Assisted Reproductive Technology and Surrogacy Act 2025 (WA), which passed the WA Parliament on 3 December 2025, removes those limits, but it is expected to commence only in mid-2027; until then the Surrogacy Act 2008 (WA) remains in force.

Overseas commercial surrogacy

Because domestic surrogates are scarce, many Australians use commercial surrogacy overseas, for example in the United States. This creates serious legal problems:

• Criminal liability. Residents of NSW, Queensland and the ACT commit an offence. Judges have referred cases to prosecutors, but there has never been a successful Australian prosecution for overseas commercial surrogacy. In Lloyd & Compton [2025] FedCFamC1F 28 a judge referred a Queensland couple to the Queensland Director of Public Prosecutions; the ALRC noted in 2025 that such referrals are rare and have not led to prosecutions.
• Parentage. A state parentage order is generally not available after a commercial arrangement. The exceptions are recent and limited: the ACT allows one where the child would otherwise face a "pressing disadvantage", and since 1 July 2025 the Supreme Court of NSW can make one after an overseas commercial arrangement if it is in the child's best interests. Neither change removes the intended parents' criminal liability. In Mason & Mason [2013] FamCA 424, which involved twins born through surrogacy in India, the Family Court refused to declare the biological father a parent but made parenting orders giving the couple parental responsibility. In Bernieres & Dhopal (2017) the Full Court held that a biological father of a child born through Indian commercial surrogacy was not a legal parent under the Family Law Act. Parenting orders end when the child turns 18 and do not make the intended parents legal parents for all purposes, such as inheritance.
• Citizenship and identity. Children are registered as Australian citizens by descent (Australian Citizenship Act 2007 (Cth)), which requires proof of a parent-child relationship, often by DNA testing. Birth records may not show the surrogate or donors, affecting the child's right to know their origins (Convention on the Rights of the Child art 7).
• Exploitation. In the Baby Gammy case (2014), a WA couple left one twin, who had Down syndrome, with the Thai surrogate and took his sister home; the Family Court of WA later allowed the sister to remain with the couple (Farnell & Chanbua [2016] FCWA 17). The case led Thailand to ban commercial surrogacy for foreigners in 2015; India, Nepal and Cambodia also restricted it.

Birth technologies

Parentage of ART children

Where a woman conceives through ART with her partner's consent, she and her partner (including a same-sex partner) are the child's parents and a donor is not (Family Law Act 1975 (Cth) s 60H; Status of Children Act 1996 (NSW) s 14). This covers most IVF and donor-conception families.

Masson v Parsons (2019) 266 CLR 554

A man provided sperm to a friend so she could conceive, intending to be the child's father. He was named on the birth certificate and was closely involved in the child's life. When the mother and her wife planned to move to New Zealand, he sought parenting orders. The High Court held that he was a legal parent under the Family Law Act, given the ordinary meaning of "parent" and the facts, and that the NSW presumption that a donor is not a parent could not be applied in federal family law proceedings. The case shows parentage can depend on intention and involvement, not just biology or the ART rules.

Regulation of ART in NSW

The Assisted Reproductive Technology Act 2007 (NSW) requires clinics to be registered and to obtain informed consent, limits the number of women who can use one donor's gametes to create families, bans commercial trade in gametes, and establishes the NSW ART Central Register. People conceived with donations made from 1 January 2010 can obtain identifying information about the donor when they turn 18. People conceived earlier can obtain identifying information only if the donor has consented, for example through the voluntary register. Victoria removed donor anonymity retrospectively in 2017, which NSW has not done.

Industry oversight

Clinics are accredited by the industry's Reproductive Technology Accreditation Committee under NHMRC ethical guidelines. After embryo mix-ups at Monash IVF clinics in Brisbane and Melbourne became public in 2025, Australian health ministers agreed in June 2025 to a rapid review of IVF accreditation and regulation. The review found industry-led accreditation was not adequate, and in September 2025 ministers agreed that the Australian Commission on Safety and Quality in Health Care should provide independent accreditation of ART services against updated national standards.

Same-sex parenting

• 2008: Commonwealth equal treatment reforms recognised the female partner of a birth mother as a parent of an ART child (s 60H) and extended family law and child support to same-sex families; NSW amended its Status of Children Act 1996 (NSW) to do the same.
• 2010: same-sex couples can adopt in NSW (Adoption Amendment (Same Sex Couples) Act 2010 (NSW)); all jurisdictions now allow it.
• Surrogacy: male couples can obtain parentage orders under the Surrogacy Act 2010 (NSW) and, once WA's 2025 Act commences (expected mid-2027), in WA.
• 2017: same-sex parents can marry.

Same-sex parenting is now largely equal in law. Remaining difficulties concern known donors (Masson v Parsons) and overseas surrogacy, which affects male couples disproportionately.

Law reform: the ALRC Review of Surrogacy Laws

The Commonwealth Attorney-General asked the ALRC to review surrogacy laws, including domestic barriers to altruistic surrogacy, overseas surrogacy, parentage and citizenship recognition, and birth certificates.

• Issues Paper: 3 June 2025.
• Discussion Paper: 12 November 2025. Proposals included a nationally consistent legal and regulatory framework with a national regulator and safeguards that apply before an arrangement begins, repeal of the extraterritorial criminal offences, streamlined citizenship and passports for children born overseas where the arrangement was registered, and information about the surrogacy available through a register and an addendum to the birth certificate.
• Final report: due to the Attorney-General by 11 September 2026 (after a six-week extension), and must be tabled in Parliament by 18 November 2026, when it becomes public. Check whether it has been tabled, and what it recommends, before the exam. Its recommendations then depend on the Commonwealth and the states agreeing to implement them.

Non-legal responses

• Counselling and legal advice are compulsory before NSW surrogacy arrangements.
• Support organisations for surrogates, intended parents and donor-conceived people provide information and advocacy; donor-conceived people's advocacy drove the 2010 NSW register and Victoria's reforms.
• The media exposed Baby Gammy and the Monash IVF mix-ups, prompting reform in Thailand and a national IVF review.
• International: the Hague Conference on Private International Law has worked for years on parentage and international surrogacy, without a convention.

Evaluating effectiveness

Judgement. Legal responses are moderately effective within Australia but ineffective for overseas commercial surrogacy, which is where many Australian surrogacy births occur. The ALRC review is the most significant opportunity for reform: a national framework would align the law with how families are actually formed and better protect children's rights.

In one sentence

Australian law allows altruistic surrogacy with safeguards and parentage orders, bans commercial surrogacy (even overseas in NSW, Queensland and the ACT, though never successfully prosecuted), and settles most ART parentage through s 60H, but overseas surrogacy, known-donor cases like Masson v Parsons and inconsistent state laws mean it is only moderately effective, which the ALRC's 2025 to 2026 review seeks to fix.

Try this

Q1. Distinguish between altruistic and commercial surrogacy. (2 marks)

• What the marker wants. Reimbursement of reasonable costs only versus payment of a fee, and the legal status of each.

Q2. Explain the significance of Masson v Parsons (2019) for the law on birth technologies. (5 marks)

• What the marker wants. The facts, the High Court's holding on "parent", the non-application of the NSW presumption, and what it shows about intention and parentage.

Q3. To what extent is the law effective in protecting the rights of children born through surrogacy? (8 marks)

• What the marker wants. Best interests in parentage orders, s 60HB, problems of overseas-born children (parentage, citizenship, identity), the ALRC proposals, and a judgement.