Evaluate the Effectiveness of Legal Responses Concerning Surrogacy in Achieving Just Outcomes for Both Family Members and Society

In today’s evolving society, more and more couples are looking towards surrogacy arrangements due to pregnancy being medically impossible or is a same-sex couple’s preferred method of having children. Surrogacy is the agreement between a commissioning couple and a woman known as the surrogate. The surrogate agrees to bear a child for the commissioning couple and then give the child to the couple when he or she is born. The issue of surrogacy has brought about a myriad of legal implications as its use has seen an increase in recent years, becoming a popular alternative for couples who are unable to naturally conceive a child. There currently exists a number of legal responses in relation to surrogacy that aim to combat the significantly complex social, emotional and parenting issues. Institutions such as the federal and New South Wales government, and the courts play an integral role in achieving just outcomes for family members and society. However, the law struggles to effectively govern the way in which surrogacy is permitted to be used, as well as the circumstances in which it is acceptable both legally and socially.

There are two forms of surrogacy which the law distinguishes; one is altruistic, where an arrangement is made in which the surrogate receives no financial payment for the pregnancy or the transfer of the child. The other is commercial surrogacy, where an agreement is made involving the a fee paid to the woman who gives birth to the child. In New South Wales, only altruistic surrogacy is legal whereas commercial surrogacy is prohibited and a criminal offence.

Laws concerning surrogacy in Australia are state or territory based and until recently, these laws have been inconsistent and provided inadequate protections and guidance. The New South Wales government is the principal legal response in achieving just outcomes for families and has only very recently addressed the issues concerning surrogacy. Currently in NSW, surrogacy is governed by the Surrogacy Act 2010 NSW. However prior to the commencement of the act, the Status of Children Act 1996 (NSW) meant that a child’s legal parents were presumed to be the birth parents. This meant the commissioning parents in a surrogacy arrangement would not be recognised as the legal parents and could face difficulties in trying to access certain government benefits or applying for a passport for the child. There were also a few federal provisions addressing surrogacy issues in the Family Law Act 1975 (Cth), but these were not adequate to address all of the potential issues surrounding surrogacy. The state government was eminently ineffective in achieving just outcomes for families as commissioning parents were unable to be legally recognised as parents of the surrogate child. A crucial case involving commissioning parents attempting to have parentage rights recognised was Re (in the matter