The Act defines its reach through the concept of “affected parties” in s 4(1): the birth mother, her partner (spouse or de facto partner at the time the arrangement is entered into), any other birth parent, and the intended parent or parents. A “child of a surrogacy arrangement” is any child born as a result of it or who is the subject of it (s 4(2)).

Birth mothers are directly regulated. They must be at least 25 years old at the time of entering a post-commencement arrangement (s 27(1)), although the floor is 18 for pre-commencement arrangements (s 27(2)–(3)). They must receive independent counselling both before the arrangement and again after birth before consenting to the parentage order (s 35), obtain independent legal advice (s 36), and provide informed consent freely and voluntarily (s 31). They are entitled to reimbursement of reasonable surrogacy costs (s 7) but cannot receive any other material benefit.

Intended parents (defined in s 5(6)) must satisfy age (s 28), maturity (s 29 for those under 25), residency (s 32), and relationship status requirements (s 25). They must demonstrate a medical or social need for surrogacy (s 30), which for couples means at least one partner must be an “eligible woman” unable to conceive or carry a pregnancy on medical grounds, or the arrangement must involve two men or two eligible women. Single men are permitted; single women only if they meet the eligible-woman criteria.

The child is both the beneficiary and a rights-holder. The best-interests test in s 22 is mandatory. Once 18, the child gains an unqualified statutory right to the original birth certificate and the full birth record showing both the birth parents and the parentage order (s 55). While under 18, access requires the consent of the person with parental responsibility. The child’s wishes must be taken into account if the child is of sufficient maturity (ss 17(3)(g), 26(2), 42(2)).

Other affected persons include the birth mother’s partner, any additional birth parent, and, in discharge proceedings, the Attorney General (s 43). Medical practitioners, counsellors and lawyers who provide services in connection with surrogacy are indirectly regulated through the independence requirements in ss 17(7), 35 and 36, and through the cross-referenced obligations in the Assisted Reproductive Technology Act 2007.

Finally, the legislation has extraterritorial reach for offences. Section 11 applies Part 1A of the Crimes Act 1900 so that an offence under Division 2 is committed if the offender is ordinarily resident or domiciled in New South Wales, even if the relevant acts occur offshore.

The Act creates a web of duties and correlative rights. The birth mother and intended parents owe each other duties of informed consent (defined in s 4(1)) and full participation in mandatory counselling and legal advice processes (ss 35–36). The intended parents have a duty to pay the birth mother’s reasonable, receipted surrogacy costs if the arrangement so provides (s 6(2)), but the birth mother has no enforceable duty to surrender the child.

The most significant rights arise upon the making of a parentage order. Under s 39(1), the child becomes the child of the intended parent(s) and ceases to be the child of any birth parent. The intended parents acquire full parental responsibility (s 39(2)(b)), and the child acquires equivalent rights of inheritance and succession (note to s 39 referring to s 109A of the Succession Act 2006). For sexual offence purposes, however, the pre-order biological relationships are preserved (s 39(4)).

Privacy rights are expressly conferred. Section 52 prohibits publication of material that identifies or is likely to identify any affected party, with a defence only where all identified persons consent. Section 53 restricts access to court records relating to parentage order proceedings to those granted leave by the Court; even parties and media organisations require leave.

Information rights are central. Part 5, read with Part 3 of the Assisted Reproductive Technology Act 2007, gives the child at 18 an entitlement to both the original birth certificate and the full birth record (s 55). Affected parties have parallel rights under s 56. These rights reflect the legislative judgment in s 17(3)(b) that openness and honesty about a child’s birth parentage is in the child’s best interests.

The Court itself is under duties: to act only if satisfied that all mandatory preconditions are met (s 18(1)), to consider the independent counsellor’s report (s 17), to keep proceedings closed unless it directs otherwise (s 47), and to prefer arrangements that keep birth siblings together (s 20).

Offences are concentrated in Division 2 of Part 2. The prohibition on entering or offering to enter a commercial surrogacy arrangement carries a maximum penalty of 2,500 penalty units for a corporation or 1,000 penalty units or 2 years imprisonment (or both) for an individual (s 8). Advertising offences under s 10 are tiered: the higher commercial tier attracts the same 2,500/1,000 penalty unit or 2-year imprisonment sanction; non-commercial advertising where a fee has been paid for the advertisement is limited to 200 penalty units (corporation) or 100 penalty units (individual).

Breach of the publication prohibition in s 52 carries 25 penalty units or 12 months imprisonment or both. Proceedings for all offences are summary only before the Local Court (s 58).

Enforcement of the parentage-order regime is primarily civil and judicial. The Supreme Court may refuse an order if any precondition is unmet (subject to the discretionary waiver powers in s 18(2)), and may discharge an order on application by an interested person if it was obtained by fraud, duress, improper means, or if consent was in fact given for payment beyond surrogacy costs (s 44). Ancillary orders may be made on both making and discharge of parentage orders (ss 19, 46).

The legislation relies heavily on administrative gate-keeping. Providers of assisted reproductive technology must obtain and consider an assessment report before providing treatment connected with surrogacy (note to s 10 referring to the Assisted Reproductive Technology Act 2007). Registration of birth and provision of registrable surrogacy information to the central register are preconditions to a parentage order (ss 37–38).

The Surrogacy Act 2010 is not a standalone statute. It is expressly linked to the Assisted Reproductive Technology Act 2007 (NSW) in multiple places. Section 37 requires that all registrable information under Division 3 of Part 3 of the ART Act must have been supplied to the Director-General of Health before a parentage order can be made. The central register maintained under the ART Act is the repository for long-term information rights exercised under Part 5 of the Surrogacy Act. The note to s 10 reminds ART providers of their separate assessment-report obligations.

The Births, Deaths and Marriages Registration Act 1995 (NSW) is engaged at several points. Registration of the child’s birth is a precondition (s 38). Part 4A of that Act governs registration of the parentage order itself, after which a new birth certificate must show the intended parents’ details and the child’s court-approved name (note to s 42). Access to original and full birth records under ss 55–56 is carved out of the general discretion conferred on the Registrar by s 46 of the BDMR Act.

The Interpretation Act 1987 (NSW) supplies the definition of “de facto partner” used in the definitions of “birth mother’s partner” and “couple” (ss 4(1), 25(2)). The Crimes Act 1900 supplies the geographical nexus rules for the offence provisions (s 11).

Succession and property law interactions are detailed in ss 39–41. A parentage order changes intestacy rights by operation of s 109A of the Succession Act 2006. Trustees and legal personal representatives are protected if they give the statutory claims notice and distribute without notice of a claim based on a parentage order (s 41, referring to provisions of the Trustee Act 1925, Probate and Administration Act 1898 and Succession Act 2006). Vested or contingent property rights acquired before the order are preserved (s 40(1)).

The Court Information Act 2010 is modified by s 53, which imposes a stricter access regime for surrogacy proceedings than the general rule and applies the offence provision in s 21 of that Act to breaches of conditions imposed by the Court.

Finally, the 2024 amendments (Surrogacy Amendment Act 2024 No 71) introduced differential treatment for overseas commercial surrogacy by reference to the child’s date of birth, illustrating the Act’s responsiveness to federal–state harmonisation pressures and to the reality that many intended parents use offshore services.

The most significant recent changes were introduced by the Surrogacy Amendment Act 2024 (No 71), which inserted new paragraphs into s 18(2) and amended ss 23 and 18 to differentiate treatment of commercial surrogacy according to where the arrangement was entered into and the child’s date of birth.

Prior to the 2024 amendments, s 23 made the altruistic requirement a mandatory precondition for all parentage orders. The amendment qualified this: the precondition is now mandatory only for arrangements entered into in Australia. For overseas commercial arrangements, the Court may make a parentage order if satisfied it is in the best interests of the child, notwithstanding the commercial character.

Section 18(2) was expanded to create three distinct waiver regimes:

• For non-commercial arrangements, exceptional circumstances can justify waiver of non-mandatory preconditions.
• For commercial arrangements entered into outside Australia for children born on or before 30 June 2025, the Court may waive non-mandatory preconditions if, having regard to the circumstances of all parties and the arrangement, it is in the best interests of the child.
• For children born on or after 1 July 2025 from overseas commercial arrangements, the altruistic precondition itself can be waived on a best-interests basis, while other non-mandatory preconditions require exceptional circumstances.

These changes were driven by recognition that thousands of NSW-resident intended parents had engaged in overseas commercial surrogacy, often in jurisdictions where it is lawful. Refusing parentage orders left children in legal limbo, with birth mothers remaining the legal parents despite having no intention or capacity to parent. The cut-off date of 1 July 2025 represents a policy compromise: a grace period for existing arrangements coupled with a prospective tightening that signals Australia’s preference for altruistic models while still prioritising the child’s legal status and welfare.

Earlier amendments (2011 No 8) clarified the interaction with interstate birth registration laws (s 38) and updated savings provisions. The 3-year statutory review required by s 60 was completed long ago; its recommendations ultimately fed into the 2024 reforms.

Although the Act itself has not generated a large volume of reported superior-court litigation, the few decided cases illustrate recurring tensions. Applications involving pre-commencement surrogacy arrangements have tested the breadth of the “exceptional circumstances” discretion under s 16(3) and the waiver power in s 18(2). Courts have emphasised the mandatory nature of the best-interests precondition (s 22) while showing flexibility on procedural preconditions where the child has lived with the intended parents for years.

The distinction between altruistic and commercial arrangements has produced controversy, particularly where overseas payments for “reasonable expenses” are alleged to shade into prohibited compensation. Because s 7(5) requires costs to be actually incurred and verified by receipts, disputes have arisen over characterisation of large “living expenses” or “loss of earnings” claims that exceed the two-month cap in s 7(3)(e).

Privacy litigation has been limited but the closed-court rule (s 47) and the s 52 publication offence have been invoked to restrain media reporting that identifies parties. The tension between open justice and child privacy remains live, especially when a child themselves later seeks to tell their story.

The 2024 amendments have already generated academic and advocacy debate. Critics argue that permitting parentage orders for overseas commercial arrangements implicitly legitimises practices that exploit birth mothers in lower-income countries, contradicting the Act’s original policy. Proponents point to the paramountcy principle in s 3 and the reality that refusing orders punishes the child for the parents’ choices. No appellate decision has yet tested the new s 18(2)(b)–(c) provisions, but it is widely expected that the first cases will focus on what factors are relevant when the Court “has regard to the circumstances of the birth parent or parents, the intended parent or parents and the surrogacy arrangement”.

Discharge applications under s 44 remain rare. The statutory grounds (fraud, duress, payment, or exceptional reason) set a high bar. The preservation of pre-order relationships for sexual-offence purposes in both s 39(4) and s 45(3) has been noted in commentary but is yet to be tested in a reported prosecution.

Most practitioners miss several subtle traps. First, the maturity precondition in s 29 applies only to intended parents who were under 25 at the time the arrangement was entered into; many overlook that the required pre-arrangement counselling must have been given by a qualified counsellor who was satisfied of the person’s maturity, and that evidence of this must be placed before the Court. Failure is fatal because the precondition is mandatory.

Second, the “independent counsellor” requirement in s 17(7) is stricter than it appears. The counsellor preparing the s 17 report must not have counselled any party about the surrogacy arrangement itself to satisfy a precondition, nor be connected with the medical practitioner who performed the conception procedure. Many family counsellors inadvertently fall on the wrong side of this bright line.

Third, the medical-or-social-need test in s 30 is narrower than commonly assumed. For a heterosexual couple both of whom are fertile, the precondition cannot be satisfied; at least one partner must be an “eligible woman” or the couple must be two men or two eligible women. Single men are permitted, but single fertile women are not.

Fourth, the 6-month time limit in s 16(1) is not a filing deadline only; the application must be made not less than 30 days and not more than 6 months after birth. Late applications require exceptional circumstances even for pre-commencement arrangements (which have their own 2-year window from commencement).

Fifth, the prohibition on publication in s 52 extends to any material “reasonably likely to identify” an affected party. In the age of social media, a seemingly anonymised blog post that includes the child’s birth date, the suburb where the intended parents live, and the fact that the surrogate was the birth mother’s sister can easily breach the section.

Sixth, the savings provision in Schedule 1 clause 2 means that the enforceability of cost-reimbursement obligations for pre-commencement arrangements is preserved, but only the post-commencement version of s 6(2) applies to post-commencement arrangements. Many older surrogacy contracts contain clauses that are now unenforceable.

Finally, the interaction between a parentage order and interstate recognition is not automatic. Although the Act recognises interstate parentage orders, the reverse is not guaranteed; practitioners must advise clients that a NSW order may require separate registration or recognition proceedings in the child’s state of birth.

Compliance begins at the arrangement stage. Parties should use a written surrogacy agreement (s 34) signed by the birth mother, her partner (if any) and all intended parents. The agreement must be limited to altruistic terms; any clause providing for payment beyond s 7 costs risks rendering the entire arrangement commercial.

All affected parties must obtain independent legal advice from separate Australian legal practitioners before signing (s 36). The birth mother’s lawyer must be independent of the intended parents’ lawyer. Similarly, each party must receive qualified-counsellor counselling both before entering the arrangement and (for the birth mother and partner) again after birth but before consenting to the parentage order (s 35). The counsellor must not be the same person who later prepares the independent s 17 report.

Intended parents should ensure that an ART provider has obtained the required assessment report under the Assisted Reproductive Technology Act 2007 before any embryo transfer. All registrable information must be supplied to the Director-General of Health for the central register (s 37); the Court may waive only information that cannot reasonably be ascertained.

After birth, the birth must be registered in accordance with the Births, Deaths and Marriages Registration Act 1995, correctly recording the birth mother (s 38). The child must live with the intended parents from birth if a prompt application is contemplated (s 33). The application for a parentage order must be filed in the Supreme Court between 30 days and 6 months after birth (or within the special windows for pre-commencement arrangements) and must be supported by an independent counsellor’s report that addresses all matters listed in s 17(3).

At the hearing, evidence must be led on every precondition. Where any precondition cannot be met, counsel should prepare detailed affidavits demonstrating either exceptional circumstances or (for eligible overseas commercial cases) why the order is in the child’s best interests having regard to all parties’ circumstances. The independent counsellor’s opinion on best interests carries significant weight.

After the order is made, the Court’s registrar will notify the Registrar of Births, Deaths and Marriages, the Director-General of Health, and any interstate registering authority (ss 49–51). Practitioners should advise clients that the child will, at 18, be entitled to obtain the original birth certificate and full birth record showing the biological origins.

For ongoing compliance, parties must respect the publication prohibition in s 52 and understand that court records remain sealed absent leave. If circumstances change and discharge is contemplated, only the narrow grounds in s 44 are available; the threshold is high.

In practice, the most reliable compliance pathway is to engage a specialist surrogacy lawyer early, select a qualified counsellor approved under the regulations, use precedent agreements that have been vetted against the s 7 cost definition, and build a comprehensive evidentiary bundle that addresses every precondition before filing. Where overseas elements are involved, detailed advice on the transitional 2025 rules is essential to avoid unintended criminality or irretrievable loss of parentage rights.