The regulation organises into a small number of concept clusters that operationalise functions under the Act.

• Interstate parentage orders and interstate surrogacy laws: clauses 4 and 5 perform a recognising function. Clause 4 names particular statutory orders in other Australian jurisdictions and declares them to be "Interstate parentage orders" for the purposes of s 4(1) of the Act. Clause 5 names particular interstate statutes and declares them to be "Interstate surrogacy laws" under the same Act provision. The effect is to create a specified universe of orders and laws that the Act will treat as interstate equivalents, by statutory declaration in the regulation.
• Qualified counsellor: clauses 6 and 6A specify the minimum academic credential, the required specialised knowledge and the acceptable professional categories for someone to perform counsellor functions under the Act (see the definition in Act s 4(1) which the regulation references). Both clauses require a university qualification after at least three years full‑time study and specialised knowledge of the social and psychological implications of surrogacy (cl 6(a) and (b); cl 6A(a) and (b)). The professional categories differ between domestic (cl 6(c)(i)-(iv)) and international arrangements (cl 6A(c)(i)-(vii)).
• Independent counsellor’s report: clause 6B layers a further requirement for persons giving an independent counsellor’s report under Act s 17. It requires meeting the requirements of cl 6 or cl 6A and possessing specialised knowledge that enables the person to give opinion evidence on the matters in Act s 17. The clause explicitly references relevance to court proceedings and cross‑references the Evidence Act 1995, s 79 (cl 6B, notes).
• Transitional provisions: clause 7 preserves older versions of cl 6 and 7 for persons already engaged before the amending regulation commenced and applies the new cl 6A and 6B to those engaged for international arrangements before commencement. The clause defines "engaged" to include booking an initial appointment, which affects when the transitional protection or application attaches.
• Repeal and savings: clause 8 repeals the 2011 Regulation and saves existing acts, matters and things by carrying them over to have effect under the new regulation.

Each of these concepts is tightly anchored to the corresponding clause numbers in the regulation. The regulation therefore functions primarily as a technical instrument: it recognises interstate orders and laws, standardises counsellor qualification requirements, sets a higher evidentiary threshold for independent counsellor reports, and provides transitional and savings rules for the changeover from the 2011 regulation.

The regulation identifies specific groups and legal relationships that are affected by its provisions.

• Prospective parents and surrogates: through the regulation’s qualifications for counsellors and recognition of interstate instruments, the regulation affects parties to surrogacy arrangements who must obtain counselling and who may rely on interstate parentage orders or laws to facilitate recognition in New South Wales. The regulation does not itself set client obligations but sets the framework for who may provide counselling and what interstate instruments will be recognised under the Act (cl 4, cl 5, cl 6, cl 6A, cl 6B).
• Counsellors and health professionals: the regulation prescribes eligibility thresholds for persons exercising the functions of a qualified counsellor. That includes registered psychologists, psychiatrists, social workers eligible for membership of the Australian or Aotearoa New Zealand association of social workers, and members or eligible members of the Australian and New Zealand Infertility Counsellors Association for domestic arrangements (cl 6(c)(i)-(iv)). For arrangements entered into outside Australia, the list expands to include persons authorised to practise as psychiatrists, psychologists or social workers under laws of jurisdictions outside Australia (cl 6A(c)(v)-(vii)). Those practising counsellors are directly affected because the regulation sets the minimum university qualification requirement and the categories of membership or authorisation necessary to be a "qualified counsellor" under the Act (cl 6(a) and (b); cl 6A(a) and (b)).
• Legal and judicial actors: clause 6B interacts with Act s 17 by requiring that persons giving independent counsellor’s reports have specialised knowledge sufficient to give opinion evidence on the matters in Act s 17. Courts, tribunals or registrars that assess or admit such reports will be affected by this evidentiary threshold and by the cross‑reference to the Evidence Act 1995, s 79 (cl 6B, notes).
• Administrators and regulators: the regulation’s declarations of interstate parentage orders and interstate surrogacy laws (cl 4 and cl 5) affect administrators responsible for registering, recognising, or processing parentage orders, birth registrations, and related documentary matters under the Act. They must treat the listed orders and statutes as Interstate parentage orders or laws as declared.
• Persons engaged before amendments: clause 7 protects those already engaged to act as counsellors before the commencement of the amending regulation, including those who have booked initial appointments. This affects both counsellors and clients in in‑flight counselling relationships when the amending regulation takes effect.

The regulation therefore directly affects counsellors through qualification requirements, parties who rely on counselling or independent reports, court processes that receive such reports, and registry/administrative processes that recognise interstate orders and laws. It does not on its face create new monetary obligations or penalty exposures in the text; its effects operate via recognition and qualification criteria referenced back to the Act.

The regulation assigns duties and recognitions rather than broad new statutory rights. The operative duties and rights that follow from the text are as follows.

Duties or prescriptive requirements

• Counsellor qualification duties: to "exercise the functions of a counsellor" under the Act for domestic arrangements a person must hold a university qualification of at least three years full‑time equivalent study, have specialised knowledge of the social and psychological implications of surrogacy, and belong to one of the listed professional categories (cl 6(a)-(c)). For international arrangements the same baseline academic and knowledge duties apply, but the acceptable professional categories are broader and include overseas authorised practitioners (cl 6A(a)-(c)). These are expressed as prerequisites to exercise counsellor functions under the Act, imposing a gatekeeping function on who may perform those roles.
• Independent counsellor’s report standard: a person giving an independent counsellor’s report in relation to proceedings for a parentage order under Act s 17 must meet the requirements of cl 6 or cl 6A and "have specialised knowledge ... that enables the person to give opinion evidence" on the matters in s 17 of the Act (cl 6B(a)-(b)). This creates an evidentiary competency requirement when reports are tendered in parentage order proceedings.
• Transitional engagement definition: clause 7 specifies that a person is "engaged, to exercise the functions of a qualified counsellor" if they have been engaged or at least have booked an initial appointment (cl 7, definition of engaged). This affects which version of the qualification requirements applies to particular engagements in the changeover.

Recognitions and declaratory rights

• Interstate recognition: clauses 4 and 5 confer rights in the sense of statutory recognition; particular interstate orders are declared to be Interstate parentage orders and particular interstate statutes are declared to be Interstate surrogacy laws for the purposes of Act s 4(1). The right created is that these instruments will be treated as interstate equivalents under the Act; the declaratory mechanism specifies the universe of recognised interstate instruments (cl 4 and cl 5).

Limitations and cross‑references

• The regulation repeatedly anchors duties and rights to provisions of the Act and to other statutes. For example cl 6 notes applicability to assessment reports under the Assisted Reproductive Technology Act 2007, s 15A, and cl 6B cross‑references Evidence Act 1995, s 79. Those cross‑references mean the regulation’s duties must be read alongside the procedural and evidentiary rules in those instruments.

Absent duties

• The regulation does not contain explicit procedural duties for administrators or explicit sanctioning provisions. It does not itself prescribe licensing, registration, monitoring requirements, or penalties. Those matters, if any, are to be found in the Act or other statutes referenced. The regulation’s textual function is to specify who qualifies and what interstate instruments are recognised.

In short, the regulation imposes functional gatekeeping duties on who may act as a counsellor and sets evidentiary competency for independent reports, while creating declaratory recognition of interstate instruments. The duties are concrete and located in cl 6, cl 6A and cl 6B, with transitional application in cl 7 and the declaratory listings in cl 4 and cl 5.

The regulation itself does not create express offences, civil penalties or an enforcement regime in its text. None of the clauses in the provided regulation text set out monetary penalties, imprisonment, infringement notices, or enforcement mechanisms. The regulation is primarily declaratory and qualifying in nature: it declares certain interstate orders and laws, prescribes qualification criteria for counsellors, and saves actions under the repealed 2011 regulation (cl 4, cl 5, cl 6, cl 6A, cl 6B, cl 7, cl 8).

Enforcement and penalties therefore fall back to the Act and any other statutes the regulation cross‑references. The regulation repeatedly cites the Act (for example cl 6 refers to "For the Act, section 4(1), definition of qualified counsellor" and cl 6B refers to "for the Act, section 4(1), definition of qualified counsellor, to exercise the functions of a counsellor under the Act, section 17" ). Any sanctioning or enforcement authority, or the consequences of failing to comply with the requirements the regulation prescribes, would need to be located in the Act (Surrogacy Act 2010) or in the other statutes referenced by the regulation such as the Assisted Reproductive Technology Act 2007 or the Evidence Act 1995. The regulation itself does not specify whether non‑compliance with the qualification requirements renders evidence inadmissible, whether it invalidates counselling reports, or whether it exposes the counsellor to administrative or criminal sanctions.

Practical implications drawn directly from the regulation’s text are therefore as follows.

• The regulation sets qualification thresholds that a court or decision‑maker may treat as authoritative when assessing the legitimacy or weight of counselling reports, particularly cl 6B which requires specialised knowledge sufficient to give opinion evidence (cl 6B(b)). The regulation also cross‑references the Evidence Act 1995, s 79 (cl 6B, Note 2), which deals with opinion evidence; how these cross‑references translate into admissibility or weight is a matter for the Act and the Evidence Act, not the regulation itself.
• Any enforcement or penalty related questions must be referred to the parent Act or other provisions of law. The regulation’s lack of explicit penalties means it operates as a standards instrument rather than as a penal instrument.

Readers should therefore consult the Surrogacy Act 2010 and the statutes cross‑referenced in the regulation to determine the precise legal consequences of breach or non‑compliance with the qualification or procedural standards the regulation prescribes.

The regulation is explicitly drafted to operate in concert with the Surrogacy Act 2010 and with a number of other statutes. The text contains several cross‑references which determine interaction.

• Surrogacy Act 2010: the regulatory declarations and qualification criteria are made "for the Act, section 4(1), definition of qualified counsellor" and the independent counsellor’s report requirement is tied to Act s 17 (cl 6, cl 6A, cl 6B). That indicates the regulation is subordinate and intended to flesh out statutory definitions and procedural prerequisites used by the Act. Any enforcement or the legal effect of the recognitions must be interpreted in light of the parent Act’s provisions.
• Assisted Reproductive Technology Act 2007: cl 6 includes a note that the clause applies to a counsellor preparing an assessment report under the Assisted Reproductive Technology Act 2007, s 15A. That links the counselling qualifications in this regulation to assessment reports required under ART law, creating an operational bridge between surrogacy counselling standards and ART assessment requirements.
• Evidence Act 1995: cl 6B, which concerns independent counsellor’s reports for proceedings under Act s 17, includes a note directing attention to the Evidence Act 1995, s 79. Section 79 of the Evidence Act deals with opinion evidence, so the regulation signals that courts or tribunals should consider the Evidence Act’s rules when receiving or weighing independent counsellor reports.
• Interpretation Act 1987: cl 3 notes that the Act and the Interpretation Act 1987 contain definitions and provisions that affect interpretation. This is a standard legislative cross‑reference indicating that general interpretative principles and definitional rules apply.
• Interstate statutes: clauses 4 and 5 explicitly list specific interstate orders and statutes and declare them to be Interstate parentage orders and Interstate surrogacy laws, respectively. This produces legal recognition across jurisdictions, tying the NSW regime to specified provisions in the Parentage Act 2004 (ACT), Surrogacy Act 2010 (Queensland), Family Relationships Act 1975 (South Australia), Surrogacy Act 2012 (Tasmania), Status of Children Act 1974 (Victoria), and Surrogacy Act 2008 (Western Australia) (cl 4, cl 5). The regulation therefore serves as a vehicle for interstate legal harmonisation via statutory declaration.
• Repeal of the 2011 Regulation: cl 8 repeals the Surrogacy Regulation 2011 but contains savings to ensure continuity of acts, matters or things that had effect under the previous regulation. That interaction preserves existing decisions, reports, approvals or processes initiated under the earlier regulation and migrates them to continue under the 2016 regulation (cl 8(1)-(2)).

Mechanically, the regulation does not alter the substantive contents of the referenced interstate statutes or the parent Act. Instead it declares which interstate instruments will be treated as such and specifies practitioner eligibility. The cross‑references to the Evidence Act and the ART Act mean that the regulation’s qualifications for counsellors are not isolated rules; they feed directly into evidentiary assessments in court proceedings and into assessment report requirements under assisted reproduction law.

Where the regulation expands professional categories for international counsellors (cl 6A), it does so by reference to authorisation under laws of jurisdictions outside Australia. That creates a direct interactional point where foreign registration or authorisation regimes are relevant to qualification in NSW; decision‑makers will need to assess overseas authorisations when applying cl 6A(c)(v)-(vii).

Overall, the regulation should be read as an integrative instrument that operationalises the Surrogacy Act 2010 and interfaces with ART, evidence law and interstate statutory frameworks through explicit textual references.

The regulation text contains embedded amendment markers and an explicit repeal and savings provision which record its recent legislative history.

• Repeal of the 2011 regulation: clause 8(1) expressly repeals the Surrogacy Regulation 2011. Clause 8(2) then provides for savings by stating any act, matter or thing that immediately before repeal had effect under the 2011 regulation continues to have effect under the 2016 regulation. This preserves legal continuity for in‑flight matters when the new regulation commenced (cl 8(1)-(2)).
• Commencement: clause 2 sets the regulation to commence on the day it is published on the NSW legislation website. The note in cl 2 records that the 2016 regulation repeals and replaces the 2011 regulation which would otherwise have been repealed on 1 September 2016 under the Subordinate Legislation Act 1989; the clause therefore addresses the timing of repeal and replacement (cl 2).
• 2025 amendments: several clauses carry amendment annotations. Clause 3 bears the annotation "cl 3: Am 2025 (464), Sch 1[1]" indicating an amendment in 2025. Clauses 6, 6A, 6B and 7 bear annotations such as "Subst 2025 (464), Sch 1[2]" or "Ins 2025 (464), Sch 1[2]" indicating substitution or insertion by the Surrogacy Amendment (Qualified Counsellors) Regulation 2025. Clause 6 was substituted and clauses 6A and 6B were inserted in 2025; clause 7 was substituted at the same time to deal with transitional application of those amendments (see cl 6, cl 6A, cl 6B and cl 7).
• Identification of the amending instrument: clause 7’s definitions identify the amending regulation as the Surrogacy Amendment (Qualified Counsellors) Regulation 2025 and refer to the commencement day of that instrument. Clause 7 also clarifies that "engaged" includes booking an initial appointment for transitional purposes.
• Content changes effected by the 2025 amendments: based on the text, the 2025 amendments broadened the concept of a qualified counsellor for international arrangements (cl 6A), formalised a distinct independent counsellor’s report competence requirement (cl 6B), and provided transitional application rules for persons previously engaged (cl 7). Clause 6 as substituted continues to govern domestic arrangements, establishing the academic and membership prerequisites.

The amendment annotations in the clauses are the only documentary record within the regulation text supplied here. The embedded notes and amendment citations make clear that the 2016 regulation was later modified by instrument(s) in 2025 to update the counsellor eligibility framework and transitional arrangements, and that the 2016 regulation itself replaced the 2011 regulation with saving provisions to ensure continuity.

The regulation text supplied contains no references to litigation, judicial decisions, judicial interpretation, or case law. There are no named cases in the instrument, and the text does not record any court challenges, declaratory proceedings, or judicial rulings about the regulation’s provisions. The only statutory materials cited within the regulation are the Surrogacy Act 2010, the Assisted Reproductive Technology Act 2007, the Evidence Act 1995, the Interpretation Act 1987 and the named interstate statutes. The notes attached to clauses refer to statutory cross‑references but do not mention litigation.

Consequently, within the scope of the supplied text, there is no litigation history to report. Any questions about judicial interpretation of the regulation’s requirements, the weight to be afforded to independent counsellor reports under cl 6B, or the application of the interstate recognitions in cl 4 and cl 5 would need to be resolved by consulting case law databases or court decisions outside the regulation text. The regulation itself provides the statutory framework; how courts have applied or interpreted that framework is not recorded in the instrument provided.

Readers seeking precedents or judicial treatment of the regulation’s provisions should review decisions under the Surrogacy Act 2010, decisions addressing admissibility of expert or opinion evidence under the Evidence Act 1995, and any reported cases involving interstate parentage orders or cross‑jurisdictional recognition of surrogacy instruments. Those materials lie outside this regulation text.

The regulation contains several textual features and transitional definitions that can produce practical traps if overlooked. The following are concrete points drawn from the regulation text that practitioners and administrators should note.

• Different qualification sets for domestic and international arrangements: cl 6 and cl 6A impose the same baseline academic requirement and the same requirement of specialised knowledge. However, the list of acceptable professional categories differs. Domestic arrangements (cl 6(c)(i)-(iv)) do not include express reference to being "authorised" by a jurisdiction outside Australia, whereas international arrangements (cl 6A(c)(v)-(vii)) expressly do. A person who is authorised overseas but not eligible for membership of the listed Australian associations may qualify only for international work under cl 6A, not necessarily for domestic arrangements under cl 6. This could create the counterintuitive result that some overseas‑authorised practitioners are eligible to counsel for international arrangements but not to be counsellors for domestic arrangements unless they also meet cl 6 membership requirements.
• Academic minimum expressed as equivalence: both cl 6(a) and cl 6A(a) require a qualification "conferred by a university, whether within or outside New South Wales, after the equivalent of at least 3 years full‑time study". The use of "equivalent" means assessment of overseas qualifications will be required in borderline cases. The regulation does not specify the assessing authority or process; that gap places onus on decision‑makers to determine equivalence.
• Independent counsellor’s report threshold: cl 6B(b) requires "specialised knowledge ... that enables the person to give opinion evidence as to the matters referred to in the Act, section 17". This is a competence threshold tied to particular matters in the Act. The regulation does not specify how a court or registry should assess whether someone meets this threshold, but the note on cl 6B directs attention to the Evidence Act 1995, s 79. Practitioners should not assume that merely meeting the membership criteria in cl 6 or cl 6A is sufficient for all purposes; cl 6B adds an evidentiary competency requirement.
• Transitional "engaged" definition: cl 7 defines "engaged, to exercise the functions of a qualified counsellor" to include the booking of an initial appointment. That means that a person who has merely booked a client appointment before the commencement of the amending regulation will be treated under the pre‑amendment clauses. Booking an initial appointment therefore locks in the applicable qualification regime for transition purposes and may be earlier than actual provision of services.
• No penalty or enforcement detail: the regulation does not set out sanctions or enforcement mechanisms for non‑compliance with the counsellor qualifications. That omission means consequences are to be read from the Act or other laws and may require interpretation about admissibility, weight or administrative consequences. Practitioners should not assume the regulation itself provides an enforcement mechanism.
• Narrow scope of interstate declarations: cl 4 and cl 5 list specific orders and statutes. Any order or law not listed is not declared by the regulation and may therefore fall outside the automatic interstate recognition the regulation provides. Practitioners should check whether a particular interstate instrument is one of the listed items before assuming recognition under the Act.
• Cross‑reference to ART assessment reports: cl 6 includes a note that the clause applies to a counsellor preparing an assessment report under the Assisted Reproductive Technology Act 2007, s 15A. That makes cl 6 relevant to ART assessment processes. Where a practitioner prepares an ART assessment report, they must ensure they meet cl 6 requirements as well as any ART Act requirements.
• Amendment annotations require attention: the annotations "Subst 2025" and "Ins 2025" show that the current text reflects relatively recent changes. For matters involving historic conduct, clause 7 determines which version applies, but users must pay attention to the exact commencement of the 2025 amending regulation to determine applicability.

These are not speculative hazards; each is grounded in the text supplied: the differing lists in cl 6 and cl 6A, the equivalence language in cl 6(a)/6A(a), the independent report competency in cl 6B, the transitional booking definition in cl 7, the lack of penalty provisions, the specific listings in cl 4 and cl 5, and the cross‑reference to ART s 15A in cl 6.

The regulation sets discrete compliance requirements for persons acting as counsellors and for administrators recognising interstate instruments. Compliance steps and practical checks, grounded in the text, are as follows.

For counsellors seeking to exercise functions under the Act (domestic arrangements, cl 6)

1. Academic qualification: ensure you hold a university qualification conferred after at least three years full‑time study, or an overseas qualification assessed as equivalent. The regulation requires this baseline in cl 6(a).
2. Specialised knowledge: be prepared to demonstrate specialised knowledge of the social and psychological implications of surrogacy based on training, study or experience (cl 6(b)). Keep records of training, supervision, courses or clinical experience that evidence this knowledge.
3. Professional category: satisfy one of the professional categories in cl 6(c): (i) psychiatrist medical practitioner, (ii) registered psychologist, (iii) eligible for membership of the Australian Association of Social Workers or the Aotearoa New Zealand Association of Social Workers, or (iv) full member of, or eligible for full membership of, the Australian and New Zealand Infertility Counsellors Association. Maintain membership or evidence of eligibility and be ready to supply proof to courts, registrars or agencies that request it.
4. ART assessment reports: if preparing an assessment report under the ART Act s 15A, ensure compliance with both ART Act requirements and cl 6, and retain records to demonstrate compliance (cl 6 note).

For counsellors for arrangements entered into outside Australia (cl 6A)

1. Satisfy the same academic and specialised knowledge requirements as cl 6(a) and (b).
2. Meet one of the expanded professional categories in cl 6A(c). This includes the domestic categories and adds persons authorised to practise as psychiatrists, psychologists or social workers under laws of jurisdictions outside Australia (cl 6A(c)(v)-(vii)). Obtain documentary evidence of authorisation from the foreign jurisdiction and be prepared to provide certified copies or verification.
3. If relying on overseas authorisation, maintain clear documentation of the scope and currency of that authorisation because the regulation requires authorisation under "a law of a jurisdiction outside Australia".

For independent counsellor’s reports in proceedings under Act s 17 (cl 6B)

1. Satisfy the requirements of cl 6 or cl 6A as applicable.
2. Ensure you have "specialised knowledge ... that enables the person to give opinion evidence" on the matters in Act s 17 (cl 6B(b)). Prepare a curriculum vitae, list of publications, evidence of training and relevant case or clinical experience that demonstrates competency to give opinion evidence.
3. Anticipate evidence law scrutiny: cl 6B notes the Evidence Act 1995, s 79. Familiarise yourself with admissibility and qualification tests under the Evidence Act and be prepared for judicial evaluation of expert or opinion evidence.

For administrators, registrars and lawyers dealing with interstate recognition (cl 4 and cl 5)

1. Use the lists in cl 4 and cl 5 to determine whether a foreign order or statute is declared an Interstate parentage order or an Interstate surrogacy law under Act s 4(1). The lists are finite; do not assume recognition for items not listed.
2. When presented with an interstate parentage order of the types listed in cl 4, apply the Act framework for interstate parentage orders, noting that the regulation has declared these specified orders to be Interstate parentage orders.
3. Where an application or administrative step depends on a counsellor’s report or qualification, require documentary verification that the counsellor meets cl 6/cl 6A and, for independent reports, cl 6B.

Transitional matters (cl 7)

1. Check whether the counsellor was "engaged" before the amending regulation commenced. If the counsellor had been engaged or had a booked initial appointment before commencement, the pre‑amendment clauses apply to that engagement (cl 7(1)-(2) and the definition of engaged).
2. For engagements that fall into the transitional category, retain booking records and correspondence showing the date of engagement to demonstrate which regime applies.

Record keeping and evidentiary practice

1. Maintain certified copies of qualifications, membership certificates, registration letters and evidence of specialised training or experience.
2. For overseas authorisations, obtain formal letters or certificates from the relevant foreign registration bodies and, where necessary, accredited assessment reports for equivalence of academic qualifications.
3. When providing an independent counsellor report, ensure the report sets out the author’s qualifications, professional memberships, details of specialised experience and the factual basis for opinions, consistent with the competence threshold in cl 6B(b) and the Evidence Act s 79 cross‑reference.

Administrative checks

1. For agencies or courts receiving reports, require a statement that the author meets the relevant clause (cl 6 or cl 6A) and, for independent reports, meets the cl 6B competence threshold.
2. Because the regulation does not itself specify sanctions or registration schemes, agencies should establish administrative verification procedures to ensure compliance with the regulation’s qualifying criteria when these are material to statutory processes.

Following these steps will align practice with the regulation’s text. Where a particular fact pattern engages external statutes (for example ART Act s 15A or court proceedings under Act s 17), concurrent compliance with those statutes and with evidence law will also be necessary.