NSW fertility inquiry: surrogacy evidence under scrutiny

The New South Wales Legislative Council fertility inquiry is examining difficult and practical questions about access to assisted reproductive treatment. Distance matters. Cost matters. Regulation matters. For many people trying to create a family, these are not abstract policy concerns. They can determine whether treatment is available at all.

Among the issues before the inquiry are the cost of fertility treatment, access for people who live outside metropolitan areas, and the New South Wales limit on the number of women who may use sperm from a single donor. The five-women-donor limit has caused considerable concern for many families in New South Wales.

Surrogacy has also become a significant focus of the inquiry. Unfortunately, some of the evidence advanced against surrogacy has not merely called for tighter safeguards or improved regulation. It has argued for the abolition of every form of surrogacy, everywhere.

What the NSW Fertility Inquiry Is Considering

Fertility law is never just about legislation. It is about whether people can realistically obtain treatment, afford it, and navigate a system that is often complex even before legal questions arise.

The inquiry is considering a broad range of matters, including:

• Geographic access: the barriers faced by people who live far from fertility clinics and specialist services.
• Cost: the often substantial expense of assisted reproductive treatment.
• Regulatory settings: including the New South Wales five-women donor limit.
• Surrogacy: the legal, ethical and practical questions raised by surrogacy arrangements.

These questions deserve serious, careful consideration. Lawmakers need to hear from patients, donors, surrogates, intended parents, clinicians, counsellors, legal practitioners and researchers. The result should be a framework that protects children and surrogates while allowing people who need fertility treatment to pursue parenthood safely and lawfully.

A Push to Abolish All Surrogacy

There has been considerable pushback against surrogacy from both local and international opponents. Some submissions and witnesses have opposed all forms of surrogacy, rather than distinguishing between exploitative arrangements and carefully regulated altruistic surrogacy.

One of the most striking examples came from Reem Alsalem, the United Nations Special Rapporteur on violence against women and girls. She had issued a report calling for surrogacy worldwide to be eradicated.

Her approach was not confined to commercial surrogacy. The position advanced was that surrogacy should disappear altogether, including arrangements between family members. Even where a woman carries a child for a sibling, according to that position, surrogacy should not be permitted.

That is an abolitionist position. It is not a proposal for better regulation. It is not a proposal for stronger protections. It is a call for the end of all surrogacy.

The Claim About the Surrogate and the Child

Central to the argument was the proposition that the connection between a surrogate and the child should not be broken because the surrogate is the mother, and separation causes profound grief.

That assertion has obvious emotional force. Surrogacy involves pregnancy, birth and deeply personal relationships. It should never be treated casually. Any responsible legal regime must recognise the surrogate’s autonomy, wellbeing, informed consent and right to independent advice.

But a serious proposition used to justify a worldwide ban must be supported by serious evidence.

During questioning at the New South Wales inquiry, the critical question was put plainly: what research supported the claim that a child should not be separated from the surrogate after birth?

No research was identified.

That is the difficulty. A claim presented as a key foundation for abolishing surrogacy everywhere was not supported by research when tested in evidence. It is not enough to state that harm occurs. It is necessary to demonstrate it, particularly when the proposed response is to prevent all surrogacy arrangements, regardless of the circumstances, safeguards or wishes of those involved.

Prohibition, Abolition and Evidence

Words matter in this debate. There is a meaningful difference between being a prohibitionist and being an abolitionist.

A person seeking prohibition may advocate laws that ban a particular practice in a particular jurisdiction. An abolitionist position, as expressed here, seeks to remove the practice in every setting.

Ms Alsalem made it clear that her position was abolitionist. She compared surrogacy with slavery and sex work, and maintained that all surrogacy was harmful.

Those are grave comparisons. They demand an equally grave standard of evidence.

Surrogacy law should not be made by slogans, assumptions or fear. Nor should it be made by pretending that no risks exist. Surrogacy arrangements can be complex. They require proper screening, counselling, independent legal advice, clear informed consent and legal processes that place the child’s welfare at the centre.

However, complexity is not proof that all surrogacy is wrong. The question for policymakers is whether regulation can provide meaningful safeguards, not whether every arrangement should be condemned without evidence.

Why the Inquiry’s Approach Matters

The New South Wales fertility inquiry has an opportunity to consider the real experiences of those affected by fertility treatment and surrogacy law. That includes people who cannot carry a pregnancy, people facing infertility, same sex couples, single intended parents, donors and women who freely choose to become surrogates under an altruistic arrangement.

The inquiry also needs to examine whether current settings create unnecessary hardship. High costs, limited services, long travel distances and restrictive donor rules may all have profound consequences for people trying to build a family.

Surrogacy must be considered with the same discipline. The debate should ask practical questions:

• How can surrogates be protected from pressure and exploitation?
• How can intended parents receive clear advice before making life-changing decisions?
• How can the legal status and best interests of children be properly protected?
• What safeguards should apply before conception, during pregnancy and after birth?
• What evidence supports a proposed restriction or reform?

These are the questions that lead to sound law. A blanket call to eradicate surrogacy does not answer them.

Human Rights Must Include All Parties

Human rights language is often used in surrogacy debates, but it must be applied consistently. The rights and dignity of surrogates are fundamental. So are the welfare and identity interests of children. The reproductive autonomy and family life of intended parents also matter.

A balanced legal response cannot simply elevate one concern while dismissing everyone else affected by the arrangement. It must protect against coercion and exploitation without assuming that every surrogate lacks agency or that every intended parent is acting improperly.

For a broader discussion of the competing rights involved, including the need to protect children, surrogates and intended parents, see surrogacy and human rights protections for all parties.

Evidence should drive policy. Where research identifies genuine risks, those risks should be addressed directly through appropriate safeguards. Where an argument lacks research, it should not become the basis for removing reproductive options from everyone.

The Need for a Careful, Evidence-Based Outcome

The inquiry’s eventual recommendations will matter greatly to people across New South Wales. Fertility treatment can be financially draining, geographically inaccessible and emotionally demanding. Sensible reform can make a real difference.

On surrogacy, the central lesson is straightforward. Before calling for the abolition of a practice worldwide, those making the case should be able to identify the evidence that supports it.

At the inquiry, the proposition that children should not be separated from surrogates was tested. No supporting research was produced. That absence matters, particularly because the claim was used as one of the foundations for a call to abolish all surrogacy.

New South Wales should proceed with care, compassion and rigour. The law should protect people from harm, support properly informed choices and remain grounded in evidence rather than ideology.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers, a multi-award-winning family and fertility law practitioner, and an accredited family law specialist at Page Provan Family & Fertility Lawyers. He advises on the legal issues arising in surrogacy and assisted reproductive treatment, with a focus on practical, compassionate and evidence-based legal guidance.