The New Equality Amendment LGBTQIA+ Act 2024 (NSW)
In a landmark decision, New South Wales has passed the Equality Amendment Act 2024, a new law aiming to bolster the rights and protections of LGBTQIA+ individuals across the state. Announced in October and scheduled to take effect by January 1, 2025, this legislation aligns New South Wales with other Australian states in recognizing gender identity through self-identification and promoting equal rights for all sexual orientations. Stephen Page, a family and fertility lawyer, highlights the significance of these changes, noting the profound implications for LGBTQIA+ rights and inclusivity within Australia’s most populous state.
Transcript
Good day. I’m Stephen Page from Page Provan Family and Fertility Lawyers and this is the Australia Family and Fertility Law Podcast.
Today, I’m talking about the amazing change that’s happening in New South Wales with the passage of the Equality Amendment LGBTQIA+ Act 2024. A bit of a mouthful, but this Act was enacted on 24 October and is to take effect on or before the 1st of January. Well, as it is, it talks about equality, and it talks about equality concerning sexuality. There are two, in my view, really significant changes brought about by this Act. The first is that New South Wales would now fall into line with every other state and territory in Australia, and that concerns transgender people. No longer will transgender people have to undertake surgery to prove who they are as to their gender. They can do so by self-identification. And there’s a process to go through with the Registrar of Births, Deaths, and Marriages, and if necessary concerning a child through the District Court if there’s some kind of dispute or authority required.
But what I want to focus on is about surrogacy. Now, for a number of years, I have been a member of a committee run by or auspiced by Rainbow Families New South Wales and with support of, we call this in Australia, this is the All Kids Are Equal campaign. This is about reforming Australia’s surrogacy laws. The history of this Act commenced in about 2022-2023 when Alex Greenwich who was an independent MP in the New South Wales State Parliament, and is gay wanted to ensure there was reform. So, before the last election when there was little government power, he proposed changes and he had discussions at this stage with various stakeholders and the then New South Wales government. The government was interested in the changes and in the meantime, of course, there was the state election, and there was a change of government so that there was now a minority Labor government headed by Chris Minns.
Alex Greenwich put forward his Bill which had a lot of proposed changes in it and the government liked some aspects of that apparently, and not others, and that Bill ultimately expired in August. But the idea wasn’t dead. Instead, the government wanted its own Bill and more limited scope than that of Alex Greenwich. But nevertheless, to its credit, the government had this Bill enacted through Parliament and with these two big changes.
The surrogacy changes will allow the Supreme Court of New South Wales to make a parentage over for a child born overseas through commercial surrogacy. Now, it’s got a couple of fine-tuned points in there. There are some slight differences if the child was born before 30 June 2025 or born after June 30, 2025. In essence, the purpose of the change is to capture children who are already affected by their lack of parentage or inadequate parentage being established rather than children who are going to be born into the future. And the reason for that is that New South Wales still makes it an offence to engage in commercial surrogacy overseas. So, Parliament wanted to make plain that it doesn’t encourage and wants to actively deter people from engaging commercial surrogacy overseas. But at the same time, it wanted to protect the parentage of children who have been born overseas. And, what the Supreme Court can do is it can wave from 1 January 2025 or earlier date. It can wave any condition concerning surrogacy that is set out under the Surrogacy Act 2010, provided it is not a mandatory pre-condition. And, after–for any child born after 1 July 2025, sorry, yeah, 1 July 2025, it can continue to waive provided there are exceptional circumstances. So, it’s a higher bar than is proposed for children born before 1 July 2025.
So, what are these mandatory preconditions? Well, there are both mandatory preconditions and non-mandatory preconditions. So, I’ll go through the mandatory ones first. So, it’s clear that these can’t be waived, and the making of the Parentage Order is in the best interest of the child. Well, evidently, that is a fundamental requirement, must be, must occur.
The second is it has to be a preconception surrogacy arrangement, in other words, it has to be added into before the surrogate becomes pregnant, before the child is conceived. Thirdly, the intended parents must be a single or a couple. And if they are a couple, they’ve got to be married or in a de facto relationship. Next, the child must be under 18, and if the child has the requisite of maturity, the child’s wishes can be taken into account.
The next requirement is that the birth mother, in other words the surrogate, is, was at least 18 when entering into the surrogacy arrangement. And there’s a non-mandatory requirement that ordinarily, she would be considered to be 25 and there can be some wiggle room under the Act for a moment if the surrogate has the requisite of maturity but is over 25–over 18 I should say, but under 25.
The next is that each intended parent was at least 18 when entering into the surrogacy arrangement and must have demonstrated maturity of under 25. And finally, the last mandatory precondition is that each affected party consents to the order unless in the case of birth parents, the surrogate or partner, if they have died, lost capacity, or can’t reasonably be found.
And then we have the non-mandatory preconditions. These are things that can be waived.
The first is that a medical or social need must be demonstrated. So, that can be waived.
The second is that the intended parents must reside in New South Wales when the application is heard. Again, that can be waived.
The next is the child must be living with the intended parents, again it can be waived.
The next that there must be a written, signed surrogacy arrangement. So, clearly, if there is an oral surrogacy arrangement or a written arrangement that’s only partially signed, that again can be waived.
Next, there must be pre-signing counselling form a qualified counsellor. This is really strictly defined. So, this is a significant one that can be waived because there may not have been counselling overseas or if there had been counselling, it might have been by someone who is perfectly qualified locally but not considered qualified under New South Wales law. For example, a counsellor in California. And there must be independent legal advice pre-signing from an Australian legal practitioner. Well, obviously, if you are going overseas, for example, to India, you may not have obtained independent legal advice, both sides, from Australian legal practitioner. Almost certainly you haven’t. So, this is another precondition that can be waived.
And information as to the surrogate and gamete donors must be provided to the New South Wales Central Donor Registry. And there’s an exception for that that can be waived if the court is satisfied that, in effect, you can’t find out who the donor was. And, I’ve had a case like that, for example, where my client’s had an anonymous donor. And nevertheless, the Supreme Court made a Parentage Order.
And then the final one is the child’s birth must be registered, wherever the child has been born. So, whatever that state is or that jurisdiction is, or country is, they must be registered there. Now, it’s unlikely that you want to waive that. You want to have the birth registered. And sometimes, if you don’t have these items, it may be very hard to prove and obtain the Order. But nevertheless, these things can be waived.
The effect of these changes will mean that if you have undertaken surrogacy overseas, you may now want to obtain a Parentage Order from the Supreme Court of New South Wales. Now, if you’ve gone to a place where, if you’re a couple, both of you are recognised as the parents, it’s unlikely that you’ll want to spend a decent amount of money and end up… and take a bit of time and end up in the Supreme Court. Because there’s a principle of law called comity of laws, in other words, mutual respect of laws. If you got a law overseas, and this is under a principle, what’s called private international law, that if you have a law overseas that affects you, then that law should ordinarily be respected because it’s different. Every place is different. And probably the simplest example I’ll give of that is in Australia, various state and territory rules say that you drive on the left. Whereas, in much of the world, you have to drive on the right. It doesn’t mean that it’s wrong, it’s just different. And the same applies with surrogacy. If you’ve got a legal system overseas that recognises both the parents as the parents, then there may be little point in going to the Supreme Court of New South Wales and seeking out transfer of parentage from the surrogate and partner to the intended parents because, they’re already recognised. Now, what has been uncertain until these changes, is whether the overseas Order will be recognised.
There was a case back in 2013 concerning a South African man where the court said, look, there’s a bit of a difference between if you go overseas for surrogacy when we say don’t go overseas for commercial surrogacy or if you’re already living over there and you’re recognised over there. So, the court recognised this man who was living in South Africa, who obtained a South African Court Order for children born through surrogacy in South Africa as the parent. And in effect, the court did so under the comity approach. But then, it seemed to give a bit of a carve-out if you had started in Australia and gone overseas for surrogacy. So, this seems to change that. These changes seem to say, in effect, well, by implication, even though we haven’t really said it, if you’re recognised as the parents overseas, then you don’t need to get a Parentage Order here because we’ll allow Parentage Orders to be made here concerning commercial surrogacy overseas when needed.
So, what cases would you need to obtain a Parentage Order here? And, I think the obvious ones are where one parent is recognised and the other is not. So, in a number of places in the world where the biological father and the surrogate are identified as the parents. The other parent– the other intended parent, whether it’s a male or female—is not recognised. And the classic countries where we’ve seen that happen are, for example, Malaysia, Cambodia, Thailand before the ‘Baby Gammy’ changes in late 2014. Mexico, pre a decision of Mexican Supreme Court in 2018 and regrettably, in a number of cases, in many cases since 2018. And above all, gay men going to India because India would recognise heterosexual couples, and recognise single women and recognise single men but not recognise gay couples. So, if you’re part of a gay couple and one of you got through this legal fiction that you are single and therefore, the other man would not be recognised. So, the intended…the biological intended father would be recognised, the surrogate would not be, but the other intended father would not be recognised. So, these changes will hopefully fix all that. And, so far as the children are concerned that parentage finally will be recognised.
Don’t worry about parents’ rights. Let’s talk about children’s rights. And children — every child has a right to identity. The International Convention on the Rights of a Child, for which Australia is a party, says that clearly. And so, I think this is a great step forward to ensure that those children’s rights are realised. Whatever your view about surrogacy, these children exist and their rights should be protected. And when I say children, some of these children are now adults or soon to be adults. So, their rights have to be protected as soon as possible. They shouldn’t be traded, in effect, as second-class citizens. With their parentage left limping either with one of their parents not recognised, or someone who in reality is not a parent–the surrogate–still on the birth certificate as their parent. So, this is a–in my view–a great step forward.
As I’ve said, for the last couple of years, I’ve been involved in the All Kids Are Equal campaign led by Rainbow Families New South Wales. All credit to Rainbow Families New South Wales for pulling out all stops on this, making sure that all the lobbying is done to help this go through. And, also to Equality Australia for really pushing this. They’ve been marvelous in ensuring that this has happened. Probably the word to describe it is that a child has many parents. And as one of those parents, playing my own small role in helping this happen, I’m delighted and humbled that this has occurred.
Thank you for listening and watching.
I’m Stephen Page from Page Provan Family and Fertility Lawyers. This is the Australian Family and Fertility Law Podcast.
Thank you.
