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Will NSW Legalise Commercial Surrogacy?
Source: The Daily Declaration
A NSW parliamentary inquiry into assisted reproduction has put commercial surrogacy in the spotlight, with witnesses clashing over ethics, human rights, and the law.
A committee of the New South Wales Parliament has begun hearing testimony about the regulation of assisted reproduction and fertility support. Two all-day sessions were held on 20 and 21 April, and two more have been scheduled for later in the year.
The terms of reference for the Upper House inquiry cover a range of issues, from the economic impact of infertility to barriers to accessing IVF, and infertility education.
Much of assisted reproduction is politically and ethically fraught, but one of the most controversial issues is the legalisation of commercial surrogacy.
Although “altruistic surrogacy” – no compensation other than reasonable expenses – is permitted, commercial surrogacy, in which the birth mother is paid, is banned.
However, demand for surrogacy has grown, especially for gay couples.
In NSW, surrogacy is regulated under the Surrogacy Act 2010 (NSW). A Legislative Council committee has been tasked with examining how “to better support families and surrogates through surrogacy”, investigating surrogacy regulation overseas, and examining the possibility of a national legal framework.
Church and Feminists Unite Against Surrogacy
Speaking for the Catholic Women’s League on 20 April, Dr Anna Walsh defended the Catholic Church’s consistent stand on surrogacy.
Although she did not cite him, the late Pope Francis condemned surrogacy as “deplorable” and “a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs.”
Walsh’s opening statement was followed by pointed questioning by Greens MLC Dr Amanda Cohn.
“Aren’t you recommending that the whole state of New South Wales should be governed based on Catholic beliefs?” Cohn asked.
Walsh responded that opposition to surrogacy is widespread.
“Opposition to surrogacy is not constrained to people of faith based on some sacred texts that only people who are members understand,” she said.
“Rather, it’s a shared perspective about the human person based on common wisdom which leads to certain conclusions about what is good for society. One of those conclusions is that there is no moral right to have a child, and the state should not grant a legal right to people to have a child via surrogacy legislation.”
Walsh referred to a submission to the committee by a group called Feminist International Network of Resistance to Reproductive and Genetic Engineering (Australia), which states that “all surrogacy constitutes a human rights violation. We therefore want all surrogacy abolished.”
The World Health Organisation, continued Cohn, has declared that everyone – “heterosexual, homosexual or single by choice” – has a right to access remedies for infertility.
Walsh responded that the best interests of the child should be paramount in legislation. And they will be best protected, she told Cohn, “within a marriage between a man and a woman, which is for life, that gives the child the security they need to flourish.
“So we would disagree with that kind of wider view that anyone who desires a child should be assisted through the law to be able to achieve that end.”
“People will do whatever it takes”
Another witness, “family creation lawyer” Sarah Jefford, put some numbers on the prevalence of surrogacy in Australia. She has extensive experience in the surrogacy industry, as an egg donor and a surrogate mother, capped off by a Churchill fellowship to study surrogacy legislation overseas.
She said that between 130 and 150 surrogacy births occur in Australia every year, and 400 via international surrogacy. Commissioning couples hire women in countries such as the United States, Mexico, Guatemala, or Ukraine.
Jefford supports a national surrogacy legal framework which permits commercial surrogacy in Australia and overseas. But she agreed with Anna Walsh about a key ethical principle.
“There is no right to a child,” she told the committee. However, she believes that since the law is powerless to stop people resorting to surrogacy, it needs to be regulated. “People will not be denied having a child if that is what they want, and they will do whatever it takes to make that happen,” she said.
UN Rapporteur: Surrogacy is a Human Rights Abuse
The day’s final witness was Reem Alsalem, who testified via video link from overseas. She is the current United Nations Special Rapporteur on Violence against Women and Girls.
Alsalem was vehement in her condemnation of surrogacy, both altruistic and commercial, as a human rights abuse.
“I was recently in Colombia,” she told the committee. “I spoke to a woman who was a surrogate mother two years before I actually met her. She could not stop crying throughout the entire interview. She feels that her life was hijacked from her – and this is a woman who has children. She felt cheated, she felt betrayed, but most of all, she felt utterly dehumanised and treated as cattle.”
Alsalem takes an abolitionist stand on surrogacy. She compares it to prostitution, which also exploits women’s human rights. She believes surrogate mothers and the children are victims, but that the agencies and intermediaries which enable surrogacy are no better than pimps and should be prosecuted.
Also scheduled to appear at the committee hearings were the chancellor of the Archdiocese of Sydney Monica Doumit, director of the Plunkett Centre for Ethics Dr Xavier Symons, and ACT and NSW director of the Australian Christian Lobby Joshua Rowe.
The hearings will conclude in late May. No date for the publication of its report has been announced, but it will likely be in the second half of the year.
Republished with thanks to The Catholic Weekly.
COMMENTARY
Introduction: The Growing Demand for Surrogacy
The NSW parliamentary inquiry into assisted reproduction has brought commercial surrogacy into the public spotlight. As demand for surrogacy grows—particularly among same-sex couples—the question of legalisation has become urgent. But beneath the surface of reproductive technology lies a deeper question: what is the moral and human cost of treating a woman’s body and a child’s existence as commodities?
The Current Legal Framework
In NSW, altruistic surrogacy is permitted. A woman may carry a child for someone else and receive reasonable expenses, but she cannot be paid a fee or profit from the arrangement. Commercial surrogacy—where the birth mother is compensated beyond expenses—is banned.
But the law is not the only factor driving behaviour. Sarah Jefford, a lawyer who has herself been a surrogate mother and egg donor, testified that between 130 and 150 surrogacy births occur in Australia each year, and another 400 via international surrogacy. Commissioning couples travel to countries like the United States, Mexico, Guatemala, or Ukraine, where commercial surrogacy is legal.
The demand is real. The question is whether the law should accommodate it or resist it.
The Unlikely Alliance: Church and Feminists
One of the most striking aspects of the inquiry is the alliance between groups that often disagree on many issues. The Catholic Church and feminist organisations are united in their opposition to surrogacy.
Dr Anna Walsh, speaking for the Catholic Women’s League, defended the Church’s consistent stand. She cited the late Pope Francis, who condemned surrogacy as “deplorable” and “a grave violation of the dignity of the woman and the child”.
But Walsh made a crucial point: opposition to surrogacy is not based solely on religious texts. It is based on a shared understanding of the human person. “There is no moral right to have a child,” she said. “The state should not grant a legal right to people to have a child via surrogacy legislation.”
This is a fundamental principle. A child is not a product to be ordered. Infertility is a tragedy, but it does not create a right to a child. The desire for a child, however powerful and understandable, does not override the dignity of the woman who would carry that child or the rights of the child themselves.
The Feminist International Network of Resistance to Reproductive and Genetic Engineering (Australia) submitted that “all surrogacy constitutes a human rights violation.” This is not a fringe position. It is a considered judgment based on the exploitation of women’s bodies and the commodification of children.
The Best Interests of the Child
Greens MLC Dr Amanda Cohn pressed Walsh on whether she was recommending that the state be governed by Catholic beliefs. Walsh responded that the best interests of the child should be paramount.
And the best interests of the child, she argued, are protected “within a marriage between a man and a woman, which is for life, that gives the child the security they need to flourish.”
This is not an argument about religious belief. It is an argument about the evidence: children thrive in stable, loving families with a mother and a father. While there are exceptions, the general principle holds. The state should promote family structures that give children the best chance to flourish.
The Reality of Exploitation
Reem Alsalem, the UN Special Rapporteur on Violence against Women and Girls, gave devastating testimony about the reality of surrogacy. She spoke of a woman in Colombia who had been a surrogate mother two years earlier. She could not stop crying throughout the interview. She felt that her life had been hijacked. She felt cheated, betrayed, and utterly dehumanised.
This is not an isolated case. Surrogacy exploits women in vulnerable economic situations. They are paid to carry children for wealthier couples, often in other countries. The power imbalance is extreme. The potential for coercion is immense.
Alsalem compares surrogacy to prostitution. Both involve the commodification of a woman’s body. Both involve exploitation. Both are violations of human dignity.
The Myth of the “Right to a Child”
Sarah Jefford made a surprising admission: “There is no right to a child.” She agreed with Walsh on this fundamental principle. But then she argued that since people will do whatever it takes to have a child, the law should regulate surrogacy rather than prohibit it.
This is a weak argument. The fact that people want something does not mean it should be legal. People may want many things that are harmful to themselves or others. The law exists precisely to set boundaries, not merely to reflect desires.
The International Dimension
One of the most troubling aspects of surrogacy is the international dimension. Australians travel to countries with weaker protections, hire women who are often desperate for money, and bring home children who are separated from their birth mothers at birth. The children may never know the woman who carried them. The surrogate mothers may never see the children again.
This is not a humane system. It is a global market in human reproduction, and it is deeply exploitative.
The Role of the Church
The Catholic Church has been a consistent voice against surrogacy. It is not because the Church is opposed to children or to helping infertile couples. It is because the Church defends the dignity of every human person, from conception to natural death.
A child is not a product. A woman is not an incubator. The desire for a child, however powerful, does not justify the exploitation of another human being.
The Way Forward
The parliamentary inquiry will conclude in late May, and its report will likely be published in the second half of the year. The question before the committee is whether NSW will join other jurisdictions in legalising commercial surrogacy.
The evidence is clear: commercial surrogacy exploits women, commodifies children, and violates human dignity. It should not be legalised. It should be strenuously resisted.
Instead, the state should support families in other ways: better adoption services, better support for foster care, better economic support for parents who choose to raise children. But the state should never grant a right to a child.
DECLARATIONS BASED ON THE ARTICLE
I DECLARE that there is no moral right to have a child!
I DECLARE that children are not commodities to be bought and sold!
I DECLARE that women’s bodies should not be exploited for profit!
I DECLARE that commercial surrogacy violates human dignity!
I DECLARE that the best interests of the child must be paramount in legislation!
I DECLARE that children flourish best in stable, loving families with a mother and a father!
I DECLARE that the state should not grant a legal right to a child via surrogacy!
I DECLARE that international surrogacy is a form of exploitation of vulnerable women!
I DECLARE that the Church is right to defend the dignity of every human person!
I DECLARE that I will advocate for laws that protect women and children, not exploit them!
PRAYER
Father, You are the author of life. Every child is a gift from You, created in Your image and loved by You from the moment of conception.
We pray for couples who long for children. Ease their pain. Open doors for adoption and foster care. Support them in their desire to nurture life.
We pray for women who are tempted to become surrogate mothers. Protect them from exploitation. Give them the support they need to choose life without compromising their dignity.
We pray for lawmakers in NSW and around the world. Give them wisdom to see the truth about surrogacy. Give them courage to resist the pressure to legalise exploitation. Help them to protect the vulnerable.
We pray for children who are born through surrogacy. Heal the wounds of separation. Surround them with love and stability.
We ask this through Christ our Lord. Amen.
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