Surrogacy Regulation 2016 (NSW)

Editorial note

The Parliamentary Counsel’s Office is progressively updating certain formatting styles in versions of NSW in force legislation published from 29 July 2019. For example, colons are being replaced by em-rules (em-dashes). Text of the legislation is not affected.

This version has been updated.

Part 1Preliminary1Name of Regulation

This Regulation is the Surrogacy Regulation 2016.

2Commencement

This Regulation commences on the day on which it is published on the NSW legislation website.

Note.

This Regulation repeals and replaces the Surrogacy Regulation 2011, which would otherwise be repealed on 1 September 2016 by section 10 (2) of the Subordinate Legislation Act 1989.

3Definition

In this regulation—

the Act means the Surrogacy Act 2010.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this regulation.

cl 3: Am 2025 (464), Sch 1[1].

4Interstate parentage orders

Each of the following orders is declared to be an Interstate parentage order under section 4 (1) of the Act—

• (a)

  an order under section 26 of the Parentage Act 2004 of the Australian Capital Territory,

• (b)

  an order under section 22 of the Surrogacy Act 2010 of Queensland,

• (c)

  an order under section 10HB of the Family Relationships Act 1975 of South Australia,

• (d)

  an order under section 16 or 22 of the Surrogacy Act 2012 of Tasmania,

• (e)

  an order under section 22 of the Status of Children Act 1974 of Victoria,

• (f)

  an order under section 21 of the Surrogacy Act 2008 of Western Australia.

5Interstate surrogacy laws

Each of the following laws is declared to be an Interstate surrogacy law under section 4 (1) of the Act—

• (a)

  Parentage Act 2004 of the Australian Capital Territory,

• (b)

  Surrogacy Act 2010 of Queensland,

• (c)

  Family Relationships Act 1975 of South Australia,

• (d)

  Surrogacy Act 2012 of Tasmania,

• (e)

  Status of Children Act 1974 of Victoria,

• (f)

  Surrogacy Act 2008 of Western Australia.

6Qualified counsellor—domestic arrangements

For the Act, section 4(1), definition of qualified counsellor, to exercise the functions of a counsellor for a surrogacy arrangement entered into in Australia, a person must—

• (a)

  hold a qualification conferred by a university, whether within or outside New South Wales, after the equivalent of at least 3 years full-time study, and

• (b)

  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of a surrogacy arrangement, and

• (c)

  be one or more of the following—

  • (i)

    a medical practitioner who is a psychiatrist,

  • (ii)

    a registered psychologist,

  • (iii)

    eligible for membership of the Australian Association of Social Workers or the Aotearoa New Zealand Association of Social Workers,

  • (iv)

    a full member of, or eligible for full membership of, the Australian and New Zealand Infertility Counsellors Association.

Note—

This clause applies to a counsellor preparing an assessment report in relation to a surrogacy arrangement under the Assisted Reproductive Technology Act 2007, section 15A.

cl 6: Subst 2025 (464), Sch 1[2].

6AQualified counsellor—international arrangements

For the Act, section 4(1), definition of qualified counsellor, to exercise the functions of a counsellor for a surrogacy arrangement entered into outside Australia, a person must—

• (a)

  hold a qualification conferred by a university, whether within or outside New South Wales, after the equivalent of at least 3 years full-time study, and

• (b)

  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of a surrogacy arrangement, and

• (c)

  be one or more of the following—

  • (i)

    a medical practitioner who is a psychiatrist,

  • (ii)

    a registered psychologist,

  • (iii)

    eligible for membership of the Australian Association of Social Workers or the Aotearoa New Zealand Association of Social Workers,

  • (iv)

    a full member of, or eligible for full membership of, the Australian and New Zealand Infertility Counsellors Association,

  • (v)

    authorised to practise as a psychiatrist by a law of a jurisdiction outside Australia,

  • (vi)

    authorised to practise as a psychologist by a law of a jurisdiction outside Australia,

  • (vii)

    authorised to undertake social work by a law of a jurisdiction outside Australia.

cl 6A: Ins 2025 (464), Sch 1[2].

6BIndependent counsellor’s report

For the Act, section 4(1), definition of qualified counsellor, to exercise the functions of a counsellor under the Act, section 17, a person must—

• (a)

  meet the requirements in clause 6 or 6A, and

• (b)

  have specialised knowledge, based on the person’s training, study or experience, that enables the person to give opinion evidence as to the matters referred to in the Act, section 17.

Note 1—

The requirements of this clause apply to a counsellor who gives an independent counsellor’s report in relation to proceedings for a parentage order as referred to in the Act, section 17.

Note 2—

See also the Evidence Act 1995, section 79.

cl 6B: Ins 2025 (464), Sch 1[2].

7Application of certain amendments(1)

Clauses 6 and 7, as in force before the commencement day, continue to apply to a person engaged to exercise the functions of a qualified counsellor under the Act before the commencement day.

(2)

Clauses 6A and 6B, as inserted by the amending regulation, apply to a person engaged to exercise the functions of a qualified counsellor under the Act in relation to a surrogacy arrangement entered into outside Australia before the commencement day.

(3)

In this clause—

amending regulation means the Surrogacy Amendment (Qualified Counsellors) Regulation 2025.

commencement day means the day on which the amending regulation commences.

engaged, to exercise the functions of a qualified counsellor, includes the booking of an initial appointment with the counsellor.

cl 7: Subst 2025 (464), Sch 1[2].

8Repeal and savings(1)

The Surrogacy Regulation 2011 is repealed.

(2)

Any act, matter or thing that, immediately before the repeal of the Surrogacy Regulation 2011, had effect under that Regulation continues to have effect under this Regulation.

Historical notesTable of amending instruments

Surrogacy Regulation 2016 (464). LW 29.7.2016. Date of commencement, on publication on LW, cl 2. This regulation has been amended as follows—

2025 (326) Surrogacy Amendment (Qualified Counsellors) Regulation 2025. LW 2.7.2025. Date of commencement, on publication on LW, sec 2.

Table of amendments

Cl 3	Am 2025 (464), Sch 1[1].
Cl 6	Subst 2025 (464), Sch 1[2].
Cl 6A	Ins 2025 (464), Sch 1[2].
Cl 6B	Ins 2025 (464), Sch 1[2].
Cl 7	Subst 2025 (464), Sch 1[2].