Commercial Surrogacy: Disguised Legalization Through Legislative Loopholes
The facilitation of commercial surrogacy, packaged as a “narrow pathway” for a small number of families - opening the door to much larger consequences.
The recent legislative changes to surrogacy in New South Wales, defended by Penny Sharpe, claim to maintain the ban on commercial surrogacy[i]. However, a closer look reveals that this bill does far more than protect children born through surrogacy—it paves the way for the normalization of commercial surrogacy under the guise of child protection. Despite her reassurances, no one in Australia has faced legal consequences for engaging in illegal overseas surrogacy, which calls into question the sincerity of these so-called protections.
In her rebuttal to Shadow Assistant Attorney General Susan Carter, Sharpe downplays the ethical concerns, arguing that the bill simply facilitates the legal recognition of children born through international surrogacy.
Yet, the absence of enforcement and her willingness to accommodate future commercial surrogacy arrangements beyond June 2025 suggest a tacit approval of practices that exploit women in vulnerable situations. This isn’t child protection—it’s the facilitation of commercial surrogacy, packaged as a “narrow pathway” for a small number of families, but with the potential to open the door to much larger consequences.
1. Sharpe's Denial of Facilitating Commercial Surrogacy:
Sharpe insists that the bill does not promote commercial surrogacy and that the ban remains in place. However, by allowing parentage orders for children born via illegal international commercial surrogacy arrangements, the legislation seems to normalise this practice, making it effectively condoned. I can find no evidence that anyone has been fined or jailed for engaging in international commercial surrogacy which would highlight a gap in enforcement that undermines Sharpe’s claim that these practices are still criminalised.
See 3.53 Review of Surrogacy Act 2010.pdf (nsw.gov.au)[ii]
And then Sharpe’s allowance for parentage orders beyond June 2025 suggests tacit approval of future commercial surrogacy arrangements, even if she frames it as protecting the child. This could indeed be seen as condoning commercial surrogacy, regardless of the legislative language that says it remains illegal.
“I think the entire purpose of these changes is to simplify the process and facilitate commercial surrogacy. It is my view that we have ended up with the worst of all worlds – facilitation of overseas commercial surrogacy which will be very difficult (and which we are currently not trying) to regulate.” Shadow Assistant AG Susan Carter commented.
The claim that this change does not promote commercial surrogacy is misleading. There is already a process for obtaining parentage orders for children born via commercial surrogacy, though it may be cumbersome and does not alter the birth certificate, which can lead to difficult conversations. However, it ensures the child’s care. Granting parentage orders doesn't provide additional rights or protections to the child but simplifies the process for commissioning parents by allowing both names on the birth certificate. The lobby group Growing Families recognizes this is facilitating commercial surrogacy.
Growing Families: https://www.instagram.com/growing_families_global/p/DBLC1vCStTM/
2. Reference to 'Bastard' Children as justification:
Sharpe uses the historical context of children born out of wedlock as an analogy to defend parentage orders for children born via surrogacy, but those children have their mother's parentage recorded. They were not left entirely without legal protection, and their situation differs fundamentally from commercial surrogacy, where the birth mother may be completely replaced on the birth certificate. Her analogy oversimplifies a far more complex ethical and legal situation in surrogacy.
Same-sex couples and others have legal pathways, such as adoption, to establish parental rights without resorting to surrogacy arrangements that exploit vulnerable women. Sharpe’s analogy is misleading because it conflates two very different situations.
3. Floodgates?
Sharpe dismisses concerns about "floodgates" being opened, but that term wasn’t from Susan Carter’s speech but from Rachel Merton’s speech on gender self-identification. Regardless, the concern isn’t just about the sheer number of cases but the normalization of illegal commercial surrogacy, which Sharpe’s rebuttal doesn’t fully address.
There is no recognition that the normalisation of surrogacy rests on enslavement of women and the commodification of children. The argument based around ‘best interests of the child’ is difficult to accept, when this whole process seems solely predicated on best interests of the commissioning parents.
By accommodating international surrogacy arrangements, even if the numbers remain relatively small, the state effectively sends the message that these arrangements are tolerable, which will encourage more people to engage in them. Case in point, sites like Sam Everingham, Author at Growing Families[iii] advertise overseas surrogacy in Australia, with impunity. [iv]
4. Preserving Protections Against Exploitation?
Sharpe claims that protections against exploitation and trafficking are preserved through preconditions like the consent of birth parents and counselling requirements. However, if illegal surrogacy continues without punishment, and parentage orders are granted regardless, those so-called protections are hollow. Simply having laws on paper isn’t enough if they aren’t enforced or if the legal system creates loopholes through accommodation.
The failure to punish those engaging in commercial surrogacy undermines any claim that protections are in place. The fact that commercial surrogacy has been happening without significant legal consequences shows a disconnect between the law and its enforcement.
Conclusion:
Overall Sharpe’s rebuttal seems to focus on minimising the political fallout from supporting this legislation rather than grappling with the ethical and legal inconsistencies it introduces. She’s attempting to balance compassion for the children involved with the state’s legal framework, but this balance I think will come at the cost of condoning exploitative practices in the future.
I think Sharpe’s defence seems to sidestep the core ethical concerns raised by the Shadow Assistant Attorney General, especially regarding exploitation, trafficking, and the normalization of commercial surrogacy. I question the sincerity of these so-called protections and the message being sent by accommodating parentage orders.
In her concluding speech, Sharpe says: ‘No-one is trying to duck the challenges around commercial surrogacy. No-one is trying to duck the serious issues raised by the Anti-slavery Commissioner.’ But unfortunately, these issues – acknowledged as serious – have not been addressed in this legislation.
Slavery is so important it should be addressed first – not after the fact.
[i] https://docs.google.com/document/d/1VYwjWz45FSw1zGJ2gVIqK_q0LFqbQiOJYaMe6U7oWEc/edit?usp=sharing
[ii] See 3.53 Review of Surrogacy Act 2010.pdf (nsw.gov.au)
https://www.parliament.nsw.gov.au/tp/files/73919/Review%20of%20Surrogacy%20Act%202010.pdf
[iii] https://www.growingfamilies.org/author/sam/ Growing Families advertising Commercial Surrogacy in Australia.