Overview

In broad terms, the laws in Australia and New Zealand concerning Surrogacy are broadly similar. They criminalise commercial surrogacy and regulate altruistic surrogacy. At that point, the laws diverge. Of the nine jurisdictions: New Zealand plus six Australian States and two Australian Territories, the laws are different in each place.

I have kept this paper to a broad overview, to try and keep the length down.

New Zealand has a different method of regulating surrogacy to Australian jurisdictions. There are also proposals in New Zealand to change the law there. Accordingly, I’ll start with an overview as to where Australians and New Zealanders undertake surrogacy.

It has been estimated by the New Zealand Law Commission that there are 50 surrogacy births to New Zealanders every year. This figure is pretty broad. On that estimate, about half of all New Zealand surrogacy births are overseas and half are domestic. Traditional surrogacy is not captured in NZ’s ANZARD data.

Australia has better data, but there are significant gaps in the data. We know how many children are born through gestational surrogacy through IVF clinics in Australia. What we don’t know is how many children are born via traditional surrogacy anywhere in Australia. We know how many Australian children are born overseas through surrogacy.

We know Australian domestic data from one prime source and four secondary sources. The prime source is from ANZARD, specifically its annual reports, showing the number of children born through Australia and New Zealand IVF clinics through gestational surrogacy. I was critical of ANZARD for not giving a breakdown for New Zealand, but then recently found separate ANZARD figures for New Zealand. With a simple case of maths, it is, therefore, possible to calculate the number of children born via gestational surrogacy in Australia and New Zealand.

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