Behind the neutral language of ‘fertility support’ sits a blunt question: Will New South Wales authorise a market in women’s pregnancies and the handover of children, or refuse to build that market at all? On Tuesday we appeared before the New South Wales Legislative Council inquiry into ‘fertility support’ and assisted reproductive technologies to give evidence on surrogacy. Our evidence to the Legislative Council this week argued for refusal — and for Parliament to act as guardian, not industry steward.
At the heart of our evidence was a simple question: What is Parliament’s role in this space? Is it to steward a fertility market, or to guard women and children from being turned into that market’s raw material for exploitation and commodification?
Guardianship, not stewardship of a market
In our opening statement (see below), we invited members to see themselves not as managers of a ‘fertility support’ industry, but as guardians of the constitutional and human‑rights order in NSW. As we put it, women and girls hold rights against Parliament: rights not to have our bodies or our children treated as resources in a market, however strong the demand.
We drew a clear line between paternalism and guardianship. Paternalism assumes adults lack capacity and uses that as a reason to override us ‘for our own good’; guardianship recognises that adults have agency, but also that some social arrangements are so structurally exploitative that the state must not endorse them, even when some citizens step into them. A parliament that refuses to construct and manage a market that depends on women’s inequality is not denying women’s agency; it is honouring a duty to ensure that our agency is not used as raw material for exploitation.
We contrasted that guardianship frame with the ‘stewardship’ role built into the inquiry’s own language. Under that stewardship model, surrogacy sits within a neutral policy domain called ‘fertility support’, where purchasers, clinics, brokers, surrogate mothers and children are treated as stakeholders whose claims must be balanced. A steward of such a market is, by definition, working for that market’s continuity and stability. A guardian of women and children can — and sometimes must — recommend that the market not exist at all.
Why surrogacy is not just another medical service
Early questioning from MLCs focussed on our submission’s insistence that surrogacy and assisted reproductive technologies (ART) must not be bundled into one legal framework. We explained that ART treats a person’s own fertility, whereas surrogacy contracts out a woman’s body and requires the planned relinquishment of a child. They are not both neutral ‘medical responses to infertility’; they are profoundly different practices.
We urged the committee to decouple them. Treating surrogacy as just another element of ‘fertility support’ obscures the structural harms built into using women’s pregnancies and the transfer of children as the basis for a market. It also builds in an assumption that surrogacy is already a legitimate service, and that the only questions are about access, safeguards and consumer supports.
Barriers, regulation and ‘ethical’ commercial models
Several questions pressed us on ‘barriers’ to surrogacy and whether better regulation could make commercial surrogacy ethical. We challenged the framing of barriers as inconveniences. What are often described as barriers to access are, in reality, minimal human‑rights protections against the exploitation and commodification of women as a sex class.
On regulation, we were clear that no regulatory model can cure an inherently exploitative structure. Regulation does not alter the ethical character of surrogacy; instead, it makes the practice look orderly and respectable, leading to normalisation and expansion. Once a market exists, pressures build to relax restrictions, and Parliament finds itself dealing with vested interests among clients, brokers, clinics and lawyers whose livelihoods depend on that market.
We pointed to the limits of New South Wales’ own sexual consent reforms as a cautionary parallel. The state has struggled to police coercion, social pressure and economic vulnerability in complex intimate relationships; it is naïve to think it can reliably police those dynamics in a commercial surrogacy market.
Lived experience, agency and exploitation
One of the sharper exchanges came when a member referred to evidence from a voluntary, altruistic surrogate mother presented earlier and asked whether we were seeking to prevent an informed adult from making that choice with her own body.
We answered that our remit is governance, accountability, process and policy; we work at the level of social and structural analysis, not individual life stories. Lived experience, we said, matters and should be acknowledged — but it should have only a small place in state decisions about structurally exploitative systems. Individual choices and feelings are subjective; the legal and material structure is objective and observable, and it can be exploitative even when some women say they like being part of it.
The question for Parliament, we said, is not whether women are competent or capable, but who benefits when we call participation in an exploitative system ‘empowerment’. We cautioned that if Parliament refuses to name these dynamics as exploitation, it becomes very difficult to see what is truly at stake when it designs laws. The state has a negative duty to refrain from harm, which includes not constructing and stewarding a market that depends on our pregnancies and the handover of our children, and not creating a market that uses our agency as a resource for exploitation.
Children, adoption and past harms
Members also asked whether lessons from forced adoptions and stolen children should inform how we think about surrogacy. We agreed that they must. In those cases, children were treated as commodities and women’s roles as mothers were overridden or erased.
Putting children first, we argued, means refusing to design systems predicated on planned child separation from the woman who carried them. The state is not obliged to create new categories of children whose origins depend on a contract for separation. Individual positive outcomes, in adoption or surrogacy, can look fine even in exploitative systems; they do not answer the ethical question of how these children were produced, and they do not alter the ethical character of surrogacy.
International obligations and democratic process
We were also asked about our other attempts to engage on this issue. At the UN level we have raised our concerns with the Special Rapporteur on Violence Against Women and Girls (through her surrogacy report and special procedures), contributed to the Commission on the Status of Women, and put surrogacy on the record in Australia’s ninth periodic review. Internationally, surrogacy is increasingly being recognised as exploitation and as engaging sale‑of‑children and trafficking frameworks. Yet at home, while those concerns sit on the record, governments have pushed ahead with ‘Equality Bills’ and reproductive legislation that normalise surrogacy and treat women raising abolitionist arguments as marginal or inconvenient.
We also described our attempts to engage constructively with the Australian Law Reform Commission’s review of surrogacy laws. After coordinating a coalition submission from twelve feminist organisations calling for abolition, we were invited to a roundtable with the ALRC — only to be told by the President that we were not to raise matters of governance, which is our core remit, and that each organisation should write to him separately to raise any further concerns. When he asked how a recommendation of abolition could be made under the ALRC review’s terms of reference, we pointed him to section 24 of the ALRC Act as the obvious route — just as, in this inquiry, we have pointed this committee to the NSW Interpretation Act as its basis for recommending prohibition consistently with Australia’s international obligations. When we later documented our governance concerns in writing, neither the ALRC nor the Attorney‑General’s department substantively addressed them.
In our further evidence we asked the committee to be alert to potential conflicts of interest — or perceived conflicts — where witnesses also hold positions on the ALRC’s surrogacy advisory committee and work within the fertility and surrogacy industry. We contrasted that institutional positioning with women’s advocacy organisations, such as ours, which do not derive income from surrogacy markets and whose remit is the protection and rights of women and girls.
Who we are, and what we asked for
Towards the end of the hearing, we were questioned about our organisation’s structure, membership and (implied) legitimacy. We explained that the NSW Women’s Advocacy Alliance is part of AAWAA, with groups in every state and territory, and that our mandate is to advocate for all women and girls in NSW and Australia, not just our own members. We noted that women with our perspective are often severely silenced, and that coalition sign‑ons — nationally and internationally — better reflect how many women share these concerns than a narrow membership count.
We close, therefore, as we began: by asking Parliament to inhabit its role as guardian, not steward. That means prohibiting surrogacy in all its forms, extending that prohibition extraterritorially, criminalising facilitation and brokerage, integrating surrogacy into an anti‑trafficking and women’s protections framework, and strengthening non‑exploitative routes to family through guardianship, kinship care and social support.
The authority Parliament holds over our lives is considerable. Our evidence was an invitation — and a reminder — that women lend that authority on terms.
