Surrogacy Regulation 2016

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Surrogacy Regulation 2016.

2 Commencement

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This Regulation repeals and replaces the Surrogacy Regulation 2011, which would otherwise be repealed on 1 September 2016 by section 10 (2) of the Subordinate Legislation Act 1989.

3 Definitions

(1)  In this Regulation:

the Act means the Surrogacy Act 2010.

(2)  Notes included in this Regulation do not form part of this Regulation.

4 Interstate 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.

5 Interstate 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.

6 Qualified counsellor

(1)  For the purpose of the definition of qualified counsellor in section 4 (1) of the Act, to exercise the functions of a counsellor a person must:

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

(b)  be familiar with any guidelines issued by the Australian and New Zealand Infertility Counsellors Association and the National Health and Medical Research Council that are relevant to the exercise of those functions.

(2)  This clause does not apply in respect of the functions of a counsellor under section 17 or 35 (2) of the Act.

Note.

The requirements of this clause apply to a counsellor who gives counselling about the social and psychological implications of a surrogacy arrangement to the affected parties as referred to in section 35 (1) of the Act. In addition, a counsellor who provides an assessment report in relation to a surrogacy arrangement under section 15A of the Assisted Reproductive Technology Act 2007 must also be a qualified counsellor under this clause.

7 Qualified counsellor—requirements for counselling under sections 17 and 35 (2) of the Act

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

(a)  hold a qualification conferred by a university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and

(b)  be a qualified psychologist, qualified psychiatrist or qualified social worker, and

(c)  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 section 17 of the Act.

Note.

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

Note.

In relation to paragraph (c), see section 79 of the Evidence Act 1995.

(2)  For the purpose of the definition of qualified counsellor in section 4 (1) of the Act, to exercise the functions of a counsellor under section 35 (2) of the Act a person must:

(a)  hold a qualification conferred by a university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and

(b)  be a qualified psychologist, qualified psychiatrist or qualified social worker, and

(c)  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of relinquishing a child.

Note.

The requirements of this subclause apply to a counsellor who gives counselling to the birth mother and birth mother’s partner about a surrogacy arrangement after the birth of the child as referred to in section 35 (2) of the Act.

(3)  A qualified psychologist is a person registered as a psychologist in a State or Territory or in New Zealand.

(4)  A qualified psychiatrist is a medical practitioner who has qualifications in psychiatry recognised by the Royal Australian and New Zealand College of Psychiatrists.

(5)  A qualified social worker is a person who is eligible for membership of the Australian Association of Social Workers or the Aotearoa New Zealand Association of Social Workers.

8 Repeal 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.