Surrogacy & Fertility Bulletin – November 2025
It’s been a long time since drinks and so much has happened in the last year in the world of fertility, that it’s time for an update. Read on, for news for Australian and international, donor conception and surrogacy, fertility caselaw and law reform.
I completed my Churchill Fellowship earlier this year, and my final report, For Love & Law: Creating Ethical, Inclusive Surrogacy in Australia has now been published.
The fertility world came into sharp focus in April 2025, with news that Monash IVF had transferred the wrong embryo, resulting in the birth of a child. The news created a media storm and lead to the government announcing a rapid review of fertility services across the country.
In September, the final report from the rapid review was released. The reviewers recommend independent accreditation and regulatory oversight of fertility service providers, consistently applied across the country. While the recommendations are positive, they do not go far enough. There should be a national ART Commission for all fertility treatment providers, to regulate fertility, donor conception and surrogacy. Dr Karin Hammarberg and Professor Catherine Mills call for an end to self-regulation in their latest article in BioNews.
I appeared on SBS Insight’s Baby Business episode alongside surrogacy-born Alice Clarke and parent Anthony Fisk, talking about surrogacy, donor conception and the big business of fertility.
In October, we held the inaugural Australia New Zealand Fertility Law & Ethics Symposium in Melbourne, a project I am very proud of. The conference brought together legal and psychosocial practitioners, researchers and judicial officers from across the field to learn from each other and build our professional community. I am excited for future events!
The surrogacy case of Noake and Chatwyn [2025] FedcFamC1F 332 was heard in Parramatta. This is a case of a child born via international surrogacy where the parents sought leave to allow them to seek an adoption order. While they were granted shared parental responsibility for the child, they did not pursue leave to adopt, after Judge Anderson indicated that ‘neither of the applicants fall within the definition of a prescribed adopting parent.’ His Honour also declared that the NSW Surrogacy Act ‘does not have extraterritorial application’ such that international commercial surrogacy is not unlawful for NSW residents.
The Noake decision has been the subject of considerable debate amongst surrogacy lawyers , and I would go so far as to say I disagree with His Honour. The parents should have been granted leave to adopt, and it is a fact that international commercial surrogacy is illegal for NSW residents, pursuant to sections 8 and 11 of the Surrogacy Act.
Another FCFCOA case, Ophoven and Berzina [2024] FedCFamC2F 1472 involved an appeal against a declaration of parentage and parenting orders. The parties had been in a relationship and undergone IVF treatment. Eventually, the mother conceived via fertility treatment and a donated embryo, and upon advising the father that she was pregnant, offered him the option to be a family or that she would raise the child alone. The parents raised the child together, were both named on the child’s birth certificate and lived together as a family. During the proceedings, the mother claimed that the father was not a parent on the basis that he did not share a biological connection to the child. She was not successful on this argument, and the declaration of parentage stands.
The High Court of Australia has since dismissed an application for special leave by the mother, in October 2025.
You can read other surrogacy and fertility case updates on the Blog.
Some Australian surrogacy arrangements have been impacted by delays and lack of reports from a surrogacy counsellor in New South Wales. There are requirements for pre and post-surrogacy counselling reports and affidavits to be provided to the court to support a parentage order. Without the reports or affidavits, a parentage order may not be provided. Counsellors and lawyer must have contingency plans in place to support their clients in their absence.
We’re heading to Perth this month for our Surrogacy Information Seminar, to celebrate the Western Australian surrogacy laws! For over a decade, the community has campaigned for law reform to remove discrimination against gay couples and single men. Finally, the WA government has introduced changes that allow anyone in Western Australia to pursue surrogacy at home. We’ve been so excited, we filled two venues and reached capacity within days of registration opening! We’re excited to celebrate the rainbow wave in WA.
The Australian Law Reform Commission review of Australia’s surrogacy laws is underway, and November will see the release of the Discussion Paper, and another opportunity for feedback on proposed reforms.
Turning to international developments, Ireland recently established it’s Assisted Human Reproduction Regulatory Authority and appointed experts, professionals and community members to the Authority.
And in the US, a three-parent family has succeeded in being declared the lawful parents of a child in a New York judgment of the Matter of Baby D.K.N.. The case is considered one of the first of its kind and gives hope to multi-parent families and challenges the two-parent family construct.
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If you are new to surrogacy in Australia, you can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast. You can also book in for a consult with me below, and check out the legal services I provide.
Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two dads in 2018.
I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.
