Can we legislate a higher birth rate and do we want to?

LSJ Online looks at how legislation can favour a consistently healthy birthrate in nations that need it, and why it matters to keep this balance. In countries like Australia, China, and France, it appears there will be many more elderly people than new lives over the coming decades. This has ramifications for the workforce and productivity, putting pressure on health and pension systems, housing, education and caring industries.

The economy of any nation depends upon a workforce to sustain productivity, including fundamental services and sustainable local industries. Some governments have taken predictable routes, such as offering financial incentives to encourage people to have children, while others have been more creative, establishing dating apps that match individuals who want children. The reasons for lower birth rates globally are manifold, but typically, low birth rates are caused by the high costs of raising a child and living in general, unstable or inappropriate housing for raising a child, women increasingly wishing to prioritise career progression over starting a family, and older average ages for first-time mothers.

Zoe McQuillan is Associate Director at Cowell Clarke Commercial Lawyers and is presently on maternity leave. She says, “In today’s society, the prime concerns regarding the decision to have a child or to go on to have more than one child, are really around cost, both financial and otherwise. For those unable to conceive, IVF is extraordinarily expensive even with the government rebates and the availability of some public system IVF centres. IVF rebates are also not available to everyone. Adoption is difficult and expensive as well.”

Then there is the question of the cost and availability of services to support working parents once they have a child, McQuillan points out.

“And accessibility of childcare services that are safe and affordable for their future children. A lot of childcare services still operate on limited hours which do not match the reality and needs of Australian working parents including shift workers and employee-like workers in the gig economy. “

The landscape for workers in 2026 is one of inequality, instability, and old stigmas around gender obligations and this directly impacts on choices around parenthood.

“Modern working patterns means a lot of Australians are working in less traditional modes that do not meet the usual business hours of 9 – 5,” says McQuillan. “If you do not work traditional hours, and you’re having to rely on nannies or similar services, there are no childcare subsidies or tax-deductible options in those instances.”

She adds, “While some might say that the ‘parenthood penalty’ is a thing of the past, that is not the case. It is not just the financial costs that penalise the working parent, but also the costs that working parents face with being ‘out of sight, out of mind’ for opportunities at work and connection to work and this disproportionately affects women. Often these penalties are subtle rather than overt, making them difficult to identify, despite the legal protections in place. When you look at the overall costs, it paints a bleak picture of having a child in modern Australia.”

International experience

South Korea, Hong Kong, Ukraine, Puerto Rico, Japan, China and Italy are amongst the nations with the lowest birth rates. That’s according to the UN Crude Birth Rate data on World Population Review, based on the number of births per 1,000 people. Conversely, the Central African Republic, Chad, Somalia, Niger and Democratic Republic of the Congo having a thriving birth rate.

The birth rate alone is interesting, but it becomes really pertinent when matched with data on deaths, and what that reveals about the demographic and whether the birth rate is sufficient to maintain a healthy population. As the World Population Review notes, “a global decrease in birth rate has caused some countries to worry that their current birth rate is not enough to replace the older generation, which would lead to a population decline.”

Australia’s birth rate is 11.28 births per 1,000 people, which is based on approximately 830 births daily (one every 1.7 minutes), 512 deaths (one every 2.8 minutes). Melbourne leads the nation’s population, just marginally ahead of Sydney, and well ahead of the other states and territories. According to the World Population Review, there was an increase to the population of 12,240 as of 18 January, 2026.

Australia’s birth rate in 2023 was the lowest level ever recorded (1.5 births per woman). Unlike 120 years earlier, the NSW Government didn’t demand a Royal Commission. In 1903, the Royal Commission on the Decline of the Birth-Rate and on the Mortality of Infants in New South Wales, detailing the decline of the birth rate, elicited media headlines such as “Prevention and Cure”, and “A Startling State of Affairs”.

In 2023, 88,297 babies were born in NSW, and despite a small increase in 2021, the number of births in NSW has been declining since 2016.

However, the regions tell a different story according to a KPMG report from July 2025, which states: “Australia’s fertility rate (the average number of children over a woman’s lifetime) sits at 1.51 in 2024, well below the 2.1 replacement rate needed to sustain our workplace and population growth. The baby bounce back was largely felt outside the nation’s capital cities, with regional Australia reaching 94,900 births in the last year, a 3.9 per cent increase from 2023.”

KPMG Urban Economist Terry Rawnsley attributed this to: “Rising rents, mortgage payments and childcare costs in the metro areas are putting a handbrake on people’s plans to start or grow their family. Instead, regional communities are continuing to emerge as popular places to live, work and raise a family, with affordability now top of mind for many Australians.”

Various news headlines over the last couple of years would point to a public concern over the declining trend in the birthrate, however not all experts are in consensus that less births is deleterious to the national economy. Rather than focusing solely on encouraging women to have children, some nations have taken a broader purview. In a 2024 story for The Conversation, Professor Edith Gray from the School of Demography, Australian National University, referred to “demographic resilience”. This blueprint favours policies on affordable housing and childcare, workplace rules that enable adaptability around working from home or job-share, and parental leave policies that enable both or either parent to take time to be present for their newborn.

The legal profession, like so many sectors, has progressed in terms of flexible work conditions, paid leave, and provisions for parents to balance work demands with caring for a child. However, the fear of stalling career progression, being overlooked for promotion, and keeping up with colleagues, remains a very real experience.

It was only from the 1970s that maternity leave was introduced, and it was originally unpaid. While it has transitioned to parental leave over time, there is still an expectation that – in the majority of cases – the woman will take the leave rather than her partner.

McQuillan says that in regard to Fair Work Act 2009 (Cth), “The legal framework provides a range of protections for working women who become parents, but it is how these protections are treated in practice in workplaces that will be the difference between these workplace laws working well for a working parent or not.”

She elaborates, “The ‘return to work guarantee’ in the Fair Work Act [s84] is an important protection in terms of providing a legally protected pathway for returning to work to the position held immediately prior to commencing leave or to a role that is similar. Likewise, taking carer’s leave when the working parent’s child inevitably becomes sick at daycare or school is a protected workplace right in the Fair Work Act.”

Being able to request a flexible working arrangement is also an important pathway to securing flexible ways of working for a working parent.

“Despite the legal protections in place, we still see decisions being handed down where findings were made that pregnant women or women on parental leave were unlawfully made redundant during parental leave in breach of those legal protections or employees being discriminated against because of the protected attribute of their parental responsibilities.”

McQuillan says, “Legal reform in relation to employment laws will likely provide part of, but not the whole solution. Changes in thinking, attitudes, leadership, and policies in workplaces and workplace culture are needed as well.”

Housing costs are still a barrier to renters and buyers

“The costs of housing in NSW are so astronomically high, that it likely does factor in as a significant decision regarding the choice to have a child, the timing of when they have a child and how many children families are having,” McQuillan says.

“If housing costs cannot be addressed, and we want to encourage members of our community to have children then other mechanisms need to be engaged in terms of legal and policy reform to ease the costs of raising children to make sure it is an accessible option despite other costs of living being high.”

The story behind the statistics is complicated

“A declining birth rate means that there may not be enough of future generations of Australians to carry on the economy and society at large,” McQuillan says.

“Women should be celebrated for whatever choices they wish to make in life and for all of their many and varied contributions. Gone are the days where the mark of a woman’s success is her marital status and the number of children she has popped out.”

However, the declining birth rate might indicate women feel they lack choices.

“If this is a sign that women felt that they had no choice before, now have the choice to not have children and that is something that they want, then of course they should be celebrated for that choice,” says McQuillan.

“However, in this statistic there are likely to be women who want to have children or more children, but for a myriad of different reasons, cannot. Financial barriers, including the cost of accessing reproductive technology or adoption, housing affordability, child care service affordability and the cost of living crisis, is likely delaying or putting people off having children until they feel financially ready – which may never happen – and that’s a complex issue that needs to be addressed to lift the declining birth rate.”