The Australian Law Reform Commission (ALRC) has launched a significant inquiry into Australia’s surrogacy laws, indicating a potential transformation in this complex and evolving legal landscape.
The inquiry seeks to tackle the intricate legal, ethical, and medical issues surrounding surrogacy, a practice that offers hope to many individuals and couples dealing with infertility. As ALRC President, the Hon. Justice Mordecai Bromberg, noted, “Surrogacy in Australia brings together issues of law, medicine, technology, ethics, and human rights. A review of surrogacy laws requires sensitivity, nuance, and expertise,” underscoring the delicate nature of the inquiry and the necessity for a balanced approach.
For many, surrogacy serves as a last or only resort for parenthood. However, in Australia, the practice is legally restricted to altruistic arrangements, creating significant barriers for those wishing to build families.
A Complex History and Patchwork of Inconsistencies
The surrogacy landscape in Australia has experienced both advancements and legal challenges. The late 1980s marked a period of rapid progress in assisted reproductive technologies (ART), such as IVF, which brought these challenges to the forefront. In 1988, the birth of Alice Kirkman in Melbourne – Australia’s first and the world’s second IVF surrogacy baby – sparked public interest and became a catalyst for legislative responses. Victoria, grappling with the ethical implications, promptly banned commercial surrogacy, reflecting deep-seated concerns about potential exploitation. Queensland took an even more stringent approach, prohibiting all forms of surrogacy, including those conducted overseas. Amid these developments, Stephen Page, a Brisbane lawyer destined to become a leading voice in the field, took on his first surrogacy case, marking the beginning of his decades-long involvement in this area.
Over the past 37 years, Page, who is a Director at Page Provan Family and Fertility Lawyers in Brisbane, has witnessed the evolution of surrogacy law, advising on over 2,000 journeys across Australia and 39 countries. His personal surrogacy experience, involving his husband and a close friend as a surrogate, revealed the harsh realities of the process. Their journey, spanning over four years, was filled with financial strain, medical complications, a miscarriage, and an ectopic pregnancy. “My daughter almost died in childbirth,” he recalls. To add to the distress, after the birth of his daughter, the hospital disregarded Page as a parent. “The [hospital] executive turned to the surrogate and said, ‘the hospital lawyer said that you are the only parent,’ leaving me completely invisible.”
This story is all too familiar for those navigating altruistic surrogacy, serving as a stark reminder of the legal complexities and emotional toll that often accompany the process.
A decade after the House of Representatives Standing Committee on Social Policy and Legal Affairs Inquiry into the Regulatory and Legislative Aspects of Surrogacy Arrangements, Australia’s surrogacy laws remain a patchwork of inconsistencies and discriminatory practices, hindering intended parents and leaving children in precarious legal limbo. Page notes that while some progress has been made, particularly in reducing discrimination, significant hurdles persist, necessitating urgent reform.
One of the most glaring issues is the lack of uniform surrogacy laws across states and territories. For example, Western Australia prevents single men and same-sex couples from entering into surrogacy arrangements, a law that Page believes will soon be repealed.
However, the state continues to stand out by prohibiting reimbursement for surrogate travel and accommodation—a stark contrast to practices in altruistic surrogacy regimes like Canada. This discrepancy creates a legal minefield for those seeking surrogacy and could even criminalize arrangements made overseas that would be perfectly legal elsewhere.
The issue of interstate surrogacy further complicates matters. In Tasmania, intended parents must both be Tasmanian residents. “The smallest, poorest state and the oldest state, you can’t have a surrogate from interstate. It’s crazy… if your sister leaves Launceston to move to Melbourne for a job and offers to be a surrogate, well, tough luck. You can’t do it in Tasmania,” Page points out.
While South Australia acknowledges interstate arrangements, it has yet to establish the necessary legal framework, rendering such agreements unlawful. Despite constitutional provisions for recognizing interstate orders, Victoria insists on its own court-issued registration orders, adding unnecessary delays and burdens.
The ACT recognizes parentage orders for children born through overseas commercial surrogacy but retains the potential for prosecution without a time limit, leaving families vulnerable to legal action years later. Meanwhile, New South Wales’s recent legislative changes, intended to simplify the recognition of overseas surrogacy, are proving more restrictive than anticipated. The requirement for “exceptional circumstances” and the narrow definition of a “surrogacy arrangement” create significant barriers, especially for cases involving international arrangements where legal frameworks differ.
These inconsistencies not only create logistical nightmares for intended parents but also jeopardize the legal security of children born through surrogacy. The focus on rigid legal definitions and jurisdictional boundaries often overshadows the fundamental right of a child to a recognized identity, as enshrined in international conventions.
However, despite legal efforts to regulate and criminalize overseas commercial surrogacy, prosecutions have yet to occur – highlighting the disconnect between law and practice. “In Australia, no one has ever been prosecuted for undertaking overseas commercial surrogacy,” Page notes. “Between 2009 and 2021, over 2,327 Australian children were born overseas through surrogacy. Many parents came from jurisdictions where their surrogacy journeys were deemed unlawful.”
The changing demographics and the urgent need for reform
Surrogacy in Australia, once primarily an option for heterosexual couples, has now expanded to include a wider range of people. This includes gay couples, single individuals, and lesbian couples who need both egg and sperm donors. “There will always be people who can’t have children,” Page notes, highlighting that “Medical infertility affects one in six couples, making it the third most common disease after heart disease and cancer.”
While domestic surrogacy is available, many Australians choose to pursue surrogacy abroad. Ironically, the Surrogacy Act 2010, a law in New South Wales aimed at discouraging overseas surrogacy and protecting vulnerable women in developing nations, has inadvertently contributed to its rise. “It was what I would describe as an own goal,” Page explains.
“This led to such a firestorm of publicity that many people who were unaware they could become parents suddenly realized they had options.” The statistics reflect this shift: according to the Department of Home Affairs, international surrogacy births rose dramatically from fewer than 10 in 2010 to 266 in 2012, with a significant number occurring in India. Since then, the annual average of international surrogacy births has remained around 200, while just 100 domestic surrogacy births were recorded in 2021.
The case of Baby Gammy in 2014 captured the public’s attention, sparked debate, and revealed the darker aspects of commercial surrogacy. This case involved an Australian couple and a Thai surrogate, Pattaramon Chanbua, who allegedly requested an abortion after discovering that one of the twins had Down syndrome. Their decision to take only the healthy twin highlighted the vulnerabilities of surrogate mothers and the potential for exploitation.
Alice Clarke (formerly Kirkman) shared her change of perspective during an interview with ABC’s 7.30 Report in 2015. Before the Baby Gammy case, she was opposed to commercial surrogacy, believing that only altruistic arrangements were acceptable. “It really made me re-evaluate my stance on things because commercial surrogacy is going to happen no matter what, and we may as well have it in Australia so we can regulate it,” she stated
Page argues that Australia’s inconsistent surrogacy laws are driving intended parents abroad, leaving children in a state of legal uncertainty. He criticizes the altruistic model for its inherent unfairness, noting that while professionals involved in surrogacy arrangements – such as lawyers, doctors, embryologists, nurses, counselors, and judges – are compensated, the surrogates who take on the most significant risks are not.
“Unless the woman has a connection with that couple or the intended parent, no woman would volunteer for a role that carries maternal mortality risks and all the other challenges associated with pregnancy if she isn’t compensated for it while everyone else is,” Page states. He believes it’s time to recognize the reality: women who serve as surrogates deserve to be paid, and he advocates for regulated compensation to prevent exploitation.
He also points out the unnecessary hardship caused by unclear parentage laws, which often leave children in legal limbo for months. While his own parentage order took three months, he acknowledges that this was due to his professional knowledge; most parents find the process much more challenging.
Current case law concerning the parentage of a child born through surrogacy may recognize the biological father as a parent under the Family Law Act, but not under state or territory law. This leads to a lengthy court process that can stretch up to nine months, mirroring the length of the pregnancy itself. Although parenting plans provide a temporary fix, they do not solve the underlying instability of the situation.
In contrast, Canada employs an altruistic model that takes a more varied approach. Some provinces require court orders, while others, such as British Columbia, Manitoba, and Ontario, offer a streamlined statutory process. Even in provinces that rely on court orders, parentage can be finalized in two to four weeks, with Alberta achieving this in as little as two to three business days.
Page advocates for automated parentage processes for non-contentious cases, similar to Canada’s streamlined system, and suggests implementing pre-conception or pre-birth orders—establishing legal parentage before the child is born to provide clarity and security for all parties involved.
The ALRC’s inquiry aims to tackle these inconsistencies and complexities. The commission plans to consult with a diverse group of stakeholders, including surrogates, intended parents, and individuals born from surrogacy arrangements. A comprehensive report is expected to be submitted to the Attorney-General by July 29, 2026.
