Why Australia Needs a Human Rights Act

Australia prides itself on fairness and the rule of law, yet it remains the only western common law country without a national Human Rights Act or bill of rights. That absence is not merely theoretical. It has practical, often profound consequences for people navigating assisted reproductive treatment, IVF and surrogacy.

The legal gap and why it matters

Common law protects many individual rights, but common law protections sit in the background and can be displaced by parliament. A statutory Human Rights Act brings those rights into the foreground by requiring decision-makers, courts and legislators to consider them expressly when making laws, policies and rulings.

Some Australian jurisdictions have already taken steps. The Australian Capital Territory, Queensland and Victoria have human rights laws. Other states and territories have not. That patchwork creates inconsistent protections for people involved in reproductive journeys that often cross state borders and involve sensitive medical, legal and ethical decisions.

How human rights relate to IVF and surrogacy

Human rights are not limited to protection against imprisonment or persecution. They include rights that directly affect reproductive decisions: the right to privacy, the right to found a family, and rights relating to bodily autonomy and family life. When those rights are recognised in statute, courts and agencies must weigh them alongside other policy considerations.

In the absence of statutory human rights, judges and policymakers can still consider rights through the common law, but the framework is less predictable and less forceful. That unpredictability affects intended parents, surrogates and children in real ways.

Concrete examples that reveal the problem

Two patterns demonstrate why statutory human rights matter.

1. Government restrictions that affect reproductive choices. A recent case in Queensland involved a prisoner who sought to freeze her eggs while incarcerated so she could preserve the option of parenthood after release. The relevant corrective services legislation effectively prevented her from accessing assisted reproductive treatment. Because human rights protections were not central to the statutory analysis, the legal fight focused on interpreting the corrective services law rather than on explicit human rights such as privacy and the right to found a family.
2. Exploitation where rights are unclear. Overseas case law and history show the harm that can follow when comprehensive rights protections are absent. For example, allegations from past commercial surrogacy arrangements in countries without robust safeguards reveal exploitation of surrogates, manipulation by intermediaries and confusion for children about their origins. Decisions from international and regional human rights courts often emphasise the need to protect all parties — the surrogate, the intended parents and the child.

Who is affected?

IVF and surrogacy involve three distinct groups, each with enforceable interests:

• Intended parents who seek access to assisted reproductive services and legal recognition of parentage.
• Surrogates whose bodily autonomy, informed consent and socioeconomic rights must be protected.
• Children born from assisted reproduction who have rights to identity, stability and protection from exploitation.

Human rights law encourages a balanced approach so these interests are considered together rather than hierarchically or piecemeal.

What statutory human rights would change

Making human rights explicit in statute would:

• Require decision-makers to take rights into account. Courts, tribunals and agencies would be legally obliged to assess how laws and policies impact reproductive rights.
• Provide clearer remedies. When rights are breached, affected parties would have a statutory pathway to seek redress.
• Promote consistent outcomes across jurisdictions. A statutory framework reduces legal uncertainty that currently varies between states and territories.
• Reduce exploitation. Explicit statutory protections make it harder for intermediaries or clinics to operate in ways that exploit surrogates or obscure the rights of children.

Progress in South Australia: a practical example

South Australia’s Surrogacy Act 2019 provides a useful demonstration of how statutory recognition of human rights can shape reproductive law. The Act includes a principles clause requiring consideration of how the human rights of everyone involved in a surrogacy arrangement are taken into account, including the rights of the child and the intended parents. This statutory acknowledgement encourages decision-makers to approach surrogacy with a human rights lens rather than treating rights as an afterthought.

Lessons from other jurisdictions

Courts and human rights bodies overseas have increasingly recognised reproductive rights in ways that inform how Australia might proceed. For example:

• Regional human rights courts have affirmed a right to access assisted reproductive treatment and, in some jurisdictions, a right to access surrogacy arrangements.
• National constitutional courts have considered the rights of intended parents, surrogates and children when interpreting statutes about parentage and reproductive services.

These decisions show that recognising reproductive rights in law is both feasible and capable of producing well-reasoned, balanced outcomes across competing interests.

What needs to happen next

There are practical steps that would reduce legal uncertainty and better protect all parties involved in assisted reproduction:

1. Adopt a federal Human Rights Act. A national statutory framework would ensure consistency, guide policymaking and provide remedies when rights are breached.
2. Harmonise state and territory laws. Where possible, legislatures should align surrogacy and assisted reproductive treatment laws so families and clinics operate under predictable rules.
3. Embed human rights principles in reproductive legislation. Statutory recognition, as seen in South Australia’s Surrogacy Act 2019, encourages better decision-making and legal outcomes.
4. Safeguard against exploitation. Robust oversight, transparency and enforceable rights will reduce opportunities for exploitation by intermediaries or medical practitioners.

Without these steps, intended parents, surrogates and children risk inconsistent protections and avoidable harm. A statutory Human Rights Act is not a panacea, but it is a vital structural reform that puts rights where they belong: at the centre of law and policy affecting reproduction.

About Stephen Page

Stephen Page is recognised as Australia’s leading surrogacy lawyer, specialising in family and fertility law. With extensive experience advising intended parents, surrogates and clinics, he has advocated for clearer legal protections and has contributed to shaping surrogacy law, including improvements to statutory recognition of human rights. His work focuses on ensuring safe, fair and legally certain outcomes for everyone involved in assisted reproduction.