My Surrogacy Reform Wish List for Australia

Australia’s surrogacy framework is fragmented, outdated and producing avoidable harm for intended parents, surrogates and, most importantly, children. A clearer, fairer and nationally consistent approach to surrogacy law reform would reduce cost, stress and legal uncertainty while better protecting human rights and minimising exploitation. Below is a practical wish list for reform that focuses on consistency, access, availability, autonomy, certainty, parentage, international recognition, decriminalisation and a stronger human rights framework.

Why reform matters

Current surrogacy laws differ across states and territories. That patchwork creates real-world obstacles. Intended parents who rely on family or friends as surrogates discover they must navigate multiple legal regimes, sometimes producing unlawful outcomes despite good faith intentions. The result is increased expense, delay and emotional strain during a period that is meant to be deeply personal and joyous.

Surrogacy Law Reform: A Pathway to Equality

• Consistency — a single national scheme or a uniform law applying across all states and territories.
• Access — remove unnecessary barriers including unfair Medicare exclusions.
• Availability — create an ethical, regulated approach to compensation to increase local surrogacy options and reduce overseas arrangements.
• Autonomy — enshrine the surrogate’s bodily autonomy in law across every jurisdiction.
• Certainty and parentage — streamlined, immediate recognition of intended parents unless a court determines otherwise.
• Decriminalisation — repeal laws criminalising parents who pursue lawful surrogacy overseas, while targeting trafficking and exploitation.
• Human rights discourse — elevate human rights as part of surrogacy regulation and decision-making.

Consistency: one system, not eight

Many problems stem from inconsistent state and territory laws. Intended parents and surrogates must sometimes comply with multiple, conflicting requirements. This is inefficient and unfair. Australia needs either federal legislation that applies nationally or a uniform law adopted by all jurisdictions. The choice between Commonwealth or uniform state legislation is less important than delivering a single, coherent regime that removes the current confusion.

Access: end discriminatory exclusions

Medicare continues to exclude benefits for surrogacy-related IVF despite community acceptance of surrogacy in most states for over a decade. This exclusion is a lingering, discriminatory fossil. At modest cost to the Commonwealth, intended parents could receive the same assistance other IVF patients receive. Removing this barrier would make surrogacy journeys less financially destructive and reduce reliance on family loans or depleting retirement savings.

Availability: compensate fairly, regulate tightly

There are simply not enough domestic surrogates. For every child born through surrogacy in Australia, roughly four are born overseas. Many Australians travel to countries with riskier medical and human rights environments because local options are limited. One clear way to increase domestic availability is to allow regulated compensation for surrogates.

Compensation should:

• Be transparent and capped or governed by a schedule to prevent commercialisation that leads to exploitation.
• Include safeguards such as independent legal advice, counselling and cooling-off periods.
• Be administered through regulated channels to minimise the role of intermediaries who might exploit vulnerable women.

Autonomy: protect the surrogate’s right to make decisions

Bodily autonomy is a fundamental right. Where legislatures have explicitly recognised the surrogate’s right to control her body during pregnancy, the law is clearer and better aligned with common law principles. That protection must be universal across all Australian jurisdictions.

Certainty: make surrogacy agreements workable and enforceable

At present, intended parents often wait months after birth to obtain a parentage order. During that period the surrogate and, where relevant, her partner remain the legal parents. This gap creates practical problems: passport applications, medical authority and parental decision-making can be blocked or delayed when the adults caring for the baby are not the child’s legal parents.

Countries such as Canada and parts of the United States use enforceable pre-birth agreements or immediate recognition of intended parentage, providing practical certainty while allowing a judicial safety valve where necessary. A preferred Australian model would be:

1. Automatic recognition of intended parentage at birth where the parties have complied with statutory safeguards;
2. A right for the surrogate to apply to a court to challenge that recognition in exceptional circumstances;
3. Clear, enforceable agreements that set out rights and obligations for all parties, enforced through family or civil law as appropriate.

Parentage and the best interests of the child

Children born via surrogacy deserve clear parental identities from birth. Waiting months for court orders undermines a child’s immediate welfare. The law should prioritise the child’s need for stability and immediate legal recognition of those who will raise the child. Pre-birth processes that confirm intent and fitness to parent, combined with rapid post-birth registration, will protect children’s rights and reduce adversarial litigation.

International parentage: protect children born abroad

Many Australian parents bring children born overseas via surrogacy back to Australia. Recognition of those children’s parentage on Australian records varies depending on the country of birth and what appears on the foreign birth certificate. This creates inconsistency and leaves some children in limbo.

Reform should include:

• Clear domestic pathways for recognising parentage of children born via surrogacy overseas;
• Procedures to address cases where birth certificates do not reflect both parents;
• Support for mechanisms that avoid statelessness and respect the child’s right to identity.

Decriminalisation: repeal ineffective and harmful laws

Laws that criminalise parents who pursue commercial surrogacy overseas have proven ineffective. They deter open discussion, create fear and shame for families and do little to prevent exploitation. A smarter approach is to repeal these provisions while keeping and enforcing robust laws against trafficking, coercion and exploitation.

Human rights discourse: place human rights at the centre

Surrogacy implicates a wide range of human rights: the child’s right to identity and family life, the surrogate’s rights to bodily autonomy and decent working conditions, and intended parents’ rights to family formation. Australia’s failure to adopt a national human rights act in most jurisdictions means these rights are not consistently discussed or protected in the surrogacy context.

Embedding human rights into surrogacy regulation would:

• Improve protections against exploitation;
• Ensure decisions focus on the best interests of children;
• Provide a principled framework for resolving cross-border parentage and welfare issues.

Practical recommendations

To convert these principles into law, the reform agenda should include:

1. Adopt a single national statute or a uniform national scheme for surrogacy.
2. Remove Medicare exclusions for surrogacy-related IVF.
3. Allow regulated compensation to surrogates, with strong safeguards.
4. Ensure every state and territory expressly recognises surrogate bodily autonomy.
5. Provide automatic recognition of intended parentage at birth, subject to judicial review in exceptional cases.
6. Replace criminal sanctions on parents who lawfully use overseas surrogacy with targeted anti-trafficking laws.
7. Embed human rights principles into surrogacy legislation and guidance.

Conclusion

Surrogacy is a profoundly human process that can transform lives. Australia has a chance to lead by creating a nationally consistent, transparent and humane framework that supports intended parents, protects surrogates and, above all, safeguards the rights and welfare of children. Thoughtful reform will reduce overseas journeys, lower costs and deliver greater certainty for families.

About Stephen Page

Stephen Page is recognised as one of Australia’s leading surrogacy and fertility lawyers. With offices in Brisbane, Sydney and Melbourne at Page Provan Family and Fertility Lawyers, he has spent decades representing intended parents and surrogates, advising on complex parentage, international surrogacy and policy reform. Stephen combines courtroom experience with hands-on policy work to promote practical, rights-based reform across Australia.