Australia’s Surrogacy System is Broken — Here’s What Needs to Change
Surrogacy in Australia is at a critical crossroads. Families are increasingly forced to look overseas to start or grow their families, surrogates often find themselves without clear legal protections, and children born through surrogacy face a tangled web of legal uncertainty. The system as it stands is inconsistent, outdated, and in dire need of reform. As someone deeply involved in this field, both professionally and personally, I want to share why Australia’s current surrogacy laws aren’t working and what must change to better protect everyone involved.
The Current Landscape: A Patchwork of Surrogacy Laws
Australia’s surrogacy laws are fragmented across multiple jurisdictions — eight states and territories, plus the federal government, all have different rules and regulations. This patchwork approach leads to confusion and inconsistency about who can become a parent through surrogacy, what expenses are allowed, and how the process is regulated. The result is a complex, often contradictory system that leaves many families and surrogates navigating a legal maze.
For example, the definition of who qualifies as a parent varies depending on the state or territory. Some laws allow only heterosexual couples to access surrogacy, while others include LGBTQIA+ individuals and single parents, but the criteria and processes differ widely. Financial regulations around surrogacy expenses are also inconsistent, which can make surrogacy either prohibitively expensive or legally risky, depending on where you live.
The Consequences of a Broken System
This inconsistency has real-world consequences. One of the most significant outcomes is that for every child born in Australia through surrogacy, three or four children are born overseas via surrogacy arrangements. Many Australian intended parents are compelled to travel internationally, often to countries like the United States, where surrogacy laws and commercial surrogacy options may be more accessible or better regulated.
The trend of overseas surrogacy is growing. In recent years, as many or more Australian children have been born through surrogacy in the United States than at home. This situation not only adds emotional and financial stress to families but also complicates legal recognition of parentage, citizenship, and the rights of children born through these arrangements.
The Australian Law Reform Commission’s Surrogacy Review
Recognizing these challenges, the Australian Law Reform Commission (ALRC) has launched a comprehensive review of surrogacy laws at the request of the then Attorney-General, Mark Dreyfus. This review aims to create a blueprint for reform that will modernize and harmonize surrogacy laws across Australia.
The ALRC’s review process is unfolding in several key stages:
- Discussion Paper: The first step is the release of a discussion paper that outlines the current issues and potential options for reform. This paper is expected soon and will serve as the foundation for public engagement.
- Call for Submissions: Following the discussion paper, there will be an opportunity for individuals and organizations to submit their views. The submission period is anticipated to close around mid-July.
- Report and Recommendations: The ALRC will analyze the submissions and prepare a final report with recommendations for change, expected by July next year.
I am honored to be part of the advisory committee for this review, working alongside Professor Ronli Sifris from Monash University, who is the Assistant Commissioner leading the project. This is a pivotal moment to influence the future of surrogacy law in Australia.
Who Should Participate in the Review?
The ALRC is especially keen to hear from those with lived experience of surrogacy. This includes:
- Intended parents, including LGBTQIA+ parents
- Surrogates and their partners
- Children born through surrogacy, many of whom are now adults
- Donors involved in surrogacy arrangements
- Professionals working in fertility clinics, such as doctors, nurses, embryologists, counselors, and lawyers
The diversity of perspectives will enrich the review and help ensure that any reforms genuinely meet the needs of all parties involved. If you are part of any of these groups, I strongly encourage you to make a submission. Your voice matters.
Why Reform Is Long Overdue
For over 15 years, I have been advocating for change in Australia’s surrogacy laws. Many of my clients have asked, “When is this going to happen?” The truth is, the system has been broken for a long time. I remember when the Berlin Wall fell — a symbol of permanence collapsing overnight — and yet, despite the clear need, comprehensive reform has remained elusive.
What we have now simply doesn’t work. The inconsistencies across jurisdictions create barriers for intended parents and surrogates alike. The laws do not adequately protect the rights and welfare of surrogates or the children born through surrogacy, nor do they fully respect the reproductive autonomy of intended parents.
In particular, the law must evolve to reflect the realities of modern families, including the growing number of LGBTQIA+ parents who seek to build families through surrogacy. It must also ensure that surrogates have clear legal protections and that children born through surrogacy have their rights and identities safeguarded.
The Human Rights Dimension
Surrogacy is not just a legal or medical issue — it is fundamentally about human rights. The rights of intended parents to pursue their reproductive aspirations must be balanced with the rights of surrogates to be fully informed, supported, and protected throughout the process.
Most importantly, the rights of children born through surrogacy must be at the heart of any reforms. These children did not ask to be created via surrogacy, yet they are often caught in the middle of legal uncertainties regarding their parentage, citizenship, and identity. Ensuring their welfare and legal clarity should be a top priority.
What Needs to Change?
Based on my experience and the discussions within the ALRC review, here are some key areas where change is urgently needed:
1. National Consistency in Surrogacy Laws
We need a uniform framework that applies across all states and territories. This would eliminate confusion about eligibility, legal parentage, and permitted expenses. A national approach would make surrogacy more accessible and fair, regardless of where people live in Australia.
2. Clear Legal Parentage Provisions
Parentage laws must be clear, straightforward, and inclusive of diverse family structures. This includes recognizing intended parents promptly and legally without unnecessary delays or court processes.
3. Protection and Support for Surrogates
Surrogates deserve robust protections, including informed consent processes, counseling, and legal safeguards against exploitation. Their health and wellbeing must be prioritized before, during, and after the surrogacy arrangement.
4. Recognition of Children’s Rights
Laws should guarantee that children born through surrogacy have clear legal status, access to information about their origins, and protections that uphold their best interests.
5. Regulation of International Surrogacy
Given the high numbers of Australians seeking surrogacy overseas, the law must address the complexities of international surrogacy arrangements, including parentage recognition, citizenship, and ethical considerations.
How You Can Get Involved
The Australian Law Reform Commission’s review is a rare opportunity to shape the future of surrogacy law in Australia. If you have a connection to surrogacy — whether as an intended parent, surrogate, child born through surrogacy, or professional in the fertility field — your insights are invaluable.
Visit the ALRC website at www.alrc.gov.au and sign up for updates on the surrogacy review. When the discussion paper is released, take the time to read it and consider submitting your views. The more voices heard, the stronger and more comprehensive the final recommendations will be.
Final Thoughts
Australia’s surrogacy system is at a pivotal moment. The current laws are fragmented, outdated, and failing many families, surrogates, and children. Reform is not just necessary — it is urgent. By participating in the ALRC’s review, we can work together to build a fairer, clearer, and more humane surrogacy framework that respects the rights and needs of all involved.
As someone who has walked this journey both as a lawyer and a parent through surrogacy, I am optimistic that meaningful change is on the horizon. Let’s seize this moment to create a system that truly supports Australian families and reflects our values of fairness, inclusivity, and respect.
Thank you for joining me in this important conversation.
