Surrogacy law reform: what’s next after the ALRC inquiry

The Australian Law Reform Commission’s surrogacy inquiry could be an important moment for Australian families. Its report has been delivered to the Commonwealth Attorney-General and is due to be tabled in federal parliament. The question is not simply what the report recommends. It is whether Australia’s nine governments will work together to turn those recommendations into meaningful surrogacy law reform.

There is reason to hope for progress. There is also reason to be cautious. A parliamentary inquiry recommended national, non-discriminatory surrogacy laws a decade ago. Australia still does not have them.

What the ALRC inquiry can, and cannot, tell us yet

Stephen Page served on the advisory committee for the Australian Law Reform Commission, or ALRC, surrogacy inquiry. That role offered an opportunity to contribute to the process, but it did not make advisory committee members the authors of the report. Confidential discussions must remain confidential, and the commission’s recommendations cannot be assumed before the report is public.

The report was delivered to Attorney-General Michelle Rowland by 11 September. It must be tabled in federal parliament within 14 sitting days, with 18 November identified as the deadline. Until then, speculation about its contents is just that: speculation.

What can be said is that the inquiry was thorough. The commission consulted people with sharply different positions, in addition to holding formal advisory committee meetings. That matters because surrogacy reform affects intended parents, surrogates and children, and it attracts strongly held views about reproductive choice, ethics and protection from exploitation.

The Australian Law Reform Commission can examine those issues and recommend a way forward. It cannot, by itself, rewrite every surrogacy law in the country.

Why the debate over surrogacy is so heated

Some opposition to surrogacy during the inquiry was fierce. Some argued that all surrogacy should be prohibited. Others went further, calling for IVF to be banned as well. Their position was that surrogacy is inherently exploitative and that Australia should turn back the clock on arrangements it currently permits.

Exploitation is a serious concern. It deserves careful scrutiny, not dismissal. But treating every surrogacy arrangement as exploitative ignores the circumstances of families who undertake surrogacy with willing support from people close to them.

Stephen Page and his husband, for example, were able to pursue surrogacy in Brisbane through a local clinic, supported by family and friends. Their experience is one reason the discussion cannot be reduced to a choice between banning surrogacy and ignoring ethical risks. The more useful question is how the law can protect everyone involved while allowing people to build families.

That requires attention to the surrogate’s autonomy, the child’s interests and the intended parents’ legal position. It also requires a willingness to hear competing arguments without assuming that one experience represents every arrangement.

A decade after the last major review, national laws remain elusive

The difficulty is not a shortage of inquiries. About a decade before the ALRC process, a House of Representatives inquiry recommended a range of changes, including national, non-discriminatory surrogacy laws. Ten years on, those laws have not arrived.

Australia’s surrogacy framework remains a patchwork of state and territory rules. That means the legal position can depend on where people live and where an arrangement takes place. Tasmania’s requirement that those accessing surrogacy there come from Tasmania is one example of a restriction that remains in place.

Even where governments agree that a rule should change, agreement does not necessarily produce a quick result. Legislation must be developed, passed and brought into effect. In the meantime, people whose families are affected must deal with the law as it stands.

Page’s submission to the ALRC on national surrogacy reform sets out the case for a more consistent, ethical and inclusive approach. The challenge for governments will be moving beyond agreement in principle to laws that work across jurisdictional boundaries.

Western Australia shows both progress and delay

Western Australia provides a striking example of how slowly surrogacy reform can move. Page wrote to the state’s then health minister, Roger Cook, years ago asking for discrimination in access to surrogacy to be removed. In December, almost a decade later, Western Australia legislated to remove that discrimination. At the time described, however, the legislative change was not expected to commence until the middle or later part of the following year.

A couple did not wait for commencement. Two men challenged the operation of Western Australia’s Surrogacy Act 2008 in the Supreme Court’s Court of Appeal, arguing that its discriminatory provisions conflicted with the federal Sex Discrimination Act. They succeeded. That May decision changed the position before the state’s legislative reform took effect.

The case illustrates two points. First, discriminatory barriers have real consequences for people trying to access surrogacy. Secondly, a court challenge can sometimes bring change sooner than legislation, but families should not have to depend on litigation to secure fair treatment.

It is also a reminder to distinguish between passing a reform and commencing it. A government may announce that a law has changed while the people affected are still waiting for its provisions to operate.

What must happen after the report is tabled?

Tabling the ALRC report will start the next stage of the conversation, not finish it. If its recommendations call for substantial national reform, the Commonwealth and all eight states and territories will need to consider what each can do. That is nine governments, with different laws, priorities and parliamentary timetables.

The previous decade shows why expectations should be measured. Reform has happened, including steps towards ending discrimination, but progress has been slow and uneven. A strong report may give governments a common starting point. It cannot guarantee that they will act together, or act quickly.

There are practical questions to put to any response to the inquiry:

• Consistency: Will the reforms reduce the differences families face across state and territory borders?
• Fair access: Will eligibility rules remove unjustified discrimination?
• Protection: Will the framework respect surrogates and safeguard children while allowing ethical arrangements?
• Implementation: When will any legislation actually commence, and which governments must act?

Those questions are more useful than treating the publication of a report as reform in itself. The inquiry has involved substantial work and consultation. Its real test will be whether governments respond with laws that families, surrogates and professionals can understand and use.

For now, the sensible course is to wait for the ALRC’s recommendations, examine them carefully and keep pressing for reform where the law remains inconsistent or discriminatory. Australia has already spent years discussing national surrogacy laws. The next step is to see whether this inquiry helps deliver them.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers, a multi-award-winning practitioner and an accredited family law specialist at Page Provan Family & Fertility Lawyers. He has contributed to national discussions on surrogacy law reform and served on the ALRC inquiry’s advisory committee.