Surrogacy lawyer explains upcoming ALRC reports

Australia is approaching an important moment for family and fertility law. By the end of July 2026 and during August 2026, the Australian Law Reform Commission, or ALRC, is expected to deliver two major reports to Commonwealth Attorney General Michelle Rowland.

One report will address surrogacy law. The other will examine Australia’s human tissue laws. At first glance, those may sound like entirely separate projects. In reality, both have significant consequences for intended parents, surrogates, IVF clinics, donor conception and posthumous retrieval.

The broad direction of reform is becoming clearer, but the detail is not. The ALRC determines what goes into its reports, and until they are delivered, no one outside the Commission can say precisely what recommendations will be made or which recommendations government will adopt.

What is clear is that the current patchwork of Australian surrogacy laws is overdue for serious attention.

Two major reports due in 2026

The first report, due by the end of July 2026, concerns Australian surrogacy laws. The second, expected in August 2026, concerns human tissue laws across the country.

These reports are being prepared for the Commonwealth Attorney General, but neither subject can be resolved by Canberra acting alone. Surrogacy and human tissue law are deeply tied to state and territory legislation. Any meaningful reform will therefore require the Commonwealth, states and territories to work through the recommendations together.

The Australian Law Reform Commission has a vital role in identifying problems, consulting widely and proposing a principled pathway forward. However, an ALRC report is the beginning of the next stage, not the end of the process. The Albanese Government will decide when to release the reports, whether to respond, and what action it proposes to take.

That can take time. In an area as politically sensitive and legally fragmented as surrogacy, it may take a great deal of time.

The ALRC Surrogacy Report and compensated surrogacy

The ALRC’s surrogacy inquiry has attracted attention because the Commission has publicly signalled a possible move towards compensated surrogacy.

That does not mean that compensated surrogacy is already lawful, or that the Commission will necessarily recommend a particular model. Nor does it mean that governments will automatically implement any recommendation. But it does show that the long-running debate about how Australia supports surrogates and intended parents is moving into more serious territory.

Australia’s current framework is built around altruistic surrogacy. Commercial surrogacy is prohibited throughout the country, although the detail of each state and territory regime differs substantially. That variation affects eligibility, counselling, legal advice, parentage processes, advertising restrictions and the treatment of expenses.

The difficulty is that a framework intended to protect everyone involved can, in practice, be inconsistent and hard to navigate. Intended parents can face very different outcomes depending on where they live, where the child is born and which legal pathway is available to them.

A compensated model, if recommended and eventually adopted, would require careful safeguards. The central questions would include:

• How would compensation be defined and regulated?
• How would the law protect surrogates from exploitation or pressure?
• What independent legal and counselling requirements would apply?
• How would parentage, consent and medical decision making be handled?
• Could a national framework avoid the present state-by-state inconsistencies?

Those are not small questions. They go to the heart of bodily autonomy, reproductive choice, child welfare and fair access to family formation.

Stephen Page has made submissions to the ALRC’s surrogacy review and served on its advisory committee. His broader call has consistently been for a national, ethical and inclusive approach. More detail about that position is available in Stephen Page’s submission on surrogacy to the ALRC.

Why human tissue laws matter to IVF and surrogacy

The second ALRC report is likely to be just as important, even though human tissue law is not always discussed in the same breath as surrogacy.

Human tissue legislation has different names around Australia. In many jurisdictions it is called a Human Tissue Act or a Transplantation and Anatomy Act. Western Australia has the Human Tissue and Transplant Act. These laws can have a direct bearing on assisted reproductive treatment, IVF and the use or retrieval of reproductive material after death.

Posthumous retrieval is one important example. Such retrievals occur in most states under the relevant human tissue legislation. Families dealing with sudden death, terminal illness or end-of-life decisions may face profoundly difficult questions about whether reproductive material can be retrieved and used later.

These matters are never merely technical. They involve consent, the wishes of the deceased person, the needs of the surviving partner, the future child’s interests and the interaction between medical practice and state law.

The ALRC’s review offers an opportunity to consider whether laws drafted for other purposes are properly equipped to deal with modern fertility treatment and reproductive decision making.

Breast milk and surrogacy expenses

Human tissue laws also affect the provision of breast milk. In every state except Queensland, breast milk is covered by human tissue legislation.

That can create an unexpected issue in a surrogacy arrangement. Intended parents may wish to compensate a surrogate for providing breast milk after birth, particularly where expressing, storage, transport and time away from ordinary life are involved. Yet the legal treatment of breast milk can complicate what might otherwise appear to be a straightforward reimbursement arrangement.

This is one of the many reasons that surrogacy law cannot be considered in isolation. Parentage law, IVF regulation, criminal law, human tissue law and practical medical arrangements all intersect. A well-intentioned agreement can run into difficulty if one part of the legal framework has not kept pace with reproductive medicine.

Stephen Page has also made oral and written contributions to the human tissue review. His concerns about the need for reform, including posthumous retrieval and donor milk, are outlined in his ALRC submission on human tissue laws.

National surrogacy reform has been a long time coming

There is good reason to be cautious about expecting immediate legislative change after the reports arrive.

The last major parliamentary consideration of surrogacy took place through an informal House of Representatives inquiry in 2015, followed by a formal inquiry in 2016. One of its key recommendations was the removal of discrimination in access to surrogacy.

It took almost a decade for a major part of that recommendation to be met. On 18 December 2025, Western Australia enacted the Assisted Reproductive Technology and Surrogacy Act. The legislation is scheduled to commence in mid-2026.

Earlier, in May, Mr and Mrs Dunn succeeded in the Western Australian Court of Appeal in challenging a discriminatory provision. Together, those developments meant that discrimination in Australian surrogacy law has largely been removed nationwide.

That is significant progress, but it also demonstrates just how slowly reform can move. The earlier inquiry also recommended national surrogacy laws, whether through Commonwealth legislation or uniform laws adopted across every state and territory. Australia has still not achieved that outcome.

What happens after the reports are delivered?

Once delivered, the reports will sit with the Attorney General and the Commonwealth Government. Their publication and response will be matters for government. After that, reform will likely require negotiations with each state and territory.

There may be substantial recommendations. There may be cautious recommendations. There may be reforms that can be implemented quickly and others that remain unresolved for years.

The sensible expectation is not instant change. It is steady pressure for change, informed by evidence, lived experience and the growing recognition that Australian families deserve laws that are consistent, fair and workable.

For intended parents and surrogates, the immediate lesson is simple: do not make major decisions on assumptions about what the law may become. Obtain advice based on the law as it applies now, while staying alert to reforms that may reshape the landscape in the years ahead.

About Stephen Page

Stephen Page is widely regarded as one of Australia’s leading surrogacy lawyers and is a multi-award-winning accredited family law specialist at Page Provan Family & Fertility Lawyers. He advises intended parents, surrogates and families on Australian and international surrogacy, IVF, donor conception and fertility law. For legal advice about a surrogacy or fertility matter, contact Page Provan.