Parents unable to have children naturally or via fertility programs could be the big winners of a high-level, legal review of Australia’s surrogacy laws.
It’s currently legal to have a child through surrogacy, so long as no money changes hands.
Dr Tammy Johnson, assistant professor of law at Bond University, said the review was overdue and laws surrounding surrogacy, and particularly commercial surrogacy, needed to be reformed to protect Australian parents and children.
She welcomed the upcoming review by the Australian Law Reform Commission (ALRC) which will examine the medically, emotionally, financially and legally complex nature of surrogacy arrangements.
Dr Johnson said it would also look at protecting and promoting the human rights of children born as a result of surrogacy arrangements, the surrogates, and intending parents, whilst ensuring that “the best interests of children are paramount.”
Matters to be considered in the review include:
- Reducing barriers to domestic altruistic surrogacy arrangements in Australia;
- Addressing surrogacy arrangements made outside of Australia;
- The legal parentage in Australia for children born of surrogacy overseas, looking at citizenship, visa and passport requirements;
- The information that should be available to children born from surrogacy.
“For too long altruistic surrogacy has been the only hope of parenthood for thousands of Australians for whom natural and assisted fertility programs, including IVF, have failed,” she said.
“Four years ago I called for reform of the legislation prohibiting commercial surrogacy, and today I welcome this milestone to review our nation’s surrogacy laws.”
In 2020 Dr Johnson’s PhD thesis, The Regulation of Commercial Surrogacy in Australia: A Harm Analysis, applauded comments by Chief Justice Pascoe who stated “we need an inquiry for a whole range of reasons”.
There are more than 130 live births through surrogacy each year with roughly triple that number of Australians who go overseas for the procedure into countries where commercial surrogacy is legal.
The ALRC is tasked with considering proposals for uniform or complementary state, territory and Commonwealth laws consistent with Australia’s international obligations and the protection of human rights.
“Currently all states and territories allow altruistic surrogacy but prohibit commercial surrogacy,” she said.
“Commercial surrogacy has been made illegal to protect people from the risk of exploitation. But I maintain the current legislative response of prohibition goes beyond what is necessary to address the risk of harm posed by commercial surrogacy.”
Dr Johnson said a federal inquiry into surrogacy in 2015 received 124 submissions, many of which argued for the legalisation of commercial surrogacy in Australia.
That inquiry left the door open for the regulation of commercial surrogacy to finally be considered by calling for an investigation into compensatory payments in surrogacy agreements.
However, despite support for the legalisation of commercial surrogacy, the report in May 2016 recommended that commercial surrogacy remain illegal because of “the risk of exploitation of both surrogates and children remains significant”.
Dr Johnson said while moves to legalise commercial surrogacy were gaining momentum since that report, the gap between what was socially acceptable and what was legally acceptable in the context of commercial surrogacy remained ever-present.
“With Australia’s fertility rate in decline, the possible relaxing of commercial surrogacy laws could boost those rates while bringing happiness to many Australian families,” she said.
“In 2023 there were 286,998 registered births – a decrease of 4.6 per cent from 2022, bringing down our national fertility rate for women to just 1.50 births per woman.
“The time for reform of the legislation is now.”
The ALRC says it intends to consult with a wide range of stakeholders, including surrogates, intended parents and individuals born from surrogacy arrangements.
A report is due to the Attorney-General by 29 July 2026.
Dr Tammy Johnson is an Assistant Professor of Law, Bond University, and also Executive Committee Member, Centre for Professional Legal Education. Her research includes legal education, health law and real property law.
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