Australia stands to benefit from surrogacy law review

Although surrogacy is legal in Australia, most Australian intended parents pursue surrogacy abroad.

In the 2023/24 financial year, 376 Australian babies were born overseas via surrogacy. By comparison, it is estimated that only 130 to 150 babies are born through domestic surrogacy arrangements in Australia each year.

Research shows most intended parents prefer domestic surrogacy but see it as too long and complex compared to overseas options.

In an effort to reduce barriers to domestic surrogacy, the Australian Law Reform Commission (ALRC) is currently undertaking a review of Australian surrogacy laws, policies, and practices, due to conclude in July 2026 with a final report. This report will contain recommendations for legal and policy reform; however, it will be for the federal, state, and territory governments to decide whether to implement the recommendations.

Having researched Australian surrogacy law, and the impact of the current legislative regime on Australian surrogacy participants and those born as a result, I welcome the ALRC's review. However, I remain sceptical about whether it will bring about the legal reforms necessary to achieve its goals and reduce the number of Australians seeking surrogacy overseas.

This is not the first review into surrogacy law in Australia, there have been six others in the past decade alone: New South Wales, Victoria, South Australia, Western Australia, and the Australian Capital Territory (see BioNews 1214), as well as one at the federal level (see BioNews 855). However, despite the reforms that followed, most Australian intended parents continue to pursue international surrogacy arrangements.

This outcome is disappointing but not surprising. Surrogacy is a controversial practice that challenges traditional notions of parenthood and raises complex ethical questions, particularly regarding the welfare of children and women's reproductive autonomy. Lawmakers may be reluctant to push for reform, fearing those who object to surrogacy in all its forms. Further complicating matters are the conflicting views among supporters of surrogacy about how it should be regulated. As a result, surrogacy reform is often placed in the 'too-hard basket'.

The limited political interest in supporting domestic surrogacy is not unique to Australia. Recently, the UK Government decided not to proceed with reform proposals put forward in a joint report by the Law Commission of England and Wales and the Scottish Law Commission (see BioNews 1289).

While reform is undoubtedly a complex task, reducing the barriers to surrogacy in Australia is urgently needed. This is not only required to better meet the needs of intended parents, but also to protect the welfare of surrogates and those born via surrogacy.

Australian surrogacy laws and professional guidelines governing fertility treatment are designed to safeguard the interests of everyone, with the child's welfare as the paramount consideration. For example, surrogates and intended parents must receive counselling and legal advice, and people born via surrogacy can access information about their genetic parents. These safeguards create a transparent process for all involved.

Comparable protections are not in place across all international surrogacy destinations. While some overseas arrangements can be positive for both surrogates and intended parents, the practice raises significant legal and welfare concerns. Media reports frequently highlight cases of surrogate exploitation and trafficking (see BioNews 1286 and 1260), and research suggests that pregnancy complications, such as preterm birth, are more common in international surrogacy due to lower standards of fertility care compared to those in Australia.

In the absence of international regulation, promoting domestic surrogacy with robust safeguards offers a way to reduce the risks associated with overseas arrangements.

For the ALRC review to result in meaningful law reform, strong community input will be needed. It has recently published an Issues Paper and is currently accepting written submissions until 11 July 2025.

I strongly encourage individuals with lived experience of surrogacy, professionals working in the field, and researchers – both in Australia and abroad – to contribute. Broad and informed support may generate the political interest needed to create a legal framework that is responsive to the needs of surrogates, intended parents, and individuals born via surrogacy.

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An earlier version of this article was published in the Scientists in Reproductive Technologies newsletter.

The past, present and future of UK surrogacy law will be discussed at next week's free-to-attend online event 40 Years of the Surrogacy Arrangements Act: What Next for Surrogacy?, taking place on Wednesday 16 July 2025. Find out more and register here.