Surrogacy Matters report release

The House of Representatives Standing Committee on Social Policy and Legal Affairs tabled a report from their inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements on 4 May. The report, titled ‘Surrogacy Matters’, outlines ten recommendations arising from the inquiry.

The GLRL contribution to the inquiry, dated 18 February, recognised the diverse range of views within the lesbian, gay, bisexual, trans*, intersex and queer (‘LGBTIQ’) communities on issues surrounding surrogacy and the appropriate regulatory or legislative scheme. The GLRL submission presented several ‘key principles’ that we think are critical to the regulatory and legislative aspects of international and domestic surrogacy. These guiding principles elucidate the need for an empirically-based, human rights-aligned and workable response to regulating surrogacy in Australia which prioritises the best interests of children, but also protects the rights of surrogate mothers and intended parents. Reform of the regulation and legislation of surrogacy in Australia needs to progress in line with lesbian and gay rights as well as the expectations of the broader community.

Key principles highlighted by the GLRL included:

  1. Regulation must be justified and likely to achieve purpose. This noted that existing restrictive regulatory regimes in jurisdictions such as NSW are currently of limited efficacy. Given that extraterritorial criminalisation is not preventing international commercial surrogacy (indeed, it is the most common surrogacy arrangement undertaken by Australians), it may be achieving nothing more than evasion, uncertainty and fear.
  2. Regulation must be consistent with international obligations, including the best interests of the child, the right to equality before the law, the right to health, and the right to privacy.
  3. All families deserve recognition. We encouraged the Committee to work towards a regulatory and legislative scheme that facilitates the recognition of all families created through surrogacy, irrespective of whether the child was born outside the confines of the current legislative framework for surrogacy.
  4. National consistency. The uncertainty generated by the failure of the regulatory regimes in States and Territories to appropriately recognise all families is worsened by the variability of the approach taken by each jurisdiction.

We also noted that surrogacy in Australia was marred by an inadequacy of information. Many community members are unsure of their rights and responsibilities when considering a surrogacy arrangement. We suggested that in order to ensure the efficacy of any reform, it would be useful to provide accessible community education for people considering or pursuing surrogacy arrangements (including same-sex couples).

The report acknowledged that many inquiry participants, including the GLRL, “highlighted a number of discriminatory provisions that exist in relation to gender, marital status and sexual orientation” (pg 5).

The report recommended that Australian governments consider the development of a model national law that facilitates altruistic surrogacy, and that the Australian Law Reform Commission conduct an inquiry into the varied laws in jurisdictions in order to develop the model law. The GLRL welcomes this move towards national consistency.

The report also recommended that the Australian Government develop a website that provides advice and information for Australians considering domestic altruistic surrogacy. This addresses the GLRL’s comments on the inadequacy of information around surrogacy.

However, the report recommended that commercial surrogacy remain illegal in Australia and that a taskforce be developed to report on ways to address the situation of Australians who enter offshore surrogacy arrangements, including an audit of surrogacy destination countries. The Committee recommended that the Australian Government introduce legislation to amend the Migration Act 1958 such that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child. This follows recognition, endorsed by the GLRL, that the “evidence is clear that extra-territorial offences for engaging in commercial surrogacy have not worked to deter Australians from travelling overseas to use surrogacy services”. The report found that, without a consistent national ban, credibly enforced, “Australians will continue to use offshore commercial surrogacy services” (pg 31). Whilst this conclusion is inescapable, we are concerned about the effects of the recommendations to address it on many members of our communities.

Some inquiry participants, including the Australian Christian Lobby, argued that all forms of surrogacy should be prohibited altogether (pg 6).

Further reading:

Surrogacy Matters Report

NSW GLRL Media Release: Surrogacy Matters to our rainbow families