The ACT surrogacy laws are the oldest in Australia – that is, they are the most in need of an overhaul. The Parentage Act of 2004 has needed a bit of a spring clean for a while.
Recently the ACT government sought feedback for future law reform on territory’s surrogacy laws. Pleasingly, many of the things that have been recognised as problematic are already marked for change.
The ACT is the only jurisdiction in Australia that does not allow traditional surrogacy. This is despite it being legal everywhere else in Australia. Traditional surrogacy represent 15% of surrogacy arrangements, and to prohibit them only serves to stigmatise and drive people underground. I have clients who have engaged in traditional surrogacy in ACT and the consequence of the laws is that they have found other ways to recognise the arrangement – and this is not in the child’s best interests.
ACT is also the only jurisdiction to require there to be a genetic link between the child and one of the intended parents. A rather strange requirement, and I suspect it came from outdated views about genetics and parentage. Hopefully the law reform removes this requirement as well.
The ACT, alongside Queensland and New South Wales, criminalise commercial surrogacy for residents, even when they engage in commercial surrogacy in another country. The laws are perhaps meant as a deterrent, but with 250-300 babies born overseas for Australian intended parents, they are not doing the job they were meant to do. Criminalising parents of newborns does nothing to protect the rights or interests of the children born and the clauses should be scrapped.
ACT, Victoria and Western Australia all require an embryo transfer to occur within the respective state, and if an embryo transfer occurs in a clinic outside that state, the intended parents will not be able to get a parentage order for their child. Many ACT intended parents access fertility services in New South Wales or further afield, and it is a frustrating requirement for the embryos to be transported to ACT simply for a surrogacy arrangement. This requirement too, should be scrapped.
I have many views on commercial and compensated surrogacy, which are beyond the scope of the current ACT consultation process. I do feel strongly that we should be removing prohibitions on advertising for a surrogate, and supporting more intended parents to find a surrogate in Australia so that they feel less compelled to go overseas.
My full submission to the consultation can be read here and more ideas about surrogacy law reform in Australia.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself.
Sarah has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.
You can read a broad overview for surrogacy in Australia and how it works.
You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast. You can also book in for a consult with me below, and check out the legal services I provide.