Why do IVF clinics in Australia tell people that traditional surrogacy is illegal?
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.
If you are considering your options for growing your family through surrogacy, or wanting to become a surrogate yourself, you may have questions that land you on several different answers. Traditional surrogacy, where a surrogate uses her own egg to conceive, is one of those topics that has many a keyboard warrior (or industry professionals!) declaring that it is illegal. This is a source of endless frustration, not just for me but for the many traditional surrogates and intended parents who have followed all the legal requirements for their surrogacy arrangement.
Many clinics claim that traditional surrogacy is not legal. Melbourne IVF says that only gestational surrogacy is legal. Sydney’s IVF Australia says the same, even though there are no restrictions on traditional surrogacy in New South Wales. Other clinics declare that traditional surrogacy is illegal ‘across Australia’ or ‘in most parts of Australia.’
Fact check: there’s only one place in Australia where the surrogate cannot be the genetic mother of the child, and that’s in the ACT.
In Victoria, the legislation allows traditional surrogacy, but does not allow a clinic to facilitate the arrangement. That means, you have to conceive outside the clinic, with home insemination.
In Queensland, New South Wales, Western Australia, Tasmania and South Australia, you can enter a traditional surrogacy arrangement. However, there is no requirement for a clinic to help you – and many will refuse. Why? Well, in my experience it’s because clinic staff think the surrogate won’t hand over the baby. But is the experience of traditional surrogacy any different from being a gestational surrogate?
As for the Northern Territory, there is currently no surrogacy legislation, which means it is neither legal or illegal to do gestational or traditional surrogacy there.
Why does it matter that traditional surrogacy is legal, or that clinics (or other professionals, including lawyers) tell people that it is illegal? Well, obviously for me it is personal because I was a traditional surrogate, and I did hand over the baby. I’m also a lawyer, so any suggestion that I have done something illegal is upsetting. And a woman who chooses to be a surrogate has the right to bodily autonomy – to decide whether she uses her own eggs, or not, and her level of comfort with the arrangement. It is not for anyone else to tell her what is right or wrong for her or her family.
But more importantly than that, the children born through traditional surrogacy were not conceived illegally. It is important that their story is not shrouded in stigma and falsehoods. Their parents shouldn’t have to respond to people saying “that’s illegal” when they tell their story. And when clinics are perpetuating the myth that it is illegal, they are serving their own business model (let’s face it, gestational surrogacy is better for business!) and they have no reason to correct the misinformation they share with patients.
What is also worrying is that if people think traditional surrogacy is illegal, they may decide to do it anyway, without following the requirements for legal advice and counselling. And that’s not only bad for the parties, but for the children as well.
My advice, when exploring your options, is to find information from credible sources, and ask questions if something seems amiss or unclear. And of course, get in touch if you want to know the legal framework for any surrogacy arrangement.
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.