Surrogacy law review – next steps.

The Australian Law Reform Commission is reviewing Australia’s surrogacy law and released its Discussion Paper in November 2025.

The review was announced in December 2024, and the Issues Paper was released in June 2025. The community, people with lived experience of surrogacy and professionals and researchers made submissions to respond to the Issues Paper. The ALRC has considered the submissions and feedback and has now released a Discussion Paper, which is another opportunity to give input on the future of Australia’s surrogacy law.

You can read the Discussion Paper on the ALRC website.

There are some things in the Discussion Paper that I agree with, including:

• A nationally consistent surrogacy law framework. This one, I think, is uncontroversial. Our patchwork surrogacy laws make surrogacy difficult to navigate in Australia, and it is to everyone’s benefit that we clean it up and implement one, consistent surrogacy law across Australia.
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• A National Regulator. Surrogacy and ART would be regulated by a body that can oversee arrangements, develop standards and raise awareness for surrogacy in Australia.
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• Surrogate’s costs to be covered and a deliberate step away from referring to surrogacy as either ‘altruistic’ or ‘commercial.’ The ALRC recognises that commercial surrogacy can be motivated by altruism, and that altruism is no guarantee that an arrangement is not exploitative.
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• Payments for hardship, or a version of compensated surrogacy: Additional payments can be made, for loss incurred by reason of discomfort, pain, suffering and assumption of risk involved in pregnancy and birth. Such payments may be agreed to by the parties, and capped by the National Regulator.
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• The establishment of regulated surrogacy support organisations (SSOs) to assist intended parents and surrogates to meet. The SSOs would be required to be licensed and regulated by the National Regulator. There’s some devil in the detail, but overall I am pleased that services would need to be licensed and regulated, which adds some safeguards against exploitation which are apparent in Surrogacy Australia’s Support Service.
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• Counselling and legal advice: surrogacy arrangements would include provision for everyone to complete psychological screening and implications counselling, and to receive independent legal advice. The Discussion Paper proposes explicit requirements for counselling and what is involved.
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• Approval: surrogacy arrangements will need to be approved before proceeding. This is an important safeguard that takes decision-making away from individual lawyers, counsellors and fertility clinics and places it with an independent body. An SSO, and the national regulator, would be responsible for approving a surrogacy arrangement.
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• Traditional and gestational surrogacy: consistently legal across the country, with no differences in process or access to services.
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• Automatic recognition of parentage: If an arrangement has been pre-approved, then there will be no need to seek a post-birth parentage order. The intended parents will be able to register their child’s birth if they have complied with the pre-surrogacy requirements.
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• Family Court jurisdiction: disputes about parentage would be heard in the Federal Circuit and Family Court of Australia.
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• International surrogacy recognition: children born via international surrogacy will be able to have their parentage recognised if approval has been obtained. The process and requirements may be onerous and not yet clear, but the notion is accepted.
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• Medical and social need – while I believe in removing barriers to social surrogacy, the ALRC recommends that intended parents must establish a medical or social need for surrogacy, and that there be a broadening and clarity of the definition of what meets the criteria. I agree there should be clarity – but I think there’s work to be done on this proposal.
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• Surrogates must be over 25. I think this is an important safeguard for surrogates to ensure she is sufficiently mature and can make an informed decision before proceeding with a surrogacy arrangement.
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• Streamlined citizenship and passport processes. Intended parents would be recognised as the parents, and surrogates would no longer need to consent to the issuing of a child’s passport for a child born via international surrogacy.

There’s so many things I love about the recommendations and it’s very affirming to see the lived experiences and expert opinion reflected in the Discussion Paper. I’m proud of the community for heeding the call and contributing to the future of Australian surrogacy law. I am also very proud that many of the recommendations are consistent with my submission and the findings from my Churchill Fellowship.

Some things I think need further discussion:

• Proposal 27 argues that the intended parents must pay funds into an escrow account established by the SSO, to cover the costs of the surrogacy arrangement. I am not against escrow/trust account options for managing surrogacy expenses, but it should be via an independent body, not through an SSO. I am also conscious of the costs this can add for intended parents. Perhaps escrow should be optional rather than required, and it must be sufficiently regulated to avoid the situations we’ve seen in the USA of money going missing from escrow companies.
  I have worked with arrangements where disputes about finances have arisen. Independent trust accounting may help with these arrangements, but are not a silver bullet.
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• Proposal 37 suggests that intended parents must register their intention to engage in international surrogacy before doing so, and that there would be ‘permitted destinations’ for overseas surrogacy. I cannot fathom how this would work in reality, how any organisation can declare a destination to be ‘permitted’ or take responsibility for the ever-changing international surrogacy landscape.
  I query how intended parents are to know that they must register their intention before proceeding – many intended parents don’t seek legal advice until after a pregnancy is underway. I think this proposal seeks to regulate the international surrogacy industry, with limited power to do so.
  I think it is unrealistic to expect a ‘permitted’ destination will still meet ethical standards tomorrow, when even the USA and Canada have had questionable practices within their industries.
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• Criminalising international commercial surrogacy. The ALRC proposes to remove criminal sanctions for engaging in international commercial surrogacy and instead implement civil penalties (such as fines). I think this is an improvement on the current criminalisation of intended parents but am not convinced that civil penalties are in a child’s best interests.

A note from me – the Discussion Paper was released on 12 November, and I wrote this article on 13 November. My thoughts on the Discussion Paper have not completely crystallised and I value other people’s thoughts and ideas.

Feedback and submissions on the Discussion Paper must be made by 19 December. You can do that here.

While the community has made a mammoth effort in writing submissions, it is important not to be complacent. I expect people who are against surrogacy will make an effort to submit in response to the Discussion Paper. If you have thoughts on any aspect of the Discussion Paper, it is important to give that feedback to the ALRC.

The final report from the ALRC is due to government in July 2026.