Tasmania needs surrogacy reform.

Tasmania’s surrogacy laws require that all parties to a surrogacy arrangement, the intended parents and the surrogate, must live in Tasmania at the time the arrangement is entered into.

Maybe when the law was drafted it seemed like a good idea. In reality, it creates another barrier that doesn’t reflect how Australian families are formed. Tasmania needs surrogacy reform.

In a recent case, Tasmanian intended parents entered a surrogacy arrangement with a surrogate who lived interstate. Strictly speaking, this did not comply with the residency requirement in the Surrogacy Act 2012. When the matter came before the Court for a parentage order, the judge ultimately made the order transferring legal parentage to the intended parents.

Why? Because the court’s paramount consideration is the best interests of the child.

The child was born into a planned, loving arrangement. The parties had completed the necessary counselling, legal advice and medical processes. The surrogate consented. Everyone had acted transparently and in good faith. The only issue was geography.

The judge’s willingness to make the parentage order demonstrates that rigid residency rules do not necessarily serve children, surrogates or intended parents. When a court must effectively step around a statutory requirement to achieve a fair and sensible outcome, it is often a sign that the law itself needs an overhaul.

The case demonstrates that surrogates and parents must ask for retrospective approval of their surrogacy arrangement. this is risky for the parties, and pressures Judges to make an order for a child that already exists.

Tasmania is a small state. Limiting surrogacy arrangements to people who all reside within its borders drastically reduces the options for finding a surrogate. Many intended parents’ closest and most trusted potential surrogate – a sister, cousin or friend – may live interstate. The current law forces families either to abandon those arrangements or to proceed with uncertainty, hoping the court will ultimately prioritise the child’s welfare over a technical defect.

Many intended parents will travel overseas for surrogacy, because they cannot find a surrogate in Tasmania. To make surrogacy more accessible at home, Tasmania needs surrogacy reform.

Families should not have to rely on judicial discretion to feel secure about their child’s legal status. Surrogacy law should provide clarity, accessibility and consistency. A residency requirement that no longer reflects modern Australia does the opposite. It narrows options in an already limited altruistic system and creates unnecessary legal risk for families acting ethically and transparently.

If courts are prepared to recognise that the child’s best interests are not determined by state borders, then Parliament should take note. Reforming Tasmania’s residency rule would not weaken safeguards. It would simply align the law with reality — and ensure that families are protected by clear legislation, not saved by judicial workaround.

If you are a Tasmanian-based intended parent and considering finding a surrogate who lives elsewhere in Australia, then you should seek advice about the laws and your options.

Looking for a surrogate and not sure where to start? We Need a Surrogate – What’s Next? And if you have a surrogate or intended parents, you can get started on the surrogacy process.

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.