Surrogacy in Australia: Varying State Laws And Calls For Reform
Monday 18 August 2014 @ 11.58 a.m. | Legal Research
The widely reported case of Baby Gammy that has surfaced over the past few weeks has shone a spotlight on surrogacy law in Australia today. Some critics argue that the case demonstrates the need for Australia to allow commercial surrogacy, so that it can be better regulated. Others see the case as justification for why strong laws are necessary.
Prime Minister Tony Abbott has expressed his reluctance to change laws on a federal level, telling the Sydney Morning Herald:
“I am not someone who naturally wants the Commonwealth to be jumping all over things that are state responsibilities… The difficulty with the law in a situation like this is that the law can often make complex, difficult and very personal situations worse and so I am in no hurry to rush legislatively into this particular situation.”
The Current Law
Commercial surrogacy is illegal in Australia. In addition, in three states - NSW, the ACT and Queensland – there is legislation that makes it a criminal offence to enter into commercial surrogacy arrangements overseas, if the person is a resident of the state. Other states do not specifically prohibit commercial surrogacy outside the state’s borders.
Each state and territory also has further requirements for how altruistic surrogacy can be carried out, making the laws even more complex.
The Northern Territory is unique as there is no legislation governing surrogacy at all.
South Australia, under the Family Relationships Act 1975, makes surrogacy arrangements only available to heterosexual couples.
Western Australia, under the Surrogacy Act 2008, only allows single women and heterosexual couples to participate in surrogacy arrangements.
States also have different age requirements for the birth mother and the intended parents – for example in South Australia, all parties must be a minimum of 18 years old, but in Queensland under the Surrogacy Act 2010, all the parties must be at least 25 years old.
Most states also prohibit advertising for a surrogate, and most also place additional requirements on the surrogacy arrangements, such as the need for legal advice or counselling. In addition, many states explicitly say that no surrogacy arrangement is enforceable.
Western Australia is currently finalising a review into its laws, which was commissioned before the events of the baby Gammy case arose.
The Debate
SBS News reported that research by Monash University and Surrogacy Australia “found only 8 per cent of couples surveyed found domestic surrogacy arrangements”. Surrogacy Australia president Sam Everingham, told The Australian that couples from Queensland, NSW and the ACT were not necessarily deterred by the criminalisation of overseas surrogacy. He believes that the widely differing state legislation is one of the reasons people are forgoing the Australian system:
“It’s so complicated because the laws differ for each state… Australia has put in laws that you can’t advertise for a surrogate, you can’t pay a surrogate, there’s no protection for you after the birth if the surrogate wants to keep the child. Those sorts of rules ... have made the vast majority of Australians who can’t have children give up on the Australian system and go overseas.”
Deputy Labor leader Tanya Plibersek told the Sydney Morning Herald that:
“I don't think the problem is different laws in different states, I think the problem is unscrupulous organisations overseas that get into the business of babies to make a profit… I think in addition, we have got a problem in this individual case of a couple who have made a decision that, frankly, I can't understand and I think most Australians would have trouble understanding.”
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
