By Dr Elisabeth Taylor
Speaking recently at the UN, Eugenia Roccella (Italian Minister for Family, Natality and Equal Opportunities) accurately described the surrogacy industry as “a global phenomenon, increasingly shaped by international markets, cross-border arrangements, and profound inequalities within and between societies.” Commercial surrogacy is a multi-billion dollar industry and, like other multi-billion dollar industries, it has shown itself adept at responding to market opportunity and legislative change. As policy makers in one place wake up to the dangers and take action to restrict commercial surrogacy, agencies shift their operations to a new host country.
Until now, Australia has not been an object of interest because the law in all states and territories prohibits commercial surrogacy. However, the Australian Law Reform Commission (ALRC) is currently conducting a review of those laws.** Those watching closely have already raised concerns that the ALRC seems to be developing a new legislative framework that would allow commercial surrogacy in Australia for the first time.
By now there is a long list of horror stories demonstrating what happens when industrial interests are allowed to monetise women’s reproductive capacities. The evidence is clear: no amount of ‘better regulation’ can ever make commercial surrogacy ‘safe.’ In the 17 years since altruistic surrogacy (under which the surrogate may be reimbursed for permitted expenses but cannot receive payment for profit or reward) was legalised in Australia, campaigners have regularly pressed for the prohibitions on commercial surrogacy to be lifted. As often as the proposal has been raised, it has repeatedly failed to secure public and legislative support.
Nevertheless, a small group of highly committed enthusiasts have persisted. Of course, they don’t say in plain English that poor women will be exploited by the rich, or that the State will become the enforcer of contracts that separate babies from their birth mothers. They don’t say that children will become a commercial product, to be aborted or abandoned if found to be ‘defective.’ Instead, they talk about the moral imperative to ‘compensate’ women for their ‘gestational labour.’ Or ‘the right to be pregnant without having to bring up the baby.’ However it is framed, the objective is to legalise practices that are currently prohibited, creating the legal and financial conditions for a new industry in the commercial production of babies.
It isn’t obvious that this is what the government had in mind when it tasked the ALRC with reviewing existing laws with a view to minimising legal and administrative barriers to ‘domestic altruistic surrogacy.’ From the outset, however, the ALRC seems to have geared its review in that direction.
One of the ALRC’s first moves was to appoint Associate Professor Ronli Sifris as Assistant Commissioner for the review – an academic with a well-established track record of commercial surrogacy advocacy. Eleven other people were appointed to an Advisory Committee, eight of whom have an established track record of agitating for commercial surrogacy. Some Advisory Committee members work as third party professional intermediaries who arrange surrogacy contracts. Others represent business sectors that will predictably benefit financially were commercial surrogacy to be legalised.
The first ‘Issues Paper’ intended to guide public engagement with the review seemed set on discussing ‘how’ rather than ‘whether’ to legalise commercial surrogacy. Strangely, this document provided a ‘summary’ of the government’s Terms of Reference, which implied that the proper objective of the review was to minimise barriers to ‘surrogacy’ in Australia. (No mention of the important words ‘domestic altruistic’). The ALRC’s Discussion Paper later dismissed the distinction between ‘commercial’ and ‘altruistic’ surrogacy as ‘problematic’ and a ‘fiction of law.’
The Issues Paper also communicated a particular vision of what ‘good’ surrogacy law should deliver. ‘Accessibility’ was listed as a desirable outcome – meaning ‘discriminatory’ legal barriers to surrogacy would need to be removed. The ALRC also listed ‘pragmatism’ as an important principle – this recognises that ‘surrogacy is increasingly being used as a pathway to form a family.’ The clear implication of these public materials was that Australian law should not only decriminalise commercial surrogacy but also regularise and potentially subsidise surrogacy-related services.
Normally a review of this kind would be expected to conduct public hearings. These provide an opportunity for a range of perspectives to be presented not just to the review panel but also to the wider public. Instead of public hearings, the ALRC has held a few brief round-table discussions with hand-picked groups, conducted under Chatham House Rules.
The ALRC has also resisted requests for greater transparency. For example, questions about the Advisory Committee selection process and the ‘early consultations’ that had apparently shaped the review’s ‘overarching principles’ were refused, citing ss 47C and 47E of the Freedom of Information Act. Apparently, it is not in the public interest for these things to be known.
In short, the conduct of the review suggests dissenting voices have been kept out of the room while industrial interests set to work developing the regulatory framework for a whole new domestic surrogacy industry. At a time when many other countries are closing their doors to the commercial surrogacy industry, any relaxation of the laws in Australia can be expected to attract the interest of the international commercial surrogacy industry.
Since the ALRC has not been predisposed to listen, it will be necessary for the Australian public to send a very clear message to government at all levels that we do not want the ‘global phenomenon’ that is the international commercial surrogacy industry setting up shop in Australia.
Dr Elisabeth Taylor is Head of Research at Women’s Forum Australia
**The ALRC's final report was due to be delivered to the Australian Government today (29 July), however the deadline for the final report has been extended by six weeks, until 11 September 2026.
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