By Dr Elisabeth Taylor
In 2024, Attorney General Mark Dreyfus tasked the Australian Law Reform Commission (ALRC) with suggesting ways to harmonise state and territory laws regulating surrogacy. The goal of the exercise, as stated in the Terms of Reference, was to ‘reduce barriers to domestic altruistic surrogacy arrangements in Australia.’ Instead, the ALRC looks set to propose a whole new regulatory framework that would allow commercial surrogacy in Australia for the first time. To those paying attention, the ALRC’s conduct of this review raises serious concerns about activist capture of our public institutions and bureaucratic overreach.
The first thing to notice is that the experts appointed to the ALRC’s Advisory Committee are, overwhelmingly, vocal advocates for commercial surrogacy. Some of them represent industries that stand to benefit financially if a domestic industry in commercial surrogacy were legislated. The ALRC’s deliberations so far suggest a plan to repackage commercial surrogacy (currently a criminal offence) as ‘compensated surrogacy,’ and to sell this to the Australian people with the false promise that proper regulation will prevent the human carnage that has attended commercial surrogacy everywhere else it has been tried.
The move would change the legal landscape in Australia dramatically, and for the worse. Since ‘altruistic’ surrogacy was first legalised in 2009 (subject to strict conditions), it has been the settled position of all state and territory governments that ‘commercial’ surrogacy – i.e. where the woman is financially incentivised to gestate a baby on behalf of others - should be subject to criminal prohibition. (The law in Queensland, NSW and the ACT goes further and criminalises commercial surrogacy arrangements that take place overseas). The reasons for that prohibition are obvious. All forms of surrogacy are ethically fraught but commercial surrogacy introduces financial exploitation – and commercial profiteering – to the mix. It typically involves the reproductive exploitation of poor women for the benefit of the wealthy. It turns babies into commodities to be bought and sold. It puts a price on the sacred bond between mother and child. It creates windfall opportunities for child traffickers.
It also looks like the ALRC has set its own agenda, rather than following the government’s instructions. The Terms of Reference asked the ALRC to have regard to the work of previous governments. Heading the list of reference materials was the Surrogacy Matters report produced by a 2016 Federal Parliament inquiry. That report laid out clear definitions of ‘altruistic’ and ‘commercial’ surrogacy and its first recommendation was that ‘the practice of commercial surrogacy remain illegal in Australia.’
With this as a starting point, some nifty footwork was required before the ALRC could take the review in a completely different direction.
Step 1 was to erase the fundamentally important distinction between ‘altruistic’ and ‘commercial’ surrogacy. The ALRC’s Issues Paper (published June 2025) ‘summarised’ the Terms of Reference, leaving out the words ‘domestic altruistic,’ to suggest that the ALRC’s proper task was to make recommendations about how to ‘reduce barriers to surrogacy.’ A Discussion Paper (published November 2025) offered a paltry explanation for abandoning the recognised terminology:
‘[T]he terms ‘altruistic surrogacy’ and ‘commercial surrogacy’ are often presented as mutually exclusive. This binary categorisation of surrogacy has been viewed as problematic and ‘a fiction of law’, which fails to reflect ‘evidence of the reality of the practice. We agree that these terms are unhelpful and not mutually exclusive.’
The material difference, of course, is that one is financially incentivised and the other (at least in theory) is not. Everyone knows that, without financial incentivisation, the number of women willing to act as surrogates is extremely limited.
Step 2 was to suggest that a system of regulated ‘compensated surrogacy’ should be introduced because this allows women to receive remuneration in recognition of the ‘effort that goes into being pregnant or giving birth, including their time and their exposure to risk.’ In other words, ‘commercial surrogacy’ by a different name. The 2016 federal ‘Surrogacy Matters’ inquiry clearly recognised ‘commercial’ and ‘compensated’ surrogacy as exactly the same thing.
Step 3 was to develop a set of ‘overarching principles’ which articulate a particular vision of what ‘good’ surrogacy law should deliver. The list put forward includes, for example, ‘accessibility’ - which requires the removal of ‘discriminatory’ legal barriers to surrogacy - and ‘pragmatism,’ which recognises that ‘surrogacy is increasingly being used as a pathway to form a family’ and Australian law should regularise, rather than criminalise, these arrangements.
The ALRC was also instructed to ensure its recommended reforms are consistent with Australia’s international human rights obligations. Helpfully, in July 2025, the UN Special Rapporteur on the prevention of violence against women and girls published a comprehensive analysis of the human rights problems for women and children involved in all forms of surrogacy. That report rated only passing mention, and no detailed discussion, in the ALRC’s Discussion Paper.
If the ALRC unveils a regulatory framework for a new commercial surrogacy industry in Australia at the end of July – and all the indications suggest it will - the first question the ALRC should be required to answer is whether it has statutory authority to do so. To many looking on, it looks a lot like a regular review process has been hijacked by activists who have taken it far beyond anything dreamt of in the Terms of Reference.
Dr Elisabeth Taylor is Head of Research at Women’s Forum Australia
Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.
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