Federal Surrogacy Inquiry Recommends Developing National Model Law

Thursday 12 May 2016 @ 12.07 p.m. | Legal Research

A national parliamentary inquiry into surrogacy has recommended that the Federal Government introduce a model framework to harmonise existing State and Territory laws.  The inquiry also recommended that the practice of commercial surrogacy should remain illegal in Australia.  The report, “Surrogacy Matters”, was released last week by the House of Representatives Standing Committee on Social Policy and Legal Affairs after a series of public hearings.  For more information on the terms of reference of the inquiry, see TimeBase’s earlier article.

In a media release announcing the report, the Committee said:

“The Standing Committee on Social Policy and Legal Affairs report into surrogacy highlighted a range of challenging and complex ethical and legal issues that arise from the practice. While supporting the current ban on commercial surrogacy by Australian States and Territories, the Committee recommended that the Australian Government consider options for developing a streamlined legislative response to altruistic surrogacy. 

The Committee found that differences in State and Territory surrogacy laws were a barrier for many Australians who sought to enter into altruistic surrogacy arrangements. While altruistic surrogacy is legal in Australia, it can be hard for intended parents to find suitable surrogates and different laws may not provide adequate protections for all parties.”


The Committee recommended that the Federal, State and Territory Governments develop a model national law to facilitate altruistic surrogacy in Australia.  They recommended that the model law follow four guiding principles:

  •  that the best interests of the child should be protected (including the child’s safety and well-being and the child’s right to know about their origins),
  • that the surrogate mother is able to make a free and informed decision about whether to act as a surrogate,
  • that sufficient regulatory protections are in place to protect the surrogate mother from exploitation, and
  • that there is legal clarity about the parent-child relationships that result from the arrangement.

They also recommended that the Australian Law Reform Commission be asked to conduct an in-depth 12-month inquiry into the currently existing surrogacy laws.  The inquiry could be used to facilitate the development of the model national law, as well as explore a number of issues including:

  • the need for mandatory, independent and in-person counselling for all parties before entering into a surrogacy arrangement, during pregnancy, after the birth, and at relinquishment,
  • the need for background checks, medical and psychological screening, and independent legal advice for all parties entering into a surrogacy arrangement,
  • the need for parties to enter into a non-binding surrogacy agreement which sets out shared expectations of all parties, including dispute resolution processes, and which ensures that parties respect the birth mother's right to make decisions about her own health and that of the child,
  • the processes by which parental responsibility is transferred from the birth mother to intended parents, and when this transfer should take place,
  • the need for adequate reimbursement for the birth mother for legal, medical and other expenses incurred as a consequence of the surrogacy,
  • the need for a closed register of surrogates and intended parents, to be administered by a Government body, access to which may be granted following background checks, and medical and psychological screening, and
  • whether States and Territories should keep standardised statistical information on families formed through surrogacy to enable longterm studies of surrogacy's effect on families.

The Committee also made recommendations in regards to overseas surrogacy arrangements, including:

The Committee recommends that the Australian Government introduce legislation to amend the Migration Act 1958 such that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child.

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.


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