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Surrogacy in Australia: Is it legal and what else do we need to know?

Despite Pope Francis' call for a global ban on surrogacy, the practice is becoming more common.

Pope Francis made headlines last week after calling for a global ban on surrogacy, saying that the practice is “deplorable” and that the international community should “prohibit this practice universally”. The comments, which were made during a 45-minute address to diplomats, have been met with steep criticism, particularly from infertility advocacy groups and LGBTQI+ parenting organisations. 

In many ways, it is unsurprising that the Catholic Church is choosing to speak out against surrogacy, as the Catholic tradition has consistently opposed any fertility practices that supposedly ‘violate natural law’, such as abortion, contraception, and in vitro fertilisation (IVF). And this isn’t the first time that Francis has spoken critically about surrogacy – in 2022, he called it a threat “to human dignity” and voiced concerns that women living in poverty were being exploited. 

However, this latest and more explicit call, in which Francis claimed that the practice turns a child into “an object of trafficking”, has raised concerns amongst surrogacy advocates that it will lead to a reassessment of legislation, particularly in Italy, where far-right Prime Minister Giorgia Meloni is already pushing to expand the country’s bans on surrogacy and impose jail time and large fines for those who seek it overseas. 

So, what do we need to know about surrogacy? 

There are two types of surrogacy, known as ‘traditional’ and ‘gestational’. Traditional surrogacy is the result of artificial insemination of the surrogate mother with the father’s sperm, making her a genetic parent. However, gestational surrogacy, which involves the surrogate being fertilised by an embryo that is transferred into her, is the most common form of the practice. 

As for who chooses to use a surrogate, while many celebrities have spoken out about surrogacy experiences, typically the people who access these services are either LGBTQI+ couples or those struggling with fertility who have exhausted all other options. Surrogacy is also becoming more common as a practice as more women delay having children and encounter fertility issues later in life. 

Is surrogacy legal in Australia?

Some countries have banned surrogacy outright, including France, Germany, and Portugal, while others have banned commercial agreements (where surrogates are paid) and only allow ‘altruistic’ surrogacy, including Canada, Denmark and New Zealand. Other countries allow commercial surrogacy agreements, such as Georgia, Colombia, Thailand, and some states in the US. 

Here in Australia, the laws differ between states and territories, for example, the Northern Territory has no legislation referring to surrogacy, making it illegal as either a commercial or altruistic practice.

All other states and territories — New South Wales, Queensland, Victoria, Tasmania, Western Australia and the ACT – permit altruistic surrogacy but have differing regulations, including the age of the surrogate, medical or social need for surrogacy, requirements around whether or not surrogates have had children of their own, and whether a single parent can use a surrogate. Altruistic surrogacy is also open to same-sex couples in all states and territories, except in Western Australia. 

What are the concerns about surrogacy? 

There have been long-held fears associated with surrogacy, some are founded while others are less so. One prevailing belief is that surrogates may try to steal or adopt a child after it is born – a belief that was stoked in large part by a highly-publicised case in the US in the 1980s in which a surrogate named Mary Beth Whitehead attempted to retain custody of the baby that she had given birth to. However, these cases are rare and research demonstrates that most surrogates view these pregnancies and births as different to their own children. 

However, there are legitimate ethical concerns about the exploitation of women within commercial surrogacy arrangements, as well as what outcomes are best for children. Organisations like the United Nations have warned about the ethical complexities of surrogacy and the potential for women’s bodies and children to be commodified, however they have called for international safeguards, rather than the outright ban suggested by Pope Francis. 

Dr Karin Hammarberg, a senior research fellow in the School of Public Health and Preventative Medicine at Monash University, told Missing Perspectives that many Australians seeking surrogacy find a lack of women willing to undertake the risk of pregnancy, in fact only around 115 children are born via surrogate in Australia every year. For people who can’t find a surrogate in Australia, they may end up seeking this service overseas, where they can acquire surrogates commercially. 

“There is, I think the risk for exploitation because if people go to poor countries and poor women sign up for them, clearly the payment is a driving force,” Dr Hammarberg said. 

There are also complexities associated with contracting anonymous surrogates overseas, as this means children may never know their genetic mother or the woman who gave birth to them. 

“I think that is very concerning because we have adopted here [in Australia] the belief that children have the right to know their genetic origins,” Dr Hammaberg explained. “So, in Australia you can’t be an anonymous donor. In that sense, I feel that we’re kind of exporting the shortage of surrogates as a problem… And that leads to worse outcomes for children.” 

Parents who choose to seek surrogates overseas may also encounter geopolitical issues. Ukraine is known for being a surrogacy hub, and in early 2022, it was reported that around 20 children were trapped in Ukraine as a result of the Russian invasion and facing an uncertain future. 

Dr Hammarberg suggests that Australia should be willing to reopen its conversation about commercial surrogacy – or at least better compensated surrogacy – in order to have better regulatory oversight and ensure better safety for parents, surrogates, and children.