The Regulation of Commercial Surrogacy in Australia: A Harm Analysis

Surrogacy is the name given to the practice where one woman conceives and carries a child for another, relinquishing the resulting child after birth to the individual or couple who intend to raise that child. The practice of surrogacy raises concerns of harm occurring to the surrogate, the resulting child, the
intending parents and society at large. The regulation of surrogacy in Australia has developed slowly over the past few decades but is now generally accepting of altruistic (unpaid) surrogacy. Commercial (paid) surrogacy, however, remains a forbidden practice. This thesis identifies the harms purported to be caused by surrogacy. As part of this discussion a comparison of altruistic and commercial surrogacy is undertaken and it is revealed that in many instances, the harms associated with surrogacy apply in both the altruistic and commercial contexts.
The only distinction that can be made between altruistic and commercial surrogacy is the payment that a commercial surrogate receives in addition to reimbursement of her expenses. Therefore, the only harm that is specifically applicable to commercial surrogacy is commodification. John Stuart Mill’s Harm Principle is adopted in conjunction with Feinberg’s interpretation of harm to
create a harm threshold. The current Australian regulatory response to commercial surrogacy is then critiqued against that harm threshold to determine whether the current prohibition of commercial surrogacy is justified or if the regulatory response to commercial surrogacy goes beyond what is
necessary to minimise the risk of harm occurring. It is ultimately concluded that the current regulatory framework goes beyond what is necessary to
protect against the risk of commodification of children born through commercial surrogacy and the legislation can be amended to appropriately respond to this risk of harm and legalise commercial surrogacy in Australia.
The legislative material referred to in this thesis reflects the law in force in Australia at the date of submission of this thesis for examination (2020).