Through the looking-glass: A proposal for national reform of Australia’s surrogacy legislation

Surrogacy has been the subject of intermittent academic investigation and law reform since the early 1980s. Notwithstanding these reforms, Australian surrogacy laws remain inconsistent. Surrogacy persists as 'an issue with which our community continues to struggle' and Australia has a 'fragmented, illogical and dysfunctional surrogacy regime. For parties seeking surrogacy intrastate, interstate or internationally, the applicable legislation is often hard to identify, obscure and difficult to navigate. While there may be constitutional hurdles to overcome, the aim of a national model would be to bridge the legislative gaps whilst still respecting the autonomy and minimising the risk of harm for all parties involved.
The purpose of this chapter is twofold: to demonstrate that the existing surrogacy regime in Australia is in need of reform and to provide a framework for a national model. Certain key aspects of current surrogacy legislation in Australia are examined in order to illustrate inconsistencies between states and territories. The chapter then develops recommendations for the framework of a national model for reform.