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A review of surrogacy laws in Australia is sparking debate over whether reproductive labour should be compensated and how surrogacy could be made more accessible. By Hannah Bambra.

Surrogate laws mired in the past

Family creation lawyer and surrogate Sarah Jefford.

Credit: Supplied

This week the Australian Law Reform Commission reported it had received more than 70 submissions in response to a review of surrogacy laws that could improve legal recognition of parentage and whether surrogates in Australia can be paid.

Parents, fertility experts and birth partners have contributed their stories to help inform the ALRC’s review of a patchwork of Australian laws. In New South Wales, Queensland, Western Australia and the Australian Capital Territory, it is illegal to bring a baby home that has been conceived through surrogacy overseas. In some states, the birth-giver needs to be at least 25 years old. In others, 18. People are prohibited from publicly seeking surrogates or talking about their experiences online. In Tasmania, all parties need to be in the state for the arrangement to be legal.

All Australian states and territories permit “altruistic surrogacy”, where the surrogate’s basic expenses are reimbursed, but no other payment is allowed. There is no legislative framework across the country to mediate any disputes over surrogacy arrangements.

The submissions come in response to an issues paper, published this month by the attorney-general, in recognition of “changing social attitudes toward same-sex relationships and single parenting”.

The limited scope for surrogacy in Australia means many couples have spent hundreds of thousands of dollars in countries where risks are often higher and regulation may be insufficient to protect surrogates, babies and intended parents. For every child born through surrogacy in Australia, three or four are born via overseas arrangements.

When Ashley Scott and his now husband first wanted to start a family, adoption and fostering was illegal for LGBTQIA+ couples in NSW and working with a surrogate in the United States was unaffordable. “All surrogacy journeys are expensive and full of unknown costs,” he says. “In addition to the medical costs of IVF and surrogacy, there are the costs of travel, accommodation, citizenship applications, visas, passports … the list goes on.”

Now 13 and 10 years old, the children of Ashley and his partner were born through surrogacy in India and Thailand. Their conception is still technically illegal in NSW, where the family of four now lives.

“No one has ever been prosecuted under these laws,” he says. “The laws are ineffective and need to be removed. They force people to either move to other states while they are on their surrogacy journey or make the difficult choice to break the law to fulfil their dream of being parents.”

The Department of Home Affairs reports that the US is the leading destination for Australian couples seeking surrogates, while Georgia, Canada, Colombia, Ukraine and Mexico are common choices. Thailand, Cambodia and India have all banned commercial surrogacy in the past 10 years, following incidents of misconduct and ethical concerns from lack of regulation.

While people in Australia aren’t allowed to advertise that they would like to work with a surrogate or be a surrogate themselves (even altruistically), overseas agencies can pay to promote their services at trade shows and fairs, promising parenthood to people for exorbitant fees.

Ashley Scott’s hope is that people who need a surrogate to start their family can work with Australian surrogates and form a new organisation to support everyone in the process.

For this to be a reality, the federal government would need to consider broadening the options for people to become surrogates in Australia. However, the notion of paying people for this role typically raises concerns around the exploitation of women.

Sarah Jefford says the way to avoid exploiting women is to pay them for their time and energy.

“We’re not being paid to hand over a baby, we’re being paid for the risk, time and effort of the birth,” says Jefford, a family creation lawyer who has been a surrogate herself. “In the fertility industry, everyone is paid – lawyers, doctors, counsellors – everyone except the surrogate, who is the person doing the most work.

“We often talk about ‘commercial surrogacy’ and that is where people go to the worst case and talk about Indian baby farms. Compensated surrogacy is what we’re actually looking at. We could pay several thousand dollars per month around a regular, capped, regulated payment for the pregnancy and birth. We’re still acknowledging her bodily autonomy. They get the payment because they are pregnant or recovering. We will still have altruistic surrogates, that’s fine – I didn’t do it for money either.”

Surrogacy – compensated or altruistic – is arguably the most emotionally, physically and legally complex form of assisted reproduction. The ALRC’s issues paper clearly states that any reforms should protect and promote the human rights of all involved and centre the best interests of the child.

Incidents such as the “Baby Gammy” case, where a surrogate in Thailand was left with one of the twins of an Australian couple after he was diagnosed with Down syndrome, have instilled fear in an already contentious debate.

Academics and Catholic spokespeople have taken to social media this week to question the rights, bodily autonomy and physical make-up of surrogates, gay men and those who cannot sustain pregnancies. Families have had to rehash difficult memories and discuss their legitimacy in the public realm.

As these families confront stigma, they also navigate a legal system that often criminalises or ignores their realities.

“I don’t believe that opposers come from lived experience,” says Sarah Jefford. “They are reflecting on surrogacy as we knew it 10 years ago, that does not reflect Australian surrogates. And for the concerns of our wellbeing, thank you, but we can speak for ourselves.”

When she was first trying for her own children, Jefford struggled with fertility and found conceiving very stressful. “Then when I fell pregnant and he came along, I felt so grateful that I was able to carry this child and that he was mine,” she says. “I felt so grateful that my body could do this. I felt so powerful.”

Of her subsequent surrogate pregnancy, she says, “And now somebody is going to have life-long parenthood and they will be out in the world because of what I could give them as a surrogate.”

Jefford has had people tell her that surrogates are breaking a bond between themselves and the baby, and the two men for whom she carried a child were not the real parents.

“Neither of them gave birth, but how is that any different from my husband who cared for our babies?” she says. “He didn’t birth them, but he’s very much intended to be a parent to them and he can care for them deeply.”

Many prospective parents working with international surrogates face unexpected loss, and poor communication, says the head of Rainbow Dads Victoria, Costa Constantaras. Some have had overseas agencies report spontaneous “miscarriages” by their surrogates, due to uncertain legal environments. Parents have also been left unsure of the location and status of their remaining embryos, with no ability to check on the welfare of their surrogate.

Melbourne-based couple Yaniv Brayer and Phi Do picked the US because they heard it was the “gold standard” for surrogacy in the world. “It was important to us that our surrogate was remunerated for her efforts. That the arrangement was fully consensual and that she had agency in her decision-making,” says Brayer.

“Our journey hasn’t been easy,” says Do. “We’ve experienced a miscarriage and failed transfers. Not until we talked about it to our friends did we learn how common miscarriages are.”

“We initially didn’t consider Australia because we just felt like there was no system in place,” says Brayer.

In 1997, Izzy Calero-Rivarola was born via surrogacy. She says her parents had to fight “tooth and nail” to be allowed to take this route and be recognised as her parents.

Calero-Rivarola’s parents had explored different paths to parenthood after her mother’s hysterectomy, including local and international adoption. “They went through a lot to try and be parents and it took years before they decided to pursue surrogacy,” says Calero-Rivarola.

Her aunt eventually offered to donate her eggs and carry their pregnancy. Calero-Rivarola grew up knowing she was donor-conceived and born through surrogacy. “My mother told me that she and Dad couldn’t have children the usual way and that they needed help from a team of scientists, doctors, and my aunty, who made the most generous offer and gave them a life-changing gift.”

Many of those contributing to the ALRC review hope that it will allow more people desperate for children to access surrogacy in a way that minimises potential harm.

“As someone born through surrogacy, I see how much love, intention and effort goes into bringing a child into the world this way,” says Calero-Rivarola. “Your future kids will grow up knowing they were deeply wanted and fought for. And that kind of beginning? It’s powerful.”

This article was first published in the print edition of The Saturday Paper on July 12, 2025 as "Labour of love".

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