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Review of Surrogacy Laws: Issues Paper

Submission Date: 31 July 2025

The Law Council of Australia provided a submission to respond to the Issues Paper published by the Australian Law Reform Commission (ALRC) as part of its Review of Surrogacy Laws.

The Review—initiated by the then Commonwealth Attorney-General in December 2024—is welcome due to the significant legal uncertainty in Australia in respect of surrogacy, particularly in relation to surrogacy arrangements that occur outside of Australia. This uncertainty arises from the complicated interaction between State, Territory, and Commonwealth laws, as well as the distinct legal systems of the jurisdiction where a birth via surrogacy takes place.

As acknowledged by the ALRC in the comprehensive Issues Paper, the legal complexities in this area are compounded by inconsistencies across State and Territory laws governing surrogacy arrangements. This absence of uniformity has resulted in a general lack of knowledge and understanding in the community about surrogacy laws and arrangements, both domestically and overseas.

We acknowledge that this is a preliminary consultation and that the ALRC intends to publish a Discussion Paper in November 2025, seeking feedback on specific options for reform.1 Consequently, the Law Council’s views as set out in this submission should be regarded as preliminary.

Surrogacy is complex from a policy and legal perspective, noting that there is variance in approaches, both domestically and internationally. Surrogacy is currently regulated by the States and Territories, as the Commonwealth does not have the power to legislate with respect to surrogacy arrangements. However, Commonwealth legislation sets out the statutory framework for obtaining parentage orders,2 which is supported by legislation in each State and Territory.

The Law Council does not seek to comment specifically on the merits of surrogacy laws in individual States and Territories, nor the appropriateness of the prohibition on commercial surrogacy in all Australian jurisdictions—recognising that there is considerable nuance to the debate.3 Rather, this submission provides the Law Council’s preliminary views on matters relating to:

In light of the unique legal and ethical issues raised by surrogacy arrangements, as identified in the Issues Paper, it would be appropriate to establish a uniform regulatory approach across all Australian jurisdictions, particularly to minimise jurisdiction shopping or ‘forum shopping’. Such an approach must be sufficiently robust to place paramount consideration on the rights and interests of a child born through surrogacy, and to ensure adequate human rights protections for children, surrogates, and the intended parent(s).

The Law Council commends the ALRC on its progress on the Review to date, and looks forward to contributing further once the Discussion Paper is published.

1 ALRC, Review of Surrogacy Laws – Issues Paper (Issues Paper 52, June 2025) 3.
2 Family Law Act 1975 (Cth) ss 60H, 60HB; see also Family Law Regulations 2024 (Cth); Prohibition of Human Cloning for Reproduction Act 2002 (Cth) ss 21, 24.
3 The legislation in almost all Australian jurisdictions uses the term ‘commercial’ surrogacy to refer to any surrogacy arrangement where the surrogate receives payment beyond reimbursement of reasonable expenses: ALRC, Review of Surrogacy Laws – Issues Paper (Issues Paper 52, June 2025) 23.

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Last Updated on 19/08/2025

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