The new surrogacy parentage laws in Australia: Cautious regulation or '25 brick walls'?

Publication Type:
Journal Article
Melbourne University Law Review, 2011, 35 (1), pp. 165 - 207
Issue Date:
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This article critically analyses recent law reforms that have taken place throughout Australia allowing for the transfer of legal parentage in surrogacy arrangements from the birth mother (and her partner, if any) to the 'intended parents'. Although styled as liberalising reforms, the increasingly complex web of eligibility rules are likely to be an ill fit with the existing and future family formation behaviours of those involved in surrogacy, and may ultimately exclude more families than they assist. While surrogacy policy throughout Australia aims to prevent the exploitation of women who act as birth mothers, prevent the commercialisation of reproduction and protect the interests of current and future children born through these means, this article argues that the reforms are unlikely to meet these aims. The interest of children in having a legal relationship with the parents who are raising them will not be met for many, as half of the regimes exclude children conceived outside the jurisdiction and all of them exclude arrangements where payment has been made to the birth mother. Potential harms are not being prevented, but rather are being exported elsewhere through the increasing incidence of international surrogacy. A more flexible and inclusive approach to parental transfer, such as that which currently exists in United Kingdom law, is recommended.
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