Over eight years, Ethan and his wife endured nine rounds of IVF in Melbourne and two more in Spain, all without success. Finally, someone suggested surrogacy. 'We kind of looked at each other,' Ethan says. 'It’s the last station on the track.'
Australian states and territories allow altruistic surrogacy, where only expenses are covered, but commercial surrogacy is illegal. Consequently, hundreds of Australians travel overseas each year seeking parenthood. The Australian Law Reform Commission (ALRC) is now examining how to better regulate surrogacy and harmonise laws with international obligations while protecting human rights, particularly the child's best interests.
Stories of Desperation and Complexity
Among more than 400 submissions to the ALRC are tales of complicated legal scenarios and painful medical wrangling. One submission describes a couple's 'often perilous odyssey' after six IVF cycles, when war trapped their embryos in Kyiv, only for them to be lost in a power outage. They tried again in Georgia, but that nation legislated a ban, voiding their contract. Another details sperm travelling between locations in Ukraine over two to three years due to the war. The surrogacy succeeded, but obtaining Australian citizenship by descent for the child proved difficult.
Ethan considered South America but read about cartel behaviour and human trafficking. He looked into northern Cyprus, but Australia does not recognise the breakaway state, so any child born there would not be eligible for Australian citizenship by descent. Having already spent hundreds of thousands on IVF, he could not afford $250,000 for surrogacy in the US. So he went to Ukraine, signing a contract for $125,000 for the surrogacy program and spending another $60,000 on travel and costs. Their daughter is now nine months old. 'We’re still in a chat group with our surrogate mother,' Ethan says. 'She was excellent. We would send soundbites and she would put it to her stomach and play it to our baby.' Altogether, the couple spent about $450,000 from first IVF to having a daughter.
Costs and Risks of Overseas Surrogacy
The Department of Foreign Affairs and Trade (DFAT) says in its submission that more than 1,300 children born through offshore surrogacy have been given Australian citizenship in the past five years. Costs range from under $50,000 in 'very high-risk, unregulated developing nations' to more than $300,000 in 'highly regulated developed nations'. DFAT notes that about 5% of children born by surrogacy to Australians are abandoned, translating to more than 18 babies each year.
The National Health and Medical Research Council advises that altruistic surrogacy is acceptable, while commercial surrogacy is ethically unacceptable 'because it raises concerns about the commodification and exploitation of the surrogate, the commissioning parent(s) and any person born as a result of the surrogacy arrangement'.
Calls for Better Regulation
Sarah Jefford, a lawyer and author of More Than Just a Baby, does not oppose financial compensation within a good legal framework with informed consent. She says the vast majority of Australian surrogacy arrangements are altruistic with friends or family, but those without a willing surrogate are driven to social media or overseas. About three in four choose the overseas option, putting them and their surrogate at risk of exploitation. 'The best thing we can do about that is make it safer in Australia, where we can protect the rights of women and children,' she says.
Jefford notes the industry uses slick marketing with AI pictures of couples with infants, promising 'guaranteed baby packages'. 'They’ve had miscarriages and cancer diagnoses. They’ve saved up, they’re so desperate. Some intended parents don’t say “at all costs”, they worry about ethics. Others will still do it at all costs.'
Opposition from Religious Groups
Many conservative and religious groups have made submissions vehemently opposed to surrogacy. FamilyVoice says there is no case for surrogacy and points to factors like 'delayed childbearing, abortion (especially multiple abortions), and promiscuity and associated sexually transmitted infections'. The Australian Christian Lobby argues children should be raised by 'their two natural, co-residential, married parents'. ADF International, the global offshoot of the ultra-conservative Alliance Defending Freedom, calls for an international moratorium on surrogacy followed by complete abolition, citing exploitation of women as in India.
The ALRC’s discussion paper with 41 proposals—including more consistent regulation and streamlined processes—shows it is not considering an absolute ban. Its final report is due on 29 July. Jefford, who was herself a surrogate, says: 'I don’t think I’m pro-surrogacy. I’m not “pro” people having babies. I am “pro” having people make informed decisions. And that includes making reproductive decisions such as having a baby [as a surrogate] and not raising it.'
