Why is Commercial Surrogacy Illegal in Australia?

Surrogacy is a form of fertility treatment where a woman who is referred to as the surrogate agrees to carry a pregnancy to term for an individual or a couple that is referred to as the intended parent or parents. The surrogate then delivers the baby and then transfers her parental rights to them, after which she is contractually paid or reimbursed for her expenses. This will be dependent on the type of surrogacy that was done. So why is commercial surrogacy illegal in Australia? 

Surrogacy is a drawn-out and complex process which requires a lot of involvement by all parties to make sure that the process is successful. This will include extensive counselling, legal advice for both the surrogate and the intended parents, and psychological and mental profiling of both parties.

Types of Surrogacy

Two types of surrogacy are practiced globally, the gestational or commercial form and the traditional or the altruistic form. The gestational form of surrogacy requires the in vitro creation of an embryo using the sperm and egg that were donated by the intended parents or donors. The embryo is then transferred to the surrogate’s uterus, which then carries the baby to term and delivers it. This ensures that the surrogate possesses no genetic or biological link with the baby. 

The other form of surrogacy is the traditional or altruistic form; the surrogate uses her eggs to get pregnant. She is artificially inseminated with the sperm from the intended father, or she has a uterine sperm injection to get pregnant. This creates a genetic link with the baby, which is not usually desirable with the intended parents.

Surrogacy in Australia

In Australia, surrogacy is regarded more as a relational than a transactional type of treatment. This means that not only is payment frowned upon, but the process could be drawn out and would require lots of commitment. The surrogacy process is not as normalized in Australia as seen in other countries. The joy of giving birth to a child for a couple who would not have become parents otherwise is the only benefit that surrogates are expected to receive from the procedure. This is why it is usually easier and maybe quicker for intended parents to seek surrogacy outside Australia. However, this does not mean that there are no benefits to seeking surrogacy in Australia.

What are the laws regulating surrogacy in Australia?

The laws regulating surrogacy in Australia differ from state to state, while the Northern Territory has no regulations at all. This makes it a bit difficult to navigate the restrictions that are placed on the acquiring of the services of a surrogate and also the ones that are for the intended parents. There are some general laws and rules that are in place that can help guide the intended parents who are considering having their surrogacy treatment in Australia. These laws apply to all the areas in Australia apart from the Northern Territory, and they include:

• Commercial surrogacy is illegal in ALL areas of Australia.
• The surrogate must be at least 25 years or older to enter into any surrogacy agreements. However, this law is modified in South Australia and the Australian capital territory as the minimum age for surrogacy is 18 years.
• Surrogacy is open to same-sex couples in all areas of Australia except Western Australia.
• There should always be a medical reason for surrogacy in most Australian jurisdictions. But in New South Wales, Tasmania, Victoria and Queensland, surrogacy for social reasons is allowed, the social reason being the case concerning same-sex couples or single intended parents.
• Western Australia disallows age as a medical validation for surrogacy.
• Surrogates in Victoria, Tasmania and the Australian Capital Territory cannot serve as surrogates unless they have previously successfully carried a pregnancy to term.
• Apart from the Australian capital territory, single women can become surrogates in all states in Australia.
• A written agreement outlining the terms of surrogacy is required in all states and territories of Australia apart from Victoria, and the Australian capital territory.
• Apart from the Australian capital territory, traditional surrogacy is legal in all states in Australia.
• Surrogacy advertisements are not allowed in Victoria, Queensland and the Australian Capital Territory. This restriction also includes any form of online publication.

These laws can be quite confusing. Therefore, it is advised for the intended parents to consult an experienced family lawyer in their state or territory. Some states in Australia, like Queensland, New South Wales, and the Australian Capital Territory provide laws that restrict their residents from pursuing abroad commercial surrogacy treatments. This means that they criminalize their residents seeking surrogacy abroad. However, for residents in other states and territories, after considering the stringent and confusing laws regulating surrogacy in Australia, they may choose to pursue their surrogacy abroad. These surrogacy services are offered by medical health travel agencies that facilitate the process for the intended parents.

What are some of the qualities to look for in a surrogacy agency?

The search for the right agency to handle surrogacy treatment abroad is a very important one. The intended parents should be thorough in their search. This is because a lot of work goes into the [planning and coordination of a surrogacy process. The agency works and guides the intended parents through the process ensuring that they undergo as little stress as possible while protecting their interests. The three main qualities an agency should possess include:

Client friendliness 

This is very important; the agency should be able to offer full-service support throughout the surrogacy journey. The wide array of professionals needed for advice and guidance of the intended parents should be readily available. They should also be kind and patient with the intended parents to smoothen the process and remove as much stress as possible.

Experience 

This quality is also very important. This is because surrogacy is subject to new and ever-changing laws and regulations. The agency must be current with the new laws that regulate surrogacy in the country or region where the intended parents want to carry out the surrogacy. This ensures a positive and successful surrogacy journey for the intended parents.

The interest of the intended parents 

The surrogacy agency should boast of a good and accomplished legal team that can be able to ensure that the parental rights of the intended couple are safeguarded and upheld.