I wish I could be shocked by the antics of the Australian Law Reform Commission (ALRC) but unfortunately, nothing it does surprises me anymore.
This week, the ALRC has released its issues paper on its review of surrogacy laws in Australia, inviting submissions on the proposals raised and questions asked by 19 December 2025.
I would like to think it accidental that submissions to this inquiry are due just before Christmas, when churches across the country are busy preparing for one of our greatest feasts, but over the years, I have seen too many inquiries on critical social and ethical issues rammed in the last few weeks of the year to think they all must be a coincidence.
But even more concerning than the timing are the proposals that the ALRC presents for comment.
As a starting point, the ALRC takes surrogacy as an unmitigated good, the legal, economic and social barriers to which need to be removed.
In terms of the legal barriers, the ALRC wants to remove any criminal penalties for commercial surrogacy arrangements, in Australia and overseas, establish a legal mechanism for money to be paid for surrogacy services, and only provide civil penalties rather than criminal for a breach.
Given that the existing criminal sanctions have never been enforced, it is hard to imagine that civil penalties will be much of a deterrent to bad and exploitative practices.
The ALRC wants to severely restrict the ability of the courts to provide any oversight at all.
For example, under current NSW law, any baby born of a surrogacy arrangement in this state is legally recognised as the child of its birth mother, and intended parents are required to apply to the Supreme Court to have legal parentage transferred to them.
The court will only approve this if a number of preconditions have been met.
The ALRC’s proposal is to remove the requirement of judicial oversight and allowing a new (and undoubtedly, expensive) bureaucracy to approve surrogacy agreements prior to a child being born.
The bureaucracy would never have to meet or interview the surrogate mother or the intended parents but could simply make the approval based on application forms sent through.
Once approved, the child is immediately registered as the legal child of the intended parents from the moment of birth. The only time court intervention would be required would be if the arrangement occurred overseas or it had not first been approved by the bureaucracy.
This is a dramatic change to the current law and strips away significant protections from the surrogate mum.
Even the mandatory protections the ALRC proposes to be contained in law are limited. For example, the ALRC considers one individual and one joint counselling session to be a sufficient safeguard before entering into a surrogacy arrangement. [While it’s probably more than what kids wanting puberty blockers are currently given, it’s not enough to ensure someone understands the enormity of this process.]
In terms of the economic barriers, not only does the ALRC propose to allow for significant amounts of money to change hands (including an unspecified, subjective amount for things like the discomfort experienced during pregnancy,) it also wants the assisted reproduction, psychological assessments and counselling involved to be available through Medicare, ie. taxpayer-funded.
And in terms of the social barriers, the ALRC wants surrogacy services to be freely advertised and is equivocal on whether requiring a criminal history check for intended parents might be a bridge too far.
With the above being just a handful of the 41 proposals contained in the ALRC paper, it is hard to see that this will not be another predetermined outcome from the ALRC.
The only safeguard for vulnerable women and children will be that the Australian government is courageous enough to reject its recommendations.
Who wants odds?
