New South Wales Attorney General Considers Changes to Surrogacy Law

Family looking at the sunset

Australia may soon see an important change in the way it regulates the practice of gestational surrogacy, if Gabrielle Upton has her way. As the Attorney General and Liberal MP for the state of New South Wales, Upton is fighting to loosen restrictions upon assisted fertility treatments within her jurisdiction. It is her firm hope that, should she be successful in her current efforts, the rest of the country will follow New South Wales' example.

“I am determined to ensure our laws make surrogacy easy,” says Gabrielle, who already has all eyes upon her after a series of early professional accomplishments. Among others, she is the first woman to hold the position of Attorney General in New South Wales.

“Most importantly, our laws need to put the interests of the child front and center.”

Prior to her current appointment, Gabrielle's expansive and varied political career most recently included her tenure as Minister for Family and Community in New South Wales, and she has long been an outspoken advocate for the welfare of children and young mothers. Her current push for revisions to the NSW Surrogacy Act of 2010 follows a critical review of the law by Family Court of Australia. The Act is presently under review by the Department of Justice.

A Steady Increase in The Use of Surrogates

According to this article in the Sydney Morning Herald, the use of gestational surrogacy as an assisted fertility treatment is on the rise across Australia. “The topic has been in the news,” according to surrogacy lawyer Stephen Page. “The rise in instances of its use appear to correlate with a gradual increase in public awareness.”

Mr. Page went on to suggest that, as the topic continues to gather momentum, “more and more hopeful parents would be turning to an option previously unknown to them, as a means of starting a family.”
Without access to the ability to find a convenient surrogate, or to compensate a surrogate for their time, intended parents in Australia often find themselves pursuing assistance in countries with less restrictive fertility laws. This adds significantly to what is already an expensive proposition.

The cost of pursuing a commercial surrogacy arrangement in India can rise as high as AU $80,000 or more. If the intended parents choose to pursue assistance within the American surrogacy industry, their total costs will almost invariably exceed AU $200,000.

Assisted Fertility and Surrogacy in Australia

Australian law currently allows for altruistic surrogacy only, meaning that surrogate mothers may not be compensated for their services beyond seeing that their expenses are taken care of; the total cost runs from between AU $25,000 to AU $60,000.

The law also states that intended parents cannot legally advertise for a surrogate, which is where Gabrielle Upton is angling her approach – at least for starters. She would like to start by seeing the law changed, to allow for advertisements for altruistic surrogacy arrangements. According to Upton, the present review by the Australian Department of Justice involves “potential reform” in this respect.

There are other restrictions in place as well, which the NSW Attorney General likewise wishes to see lifted. Currently, intended parents must wait until thirty days after the birth of a child before applying for legal parent status. Without any clear evidence that this measure works in favor of the child's best interests, Gabrielle and others would like to see this waiting period removed.

Dr. Lyndon Hale is the medical director at Melbourne IVF, and the Director of Reproductive Surgery at The Women's Hospital. While he has yet to weigh in publicly on the debate of allowing for commercial surrogacy, he agrees that some measure of reform is needed – particularly in view of how many intended parents are traveling abroad to find surrogates.

“It is very important to have a good relationship between the commissioning parents and the surrogate,” says Dr. Hale. He is one of several individuals in the field to be recommending an official inquiry into the legal and and regulatory aspects of surrogacy arrangements, a recommendation which was recently echoed by the House of Representatives standing committee on social policy and legal affairs.