Terms of Reference

I, the Hon Mark Dreyfus KC MP, Attorney-General of Australia, having regard to

• surrogacy providing Australians who are unable to give birth an opportunity to have a child;
• the medically, emotionally, financially and legally complex nature of surrogacy arrangements;
• the legislative responsibilities that states and territories have with regards to surrogacy laws, and current inconsistencies in legislative arrangements across Australian jurisdictions;
• the human rights of children born of surrogacy, their surrogate mothers and intended parents, and the risks commercial surrogacy can pose to vulnerable women and children;
• the increasing access by Australians to surrogacy arrangements and services overseas.

REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to s 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a review of Australian surrogacy laws, policies and practices to identify legal and policy reforms, particularly proposals for uniform or complementary state, territory and Commonwealth laws, that:

• are consistent with Australia’s obligations under international law and conventions; and
• protect and promote the human rights of children born as a result of surrogacy arrangements, surrogates and intending parents, noting that the best interests of children are paramount.

In particular, the ALRC is asked to consider:

• how to reduce barriers to domestic altruistic surrogacy arrangements in Australia, including by ensuring surrogates are adequately reimbursed for legal, medical and other expenses incurred as a consequence of the surrogacy;
• how surrogacy arrangements made outside of Australia should be addressed by Australian law;
• what is the appropriate recognition of legal parentage in Australia for children born of surrogacy overseas, and how may citizenship, visa and passport requirements for children born of surrogacy overseas be aligned;
• the information that should be available to children born from surrogacy arrangements, including what information should be included on a child’s birth certificate in order to meet Australia’s human rights obligations under the Convention on the Rights of the Child.

In undertaking its inquiry, the ALRC should consider Australia’s human rights obligations and any findings and recommendations of the 2021 Working Group on Surrogacy Final Report to Attorneys-General and Relevant Ministers: Opportunities to achieve national consistency in surrogacy regulation in Australia, the 2016 House of Representatives Standing Committee on Social Policy and Legal Affairs Surrogacy Matters report and Australian Government response, the 2013 Family Law Council report on Parentage and the Family Law Act 1975, the 2009 report of the Standing Committee of Attorneys-General A Proposal for a National Model to Harmonise Regulation of Surrogacy, the UN Special Rapporteur on the sale and sexual exploitation of children 2019 Thematic study of safeguards for the protection of the rights of children born from surrogacy arrangements and 2018 Thematic study on surrogacy and sale of children, and relevant reviews of state and territory surrogacy legislation since 2017.

Consultation

In performing its functions in relation to this reference the ALRC will undertake public consultation, and identify and consult with key stakeholders, including relevant government departments  and agencies, legal advocacy and human rights bodies in Australia, members of the legal profession and other experts who specialise in surrogacy or human rights matters, members of the medical, psychology or counselling profession who specialise in surrogacy matters, fertility industry bodies and lived experience cohorts, including surrogates, intended parents and individuals born from surrogacy arrangements.

Timeframe

The ALRC should provide its final report to the Attorney-General by 29 July 2026.