Traditional surrogacy to finally be permitted in Territory under 'ground-breaking' proposed law changes

Canberrans wanting to fulfil their dream of having a family will have more surrogacy options open up to them under reforms to be introduced to the Legislative Assembly

Human Rights Minister Tara Cheyne will introduce new legislation today (31 October) that she says will provide better clarity and certainty, as well as provide adequate protection of the human rights of children, surrogates and intended parents in surrogacy situations.

“It will mandate legal advice, counselling, a written agreement before conception and age criteria for surrogates while respecting their pregnancy and birth rights,” she said.

While the ACT was the first jurisdiction to legislate surrogacy, with its regulation governed by the Parentage Act 2004, advocates in the area have expressed their concerns the law is now outdated.

Previously, traditional surrogacy was not permitted, advertising and procuring processes for altruistic surrogacy arrangements were restricted, it did not allow single people access to surrogacy and mandated that the surrogacy procedure had to occur in the ACT.

Ms Cheyne’s bill aims to remove these restrictions.

The Parentage (Surrogacy) Amendment Bill 2023 has been designed to better align the ACT’s surrogacy laws with other Australian jurisdictions, improve access and strengthen requirements for altruistic surrogacy, and create a framework for those entering surrogacy arrangements.

Traditional surrogacy will be allowed under the changes, removing the requirement that one intended parent must be a genetic parent of the child. This aims to make it easier for couples where both parties may experience infertility to be able to use surrogacy arrangements.

More flexibility will be created for altruistic surrogate arrangements, where the sperm or egg (or both) of a couple is implanted, meaning the surrogate has no genetic relation to the child.

The new legislation will allow more surrogate expenses to be covered by the intended parents so that surrogates aren’t out of pocket during their pregnancy.

It will require surrogates to be aged 25 years or older, however, they can be aged 18 to 25 if a counsellor is satisfied the surrogate has “sufficient maturity and understanding” of the arrangement.

Commercial surrogacy remains illegal, however, this bill will allow the Supreme Court to grant parentage orders for children born through commercial surrogacy if a child is facing a “pressing disadvantage”. This aims to ensure children are not disadvantaged due to the circumstances of their birth.

It’s music to the ears of those behind the All Kids Are Equal Campaign, which was created at the start of the year to push all Australian jurisdictions to update their surrogacy laws.

Spokesperson Ashley Scott, a gay dad whose family was created through an international surrogate, said the “ground-breaking” changes were a step towards recognising and protecting children’s rights and welfare, as well as setting a strong precedent for other states and territories to follow.

“At the heart of the Bill introduced today is the principle that all children deserve equal recognition, protection, and access to their legal rights, regardless of the circumstances of their birth,” he said.

“It encompasses provisions to reduce barriers to altruistic surrogacy, strengthen safeguards for all parties involved, and crucially, addresses the pressing issue of children born through commercial surrogacy overseas.

“While there is still progress to be made to ensure that children who are born through international commercial surrogacy arrangements have their rights safeguarded, the ACT’s amendments mark a significant step towards greater inclusivity and protection for all children in all surrogacy situations.”

Removing the requirement for a surrogacy procedure to be performed in the Territory, as well as expanding altruistic surrogacy, would make the options much more accessible for Canberrans.

“Previously, donors had to travel here, so they were coming from interstate and even overseas,” Mr Scott said.

“Removing this makes it much easier for people to use the surrogate they want, and the sperm donor or egg donor they want.”

While advocates have welcomed the changes, there’s still more to be done in this space.

“There is still much more to accomplish on the path to full equality and justice for all children. It is crucial that we continue our collaborative efforts to bring about further reforms and ensure that no child is left behind,” Mr Scott said.

“We call on the Federal Government and other states and territories to follow the ACT’s lead, prioritise children’s rights, and create a fair and inclusive society.

“Reform means more people are able to realise that dream of becoming a parent.”