Page, Stephen --- "Surrogacy in Australia: The 'failed experiment'?" [2023] PrecedentAULA 6; (2023) 174 Precedent 22

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SURROGACY IN AUSTRALIA

THE ‘FAILED EXPERIMENT’?

By Stephen Page

In a country of 25 million people, Australia has somehow come up with eight, soon to be nine, systems of laws for surrogacy. In some states, this has criminalised those undertaking commercial surrogacy overseas. However, the laws have not been enforced, with many more children being born overseas through surrogacy than in Australia.

The rise of IVF 40 years ago led inexorably to third-party reproduction. This has included egg, sperm and embryo donation, and the most complex form – surrogacy – which is third-party reproduction plus a method under the law by which the intended parents are recognised as the parents. In about the last ten years, state and territory parliaments have legislated to regulate altruistic surrogacy and criminalise commercial surrogacy. This was the second wave of Australian surrogacy laws. The first wave, in response to the 1988 United States (US) case Matter of Baby M^[1] in which a New Jersey court ruled concerning a surrogacy agreement, sought to prevent surrogacy being undertaken. The most far-reaching of the state legislation was the Surrogate Parenthood Act 1988 (Qld) (now repealed), which prohibited all forms of surrogacy (traditional,^[2] gestational,^[3] commercial and altruistic) in Queensland, and outside of Queensland if undertaken by those who ordinarily resided in Queensland.

The scheme currently adopted in all Australian state and territory laws is that while the defined, out-of-pocket expenses of the surrogate are to be paid, payment of a fee to a surrogate is illegal. This reflects the thinking that if surrogates are paid a fee they are necessarily exploited.

TABLE 1 – PRINCIPAL SURROGACY LAWS

Jurisdiction	Act
ACT	Parentage Act 2004
NSW	Surrogacy Act 2010
NT	Surrogacy Act 2022[4]
Qld	Surrogacy Act 2010
SA	Surrogacy Act 2019
Tas	Surrogacy Act 2012
Vic	Assisted Reproductive Treatment Act 2008 Status of Children Act 1974
WA	Surrogacy Act 2008

THE SPECIAL CASE: WA

In WA surrogacy restrictions are:

• Single men and male couples^[5] are excluded.

• Uniquely, a gamete donor is a party, with their spouse, to the surrogacy arrangement^[6] and they must have independent legal advice and counselling before entering the arrangement (all paid for by the intended parents). The gamete donor must therefore be known, excluding clinic-recruited donors.

• Two types of counselling or assessment are required before approval can be sought.^[7]

• WA is one of three jurisdictions by which the state regulator approves the arrangement,^[8] the others being Israel^[9] and Victoria.^[10]

• Once an application is made to the state regulator, a three-month cooling off period applies.^[11]

• After the child is born, the court will not normally make a parentage order unless a suitable plan as to the involvement of the surrogate and partner has been agreed.^[12]

While each barrier (aside from the discrimination against single men and same sex couples) appears in itself to be reasonable, in combination the process is so onerous that WA residents vote with their feet and go overseas, even though to do so is often a criminal offence (for which they are not prosecuted).^[13]

MOST AUSTRALIAN SURROGACY OCCURS OVERSEAS

Only about one in five children born via surrogacy to Australian intended parents are born domestically. In WA, the number is closer to one in 20+,^[14] which seems much like the episode of BBC Comedy Yes Minister, ‘How to run a hospital’,^[15] in which, according to public servant Sir Humphrey Appleby, the hospital in question is particularly efficient, has great statistics, great hygiene and employs hundreds of staff – but has no patients.

More than half of all Australians are first- or second-generation migrants.^[16] Consistent with that diversity is an extraordinary spread of countries where children have been born via surrogacy to Australian-intended parents. My experience is that intended parents who have migrated are familiar with the culture and legal landscape of their homeland and seek to undertake surrogacy in that country and return with their child to Australia. Such countries have included: Ghana, Nigeria, Iran (where there are no laws concerning surrogacy), Bangladesh and Sri Lanka. However, most Australian children born overseas through surrogacy are born in a small number of countries (see table 2).

TABLE 2 – TOP SIX SURROGACY COUNTRIES FOR AUSTRALIANS (2021)^[17]

Ranking	Country	Number of births
1	US	76
2	Ukraine	38
3	Canada	28
4	Georgia	27
5	Mexico	9
6	Thailand	8
Total of top 6		186
Total births all countries		223
% of births from top 6 countries		83

In recent years, the US has been the country in which most Australians have undertaken surrogacy, followed by Ukraine, although as a result of the war it is likely that fewer births through surrogacy will be happening there for some time.

The most illuminating figures are from Thailand. Following Farnell and Chanbua^[18] (the Baby Gammy case) and the ‘baby factory’ discovered in 2014 (in which 19 children were born through parallel surrogacy journeys to Thai and Cambodian surrogates for Mitsutoki Shigeta, the son of a Japanese dot com billionaire^[19]), Thailand changed its laws to greatly restrict surrogacy.^[20] Changes included:

• The intended parents must only be heterosexual couples, of whom one holds Thai nationality, and they must have been married for at least three years.

• The surrogate must be a sibling of one member of the couple, be married, have the permission of her husband to be the surrogate and have already birthed at least one child.

Although there are Australians of Thai origin, one would surmise that the number of Australian children born via surrogate in Thailand from 2016^[21] would be minimal. The numbers reveal otherwise (see table 3).

TABLE 3 – AUSTRALIAN CHILDREN BORN VIA SURROGACY IN THAILAND^[22]

Year	Number of births
2015	97
2016	19
2017	12
2018	9
2019	10
2020	11
2021	8

Anecdotal evidence from clients and news reports indicates that sperm donation has occurred in Cambodia and fertilisation of embryos in Laos, with Thai egg donors travelling to Laos to donate their eggs and Thai surrogates travelling to Laos to become pregnant.^[23] Porous borders have helped. Thai surrogates have given birth for Australian parents in Thailand, Malaysia and China.

In February 2022, the Thai Government announced that it was considering allowing commercial surrogacy, as this would allow it to regulate the practice and reduce the risk of the trafficking of women and children.^[24]

TABLE 4 – AUSTRALIAN CHILDREN BORN VIA SURROGACY IN THE US^[25]

Year	Australian surrogacy births: US	Australian surrogacy births: domestic
2016	49	37
2017	66	51
2018	67	71
2019	95	61
2020	120	76
2021	76	N/A

It appears that more Australian children are being born through surrogacy in the US than through surrogacy in Australia (see table 4). However, it must be considered that there is lack of clarity on the number of births in Australia via surrogacy. Accurate statistics are not available for the ACT, NSW, NT, SA or Tasmania, mainly because data on the number of surrogacy applications is not published. Courts in Queensland and Victoria have kept statistics on the number of parentage orders.^[26] In WA, records for every five births (which is not every year, there being on average one birth a year in WA through surrogacy) have been reported.^[27]

IVF clinics in Australia report births to the Australia and New Zealand Assisted Reproduction Database (ANZARD). There are two limitations to the ANZARD surrogacy data:

1. there is no breakdown of data between Australia and New Zealand (NZ); and

2. surrogacy births are limited to gestational surrogacy through IVF.

As a rough and ready guide, I have sought to divide the number of births in Australia and NZ based on the relative populations of each country.^[28] The New Zealand Law Commission estimates that there are 50 births a year in NZ for both domestic and international surrogacy, but gave no basis for that estimate.^[29]

ANZARD figures are in calendar years; Department of Home Affairs data are in financial years. ANZARD figures are typically two years behind.

TABLE 5 – COMPARISON OF INTERNATIONAL AND DOMESTIC BIRTHS VIA SURROGACY IN AUSTRALIA^[30]

Domestic		International
2009	16	2009	10
2010	13	2010	< 10
2011	19	2011	30
2012	16	2012	266
2013	29	2013	244
2014	30	2014	263
2015	43	2015	246
2016	37	2016	204
2017	51	2017	164
2018	71	2018	170
2019	61	2019	232
2020	76	2020	275
2021	N/A	2021	223
Total	462		2,327+

There is an extraordinary jump between 2010 and 2012 in international births, from less than ten to 266. International births have remained at about 200 ever since.

CRIMINALISATION OF OVERSEAS COMMERCIAL SURROGACY

Four jurisdictions criminalise overseas commercial surrogacy: Hong Kong,^[31] the ACT,^[32] NSW^[33] and Queensland.^[34] Under their respective long-arm laws, residents of SA^[35] and WA^[36] could also commit criminal offences by engaging in commercial surrogacy overseas. When the Surrogacy Act 2022 (NT) commences, NT residents will also be subject to long-arm laws in undertaking surrogacy overseas.^[37]

In 2011, two Queensland couples were referred by the Family Court for possible prosecution for engaging in commercial surrogacy in Thailand.^[38] They were not prosecuted. In 2021, two couples were referred by the Family Court^[39] to NSW authorities for consideration for prosecution for engaging in commercial surrogacy. They also appear not to have been prosecuted.

In Australia, no one has ever been prosecuted for undertaking overseas commercial surrogacy. Between 2009 and 2021, more than 2,327 Australian children were born overseas through surrogacy.^[40] Many of the parents come from Australian jurisdictions where their surrogacy journeys were apparently unlawful.

In late 2010, the NSW Labor Government successfully amended the Surrogacy Act 2010 (NSW) to criminalise overseas commercial surrogacy.^[41] There was a firestorm of publicity.^[42] The intent was to prevent the exploitation of women and deter NSW residents from undertaking surrogacy in developing countries;^[43] at the time, India was a major surrogacy destination.

In response, Surrogacy Australia was formed and seminars were held with IVF doctors from India about how to undertake surrogacy in India.^[44] Contrary to the intention of legislators in NSW, the numbers of Australian children being born in India exploded (see table 6). The numbers have since dropped due to restrictions in Indian law, which came into effect in 2012.^[45]

TABLE 6 – AUSTRALIAN SURROGACY BIRTHS IN INDIA^[46]

Year	Number of births
2009	< 10
2010	< 10
2011	< 10
2012	227
2013	191
2014	108
2015	74
2016	54
2017	14
2018	< 5
2019	< 5
2020	< 5
2021	0

The number of births overseas, especially in India, demonstrate that the approach of seeking to criminalise overseas commercial surrogacy is, in the words of two NZ academics, a ‘failed experiment’.^[47] Australia’s laws have the effect of exporting intended parents, often to countries that have fewer protections and worse quality IVF than we do.

Barriers to prevent intended parents from bringing their children home are likely to fail for two reasons:

1. In the United Kingdom (UK), where there is a requirement for intended parents to set out how much they spend on surrogacy, the law discourages engaging in commercial surrogacy overseas; however, intended parents are often ignorant of these restrictions, as cases such as Re X and Y (Foreign Surrogacy)^[48] make plain. In all cases, the court has made an order reflecting that the intended parents are the parents.

2. Australia is a party to the United Nations Convention on the Rights of the Child^[49] (Convention). Relevant obligations include:

• ‘the best interests of the child shall be a primary consideration’ (art 3);

• the child shall ‘have the right to know and be cared for by his or her parents’ (art 7);

• ‘the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference’ (art 8);

• nations shall take ‘measures to combat illicit transfer and non-return of children abroad’ (art 11); and

• ‘[n]o child shall be subjected to arbitrary or unlawful interference with his or her privacy’ or family (art 16).

Therefore, while the Convention is not part of our domestic law,^[50] it imposes an obligation on Australia to take the children born via surrogacy back to Australia.

CHILDREN BORN OVERSEAS DO NOT END UP IN THE FAMILY COURT

The expectation of many practitioners is that an overseas surrogacy journey necessarily involves completion with an order under the Family Law Act 1975 (Cth) (Family Law Act). There have been very few such cases. Obtaining an order under the Family Law Act is not required for the purposes of the Australian Citizenship Act 2007 (Cth) or the Family Law Act: who the parent is, for both Acts, a question of fact.^[51]

Given the substantial cost^[52] and stress the parents have already undertaken in their overseas surrogacy journey, and already armed with birth and citizenship certificates, parents avoid going to court.

DOMESTIC SURROGACY PROCESS

An altruistic surrogacy arrangement is entered into between the surrogate (and her partner if she has one) and the intended parent/s. Prior to entering the arrangement, they undertake mandatory counselling and obtain independent legal advice. As mentioned earlier, in two states (Victoria and WA) approval of the state regulator is required before the arrangement can proceed. Traditional surrogacy is allowed in most states.^[53]

In most states,^[54] the surrogacy arrangement is written, and for most purposes it is not binding. The surrogate cannot be compelled to relinquish the child. In at least one recent case, she refused to do so.^[55]

At birth, the surrogate (and her partner) are the lawful parents. Between one and six months after birth, an application is made to the state or ACT court to transfer parentage from the surrogate and her partner to the intended parents. Once the order is made, the intended parents are recognised as the parents^[56] – except, in limited cases, in Victoria. If an interstate parentage order is made for a child born in Victoria, Victoria refuses to allow the intended parents to be recognised as the parents on the birth register in Victoria unless a registration order has been obtained in Victoria.^[57] This may be intended as an anti-avoidance measure because of a belief that Victorians go interstate for surrogacy – but in reality, the number of Victorians who go interstate would be small compared to the number who pursue surrogacy overseas.

WHY DO INTENDED PARENTS GO OVERSEAS?

I have advised in about 1,800 surrogacy journeys for clients throughout Australia and at last count 32 countries overseas. Among other reasons, my clients have told me:

• They did not know surrogacy was available locally.

• A local surrogate or egg donor or both cannot be found.

• Surrogacy overseas is welcoming, and able to be done.

• They have been advised by other parents through social media or attended seminars of how it can be done.

• Surrogacy overseas is perceived as quicker than at home.

• They want to access surrogacy in their country of origin – where they are familiar with the laws, processes and cultural norms.

• They are discriminated against under local laws.

DISCRIMINATION IN AUSTRALIAN LAWS

There remain discriminatory laws when it comes to forming a family through surrogacy:

• The ACT requires the intended parents to be a couple, and for the surrogate to be part of a couple.^[58]

• Queensland allows discrimination in the provision of assisted reproductive technology based on relationship status or sexuality,^[59] but the provision is unlikely valid, as it is contrary to the Sex Discrimination Act 1984 (Cth), s22.^[60]

• The NT has a similar exemption as Queensland^[61] – but the exemption will be repealed with the commencement of the Surrogacy Act 2022 (NT).^[62]

• Tasmania requires all parties to reside in Tasmania when entering the surrogacy arrangement,^[63] which limits availability.

• WA discriminates against single men or male couples^[64] (see above). An attempt in the last term of Parliament to remove that discrimination was unsuccessful.

SOME INTERESTING CASES

In this new area of science, medicine, society and law, it is no surprise that there have been interesting cases:

• In the Baby Gammy case, a convicted pedophile and his wife were successful in having their child remain living with them.^[65]

• The supply of sperm to the intended surrogate’s partner, as a condition of a surrogacy arrangement, would render the surrogacy arrangement a commercial one.^[66]

• An intended genetic parent in NSW is not a parent prior to the making of the parentage order.^[67]

• A couple living overseas could, in limited circumstances, access surrogacy in NSW.^[68]

• Conception occurs when pregnancy occurs, that is at or after implantation of the embryo, not at the time of embryo fertilisation.^[69]

• The intended parents (one of whom is the genetic parent) are not the parents of the child born through international surrogacy^[70] (though this case is now dubious, following the High Court decision in Masson v Parsons^[71]).

• An intended genetic father in a Queensland surrogacy arrangement is a parent, albeit with no rights or responsibilities.^[72] This case was subsequently disapproved, as it would lead to inconsistent interpretation of the Queensland statute about who is a parent.^[73]

• The child’s right to an identity under art 8 of the Convention is a matter that can be considered when making a parentage order.^[74]

• A parent via surrogacy who lived in South Africa was recognised as a parent in Australia under the Family Law Act.^[75]

• A refusal to recognise as the parents a UK couple living in NSW who had undertaken surrogacy in India^[76] was overcome by them obtaining a parental order in the UK.^[77]

• US surrogacy orders can be registered under the Family Law Act – but not necessarily if the surrogacy arrangement is commercial.^[78]

CHANGE IN THE AIR?

At the time of writing, WA is reviewing its surrogacy laws, hopefully to remove discrimination and other barriers restricting surrogacy there; and a Senate inquiry is looking at universal access to reproductive healthcare, including costs and accessibility.

The enactment of the Surrogacy Act 2022 (NT) is a major change, as it will enable Territorians to undertake surrogacy there for the first time.

And finally, the joy

It is joyous to help those who cannot have children become parents. The babies come into court, and judges love seeing them. I have heard a judge say in a closed court: ‘Making parentage orders is the best part of my job’, and the child, ‘is a miracle of modern medicine’.^[79] I have seen judges cry tears of joy. It is common in the courtroom to take photos of the parties, lawyers and the babies – and when they want to take part, the judges too.

Few things are more emotional for those who are not able to conceive, then go through the difficult surrogacy process, to finally be told by a judge, as in one of my matters (in a closed court): ‘Most cases involve a paucity of parenting, but here is an abundance of parenting. Congratulations!’

Stephen Page is a dad through surrogacy and a principal of Page Provan, Solicitors, Brisbane. He is a Fellow of the International Academy of Family Lawyers and of the Academy of Adoption Assisted Reproduction Attorneys. Stephen is an international representative on the Artificial Reproductive Technologies Committee of the American Bar Association and, most recently, was on the NT Government’s joint surrogacy working group. He is also a board member of the Fertility Society of Australia and New Zealand. EMAIL [e-mail].

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^[1] 537 A.2d 1227, 109 N.J. 396 (1988).

^[2] The surrogate is the genetic mother.

^[3] The surrogate has no genetic relationship with the child.

^[4] Enacted at the time of writing, but not yet commenced.

^[5] Surrogacy Act 2008 (WA), s19.

^[6] Ibid, s17(b)(iii).

^[7] Ibid, s17(c).

^[8] Ibid, s16.

^[9] Fetus Carriage Agreements Approval Board, pursuant to the Agreements for the Carriage of Fetuses (Approval of Agreement and Status of the New Born) Law, 5756-199 (Hebrew).

^[10] Patient Review Panel, pursuant to the Assisted Reproductive Treatment Act 2008 (Vic).

^[11] Surrogacy Act 2008 (WA), s17(c).

^[12] Ibid, ss21(2)(f) and 22.

^[13] For example, it was argued that Mr and Mrs Farnell of Baby Gammy fame had committed a criminal offence: Farnell and Chanbua [2016] FCWA 17, [199] and [470]. They were not charged.

^[14] There is approximately one birth a year of a child through surrogacy in WA (see below note 27). As set out in Table 5, there are approximately 200 Australian children born overseas via surrogacy each year. The population of WA is about 10 per cent of the Australian population. Calculated on a per capita basis, therefore about 20 children are born via surrogacy overseas to WA residents each year.

^[15] BBC Comedy Greats (14 July 2020) <https://www.youtube.com/watch?v=JAk448volww>.

^[16] J Bahr, ‘Census 2021: Almost half of Australians had a parent born overseas’, SBS News (28 June 2022) <https://www.sbs.com.au/news/article/census-2021-almost-half-of-australians-had-a-parent-born-overseas/5r9mi7esi>.

^[17] Department of Home Affairs, compiled from data on applications for citizenship by descent by children born overseas through surrogacy, obtained by FOI.

^[18] [2016] FCWA 17 (Farnell).

^[19] J Head ‘“Baby factory” mystery: Thailand's surrogacy saga reaches uneasy end’, BBC News (26 February 2018) <https://www.bbc.com/news/world-asia-43169974>.

^[20] Protection of Children Born Through Assisted Reproductive Technologies Act (B.E. 2558).

^[21] That is, after the pregnancies commenced but before the clampdown had been completed.

^[22] Department of Home Affairs, above note 17.

^[23] ‘Thai police arrest man smuggling semen into Laos’, BBC News (21 April 2017) <https://www.bbc.com/news/world-asia-39663671>. See also: Pascoe CFM, ‘Intercountry surrogacy – A new form of trafficking?’ (Conference Paper, LegalWise Annual International Family Law Conference Cambodia, 19 September 2012) <http://www.austlii.edu.au/au/journals/FedJSchol/2012/15.pdf> .

^[24] Bangkok Post, ‘Surrogacy law to be eased’ (17 February 2022) <https://www.bangkokpost.com/thailand/general/2265299/surrogacy-law-to-be-eased>.

^[25] US births: Department of Home Affairs, above note 17; Australian births: ANZARD Annual Report Series.

^[26] Childrens Court of Queensland, Annual Report 2016–2017; 2017–2018; 2018–2019; 2019–2020; and 2020–2021. County Court of Victoria, Annual Report 2016–2017; 2017–2018; 2018–2019; 2019–2020; and 2020–2021. In at least two Queensland cases, a parentage order (singular) has been made for twins.

^[27] Western Australia Reproductive Technology Council (RTC), Annual Report 2014–2015; 2015–2016; 2016–2017; 2017–2018; 2018–2019; 2019–2020; and 2020–2021. The RTC reports only when there is a unit of five for privacy reasons. The first time it did so was in 2014–2015.

^[28] Based on approximately five million for NZ and 25 million for Australia.

^[29] New Zealand Law Commission, Review of Surrogacy (Issues Paper 47, July 2021) [2.7] <https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/Law%20Commission%20-%20Review%20of%20Surrogacy%20-%20Issues%20Paper%2047.pdf>. In 2017, 11 children were born through clinic-assisted surrogacy in NZ (at [2.9]), which accords with the methodology I used as to the ANZARD data.

^[30] 1 July 2008 – 30 June 2021. International: Department of Home Affairs, above note 17; domestic: ANZARD Annual Report Series.

^[31] CAP 561 Human Reproductive Technology Ordinance, s17.

^[32] Parentage Act 2004 (ACT), ss41, 45.

^[33] Surrogacy Act 2010 (NSW), ss8, 11.

^[34] Surrogacy Act 2010 (Qld), ss54, 56, 57.

^[35] Surrogacy Act 2019 (SA), s23; Criminal Law Consolidation Act 1935 (SA), s5G.

^[36] Surrogacy Act 2008 (WA), s8; Criminal Code Act Compilation Act 1913 (WA), s12.

^[37] Surrogacy Act 2022 (NT), ss48–9; Criminal Code Act 1983, s43CA.

^[38] Dudley and Chedi [2011] FamCA 502; Findlay & Punyawong [2011] FamCA 503.

^[39] Seto and Poon [2021] FamCA 288. There was also consideration as to whether the surrogate, her husband and their solicitor should be charged with extortion-type offences, and the solicitor was referred to the Legal Services Commissioner for New South Wales: [70]–[71].

^[40] Department of Home Affairs, above note 17.

^[41] Parliament of New South Wales Legislative Assembly, Votes and Proceedings (No. 224, 10 November 2010) <https://www.parliament.nsw.gov.au/hp/housepaper/1412/224-VAP.pdf>.

^[42] For example, ‘Surrogacy: The case for and against’, ABC Radio National (27 January 2011) <https://www.abc.net.au/radionational/programs/lifematters/surrogacy-the-case-for-and-against/3006168>.

^[43] Ibid.

^[44] Including one held in 2011 by the Victorian Assisted Reproductive Treatment Authority.

^[45] Surrogacy is now limited in India to altruistic surrogacy for Indian citizens who are heterosexual married couples, or single, widowed or divorced women: Surrogacy Act 2021 and the Assisted Reproductive Treatment Act 2021.

^[46] Department of Home Affairs, above note 17.

^[47] D Wilson and J Carrington, ‘Commercialising reproduction: In search of a logical distinction between commercial, compensated, and paid surrogacy arrangements’, NZBLQ, Vol. 21, 2015, 178 at 186, cited by the New Zealand Law Commission, above note 29, [1.15].

^[48] [2009] 1 FLR 733.

^[49] Convention on the Rights of the Child, opened for signature 20 November 1989, Treaty Series Vol. 1577, 3 (entered into force 2 September 1990).

^[50] Teoh’s case [1995] HCA 20; (1995) 183 CLR 273.

^[51] H v Minister for Immigration and Citizenship [2010] FCAFC 119; Masson v Parsons [2019] HCA 21.

^[52] A ball park estimate for surrogacy by Australians in Canada is $140,000 and in the US $145,000–$300,000.

^[53] Traditional surrogacy is permitted in NSW, Qld, SA, Tas, WA and soon the NT. It is not permitted in the ACT. It is permitted in Vic, but not through IVF clinics.

^[54] Written: NSW, Qld, SA, Tas, WA and soon the NT. Oral or written: ACT and Vic.

^[55] Lamb and Shaw [2017] FamCA 769; [2018] FamCA 629 (Lamb).

^[56] Family Law Act 1975 (Cth); Family Law Regulations 1984 (Cth), reg 12CAA; Australian Citizenship Act 2007 (Cth), s8; Constitution, s118; Evidence Act 1995 (Cth), s185.

^[57] Status of Children Act 1974 (Vic), ss29A–I.

^[58] Parentage Act 2004 (ACT), ss25, 26(1)(b), and 26(3)(a), (b), (c) and (e).

^[59] Anti-Discrimination Act 1991 (Qld), s45A.

^[60] See Pearce v SA Health Commission [1996] SASC 5801; (1996) 66 SASR 486; McBain v Victoria [2000] FCA 1009 and EHT18 v Melbourne IVF [2018] FCA 1421. See also Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act (July 2022) 398–400.

^[61] Anti-Discrimination Act 1992 (NT), s4(8).

^[62] Surrogacy Act 2022 (NT), s61.

^[63] Surrogacy Act 2012 (Tas), s16(2)(g).

^[64] It is unclear how intersex, transgender or non-binary intended parents are dealt with.

^[65] Farnell, above note 18.

^[66] Application MJC and CSC; re EMC [2012] NSWSC 1626.

^[67] S v B; O v D [2014] NSWSC 1533.

^[68] Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806.

^[69] LWV v LMH [2012] QChC 26, [9]. I acted for the surrogate. This was the first case in the world to define ‘conceive’, a term that the international IVF community still does not define as it is seen as too controversial.

^[70] Bernieres and Dhopal [2017] FamCAFC 180. I did not endear myself to the Full Court when I told The Australian that the decision was ‘nuts’.

^[71] [2019] HCA 21.

^[72] Lamb, above note 55.

^[73] RBK and MMJ [2019] QChC 42. I acted for the intended parents.

^[74] KRB and BFH v RKH & BJH [2020] QChC 7. I acted for the intended parents.

^[75] Carlton and Bissett [2013] FamCA 143.

^[76] Mason and Mason [2013] FamCA 424.

^[77] AB v CD (Surrogacy: Time Limit and Consent) [2015] EWFC 12.

^[78] Re: Halvard [2016] FamCA 1051; Re: Grosvenor [2017] FamCA 366; Sigley and Sigley [2018] FamCA 3; Rose [2018 FamCA 978; Allan and Peters [2018] FamCA 1063. I acted in Grosvenor, Sigley, Rose and Allan.

^[79] LWV v LMH [2012] QChC 26 (Clare SC DCJ), [1]. I acted for the surrogate.