‘Horrible situation’: Calls to overhaul Australia’s surrogacy laws

Paul Hadfield-Jia wasn’t allowed to have children via surrogacy in his own state, so he had to go overseas to become a dad.

Paul Hadfield-Jia with his daughter. Picture: Supplied

Surrogacy advocates are calling for nationally consistent legislation and to compensate women carrying babies, as prospective parents “move states” due to legal differences.

Commercial surrogacy is not legal in Australia but altruistic surrogacy, where the surrogate’s expenses are covered but they are not paid, is allowed.

But legislation varies between states.

Western Australia, the only state where gay couples and single men cannot access altruistic surrogacy, will hold a state election on Saturday.

A WA Labor spokesman said the government was committed to commonsense changes to surrogacy laws that would bring WA into line with other states.

“If re-elected we will introduce these changes as soon as practical,” he said.

WA Liberal Leader Libby Mettam said: “Surrogacy would be dealt with as a conscience vote in parliament but it is not on our legislative agenda.”

Anna McKie, from Surrogacy Australia, said it would be a much smoother process if there was nationally consistent legislation.

“However by comparison, health and education vary from state to state, so it’s unlikely that states will agree,” she said

“The structure is approximately the same in most states which helps with consistency.”

She said WA needed to change its laws for men to remove discrimination.

She said current legislation meant some WA residents either needed to relocate to another state, or be sneaky with their arrangement by pretending they resided interstate with a family member.

“It also means many gay intended parents have to choose overseas surrogacy instead of domestic,” she said.

Anna McKie was a surrogate for Adelaide dads Matt and Brendan, giving birth in September 2020. Picture: Supplied

“Surrogacy Australia and a team of lawyers in WA have been working towards amending this law, so work is being done.

“But it’s very slow and would be better if the government took the lead on this change.”

I wasn’t allowed to have a child in my own state

Perth’s Paul Hadfield-Jia and his partner welcomed two children, now aged four-months-old and three, via surrogacy.

But the advocate said they were forced overseas to do so.

Mr Hafield-Jia, 53, said other gay male couples had moved to different states in order to have their kids.

His children were born in the USA using an egg donor and surrogate.

He said while the process had been “incredibly expensive”, he had developed “incredible” relationships with both women and their families.

“I didn’t realise how hard it was going to be (to have a family) and how little support there was going to be from the government,” he said.

“People just want to have kids.

Paul Hadfield-Jia with his daughter. Picture: Supplied

“You don’t really hear that many people standing up and speaking up around the unfairness and inequality of the legislation that we’ve got in Australia.

“It’s a very horrible situation to be in.”

The process to have a child through overseas surrogacy was “very complex”, Mr Hadfield-Jia said, with varying approaches across different countries.

Mr Hadfield-Jia said the changes the WA government had pledged if re-elected would help dismantle discrimination.

“I think that there should be reforms at a federal level,” he said.

“Make the … processes and accessibility easier, and then people will be able to have families.”

He said paid surrogacy was “controversial”, but a model should be introduced in Australia where women could be fairly compensated.

He said it would need to be managed correctly.

However, he noted the country was “nowhere near” that being introduced.

“The altruistic surrogacy pathways that are available, it needs to be made easier and more possible for Australian families,” he said.

“Stop forcing people to have to go overseas to have their kids.”

Ms McKie said Surrogacy Australia would be in support of a compensated model of surrogacy in Australia, more aligned with the altruistic models in the UK and Canada.

She said this would allow reasonable surrogacy related expenses to be covered for the surrogate more generously without her having to feel guilty.

She said this could potentially include compensation at the end of the pregnancy.

“Not enough to entice women to be surrogates for the wrong (financial) reasons, but also more than currently to recognise the 24/7 task of growing life and the wear and tear on her body,” Ms McKie said.

Russell Walker Lawyers principal lawyer Nicole Russell, who specialises in surrogacy, said a compensation model where a surrogate received a capped amount as compensation plus reimbursement of expenses should be considered.

“There would need to be parameters in place to ensure that the compensation is a fair representation of the surrogate’s time and effort without being a commercial benefit (which would put it in the realm of a commercial arrangement),” she said.

It is illegal for ACT, NSW and QLD residents to enter into commercial surrogacy arrangements overseas, but people wanting children have reportedly moved states or proceeded regardless.

According to the Australian Attorney-General’s Department, commercial surrogacy is illegal because it can lead to risks of exploitation of surrogates, babies and commissioning parents.

A federal health department spokeswoman said in 2024, the Attorney-General asked the Australian Law Reform Commission (ALRC) to conduct an inquiry into surrogacy laws in Australia.

“The ALRC was asked to review Australian surrogacy laws, policies and practices to identify legal and policy reforms,” she said.

“It will consider proposals for uniform or complementary state, territory and Commonwealth laws that are consistent with Australia’s international obligations and the protection of human rights.”

The report is due to the Attorney-General by July next year.

Originally published as ‘Horrible situation’: Calls to overhaul Australia’s surrogacy laws