A legal decision issued by the Australian Family Court last week has determined that an Australian couple will not be recognized as the legal parents of a child born under an international surrogacy arrangement. Australia’s commonwealth Family Law Act allows individual Australian states to “determine the status of children born under surrogacy arrangements.” As of 2017, however, commercial surrogacy is a criminal offense in all jurisdictions. Consequently, this ruling, made in the case of a “Mr. and Mrs. Bernieres,” allows the couple to act as the child’s guardian but does not grant them a recognition or declaration of parentage. It now falls upon the Bernieres to adopt their child in order to secure parentage, although some have noted that Australian bureaucracy has made this process increasingly difficult in recent years.
The Family Court judges stated in their decision that “it was not open to the court to fill the ‘legislative vacuum’ that existed for children born via overseas commercial surrogacy arrangements,” and that this “vacuum” must be addressed by legislation instead. Surrogacy Australia president Robert Reith agreed, stating “[t]he law absolutely needs a review and to be brought up to date with modern standards.” The lack of progressive legislation concerning commercial surrogacy in Australia is unsurprising, given the government’s historically unfavorable attitudes toward surrogacy. Altruistic surrogacy was also illegal in Australia until 2004, and in 2010, New South Wales’ Family and Community Services Minister Pru Goward likened surrogate mothers to commercially exploited “cows.” This phrasing, of course, denies surrogates their agency as ethical actors by assuming both that money is their primary motivation and that they have no say in their surrogacy arrangements. Attitudes such as Goward’s highlight Australia’s need for comprehensive surrogacy legislation that clearly establishes the rights of all parties: the rights of the parents who expend considerable time, effort, and energy to bring their child into the world; and the rights of the surrogate, who deserves to be protected by a comprehensive set of laws whether her arrangement is commercial or altruistic.