Definitions
Surrogacy Arrangement : An arrangement whereby a woman agrees to become pregnant and to bear a child for another person or persons, to whom she will transfer custody at or shortly after birth.
Child: In this report our references to a child or children are to those children who are recognized by the law as having been born or who are stillborn.
RECOMMENDATION 1: Welfare of Child
The welfare of the child should be the paramount consideration and should prevail over the interests of the adults involved in a surrogate motherhood arrangement. (paragraphs 4.1-4.4)
RECOMMENDATION 2: Surrogate motherhood should be discouraged
The practice of surrogate motherhood should be discouraged by all practicable legal and social means. (paragraphs 4.5-4.7)
RECOMMENDATION 3: Prohibition of Commercial Surrogacy
All forms of commercial surrogacy should be prohibited. it should be an offence to pay, receive, offer or solicit any reward for participation in or facilitation of a surrogacy arrangement or any part of a surrogacy arrangement. (paragraphs 4.8-4.12)
RECOMMENDATION 4: Advertising in relation to Surrogacy
Anyone who publishes or causes to be published a statement or advertisement offering or soliciting participation in a surrogacy arrangement should be guilty of a criminal offence. It should also be an offence to publish, advertise or cause to be advertised a statement that a person is willing to negotiate, arrange or obtain the benefit of a surrogacy arrangement on behalf of another. (paragraph 4.13-4.14)
RECOMMENDATION 5: Prohibited Activities
The following practices associated with surrogate motherhood should be prohibited, and criminal penalties should be imposed on anyone convicted of engaging in them except the immediate parties to the arrangement:
RECOMMENDATION 6: IVF Surrogacy
No special provision need be made for IVF surrogacy. It should be an offence for a medical practitioner to knowingly assist a surrogacy arrangement by providing IVF services to the parties. This would constitute an offence under Recommendation S(A) above which recommends a prohibition on knowingly assisting or making an offer of assistance. (paragraphs 4.30-4.32)
RECOMMENDATION 7: Public Education
Along with the prohibitions outlined above, further steps should be taken to dissuade infertile couples from resorting to surrogacy arrangements. (paragraph 4.33)
RECOMMENDATION 8: Surrogacy Agreements to be Void and Unenforceable
Surrogacy agreements should be void and unenforceable at law. (paragraphs 4.34-4.44)
RECOMMENDATION 9: Presumptions of Parenthood
There should be a conclusive presumption that the surrogate mother is the mother of the child. No other changes should be made to the presumptions of parenthood currently applied under the common law and by statute. (paragraphs 4.45-4.49)
RECOMMENDATION 10: Adoption
An adoption order should only be available to the commissioning parents if orders for guardianship and custody under the Family Law Act 1975 (Cth) would not make adequate provision for the welfare of the child. (paragraphs 4.50-4.54)
RECOMMENDATION 11: Registration of Birth
An accurate record of the circumstances of the child's conception and birth should be kept on the register of births. This should be available to the child on attaining the age of 18. (paragraph 4.55-4.57)
RECOMMENDATION 12: Department of Family and Community Services
The Department of Family and Community Services should have no specially assigned role in relation to children born through surrogacy. (paragraph 4.58-4.60)
