Resolving the ‘minefield’ of surrogacy: the surrogacy act 2019 (sa) and the enduring question of commercial surrogacy†

In 2018, the South Australian State Government asked the independent South Australian Law Reform Institute (‘SALRI’), based at the Adelaide Law School, to resolve the ‘minefield’ of surrogacy. SALRI’s subsequent major report received strong support and praise from all sides of Parliament. The passage of the Surrogacy Act 2019 (SA), based on SALRI’s report, was welcomed as a ‘historic day’. SALRI was precluded from considering a system of commercial surrogacy by its terms of reference, and its research and consultation supported an intermediate approach as the most appropriate way forward. This article considers SALRI’s report and argues that, although the consequent legislation is a welcome reform, the wider question of commercial surrogacy, currently precluded in all Australian jurisdictions, remains an enduring question. The view that commercial surrogacy is inherently exploitative has been challenged by recent research, with the seemingly tenuous distinction between commercial and non-commercial surrogacy also being questioned. Also, as COVID-19 travel restrictions ease, international surrogacy travel will inevitably resume. Due to the complex, national and international implications of surrogacy, the preferable long-term solution is for a national, uniform scheme to be coordinated between the states and territories and the Commonwealth. For such a scheme to be effective, there must be an honest and realistic consideration of commercial surrogacy at a national level. It is argued that now is the time to confront the elephant in the room of commercial surrogacy.