The regulation of commercial surrogacy: The wrong answers to the wrong questions

The criminal ban on commercial surrogacy across Australian jurisdictions is the result of the conflation and confusion of two flawed assumptions. The first being that the criminalisation of commercial surrogacy will discourage a surrogacy "industry" and the second that commercial surrogacy and altruistic surrogacy are two distinguishable "types" of surrogacy arrangements. This article argues that the criminalisation of commercial surrogacy has resulted in unforeseen and undesirable consequences, removing opportunity for evidence-based law reform. Moreover, analysis of both the approach of Australian courts and the operation of surrogacy legislation suggests that the binary regulatory approach which distinguishes "commercial" from "altruistic" surrogacy is a legal fiction. In summary, this article argues that the current Australian regulation of surrogacy is both blunt and ineffectual, surrogacy is a nuanced and complex practice which requires a regulatory response which is principled, holistic and evidence based.