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Bolster surrogacy laws to remove stigma, says lawyer
The principal of a law firm has urged lawyers to lobby for changes to prohibitive surrogacy laws to destigmatise surrogacy.
Malavika Santhebennur
Speaking to Lawyers Weekly ahead of her session at the inaugural Women in Law Forum 2022, Russell Walker Lawyers director and founder Nicole Russell said that many misconceptions remain around surrogacy, including that it is expensive and cost-prohibitive.
“But the general belief that it costs hundreds of thousands of dollars to do it in Australia is so far from reality.
“My concern is that these misconceptions turn people off at the outset instead of being informed that surrogacy could be a real option for someone to have a family.”
To remove these misconceptions and destigmatise surrogacy in Australia, Ms Russell proposed allowing intended parents to freely search or advertise for a surrogate in Australia so they can reach larger volumes of people.
Laws around advertising for surrogacy vary across the states, with NSW laws allowing intended parents to advertise for free while prohibiting paid advertisements. However, it is illegal to advertise for a surrogate in Victoria.
“The pool within which a person can search for a surrogate is very restricted outside of the ability to advertise,” Ms Russell said.
“Advertising could include social media posts, which we know are very popular and effective for reaching out to larger volumes of people. But when there’s a threat that everything you write on social media may constitute an advertisement, people don’t want to talk about it on social media because they’re worried about the ramifications.
“So, reform in these areas would help people feel like they could speak more freely about surrogacy.”
At the inaugural Women in Law Forum 2022 in Melbourne in November, Ms Russell will participate in a panel discussion on how Australian leaders could promote gender equality through laws and policies, and the role of the legal profession in securing a safe, equal future for women.
Fearing the risks
Elaborating on the lingering stigma around surrogacy, Ms Russell said intended parents might fear that the surrogate could decide to keep and raise the baby themselves.
To allay these fears, Ms Russell joined other surrogacy lawyers like Sarah Jefford in calling for the simplification of the transfer of legal parentage, which she said would remove this misconception.
The transfer of legal parentage is currently a lengthy and sometimes expensive process (depending on which state the intended parents reside in), and it requires a court order.
“It means that the surrogate is deemed under law to be the legal parent of a child born by surrogacy until the transfer of the legal parentage is made, which could be problematic on a number of practical levels,” Ms Russell said.
“I believe simplifying the process would remove the misconception that the surrogate might keep the baby.”
Ms Russell also called for uniformity in surrogacy laws across states in Australia, asserting that “this would make life much easier”.
For example, Tasmania has restrictions in place that only allow the intended parents to use a surrogate who also resides in the state, which could be considerably restrictive given the state’s relatively small population, she argued.
“Fortunately, the other states don’t have this sort of geographical restriction,” Ms Russell said.
“It’s very common for interstate arrangements to occur, but when you’ve got these kinds of outlier states that have different rules, it makes life very complex.”
The key to destigmatising surrogacy is for legal professionals to continue to lobby for change and consult with relevant government departments around legislation, Ms Russell said, noting that changes have taken place in states like Victoria as a result of consultation processes.
“We just need to continue the dialogue,” she said.
To hear more from Nicole Russell about how law and policies can promote positive change for women, come along to the Women in Law Forum 2022.
It will be held on 24 November at Grand Hyatt Melbourne.
Click here to book your tickets and make sure you don’t miss out!
For more information, including agenda and speakers, click here.
