Many Australians have no option but to turn to surrogacy in order to make their fulfilment of having a child come true. But the process is excessively complicated. Advocates and politicians are pushing for change.

Current surrogacy laws discriminate across all states and territories. Altruistic surrogacy, in which the surrogate is not paid to act as a surrogate, is legal in all states, with Tasmania recently passing laws to enable all couples, including same-s-x couples, to use a surrogate to carry their child.

Commercial surrogacy is banned within each state and international commercial surrogacy is banned in NSW, Queensland and the ACT. Intending parents could face up to a maximum three-year jail sentence if entering into a commercial surrogacy arrangement.

In South Australia if you are single or in a same-s-x relationship altruistic surrogacy is banned; in the NT there is no legislation governing surrogacy. Recent changes to the surrogacy laws in Queensland will also include a ban on same-s-x, single and heteros-xual couples in a relationship under two years banned from altruistic surrogacy. In Western Australia and Victoria, the intending parents must go through a lengthy and complex process to obtain approval from a regulator of the surrogacy process.

Intending parents or the surrogate can also face exploitation. The fact that the surrogate has all legal rights during and post-pregnancy, until a substitute parentage order is made, concerns advocates. The surrogate could change her mind and keep or abort the baby and even flee the country. She also has the power to make medical decisions for the baby until a parentage order is made.

Sam Everingham, president of Surrogacy Australia, believes the laws are discouraging people from using surrogacy in Australia. “Intending parents are concerned and terrified the surrogate might change her mind. As the law does not give security, many parents will go overseas,” he told Crikey.

NSW Greens MP David Shoebridge wants international commercial surrogacy legal across all states. He says it’s nonsensical that parents are forced to move interstate to undertake commercial surrogacy because of the laws in NSW. “It is already extremely emotionally and financially stressful for parents. An interstate move adds to it,” he said.

Greens Senator Lee Rhiannon agrees reform is overdue. “It certainly makes sense to harmonise these laws throughout our states and territories, as this is an issue which currently lacks coherence and leads to conflicting situations across Australia,” she said.

Surrogacy law expert Stephen Page, from Harrington Family Lawyers, says Australia needs to have an honest conversation and an inquiry about legalising commercial surrogacy. “It is an obscene reality that Australians are travelling to America and India in great numbers. Prohibition doesn’t work. We need to look at the reality of the intending parents,” he said.

Shoebridge said commercial surrogacy will remain an option and will inevitably be the dominant form of surrogacy: “Criminalisation and forcing it into the margins won’t help anyone. This will see far more birth mothers exploited, less protection for children and greater potential financial expectation for parents.”

Advocates also ask whether hospitals are experienced enough to deal with surrogacy arrangements. Page says as the practice increases most hospitals don’t have good education programs or experienced staff knowing how to deal with surrogate cases.

He adds that until a parentage order is made parents are not the legal guardians of the child — the surrogate mother is. “How do they accommodate intended parents when they leave hospital? Typically the child is handed over in the hospital car park,” he said.

The federal government has commissioned a study, appointing the Family Law Council to examine and report on family surrogacy and parentage by December next year. It’s a start, advocates say, but more needs to be done to bring surrogacy out of the shadows.