We had the opportunity to sit down with Stephen Page, distinguished Australian surrogacy lawyer and author of International Assisted Reproductive Technology, and recently elected Secretary of the Fertility of Australia and New Zealand.
In contrast with the US, Australia’s policies on surrogacy are more restrictive and intended parents face challenges whether they pursue surrogacy at home or abroad. We are delighted to share our interview with Stephen and learn more about different surrogacy policies around the world.
How did you get into the field of surrogacy and third party reproduction?
It happened by accident. Back in 1988, I was working in a suburban office when a woman walked in and told me that she had just had a baby for a couple. It was clear she hadn’t gone through an IVF clinic, so it was a traditional surrogacy. She explained that the couple had paid her $10,000 to have the baby but now wanted to know if she could keep both the money and the child. At that time, Queensland, my home state, had recently passed legislation criminalizing all forms of surrogacy: traditional, gestational, commercial, and altruistic, whether carried out within Queensland or anywhere else in the world by a Queensland resident. By the time this woman came to me, surrogacy had become illegal.
I advised her that, since the contract was illegal, she could likely keep both the money and the baby. I explained that, because she was the biological mother, her chances of winning in court were high, and, indeed, two similar cases had ended in favor of the surrogate. However, I also told her that it was unlikely the case would ever go to court, as the courts would probably avoid involvement, concerned that criminal offenses may have been committed.
I never did go to court myself, but I’ve often wondered about that child. If he’s still alive, he would be in his twenties or thirties by now. I wonder if he was ever told the truth about how he came into the world.
How much has changed in Australia regarding surrogacy since you first started practicing?
Back in 1988, Queensland was the only state – and the first in the world – to declare all forms of surrogacy illegal, including surrogacy conducted abroad. I call this the "Queensland disease" because it simply doesn’t work, yet it’s been adopted in New South Wales, the Australian Capital Territory, Hong Kong, and more recently in Ireland. Despite these efforts, the approach remains ineffective.
At the time, Australian states were horrified by the idea of surrogacy, and in response, they rushed to pass laws prohibiting it. Two high-profile cases influenced these decisions. One was the "Baby M" case in New Jersey, where a traditional surrogate was allowed to keep the baby. The other case occurred in Melbourne, where a woman gave birth to her sister's child via gestational surrogacy. The mother’s egg was used, and although it was a family arrangement, it still created panic among politicians, leading to widespread anti-surrogacy legislation. By 2005-2006, a Victorian senator, who later became a federal minister, highlighted a loophole that allowed surrogacy to continue in Victoria or New South Wales, which led to intense media coverage. In response, the federal attorney general urged the states to "regularize" surrogacy laws, arguing it was absurd for people to cross state lines to bypass legislation. The result was a consensus allowing altruistic surrogacy while maintaining a ban on commercial surrogacy. Over time, the Southern Territory adopted this stance between 2004 and 2012, and the Northern Territory followed by 2022.
Today, surrogacy in Australia must be altruistic, which has led to a significant shortage of surrogates. Since Australians are unwilling to pay surrogates, very few women, unless they have a personal connection to the intended parents or a passion for the concept, are willing to take on the role, given the risks of pregnancy, childbirth, and potential complications. Everyone else involved in the process – lawyers, doctors, embryologists, nurses, judges, and counselors – gets paid, except for the surrogate, who is at the center of it all. This has created a traditional shortage of surrogates in the country.
The most recent data from 2021 showed that only 82 children were born via gestational surrogacy in Australia. Unfortunately, we don’t have exact figures for traditional surrogacy, but it's likely around 5-10% of that total. Meanwhile, during the same period, 376 children were born to Australians through overseas surrogacy arrangements, which represents a significant increase from prior years. Before, the highest number of overseas births was 275, recorded at the beginning of the pandemic. This growing gap between domestic and overseas surrogacies reflects the ongoing challenges and complexities of surrogacy laws in Australia.
Is it still the case that Australian law prohibits compensating surrogates for their services?
When Australians go overseas for surrogacy, the process becomes extremely complex. In six out of eight Australian jurisdictions, they could potentially violate commercial egg donation laws by using overseas egg donors. Additionally, in three jurisdictions—Queensland, New South Wales, and the Australian Capital Territory—people could run afoul of extra-territorial commercial surrogacy laws. In South Australia, Western Australia, and the Northern Territory, there are also long-standing laws concerning commercial surrogacy that could trip them up. This creates what I call a "third ring" of complications. The first ring involves egg donation, the second is surrogacy, and the third pertains to international adoption. If someone engages in overseas adoption, paying for the child or covering the birth mother's expenses, they could potentially commit an offense back in Australia.
For surrogacy, some jurisdictions treat adoption as part of the process of becoming a legal parent. This presents risks. For example, in Minnesota, there’s a second-parent adoption option where the biological father is already recognized as the sole parent at the time of the transfer, so no offense is committed under Australian adoption laws. The surrogate isn’t paid during the parental transfer, making the process legally safer. However, in Iowa, the surrogate must give consent, especially when the second parent isn’t the biological parent. Since her consent is required, there’s potential for a violation, as this could be considered payment in exchange for relinquishing parental rights, which might trigger an offense under Australian laws.
Is it true that, unlike in the U.S., surrogates in Australia are not compensated and that these surrogacy laws are relatively recent?
In Queensland, New South Wales, and Victoria, surrogacy laws were introduced in 2010-2011, but Western Australia, with its population of around 2.5-2.6 million, operates under a different, more restrictive system. Western Australia’s surrogacy laws aim for a "perfect system" with so many checks and balances that, in practice, it becomes nearly impossible for most people to navigate. Currently, only heterosexual couples, single women, and lesbian couples are eligible for surrogacy in Western Australia (WA). However, this leaves out single men, gay couples, and many others in the LGBTQIA+ community. While constitutionally valid, the system excludes about half of the potential market. Despite efforts over the last seven years to change these laws, no progress has been made.
Even for those who are eligible, the process is extremely complex. It requires mandatory counseling, a detailed plan about the surrogate’s role after birth, and certification from a doctor. Intended parents must also apply for preconception approval through the state, which includes a mandatory waitlist and a six-month cooling-off period.
On top of this, the donor must be someone the parents know and must be a party to the agreement, undergoing counseling and legal advice at the intended parents’ expense. This makes the process expensive and cumbersome, as the intended parents must cover the legal and counseling fees for both the surrogate and the donor.
As a result, surrogacy in WA is rare. In 2023, only three children were born through this system, an outlier compared to the typical one per year. Meanwhile, about 20 children born to WA residents were through international surrogacy arrangements. Nationally, in 2023, 376 children were born overseas through surrogacy, compared to 38 born locally in Australia—a staggering 11 to 1 ratio.
The "perfect system" in Western Australia, while filled with checks and balances, is ultimately flawed. It excludes half the potential market and is so difficult to navigate that even those who qualify find it nearly impossible to proceed. Consequently, many WA residents opt to go overseas for surrogacy instead.
What is the reaction you get when you tell people you are in this field?
Generally pretty positive. Most people think this is wonderful, they know about it, and they want to talk about it. But back in 2019, my husband and I had our daughter, she’s five, through surrogacy in Queensland. A journalist phoned me up and wanted to ask about what was new and interesting in the world of surrogacy. I said by disclosure, my husband and I had a baby through surrogacy in Queensland and we had to get this special ruling because there was uncertainty about parentage. He found that interesting and said, okay we are gonna do a story. The next thing you know, the photographer comes around the house, takes pictures of us. The head of the Australian Christian lobby ran a Facebook post mentioning the way of the devil and this little girl is forever being denied her mother. At which point all the trolls came on, and made these very hurtful, homophobic, remarks, it was really, really, really bad. In 2022, Pride was held in Sydney, the three of us marched as part of rainbow families, we had these yellow and pink “love makes a family” t-shirts. There was apparently a record, 500,000 people cheering on that year. And to have 500,000 people cheer on about us being parents and that was such a cathartic experience.
Can you tell us about your recent book?
The book is International Assisted Reproductive Technology: Well, five lawyers walked into a room in Nashville in 2018 and agreed to write a book which had been requested by the American Bar Family Section about international assisted reproductive technology. The joke is that only the Australian wrote the book. Somehow I became the sole author of the book. It was originally designed to talk about international surrogacy. As I continued, I realized I wanted to talk about other aspects. There’s a chapter just dealing with LGBTQIA+ people and the particular challenges, like dealing with countries that criminalize same sex relationships, and some of the hidden barriers. There is a chapter on finding a lawyer overseas. Australia is the most multicultural country on Earth, according to statistics, apparently 51% of us were either born overseas or their parents were. There’s about a good proportion of Australians, about 10 or 15% of the children who are born in surrogacy destinations. I’ve had a number of couples go to Iran for surrogacy, Sri Lanka, or Bangladesh. You are trying to find a lawyer in those places and oftentimes can be very, very difficult, and I don’t always succeed. It’s designed not to be an academic book that no one will ever read, this is a practical guide.
What are some of the biggest difficulties your Australian clients face when pursuing international surrogacy?
There are three obvious ones. The first one is cost, and the cost to us at the moment is just out of our control, so that’s a challenge. The second one is where can they go, this is particularly so if you’ve got someone who's single or gay couple. For example, one transgender client transitioned from male to female, so it becomes quite difficult. One place may say that they accept gay couples, but won’t necessarily accept transgender. It’s a nonissue with the U.S. and Canada, but an issue with other places. The third one is the issue of risk, what places are risky. Since COVID pandemic, Canada has been very difficult to access for surrogacy because their agencies are dead and they have a shortage of surrogates. The U.S. has gone up in price considerably. Australian parents go to other destinations, like Mexico, Colombia, and Argentina, but they are riskier. Recently in Argentina where a judge’s father is a good friend of the pope, who is from Argentina, said that all surrogacy should be banned. He made an order that no child through surrogacy, and no child, whether it’s a local or foreigners, could get a birth certificate, or leave Argentina. I had a client trapped in that for 4 months, he eventually managed to get a birth certificate, which says he’s the father, and then says, at the bottom, that there’s no affiliation between the child and him, in other words, he’s not the father. All this for one document. There are other challenges for Australians other than the issue of criminality and making sure to not trip up laws back here. It’s not generally a problem for Australians bringing their children back. Australia in that respect is more open and welcoming in that respect than many countries in Europe, for example.
Having traveled the world to attend and speak at conferences, what is your favorite place to be, and are there any locations you would recommend?
I’m amazed at where I’ve ended up. I didn’t expect to ever travel to many of the destinations that I have gone to. I’ll start with the least favorite, my least favorite was not because they weren’t welcoming, they were very welcoming, but it was because it was cold. It was Anchorage, Alaska. If you look at most of the airline schedules, they say, well, you fly from Brisbane to LA, then from LA up to Anchorage. I discovered there’s another way which was via Hawaii, so it’s straight across the pacific. I’m in love with Hawaii where it is about 70 degrees, and do the overnight flight. All the Alaskans are going home wearing their Hawaiian shirts, and you’d see flip flops and polo shirts. I thought I was gonna die, it was so cold! It was in the winter going to spring, I thought I had met my doom and gloom. I think the place that stands out to me above all others was Charleston. I spoke in Charleston in 2013, when the mass shooting happened some years later I was very upset about that because it just had an unique character, a lot of charm, that really sets it apart.
Is there any truth to the stereotype that Australians are easy going?
Oh yeah, I think so, but everyone’s different, Australians are well travelers. We have to be, we are in one of the most isolated places on earth, so we are used to getting on a plane and being on our feet. We have to get on a plane for many areas to go somewhere else. If we need to go to the next city in Australia, we’d typically get on a plane, because they are so far apart. So if you are going on a domestic flight, it is only a matter of time when you are going on an international flight.
Do Americans have accents? What stereotypes do you have about Americans?
Of course! Everyone has an accent! I think what surprised me when I first came to the U.S. in 2006 attending conferences was that the stereotypes of what was seen on TV about Americans were wrong. Americans were much more polite, demure, and didn’t swear as compared to what I’d seen and had expected.
Is Australian slang particularly amusing, especially considering how it can be quite entertaining for those unfamiliar with it?
You know, I’m told because of Bluey being the number one show at the moment, the Americans are talking about dunnies, yeah, Australians generally don’t talk about the dunny, you might have someone talking about it, but typically we talk about the toilet or the loo. It was funny hearing it, dunny is the word because of Bluey.
Conclusion:
We hope you enjoyed our interview with Stephen Page. Whether you’re an intended parent considering surrogacy or egg donation, or someone thinking about becoming a surrogate or egg donor, seeking guidance from a surrogacy lawyer is a crucial first step.
At Tsong Law Group, our team of award-winning attorneys are recognized as Fellows of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and the Academy of California Adoption-ART Lawyers (ACAL). Licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona, we bring to the table our knowledge of the world of surrogacy law.
Reach out to us today for a consultation and let us support you on your journey.
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