Australia should legalise commercial surrogacy to stop the exploitation of poor women and protect the legal status of children caught up in the booming overseas surrogacy trade, according to the Chief Federal Court Magistrate.
Under Chief Magistrate John Pascoe's proposed commercial surrogacy scheme, overseas surrogacy would remain banned, therefore reducing the number of Australian couples using overseas clinics that he says often underpay and coerce poor women.
''We would know women here wouldn't be forced or threatened to carry a child and that they will be paid more than a few hundred dollars and receive proper medical care,'' Mr Pascoe said.
Altruistic surrogacy, where the woman carrying the child is not paid, is legal in all states but commercial surrogacy is banned in Australia. Overseas commercial surrogacy has also been criminalised in NSW, Queensland and the ACT but that has not stopped hundreds of prospective parents travelling to countries such as India where for less than $100,000 they can have a baby via a surrogate.
The number of Australian babies born to overseas surrogate mothers leapt from 97 in 2009 to 296 last year, according to research by advocacy group Surrogacy Australia. More than 250 children have been born to overseas surrogates this year.
Mr Pascoe said his proposed regime, which would require parents and the surrogate to enter into a contract that would protect the rights of both parties, promotes the best interests of surrogate children.
''The status of the newly born child is therefore beyond doubt and the law can provide provisions and benefits for the child as an Australian citizen,'' he said. ''Right now, children of overseas surrogates face a very uncertain legal situation regarding parentage and nationality.''
Many Australian couples had been stranded overseas, unable to gain citizenship for their surrogate child because of the ''ambiguities about the definition of parent and child in the Citizenship Act'', Mr Pascoe said.
The Attorney-General, Nicola Roxon, has charged the Family Law Council to review the Family Law Act and report back by December next year. The chair of the council, Associate Professor Helen Rhoades, said the review was timely as parentage laws were not keeping pace with the rapid advancement of assisted reproductive technology. The council will call for public submissions this month.
Sam Everingham, the president of Surrogacy Australia, applauded the proposal as an improvement of a system that had largely failed but said it was naive of Mr Pascoe to think people would comply with the ban on overseas arrangements.
''Some states have already banned it and Australians are still going overseas,'' he said. ''I'm also worried about over-regulation, because it's caused huge problems for parents who want to adopt children from overseas.''
Melbourne-based bioethicist Leslie Cannold opposes commercial surrogacy, insisting same exploitative elements suffered by women in developing countries could exist in Australia under Mr Pascoe's proposed system. ''We should not create a situation in which we coerce people economically,'' she said.
Kelly Hillsley gave birth to a surrogate child for an acquaintance in 2004, at a time when she says laws were underdeveloped and confusing.
''If it was regulated and people knew what to do and expect, the whole process would have been easier,'' the mother of two said.
But she is concerned legal commercialisation would still allow people to profit by exploiting the desperation of infertile couples.