All entries on Feminist Legal Clinic’s News Digest Blog are extracts from news articles and other publications, with the source available at the link at the bottom. The content is not originally generated by Feminist Legal Clinic and does not necessarily reflect our views.
On 18 December, feminist organisations from across Australia will participate in a roundtable discussion on the Australian Law Reform Commission’s review of surrogacy laws. This review will shape national policy affecting women and children for years to come. Yet the process through which this review is being conducted raises fundamental questions about impartiality, democratic participation, and compliance with Australia’s international human rights obligations.
Women’s organisations have been systematically excluded from early policy development, whilst those with direct financial interests in surrogacy expansion have shaped the review’s direction. The result is a predetermined framework that will be difficult to challenge, even as evidence of exploitation and harm mounts.
Based on an analysis of publicly available information, the ALRC’s advisory committee includes eight members with direct professional or financial interests in surrogacy expansion: fertility specialists, specialist surrogacy lawyers, surrogacy counsellors, and organisations advocating for surrogacy access.
This creates what governance scholars term ‘structural capture’: those advising on regulation of an industry are the professionals whose livelihoods depend on that industry expanding.
The governance failures documented above raise fundamental questions about the integrity of this review — questions that the Feminist Legal Clinic and other organisations in the coalition are also raising. The Commission should explain on the public record how the advisory committee was selected and assessed for independence from industry interests; how material and perceived conflicts of interest were managed for each member; why the Discussion Paper contemplates commercial surrogacy arrangements when the formal Terms of Reference direct the ALRC to focus on altruistic surrogacy; and on what legal and ethical basis private contracts between commissioning adults can override fundamental human rights protections.
Furthermore, the Commission cannot proceed with proposals to facilitate surrogacy without violating Australia’s obligations under the UN Convention on the Rights of the Child, which prohibits the sale of children: the Commission must explain to the Australian public why it is contemplating reforms that would breach these fundamental human rights protections, rather than upholding them.
Source: ALRC surrogacy review: why process matters as much as principle – AAWAA