Gay couples who are unable to conceive children naturally could be thrown a parenting lifeline if recommendations from the Victorian Law Reform Commission (VLRC) regarding fertility laws are adopted by the Bracks government.

This is the third position paper on fertility and reproductive issues in Victoria. Papers one and two dealt with access to assisted reproductive technology and adoption and parentage issues.

Currently, surrogacy, where a woman carries a baby for an infertile couple using either donor eggs and sperm or her own eggs, is technically legal. But in a legal loophole labelled irrational by the VLRC chairperson Marcia Neave, a woman can only become a surrogate mother if she is clinically infertile.

As part of its wide-ranging recommendations, the VLRC has recommended this requirement be removed.

It makes no sense to require the surrogate to be infertile before she can receive treatment to carry a child for someone else. This is why we’ve recommended that surrogate mothers be able to have clinic treatment as long as they are carrying the child for a person who is unlikely to become pregnant, risks passing on a genetic disease or cannot physically carry or give birth to a child, Professor Neave said.

The VLRC’s recommendations also included an expansion of the criteria for surrogacy to include single women and same-sex couples. However, it stopped short of recommending commercial surrogacy arrangements such as those that exist in the USA.

According to father of two Lee Matthews from the support group Gay Dads Vic, 17 gay male couples have either used overseas surrogates or were in the process of doing so.

If you want to create a full-time family and be a parent in your own right as opposed to a single dad or as part of a gay couple, surrogacy is one of the few ways to do it, he said. Unfortunately it’s also a very expensive way to create a family. Very few gay men can do it because of the cost.

Specialised overseas agencies that paired up couples with surrogate mothers could reportedly cost in excess of $100,000.

The VLRC recommended surrogacy on an altruistic basis, where the surrogate mother had the baby out of love or friendship for the infertile couple with no financial gain to herself. The current laws did not prohibit altruistic surrogacy.

Matthews said commercial arrangements should be considered.

Women who can’t have kids themselves can use surrogacy to create their family, but on an altruistic, not commercial, level. We can understand the logic behind that, but it can be seen as a slap in the face to any gay man or gay woman who chooses to create a family by commercial avenues, he told Bnews.

However, Gay Dads Vic supported the rights of Victorian women, and Matthews said the laws should be changed to suit them and their right to choose.

The recommendations also include substantial counselling for couples and the surrogate, a strict process for determining the legal parentage of the child, the establishment of a clinical ethics committee and an expansion of the Infertility Treatment Authority’s register of donors to include information about surrogate mothers. The reforms are open for public discussion and submissions can be made up until 9 January.


For further information, visit the Victorian Law Reform Commission website.

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