This Week in Family Law
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Each week, we discuss the latest industry news, deep dive into family law topics, analyse cases, and answer questions from family lawyers. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.
This Week in Family Law
Ep 16: The surrogacy surge: Local laws, global babies
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In this episode, we cover the Federal Circuit and Family Court's new pilot of electronic divorce hearings by video, the Court's AI Transparency Statement, the Law Council of Australia's warning that children's voices are at risk as the family law safety net frays, and a Treasury consultation on preventing perpetrators from accessing victims' superannuation death benefits.
In Law in Motion, we explore the rise of celebrity surrogacy, the clash between Australian and international surrogacy laws, and the leading cases shaping the legal landscape.
Chapters:
0:00 - Introduction
1:06 What's Up? - Updates in Family Law for this week
6:05 - Law in Motion - The Rise of Surrogacy
Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.
About the podcast:
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.
Topics covered in this episode:
- Electronic divorce hearings moving to video in select registries
- Court releases AI Transparency Statement
- ICL funding crisis and Legal Aid NSW cuts from 1 July 2026
- The rise of celebrity surrogacy and key drivers of growth
- Global surrogacy laws compared: US, UK, Canada, India and Thailand
- Baby Gammy case and its impact on Thai surrogacy law
- Australia's fragmented state-by-state surrogacy framework
- Parentage orders and the challenges of overseas surrogacy in Australia
- Australian Law Reform Commission's proposed surrogacy reforms
Links:
Practice and procedure update: Pilot of electronic divorce hearings by video https://www.fcfcoa.gov.au/news-and-media-centre/updates-profession/divorce-pilot
AI Transparency Statement
https://www.fcfcoa.gov.au/ai-transparency-statement
Children's voices at risk as family law safety net frays https://lawcouncil.au/media/media-releases/children-s-voices-at-risk-as-family-law-safety-net-frays
Preventing perpetrators from accessing victims' super death benefits https://consult.treasury.gov.au/c2026-747658
A Budget for fairness that left justice behind
https://lawcouncil.au/media/media-releases/a-budget-for-fairness-that-left-justice-behind
Submit a question or provide feedback:
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Welcome to This Week in Family Law, the go-to podcast for busy Australian family lawyers who want to stay updated without the overwhelm. I'm Jenna Downey and my co-host today is Antonia Cacapato. How are you, Antonia? I'm good, thanks, Jenna. How are you going? I'm good, thank you.
SPEAKER_01Have you been watching any good shows lately? I haven't gotten into too many. I've just been keeping up with um Summer House. It's on Bravo. I'm not sure if you've heard of it. I haven't actually. The reunion's coming up in a few weeks, so I'm very excited for that. If you know, you know. Team Sierra. Yeah. Sounds like a big part of your life. I love it. A few of us in the office are very invested. Yeah. You should get into it. I should. You should.
SPEAKER_00How about you? Um, no, I feel like I have no time at the moment. No, that's fair enough, you've got a bit on your plate. For um for shows um being pregnant and obviously having kids. So it's just a bit of a challenge. Yeah. No, that's good. All right. So what's up this week? This week, there's a few updates. The FCFCOA has um issued a statement that says from the 15th of May 2026, divorce hearings requiring appearances before a deputy registrar in the Parramatta, Townsville, and Rockhampton registries will move from telephone to WebEx video hearings. Partisan practitioners are expected to appear on camera with telephone attendance remaining available where necessary. So that seems like a good change to appear by video as opposed by phone.
SPEAKER_01Definitely. Well, the um divorce was the only one really by telephone. So it's good that that's jumping to make it all streamlight the same. Streamline the same, I should say. Yeah.
SPEAKER_00Yes. Second update is um something that I saw on the FCFCOA website. It says the Federal Court of Australia listed entity has released an AI transparency statement confirming a cautious approach to AI adoption. It acknowledges the use of these tools, meaning AI, can increase productivity and efficiency and states that its use is limited to workplace productivity and internal AI, sorry, IT functions with no use in judicial decision making or public-facing services. A chief AI officer will be appointed by July 2026, who will be responsible for governance, privacy, and risk controls implemented for AI use. Yeah, yes. And I mean it's good for the transparency with the court making the transparency to let practitioners know how they are in fact using AI. And of course, it's not going to be for judicial decision making, but they are in fact using it for the internal workplace productivity and then the IT functions as well. Yeah, wow. Another update is from the Law Council of Australia who issued a media statement saying that the ICL system is under significant pressure following the Family Law Act reforms, increasing children's direct engagement with ICLs. The council warns of growing delays, practitioner shortages, and inadequate funding with an independent review identifying an annual funding shortfall exceeding $80 million. And that independent review was commissioned by the Commonwealth. Obviously, those findings are quite significant in terms of how much of a shortfall there is with funding needed for independent children's lawyers. Yeah, that's actually scary.
SPEAKER_01The day after the day of the budget. And the article states from 1 July 2026, legal aid, New South Wales, serving Australia's most popular state, will be forced to turn away anyone seeking help with parenting, property, or enforcement proceedings unless they are a victim of domestic and family violence or an Aboriginal person. The Law Council of Australia President Tanya Wolf states in the article that this will impact vulnerable older people, people with disability, and people who don't speak English. And it's not just a warning about the future, it's happening in a few weeks. So we'll see how that plays out in real time. Yeah, yeah, definitely. And I also saw that the Federal Circuit and Family Court of Australia announced that they will be receiving $34.2 million in funding over three years to expand capacity in its migration jurisdiction.
SPEAKER_00Thank you. The final update for today is the Australian government treasury released a consultation paper seeking feedback on reforms to prevent perpetrators of family and domestic violence from receiving victims' superannuation death benefits. The proposed reforms aim to improve fairness, protect victims, survivors and families, and reduce delays in death benefit payments. The consultation forms part of a broader effort to address financial abuse across Commonwealth systems.
SPEAKER_01Did they say when we'll be hearing from them?
SPEAKER_00No indication that I could see, but it's it's I'm glad that it's been given some attention. And you could you can clearly identify that at being an issue if you have a perpetrator of domestic violence, then receiving the superannuation of their deceased victim. Yeah. Yeah, yeah, wow, that's that's horrible. And that's what's up for this week. For Lauren Motion this week, Antonia is going to stick to her pop culture theme and talk to us about the rise of surrogacy in Australia and overseas.
SPEAKER_01Antonia. Thanks, Jenna. I'm not sure if you saw in um pop culture news last week, Cameron Dias announced the birth of her third baby, Nautis. Could be a possible baby name for you. Boyle girl.
unknownOkay.
SPEAKER_01And she hasn't confirmed that it was via surrogate. However, her first two were via surrogate. And so it's safe to assume that the third was as well. And from this, I thought maybe we should do have a discussion about surrogacy, how we're seeing it a lot in the media now, how it transpires in Australia, and how it is seen overseas as well. So surrogacy Australia estimates fewer than 100 Australian surrogacy births per year are had in Australia, despite several hundred families actively pursuing surrogacy domestically. So because we have an altruistic only model, which means no payment is allowed other than reimbursement costs, a lot it creates a structural mismatch where it's legal, but finding a willing and eligible surrogate is extremely difficult. So there's some key factors as to why surrogacy is growing. And the three main reasons are medical advances in reproductive technology. So the widespread availability of IVF, embryo freezing, and genetic testing has dramatically expanded who can pursue surrogacy and have increased success rates. So we've also seen the rise from fertility preservation. So people who are going to have cancer treatments, they end up freezing their eggs or freezing their spoon before they start that treatment. And then that allows them to then have children via surrogate if they're not then able to carry those children. We've seen medical necessity cases we've seen. Olivia Munn and John Mullaney in 2024, she was diagnosed with breast cancer and underwent treatment, but she was able to have her baby via surrogate. Kim Kardashian had two of her back to the Kardashians. Kim Kardashian had two children via surrogate after life-threatening complications with earlier pregnancies. Chloe Kardashian also had one via surrogate following medical advice. And Megan Trainer earlier this year said that she was required to have her baby via surrogate due to health concerns. Then the second reason for the rise is shifting social acceptance of diverse family structures. So we've seen the legalization of same-sex marriage, which has allowed for same-sex couples to have children via surrogate. And we've also seen single parents use surrogacy openly. Social media has amplified positive surrogacy narratives as well. And the third being the celebrity normalization effect. We've seen high-profile disclosures by celebrities with large followings show, like document their surrogacy journeys. We've seen the Kardashians record it and put it through their TV shows being very open. Lots of other celebrities, such as Paris Hilton, has she's had two children via surrogate and been very open about that. Lily Collins in January 2025 welcomed her daughter via surrogacy. And that one was speculated due to her not wanting to slow down in her career and start a family at the same time. So that's been really interesting.
SPEAKER_00And I agree, there's definitely more of a positive narrative around surrogacy. I still feel like I've read articles and you're talking about Lily Collins before. That do criticize the choice, if it is a choice, to have a baby vice surrogacy as well. So I think there's all with anything, there's always those negative comments.
SPEAKER_01Yeah, there's so much nuance with it as well, because we've got um commentary around Cameron Dia as having her third vice surrogate because she's 53, and they're saying, or you know, should it stop at a certain age or anything like that? Um but I guess this is all part of the bigger conversation, right?
SPEAKER_00Yeah.
SPEAKER_01Um so Jenna, I wanted to ask you, how many types of surrogacy regulations do you think there are? I would have no idea, Antonia. Well, I wouldn't have known until I researched this topic. Um so globally they fall into four broad camps. So we've got permissive and compensated, which is mainly seen in parts of the US, which I'll get into. Alteristic only with reimbursement, which we see in Canada, UK, and most of Australia. Restricted to citizens or close relatives, we see in India and Thailand, and unregulated, we see in parts of Mexico.
SPEAKER_00Okay.
SPEAKER_01Yeah. So in the US, it's really the global benchmark for compensated commercial surrogacy at the moment, but only in some states. There's no federal law that governs surrogacy. They've got friend surrogacy-friendly states such as California, Connecticut, Illinois, and Nevada. And as they're allowed to compensate the surrogate, how much do you think a one pregnancy would cost?
SPEAKER_00I'd be interested to know if there's a cap on it or a minimum amount, but hundreds of thousands?
SPEAKER_01Yeah.
SPEAKER_00No.
SPEAKER_01So hundreds of thousands, yes, but I was thinking it would be, you know, like half a million dollars. Um but typically they get paid about sixty to eighty thousand, but then including reimbursement costs, it can be up between 150,000 to 250,000 U USD. Um the key advantage of having a um surrogate birth in the US is that they have pre-birth parentage orders where the intended parent's name is the legal parent's before is the legal parent's name on the birth certificate and before birth. So the surrogate is never the legal parent. Um and sorry. Which would give a lot of comfort to the intended parent. Intended parent. Yeah, yeah. Definitely like not having a legal battle after they get their child. Um but if you're coming from Australia and you go to the US to have a child, the US parentage order does not automatically mean you're the legal parent in Australia, which I'll get into a bit further. With um the US, it is one of the most expensive. So you do see a lot of people then going to Mexico as it's partly unregulated and cheaper to get a surrogate rather than staying in America. Then we look at the United Kingdom, which is altruistic only, meaning that only reasonable expenses are permitted. They can't compensate the surrogate at all. The surrogate is the legal birth, sorry, is the legal mother at birth regardless of genetics, and the intended parents must apply for a parental order after birth but within six months. Canada is altruistic only, and they can be the surrogate can be reimbursed for any expenses that they incur during the pregnancy. And these can reach about $30,000 to $80,000 for one pregnancy. The interesting one I found was India, where it was once the world's biggest commercial surrogacy destination. It's now effectively closed due to reforms. Where now the surrogacy is restricted to married heterosexual Indian couples, where the wife is between the ages of 25 to 50, the husband is between the ages of 26 to 55, they have to be married for at least five years and no existing children. The surrogate must be a close relative of the intended parents and married with children of her own and age between 25 to 35 and limited to one surrogacy in her lifetime.
SPEAKER_00They're very specific requirements.
SPEAKER_01Very strict, yeah.
SPEAKER_00So why why did they make that change?
SPEAKER_01So they ended up having a reform due to back in the early 2000s, it was a big surrogacy, there was a big surrogacy hub in India where it was pretty much very unregulated, cost for a fraction of the Western price. So they were about 20,000 to 30,000 compared to 80,000 plus in the US. And there was a large pool of women willing to carry children for small fees. Um, but then it caused issue with the women's rights as there were businesses being created where the women were being exploited. So um they were kept in dormitories and the business owners were getting a large amount of the profit, and these women were not able to see their families and just having pregnancy after pregnancy. So the in 2015, the government banned surrogacy for foreign nationals and same-sex couples. Then in 2018, a draft surrogacy bill was introduced, and after a few rounds in parliament, the Sarrogacy Regulation Act was passed in 2021 and came into force in sorry, came into force in 2022. And so that effectively banned all commercial surrogacy, except for what I just um stated.
SPEAKER_00So fairly recent changes that have been made. Yeah. And to think that those those issues that you identified as to why these changes came into place, they would have happened before that, which isn't that long ago, you know?
SPEAKER_01No, only a few years. But it's also um concerning because as we know, when something gets banned, it doesn't mean that it's going to stop. And it just means I think more there'll be more, you know, black market kind of surrogacies happening with um less regulation. So that can be really confronting as well. Um, a similar thing happened in Thailand as well, where um directly because of the baby Gummy case. Have you heard of this case? I remember that. Yeah. So for the listeners who haven't heard of it, I'll give you a quick brief rundown. In 2014, an Australian couple from Western Australia entered into the commercial surrogacy arrangement with the Thai surrogate who fell pregnant with twins. When the twins were born, there was one healthy girl, Pippa, and there was a baby boy Gammy, who was born with Down syndrome and a heart condition. The Australian parents left Gammy and took Pippa back to Australia, and the surrogate was left to care for baby Gammy. And um the story went viral, public outrage, and pretty much overnight Thailand um changed their surrogacy laws. And so now um they have they've banned foreign and same-sex commercial surrogacy, and only altruistic surrogacy is permitted. Vatae married heterosexual couples married at least three years using a relative as a surrogate. So very similar to India.
SPEAKER_00Yeah.
SPEAKER_01Which I understand if they're gonna have these concerns, but again, then you go to the unregulated market if you become so strict.
SPEAKER_00Yeah. Yeah. It's hard to even fathom what could happen in these instances, but there's there's issues that do arise, and I think some c some countries have obviously made that decision as you've highlighted with India and Thailand for a reason. Yeah.
SPEAKER_01Um exactly. So that brings us to Australia. And as you know, we don't have a commercial um we don't have commercial surrogacy, but I was going to say we don't have a Commonwealth statutory um statute about surrogacy. Surrogacy is regulated by each state and territory through their own legislation. And then the Commonwealth overlay is the Family Law Act, which which looks at um parentage and parenting consequences such as parental responsibility and care of the child. Now, at every birth in every Australian state, the surrogate and sometimes her partner is the legal parent, and then the intendant parent must go to court after birth to transfer parentage. So some key points of difference between our states are most jurisdictions require the surrogate to be at least 25 years old. However, South Australia and the ACT permit a surrogate from the age of 18, which is quite young. Victoria, Tasmania, and Western Australia require the surrogate to have already given birth to a child of her own before acting as a surrogate. Most jurisdictions also require pre-conception counseling and independent legal advice for the surrogate and her partner. In relation to advertising, Queensland and Victoria and the ACT prohibit advertising for or as a surrogate, including online posts and social media, while South Australia and WA permit non-commercial advertising. In New South Wales, Queensland and the ACT, it's a criminal offence for residents to enter into commercial surrogacy arrangements overseas. And the maximum penalty, what what do you think it is?
SPEAKER_00In doll is it dollar terms or imprisonment? Both. Oh, oh. Sorry I'm putting it on the million dollars.
SPEAKER_01It's two years imprisonment and a fine of 110,000. Okay. Yeah. So no prosecution has yet succeeded, but the offences remain on the books and create real risk for practitioners advising families. So when we look at parentage and heartworks in Australia, in every Australian jurisdiction, a parentage order from the relevant court is required to transfer legal parentage from the surrogate to the intended parent. Typical statutory preconditions include a written pre-conception surrogacy agreement, independent legal advice for the surrogate, and if they're married or in a de facto relationship, their partner as well, and the intended parent. Counseling for all parties before conception and again before the parentage order application. The child should be living with the intended parent for a defined minimum period, which is commonly 28 days before the application. The application is made within a time window, most commonly 28 days after the birth, up to six months. And free and informed consent by the surrogate at the time of the application. And overall, as we know, the best interest of the child is a paramount consideration. So when we're looking at overseas commercial surrogacy and Australian courts, we've seen most Australian intended parents who go offshore, they go to America, Canada, or increasingly Colombia and Mexico. I found that really interesting. Yeah. And when they return with a child whose parentage is recognized under foreign law, it's not automatically under Australian state law, as we've discussed. So they will have to go through that whole process with in New South Wales the Supreme Court and then get um family court orders as well, or federal circuit and family court.
SPEAKER_00Yeah. And you wonder if any couples do reach any hurdles going through that process. So they've had their baby, they bought them back from wherever the surrogate is located to Australia, they've made this application. Yeah. And whether there are any issues at that point or whether it is a fairly smooth process.
SPEAKER_01I'm sure there would be some issues that arise for some couples, but if the pros would um outweigh the cons, right? And why so many Australians are still going overseas is we've got a surrogate shortage in Australia. The advertising restrictions in some states make it difficult to try to get those surrogates. And um time pressures, you know, if they've Got cancer treatment timelines and whatnot. Some people don't have the time to sit and wait in Australia. They want to find a surrogate quickly. So they do end up going overseas. But with the disjointed legislation in Australia, we have seen that in December 2024, the Australian Law Reform Commission was asked by the Attorney General to review Australia's surrogacy laws. So there's currently a review in process. In November 2025, a discussion paper was issued, and that set out 41 proposals and 21 questions for public feedback ahead of the final report due in July this year. So it doesn't recommend banning surrogacy. However, it asks to make for more regulations to make it work better for everyone involved. The core problem that it found was the structural failure of the eight jurisdictions across Australia. Eight, yeah, the eight jurisdictions across Australia, and it's so restrictive and fragmented. And the main proposals for the reform are one, we've got a national harmonization, so to have a Commonwealth legislation in place. Sargocy support organizations, so they're suggesting licensed bodies that connect intended parents and surrogates, review and approve surrogacy agreements before conception and oversee compliance. Then we've also got an administrative pathway to parentage, so making that more accessible and streamlined like the US have done. They want to adopt that kind of model. They want to expand cost recovery for surrogates, have Medicare coverage, allow advertising to be permitted, repeal criminal offenses, have an overseas surrogacy registration where the intended parents who register overseas arrangements would access a streamlined pathway for the child to obtain Australian citizenship and passport documents, and identity rights. So birth certificates would carry an addendum noting the surrogacy, and a national surrogacy register would allow people born through surrogacy to access information about their origins. So I think these reforms or these suggested reforms are really important and they'd be able to protect the all parties involved or their rights and have more of a structured framework for the whole country to follow.
SPEAKER_00And it would be interesting to see what the if the intended impact, which is to have more surrogacies in Australia, actually does come to light once or if these changes do occur.
SPEAKER_01Yeah. We'll know more after the report's released in July.
SPEAKER_00Looking forward to hearing more about it. Yeah, me too. Thank you, Antonia. That was really interesting, particularly covering an area that I didn't know much about because we don't deal with it all that often. And as you said, it's not that common in Australia. No, exactly. I found it really interesting too, doing all the research.
SPEAKER_01Yeah, thanks, Jenna. Thank you.
SPEAKER_00We've loved being in your ears this week. Don't forget to like, subscribe, and share this podcast. If you have any questions, please reach out to us via email, or you can also reach us on YouTube, Instagram, or TikTok. Stay tuned for next week's episode. New episode drops every Monday.