On 18 December 2025, the Australian Law Reform Commission held a roundtable consultation with seven women’s organisations who support the abolition of surrogacy in all its forms. What occurred was not merely a disagreement about policy content. It was a demonstration that fundamental questions about the review’s legitimacy remain unaddressed — and that the ALRC may be struggling to address them.
Two moments from the roundtable crystallise this concern. Each, considered separately, is troubling. Considered together they reveal, perhaps, a pattern: that the ALRC may have structured a review that forecloses genuine deliberation about abolition, and then responded to scrutiny by deflecting governance and process questions and restricting which concerns can be raised, when, and with whom.
The terms of reference challenge: The ALRC has far broader powers than it suggests
The President of the ALRC, Justice Mordecai Bromberg, asked women’s organisations to address how we would say that a recommendation from the ALRC that surrogacy should be abolished falls within the terms of reference.
This question frames abolition as potentially legally or procedurally implausible, and suggests that the ALRC is bound by its Terms of Reference and cannot recommend anything not explicitly contemplated within them. We believe that this framing misstates both the law and the ALRC’s powers.
The Australian Law Reform Commission Act 1996 grants the ALRC broad statutory discretion. Section 24(1)(b) states, “In performing its functions, the Commission must aim at ensuring that the laws, proposals and recommendations it reviews, considers or makes are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.” Additionally, section 24(2)(b) of the ALRC Act requires that the Commission, must also “have regard to the effect that the recommendations may have on persons … who would be affected by the recommendations… .” These are not discretionary guidelines. They are statutory obligations.
Women – both as individuals and at the population level – are the persons first and foremost affected by surrogacy. Australia’s obligations under CEDAW are manifestly ‘relevant’ to surrogacy law. But Australia’s obligations under the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR) are also manifestly ‘relevant’ to surrogacy law. We believe that the ALRC cannot discharge its statutory duty by claiming these obligations fall outside its scope or are constrained by narrow Terms of Reference.
Abolition falls within the existing Terms of Reference
In fact, the actual Terms of Reference can be read to include abolition – without any stretch of interpretation. The ToRs direct the ALRC to “… identify legal and policy reforms, particularly proposals for uniform or complementary state, territory and Commonwealth laws, that are consistent with Australia’s obligations under international law and conventions”.
It does not say: ‘Assume surrogacy is desirable and find ways to expand it.’ It does say, ‘Identify reforms and proposals that are consistent with Australia’s international obligations’.
AAWAA, and other women’s organisations at the roundtable, have identified for the ALRC the fundamental problem: surrogacy is a breach of women’s human rights under CEDAW. And we have backed this up with direct reference to the recent report by the UN Special Rapporteur on violence against women and girls – a report that clearly identifies surrogacy as violence and exploitation of women and that clearly shows how surrogacy breaches CEDAW: “In the context of surrogacy,” the Special Rapporteur states, CEDAW “precludes the objectification and commodification of women …” (para 53).
For the record, we say yet again that surrogacy is a practice that commodifies women’s reproductive labour, exploits women economically, and cannot be reconciled with Australia’s human rights obligations. That is not rhetoric. It is a legitimate response to the ToR’s first instruction.
The ALRC can advise government that the Terms of Reference should be expanded
Even if the ALRC considers abolition to fall outside what it says are the strict bounds of the Terms of Reference, it nevertheless has institutional and legal power to address this constraint and is not confined to narrow technical reforms. Instead, it can recommend fundamental shifts when evidence and human rights obligations require it.
Indeed, we say that the the ALRC can and should advise the Attorney-General that the current ToRs are inadequate in light of Australia’s international human rights obligations. The ALRC could state, for example,
The Commission notes that submissions from women’s organisations, legal experts, and individuals with lived experience of adoption and surrogacy separation demonstrate that surrogacy constitutes a fundamental violation of human rights that cannot be remedied through regulation. Whilst this review’s Terms of Reference direct the Commission to consider regulatory reform, the Commission advises the Attorney-General that serious consideration should be given to whether abolition, rather than regulation and/or expansion, is the only reform consistent with Australia’s CEDAW, CRC, and ICCPR obligations.
This is not outside the ALRC’s power: instead, we argue that it would represent a responsible discharge of its statutory duty. A law reform commission that claims to be constrained by narrow ToRs from considering human rights-based abolition is a law reform commission that may be limiting its own independence.
What the question reveals
But why pose this question at all? Our problem is that Justice Bromberg’s question shifts the burden of proof. Instead of the ALRC using its power to explain why abolition doesn’t fall within the ToRs — which it cannot, given the statutory language and the explicit instruction to “identify reforms” — the ALRC has invited women’s organisations to explain why abolition does.
This is a reversal of institutional responsibility. For clarity, we think the ALRC should explain its legal position. If it believes it cannot recommend abolition, then it should say so explicitly and justify that position with reference to the ALRC Act and the ToRs. Instead, the ALRC has posed a question that makes abolition seem procedurally implausible – without its having to explain why.
Women’s organisations are right to respond with detailed arguments. But the concern remains: the ALRC should not use the Terms of Reference as a shield against engaging with arguments about Australia’s fundamental human rights obligations. If the ALRC assesses that the ToRs constrain it inappropriately, then it should advise the Attorney-General accordingly. That is what independent law reform looks like.
Why separating process from substance is incoherent
The roundtable began with an invitation to openness. The ALRC had set no formal agenda, and women’s organisations could structure their contributions as they wished. However, Justice Bromberg opened the meeting by clarifying that discussion would be limited to the subject matter of the review, and that process concerns should be addressed to him via email rather than discussed in the roundtable. We submit that the ALRC’s attempt to separate ‘process’ from ‘substance’ is legally and logically unsound.
If the Advisory Committee for the ALRC’s Review of Surrogacy Laws appears to comprise at minimum eight out of eleven members with direct financial or ideological interests in surrogacy expansion, and zero members representing abolitionist feminist organisations, then the ‘substantive’ proposals are not neutral options being ‘tested’. Instead, they reflect the composition of the advisory committee – which poses a serious risk to impartiality and raises questions about conflicts, or at the very least perceived conflicts, of interest. If the Assistant Commissioner has published prior scholarship advocating for the very reforms now proposed, for example, then the proposals may not be at all preliminary: rather, they may reflect pre-existing policy preferences.
If abolitionist submissions to the initial Issues Paper were substantially ignored when the discussion paper was drafted, then the discussion paper does not represent a genuine testing of ideas but instead represents selective engagement. Process determines substance. The composition of the advisory committee determines what gets proposed. Conflicts or perceived conflicts of interest that are not transparently managed determine the direction. Evidence that is ignored determines what will be recommended.
To ask women’s organisations to ‘engage with substance’ whilst preventing us from questioning process is to ask us to accept the review’s output before the very integrity of the process has even been examined when questions about that integrity have been raised.
Moving concerns to email is problematic
Justice Bromberg suggested that process concerns be raised via email directly to him, rather than discussed in the roundtable. Whilst this may be a generous offer of direct engagement, we hold concerns for transparency. When organisations raise issues and problems collectively, there are witnesses. Multiple organisations can corroborate the issues and they cannot be later characterised differently or claimed they were never raised. In other words, there is accountability.
When organisations write separate emails to an individual in a body such as the ALRC, the organisations can receive different responses, or no response – and the exchange remains private. Issues can be characterised as the recipient wishes and there is no way to verify whether matters raised were adequately addressed. And importantly, in the context of grassroots women’s rights advocacy groups, run by volunteers without government funding, our time and resources are diverted.
This does not amount to an invitation to raise issues more effectively; rather it amounts to an invitation to raise them in a forum where they are depowered and isolated.
The questions that remain unanswered
When women’s organisations attempted to discuss process at the roundtable, we asked straightforward governance questions: “How were material and perceived conflicts of interest identified, documented, and managed for each advisory committee member and for the Assistant Commissioner?” and, “How was the composition of the advisory committee determined and who was ultimately responsible?”
These are not complex questions. The ALRC either conducted conflict assessments, or it did not. The advisory committee composition was determined through some process, or it was not. The concern is not that the Commission declined to engage with our concerns immediately – it could have taken our questions on notice and replied to the coalition members as a group. The concern is rather that the questions were treated as inappropriate for public discussion and that we were asked separately to email our concerns to the president – when we hold that they go to the heart of the review’s legitimacy.
The legal obligation the ALRC must not avoid
The ALRC’s own governance framework, and the APS Conflict of Interest Management Framework – which we will argue in our upcoming submission that the ALRC would do well to emulate – require that conflicts of interest be identified, documented, and transparently managed. Process transparency is not optional: it is foundational to institutional legitimacy. The ALRC cannot say to women’s organisations, “We will not discuss today whether conflicts of interest were properly managed in this consultation. But please trust that they were.”
Trust in public institutions is earned through transparency. When transparency is refused or deferred – not placed up front – trust is forfeited.
What these two moments reveal together
Considered separately, each moment is concerning. But considered together, they reveal the start of a pattern: the ALRC has seemingly structured a review that forecloses genuine deliberation about abolition, and has responded to scrutiny by deflecting legal questions and restricting which concerns can be raised in public forums before the final report is considered. Both moves serve the same purpose: to foreclose the fundamental questions that would expose whether this review is institutionally compromised.
This is not how independent law reform should operate. The ALRC should welcome scrutiny of its process. It should explain its legal position on the ToRs. It should answer governance questions transparently. It should demonstrate — not merely assert — that the review is free from capture.
What happens next
Women’s organisations will submit our written responses. Many will focus on the institutional failures that make this review’s proposals questionable regardless of the content of those proposals. AAWAA will argue that abolition falls within the Terms of Reference. We will argue that the ALRC does, indeed, have the statutory power to recommend it. We will argue that the process concerns are not ‘separate’ from substance, but rather that they determine substance.
The ALRC has the opportunity to respond: It can publish the conflict of interest assessments undertaken for the Assistant Commissioner and all advisory committee members; It can explain the decision-making process by which the advisory committee composition was determined; It can justify why no abolitionist feminist organisations were included.
Whether the ALRC does so will determine whether this review retains credibility. A review that deflects legal and process questions and restricts governance scrutiny has already failed in its statutory duty to operate independently and in the public interest — regardless of what recommendations it ultimately produces.
The ALRC still has the opportunity to pause, to reconstitute its advisory committee, to engage transparently with governance and process concerns, and to conduct a genuine consultation. The roundtable on 18 December revealed that these steps are necessary. Whether they are taken remains to be seen.
Read our statement to the ALRC roundtable, below. We invite the ALRC to address our concerns.
