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S Harder (2021) 33 Bond Law Review 93-118.pdf (367.93 kB)

Compensation for the cost of a surrogacy arrangement in personal injury cases

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posted on 2023-06-10, 00:08 authored by Sirko HarderSirko Harder
A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.

History

Publication status

  • Published

File Version

  • Published version

Journal

Bond Law Review

ISSN

1033-4505

Publisher

Bond University

Issue

1

Volume

33

Page range

93-118

Department affiliated with

  • Law Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2021-06-18

First Open Access (FOA) Date

2021-06-18

First Compliant Deposit (FCD) Date

2021-06-17

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