Victorian laws limit who may be a surrogate in an arrangement that uses assisted reproductive treatment and so restrict infertile people's ability to create a family. These restrictions arose because of concern about protecting surrogates from harm. The restrictions are inconsistent with other laws and with the principles on which a harm-based approach to regulation relies. The harm-based approach fails to describe surrogacy accurately because it fails to account for the interdependence of those involved. An ethics of care approach allows recognition of this interdependence and provides a more appropriate framework for regulation. An ethics of care approach to surrogacy would allow less prescriptive regulation, which focused on fostering caring relationships. This could be achieved by formally recognising the role of the surrogate in the formation of the family and by dispensing with attempts to replicate "traditional" heteronormative families.
Keywords: Assisted Reproductive Treatment Act 2008; ethics of care; harm principle; regulation; surrogacy.