The Risks of International Commercial Surrogacy for Australian Families

criminality of commercial surrogacy for australian parents lawyer sydney

A recent case before the courts has reignited national debate around international commercial surrogacy and its complex legal implications for Australian intended parents and their children. While surrogacy arrangements may offer hope to couples struggling to build a family, the legal status of children born through overseas commercial surrogacy remains uncertain under Australian law.

As noted on the federal government’s own website, legal parentage is “usually not recognised” in Australia for children born under commercial surrogacy agreements abroad. This means the surrogate—often living overseas—may remain the legal parent, even after the child is brought home to Australia. For parents based in states like Queensland, where commercial surrogacy is expressly prohibited, the consequences are even more complicated.

Our Principal Solicitor, Sarah Bevan, an Accredited Family Law Specialist and President of Surrogacy Australia, recently commented that such children may be placed in a form of legal limbo unless an Australian court makes parenting orders.

Where does the criminality of overseas surrogacy stand?

What are the takeaways from Lloyd and Compton?

In all States and Territories of Australia, only altruistic surrogacy is allowed for domestic surrogacy arrangements. NSW, Queensland and ACT go further, making it a criminal offence for residents of those States/Territories to engage in commercial surrogacy anywhere in the world. Every year hundreds of residents of NSW, Qld and ACT engage in commercial surrogacy internationally. There has never been any prosecution of, or charges laid against, any of those parents.

It remains astounding that people who engage properly in ethically run surrogacy overseas, to fulfil an entirely human desire of having children, face the threat of prosecution. Long term committed couples who struggle with infertility and same sex couples (and some singles) just can’t create a family in the same way that some people do simply by accident. Even the possibility of prosecution can cause immeasurable further trauma to people who have already gone through so much to try to build their family. It is far beyond time for the law to change. Our Sarah Bevan has been extremely active in surrogacy law reform at both State and Commonwealth levels, and she will continue to do so because parents and children deserve proper recognition without the threat of criminal prosecution hanging over their head.

Sarah Bevan Family Lawyers acted for the surrogate in the recent case of Lloyd and Compton which was a case in the Brisbane Registry of the Federal Circuit and Family Court of Australia. We cannot, for confidentiality reasons, comment on the specifics of the case but it is extremely unfortunate for the parents in that case that they were referred to the Queensland Attorney-General. It is even more unfortunate for the child that a parental responsibility/decision-making order was not made in favour of the parents. This leaves the family in a form of legal limbo.

The referral to the Attorney-General, and subsequent investigation by the Queensland Police will strike even more fear into the hearts of parents and intended parents through international commercial surrogacy. It is not the first time similar referrals have been made, and in those referrals no prosecutions ensued. We don’t know what will come of this but we know what history suggests.

What we know for certain is that surrogacy law reform is long overdue. This includes making surrogacy more available domestically. There is a current inquiry by the ALRC underway, and so we remain hopeful for the sake of the many thousands of families of international surrogacy in Australia.