International Surrogacy: Australian couple could face criminal charges following surrogacy in Thailand

A married couple from Queensland, Australia, could face criminal charges following their application to the Family Court in Sydney for parenting orders for their surrogate born children.   The case is among the first to come before the courts since recent laws were passed making it illegal for a New South Wales Resident to pay a surrogate mother a commercial sum either domestically or overseas.

After years of unsuccessful IVF, the Australian couple entered into a commercial surrogacy arrangement in Thailand.  Following their return home to Australia after the birth, they applied to court to secure legal parental rights for their children.  The court awarded them “equal and shared responsibility for the children” but did not make any ruling about whether the couple were the babies’ legal parents.  The court then ordered the Office of the Director of Public Prosecutions in Queensland to consider whether the couple should be prosecuted for entering into a commercial agreement.

It is believed that hundreds of Australians travel overseas for commercial surrogacy despite restrictive laws across Australia.  The case has raised concern that intended parents will now be wary about applying to the Family Courts in Australia for a parenting order and that they will be encouraged to lie about their children’s conception and birth, leaving themselves and their children legally vulnerable and unprotected.

Surrogacy laws are complex, particularly when people cross borders to enter into a surrogacy arrangement.  There is no international harmonization of surrogacy law and there are many legal pitfalls to think about making expert legal advice from the outset essential.

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