Surrogacy law in flux

Family & Relationship Law update - 12 September 2014

Summary

The recent media coverage of baby Gammy's case has reignited popular debate about the legalisation of commercial surrogacy and the risks associated with the inconsistent and complex commercial surrogacy laws in Australia and abroad.

 

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Commercial surrogacy - current situation in Australia

There is currently no national position in relation to commercial surrogacy in Australia. Each state is responsible for surrogacy laws operating in that state, creating a confusing tapestry of regulation. Commercial surrogacy is illegal in QLD, NSW and ACT, whether the surrogacy agreement is entered into in those states or in overseas jurisdictions. In VIC, TAS, SA and WA, commercial surrogacy is banned within the particular state only, allowing residents to access commercial surrogacy arrangements overseas. The NT currently has no surrogacy legislation, and the outcome of a review into WA's surrogacy laws is expected to be released in October.

To make matters more confusing for those considering surrogate arrangements, overseas jurisdictions where those arrangements are commonly sought impose varied and changing regulations.

 

Commercial surrogacy overseas

The recent cases of baby Gammy, a critically ill child born to a surrogate mother in Thailand who was abandoned by his Australian parents, and the Japanese businessman who fathered 13 children through Thai surrogacy arrangements, has provoked international outcry and shined a spotlight on Thailand's largely unregulated and highly lucrative surrogacy business.

The cases have prompted Thai authorities to crackdown on surrogacy clinics and a draft law has been submitted to the Thai government for consideration. If passed, the law would ban commercial surrogacy, and those found guilty could face up to 10 years in prison and a fine of up to $6,200.

Surrogacy is still very much an evolving area of law, both in Australia and internationally. At the end of 2012, India's immigration (visa) laws changed to exclude singles and both gay and heterosexual de facto couples from commissioning surrogate babies. Prospective Australian parents, who were part way through the surrogacy process when the laws changed, were left in a stressful and uncertain position. It now appears that the Thai authorities are looking to regulate surrogacy (where there has previously been no regulation), leaving the hundreds of people who are party to surrogate arrangements wondering whether they will be able to bring their children home.

 

If you're considering a commercial surrogacy arrangement

The absence of uniform surrogacy laws in Australia and reciprocal arrangements with overseas jurisdictions can make the surrogacy journey a confusing and risky one. Anyone considering surrogacy should first obtain legal advice.

Extreme caution should be exercised when considering entering into overseas surrogacy arrangements, as some countries are changing their surrogacy laws and visa requirements with little or no notice to the intended parents, leaving those who are part way through the surrogacy process in a stressful and uncertain position. 

Lander & Rogers has acted in a wide range of surrogacy matters and we welcome your enquiries.

Authors
Julia Dickson, Lawyer
Max Paterson, Lawyer

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