Regulating Surrogacy in Australia

The article below was written for the special Children’s Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons, the Human Rights Law Centre and UNICEF Australia. 

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, UNICEF Australia, NCYLC or the HLRC or the views of the King & Wood Mallesons’ clients.

Regulating Surrogacy in Australia

Surrogacy is an intricate and sensitive subject, which raises a number of ethical and legal concerns. Surrogacy is where a woman (the “surrogate” or “birth mother”) agrees to try to have a baby for another person or a couple (the “intended parent(s)”). If a baby is born, the surrogate gives custody and guardianship of the baby to the intended parents, through a court order. Over the past year surrogacy, both in Australia and internationally, has attracted significant media and political attention.

The ethical issues surrounding surrogacy arrangements were put under the international spotlight in 2014 by the case of baby Gammy. Gammy was born to a Thai surrogate who was paid by Australian intended parents. Gammy was born with down syndrome and a hole in his heart requiring extensive medical treatment. The intended parents chose to take Gammy’s healthy twin sister back to Australia, leaving Gammy with his surrogate. This case caused international concern, raising awareness of the lack of regulation of international surrogacy arrangements and highlighting the ethical considerations involved in the practice of surrogacy.

This article explores the regulation of surrogacy in Australia and considers the increasing trend of Australians entering into international surrogacy arrangements. It also compares the situation in Australia with other countries to highlight that there is an inconsistent international approach to regulation, and considers what obligations Australia has under international treaties, such as the Convention on the Rights of the Child (the Convention) and the International Covenant on Civil and Political Rights (ICCPR), in relation to surrogacy. We note that views on this topic are diverse and this article only highlights some of the views and issues in this area.

What does Australia’s law say?

Each State and Territory has different laws about surrogacy. In all of the jurisdictions (except the Northern Territory where there are no laws regarding surrogacy), there are strict regulations and eligibility requirements that must be met before a surrogacy agreement can be entered into and performed and in what situations this may be done. Some aspects of surrogacy are also regulated by international law. This article does not examine the legal position of each jurisdiction in depth. Any person considering entering into surrogacy is advised to obtain independent legal advice.

Australian laws permit surrogacy in situations which are commonly called “altruistic” arrangements, this is where a surrogate does not receive any financial compensation, other than for “reasonable” medical expenses. In contrast, commercial arrangements, which are sometimes referred to as “compensated” surrogacy are generally prohibited in Australia. This is an arrangement in which the surrogate receives payment for taking part.

In New South Wales, Tasmania, Queensland and Victoria any person, regardless of sex, relationship status or sexual orientation can be an intended parent. In contrast, in the other States and the ACT only heterosexual married or de facto couples, or single women, are eligible. Tasmania, Victoria and Western Australia only allow surrogacy if the surrogate has given birth to a child before, and in all States except the ACT the surrogate must be at least 25.

Most jurisdictions require there to be a medical need for the surrogacy but some jurisdictions (New South Wales, Tasmania, Queensland and Victoria) also allow surrogacy when there is a social reason (e.g. a same-sex couple). The ACT does not require there to be a medical or social need for the surrogacy and Western Australia specifically excludes age as a suitable medical reason.

In New South Wales, the ACT and Queensland it is an offence for people from those jurisdictions to enter into commercial surrogacy arrangements overseas. This means that such people can be found guilty of an offence (punishable by a fine and/or imprisonment). In the remaining jurisdictions, it is not a crime to enter into commercial surrogacy arrangements overseas but the intended parent(s) may be unable to obtain, or have difficulty in obtaining, a parentage order due to the prohibition on commercial arrangements.

Also, the process for transferring parentage from the surrogate to the intended parents is different in each jurisdiction, particularly when it comes to international surrogacy arrangements (we talk about this more below). However generally, if parents can satisfy all the requirements, parentage is able to be transferred from the surrogate to the intended parent(s) through application to the court for a “parentage order”.

A surrogacy arrangement is generally not enforceable, except to the extent that it provides for the payment of the surrogate’s expenses related to the pregnancy. This means that a surrogate who refuses to hand over the baby cannot be forced to under the agreement. If she refuses to do so, the only remedy for the intended parent(s) is to apply to the Family Court for a parenting order that the child live with them.

What rights are protected under international law?

Surrogacy arrangements raise a number of human rights issues and aspects of the arrangements can arguably conflict with the rights of children as protected under international law.

The Convention is an international treaty that contains certain human rights that State parties must provide to all children, regardless of to whom or under what arrangement they are born. Australia ratified the Convention in December 1990 which means that Australia has a duty under international law to ensure that all Australian children enjoy the rights set out in the treaty, however these provisions are not directly enforceable under Australia’s domestic law.  

An overarching obligation under the Convention is that the best interests of the child shall be a primary consideration in all actions concerning them (Article 3). Other rights which may be relevant to surrogacy include the rights of the child (under Articles 7, 8 and 9):

  • to be registered immediately after birth;
  • to a name, to acquire a nationality and, as far as possible, to know and be cared for by his or her parents;
  • to preserve his or her own identity, including nationality, name and family relations; and
  • not to be separated from his or her parents against their will, except in certain specified circumstances.

State parties which have ratified the Convention are also required to ensure that the best interests of the child are the paramount consideration in relation to the country’s adoption system (which can arguably be closely linked to surrogacy arrangements) (Article 21).

Australia is also a party to the ICCPR. This treaty contains certain civil and political rights which are relevant to surrogacy. These include the protection of the family as the natural and fundamental group unit of society (Article 23) and, consistent with the Convention, the right of every child to be registered immediately after birth, to have a name and to acquire a nationality (Article 24).

There are diverse views on the issue of international human rights and the practice of surrogacy. Surrogacy involves a number of possible “parents”, with the surrogate being the child’s mother until a parentage order is made by a court. The question is then, who are the child’s parents by whom he or she should be cared for and not separated from. Further, the uncertainty regarding the identity of the mother in a surrogacy arrangement can lead to confusion regarding a child’s own identity, affecting the child’s right to preserve his or her identity.

There are also complex issues concerning a child’s right to acquire a nationality, in particular where that child would otherwise be stateless (Article 7, Convention), when they are born overseas in an international surrogate arrangement. This issue is considered further below.

How Does Australia Compare?

Australia is not the only country which faces inconsistencies in how surrogacy is regulated. Like Australia, surrogacy in the United States is also regulated on a State-by-State basis; however the situation is more complicated. The laws range from non-existent in the majority of States, to permitting both altruistic and commercial surrogacy arrangements in other States, through to criminalising all forms of surrogacy in other States.

California, in particular, has long been known as a surrogacy-friendly State. California permits and consistently enforces altruistic and commercial surrogacy arrangements, through the use of pre-birth orders and surrogacy contracts (in writing; prior to conception) which allow parentage to be transferred to the intended parents before birth. Californian law allows both genetic and non-genetic parents to receive a pre-birth parentage declaration so long as the pre-birth agreement is valid.

Unlike some Australian States and Territories, California is also more flexible regarding surrogacy and same sex couples: three recent court cases decided that where a child is born through assisted reproduction, both partners are deemed the legal parents, regardless of marital status or sexual orientation. This factor, alongside the fact that commercial arrangements are allowed, makes the United States and California in particular, one of the most popular destinations for Australians seeking international surrogacy arrangements. However, there is still difficulty for intended parents living outside the US. For a child born through surrogacy to be allowed to leave the US with legally recognised intended parents, the child must have a US passport, court approval, and a birth certificate listing the intended parents. Yet even these rules may be easier to follow than the difficult Australian surrogacy laws.

Australians and International Surrogacy

Australians are reported as the largest client market for international surrogacy arrangements.

This is likely due to the complicated and conflicting nature of Australian surrogacy laws, the prohibition on commercial surrogacy, the discriminatory laws that exclude same sex and single intended parents in a number of Australian States, and the continual decline in the number of children available for adoption both in Australia and overseas. As a result, Australians are some of the biggest seekers of international surrogacy arrangements, with a recorded 420 citizenship applications for children born through commercial surrogacy arrangements from 2008-2012, and 394 babies born in India to Australian citizens in 2011 alone. The major commercial surrogacy destinations for Australians are India, Thailand and the United States (California in particular), with Canada also an increasingly popular destination.

However, the use of international surrogacy arrangements can be tricky given the difficulties in securing citizenship for children born through surrogacy and legal recognition of the intended parents.

Lack of adequate regulation of international surrogacy can lead to exploitation of surrogates. There are surrogacy agencies that make money by finding potential surrogates for parents who want a surrogate baby, and these agencies are particularly popular in poorer countries. Because in many countries there aren’t any laws regulating surrogacy, some women facing financial hardship turn to paid surrogacy out of desperation, and then often receive barely enough of the large fee paid by the intended parents to the agencies to cover expenses. This is because the surrogacy agencies take most of the money, rather than passing it on to the surrogate mother. These agencies make large profits by exploiting poor and undereducated women to provide wealthy Australians (amongst others) with children, and often use illegal practices to do so. The lack of regulation may also lead to additional issues including the risk to children in not having access to their genetic information and information regarding their identity.

Even where an international surrogacy arrangement occurs as planned and the intended parents wish to return with their child to Australia, there can be difficulties as the lack of adequate laws in place can make it hard to get parentage orders and citizenship for children born from international surrogacy. It is also an offence in three jurisdictions (NSW, ACT and Queensland) for intended parents to enter into commercial surrogacy arrangements overseas. Australian law is reluctant to recognise parentage orders granted in other countries, and international commercial surrogacy arrangements are technically excluded from Australian surrogacy laws that allow transfer of parentage.

Inconsistency between Australian States, as well as problems for courts in balancing the welfare of children born through surrogacy with the desire to prevent international surrogacy arrangements, has resulted in inconsistency in granting or refusing parentage orders. The recent court case of Dennis v Pradchapet [2011] Fam CA 123 illustrates these issues: three children were born as a result of two separate international surrogacy arrangements entered into by the same intended parents, but a successful declaration of parentage was made in relation to only one of the three children, due to the wide discretion given to the court as a result of conflicting and incomplete laws.

Also, the conflicting laws on surrogacy between different countries can lead to confusion in determining who a child’s legal parents are. Depending on the nationality of the intended parents, the surrogate, and those providing the genetic material, the resulting child may end up:

  • with no nationality (“stateless”) and no parents recognised by law (“parentless”) (for example, this is the situation in India);
  • parentless (e.g. California);
  • parentless but with the citizenship of the birth county (e.g. United States;); or
  • being the child of the surrogate only with the citizenship of the birth county (e.g. Thailand).

Potential reform for surrogacy laws in Australia?

The issues and concerns around surrogacy are live issues which are currently under government consideration. The House of Representatives Standing Committee on Social Policy and Legal Affairs (the Committee) recently held a Roundtable on surrogacy to investigate the complexities of regulation of surrogacy, and issues faced by the increasing number of Australians who seek and use surrogacy arrangements. The Committee tabled its report Roundtable on Surrogacy on 24 March 2015.

The Committee recommended that the Attorney-General refer back to the Committee an inquiry into the regulatory and legislative aspects of surrogacy arrangements, with a focus on:

  • Domestic surrogacy arrangements including issues such as:
    • medical and welfare guidelines,
    • differences in domestic legislative arrangements,
    • informed consent, compensatory payments and protections for all parties involved, and
  • International surrogacy arrangements involving Australian nationals including issues such as:
    • Australia’s international obligations,
    • informed consent of surrogates, compensatory payments and protections for all parties involved,
    • requirements for immigration, citizenship, determining parentage and ongoing welfare, and
    • adequacy of current information on risks, rights and protections.

We will be closely watching this space to see the outcome of this recommendation and to see the steps the government takes to reconcile the various opinions, views and ethical considerations in this area.

Millie Dale and Taylor Macdonald are Summer Clerks at King & Wood Mallesons.