Overseas surrogacy: Brisbane couple’s quest for parental rights

A Brisbane couple who entered into a commercial surrogacy arrangement overseas could face criminal charges in Australia. 

The couple, who are in their 50s, had tried to conceive a child for over 15 years, including several attempts via IVF. They subsequently entered into a commercial arrangement with an overseas surrogate, with the child being born in Cyprus. The couple spent approximately AU$140,000 to locate a surrogate, source donor eggs, and facilitate embryo implantation.    

When the child was born, the surrogacy arrangement was registered in Cyprus (being the country of the child’s birth), and the surrogate and the intended father (who was the biological father) were both listed as parents on the birth certificate.  

The child returned to Australia with the couple in late 2024 and has been granted Australian citizenship and an Australian passport. However, when the couple sought a parenting order in relation to the child, they encountered legal obstacles.  

Surrogacy law in Australia 

Surrogacy in Australia is governed by national and state laws, which generally allow altruistic surrogacy but ban commercial surrogacy. Each state has its own rules, but they all share the same basic principles: including that the surrogate mother and her partner can transfer parentage to the intended parents after the child’s birth. 

Initially, Australian law considers the surrogate mother as the legal parent, even if she isn’t biologically related to the child. In gestational surrogacy, the surrogate isn’t genetically linked to the child because the embryo comes from the intended parents or donors. A court order is thereafter required to transfer parentage from the surrogate to the intended parents.   

Application for parental rights in Australia 

In July 2024, the couple filed an initiating application in the Federal Circuit and Family Court of Australia for a parenting order for parental responsibility and for the child to live with them.  If granted, this order would allow both of the intended parents to have all legal rights and decision-making responsibilities of parents under Australian law.  

However, the court found the couple did not have standing to bring the application, and as the surrogacy was a commercial arrangement which is prohibited in Australia, neither applicant was a “parent” within the meaning of s 60HB of the Family Law Act 1975 (Cth), which defines who is legally recognised as a parent in surrogacy arrangements.   

In reaching her decision, Justice Carew made the following comments: 

“In my view, to make an order for the applicants to have parental responsibility and for the child to live with them would act to circumvent the clear intention of the legislature.”  
… 

“That is a relevant matter in determining whether the proposed parenting order is proper.” 
… 

“Further, in the absence of evidence outlined … I am unable to be satisfied the proposed parenting order would otherwise be in the best interests of the child.” 

Justice Carew said the fact the couple had contravened the Surrogacy Act 2010 (QLD) (Surrogacy Act) was not in dispute, and on that basis referred the matter to the Queensland Office of the Director of Public Prosecutions to consider whether to prosecute under section 56 of the Surrogacy Act.  Entering into a commercial surrogacy arrangement carries a maximum penalty of three years’ imprisonment. 

An argument for reform 

Whilst this is not the first time that a couple utilising overseas surrogacy laws has been referred for criminal charges, to date there have been no known prosecutions following such a referral. However, this does highlight the need for potential reform regarding Australian surrogacy laws generally.   

Those children born overseas, as in this case, are usually provided a birth certificate which names at least one of the intended parents who is biologically linked to the child. But this leaves the other intended parent without legal parenting rights.  

Given more than 3,000 children are born each year through overseas commercial arrangements, the recent Queensland case highlights the need for urgent significant reform. Without that reform parents of overseas commercial arrangements face significant uncertainty and fear of prosecution should they seek parenting orders from the Federal Circuit and Family Court of Australia.  

The Australian Law Reform Commission is currently conducting an inquiry into national surrogacy laws, including the examination of surrogacy arrangements made outside of Australia. The final report is expected to be released in July 2026. It is hoped that one of the recommendations will advocate for the establishment of a uniform law governing all surrogacy arrangements throughout Australia to mitigate the complexity and confusion faced by those embarking on this journey. Additionally, it is anticipated that commercial surrogacy will be integrated into the legal framework within Australia, acknowledging the challenges encountered by surrogates and the necessity for some form of financial compensation for their invaluable contribution to the parenting process. 

Until meaningful reform is enacted, couples seeking to build families through overseas surrogacy will continue to face legal uncertainty, risk of prosecution, and emotional strain, despite acting with the best interests of their children at heart. 

Further information 

If this article raises questions for you regarding surrogacy and donor arrangements, please do not hesitate to contact Monica Blizzard via email at [email protected]. 

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