Criminalising Overseas Surrogacy: Why Ireland, Italy, and Queensland’s “Experiment” Will Fail

Jurisdictions tend to respond to overseas commercial surrogacy by criminalising their own residents for seeking surrogacy abroad. That experiment began in Queensland in 1988 and has since been copied in other places, most recently, Ireland and Italy. After watching how this played out in Australia and abroad, I want to explain plainly why criminalising overseas surrogacy doesn’t work, why it harms families, and what legislators should do instead.

Where this started—and how the idea spread

The model of criminalising residents who go overseas for surrogacy originated in Queensland in 1988. For many years, it covered all types of surrogacy; in 2010 Queensland narrowed the scope to target commercial surrogacy specifically. That concept didn’t remain isolated. The Australian Capital Territory adopted similar prohibitions in 2004, Hong Kong in 2007, New South Wales followed in 2011, and other legal systems experimented with comparable laws.

More recently, we have seen the impulse cross borders into Europe: in 2024, both Ireland and Italy introduced laws criminalising overseas commercial surrogacy for their residents. Turkey even tried a variant criminalising doctors who referred patients for third-party reproduction overseas—only to reverse course four years later when the policy proved unworkable.

The empirical reality: the laws don’t work

The most striking fact is simple and incontrovertible: across every jurisdiction that has criminalised overseas surrogacy, there have been virtually zero successful prosecutions of intended parents. Not in Queensland, not in the ACT, not in New South Wales, not in Hong Kong, and—so far—not in Ireland or Italy. In short: the laws exist, but they do not do what their proponents claim they will do.

At the same time, the underlying phenomenon these laws attempt to curb—residents going overseas for surrogacy—has continued unabated. Since roughly 2008, more than 3,000 children born overseas via surrogacy to Australian residents have applied for Australian citizenship by descent. Just over half of Australia’s population lives in Queensland, New South Wales, and the ACT; applying that proportion to the 3,000 figure suggests roughly 1,500 children were born to residents of jurisdictions where overseas surrogacy is technically a criminal offence. How many parents have been prosecuted? Zero.

What explains this enforcement failure?

• Jurisdictional limits: You cannot compel a surrogate, an agency, or medical professionals from another country, where surrogacy may be lawful, to give evidence in a prosecution at home. Cross-border evidence is notoriously hard to obtain, expensive, and time-consuming, and foreign authorities are unlikely to cooperate when the conduct complained of is lawful in their jurisdiction.
• Practical policing issues: Identifying and proving the elements of an offence, such as intent, knowledge, and commercial arrangements that meet a local statutory threshold, often depends on documents and witnesses located overseas.
• Political will and public sympathy: Prosecuting people who have built families, often after years of medical hardship, expense, and emotional labour, creates a public-relations nightmare. Prosecutors and police are understandably reluctant to pursue these cases vigorously.

Judicial condemnation: “a mockery of the law”

In 2014, two senior Australian family law judges—Chief Justice Diana Bryant of the Family Court of Australia and Chief Judge John Pascoe of the Federal Circuit Court—said bluntly that these laws had to go. They described them as unenforceable and their retention as making “a mockery of the law.” That is strong language from the leaders of our family courts, and it should carry weight with policymakers.

Despite judicial advice and repeated empirical evidence of failure, the laws remain like “a shag on the rock”—lonely, conspicuous, and doing nothing productive. They sit there as symbolic gestures rather than effective regulation.

Why criminalisation does harm

Criminal laws that target intended parents for seeking surrogacy abroad do more than fail to stop the practice—they inflict collateral damage:

• They stigmatise families and children. Treating intended parents as criminals suggests their children are the product of wrongdoing. That stigma follows families and undermines the dignity of children born via surrogacy.
• They send intended parents into a legal grey market. Faced with the threat of prosecution at home, some people may pursue riskier, less transparent arrangements overseas that lack adequate safeguards for all parties—surrogates, intended parents, and children.
• They waste public resources. Creating offences that cannot reasonably be enforced wastes legislative and law-enforcement effort that might be better spent on supportive oversight and transnational cooperation.
• They conflate very different harms. In some legal formulations, commercial surrogacy has been equated with things like child pornography, child exploitation, terrorism and piracy—an absurd and dangerous moral equivalence. Commercial surrogacy, properly regulated, is none of these things.

International lessons: when criminalisation was reversed

Turkey’s experience is instructive. Authorities attempted a novel approach by criminalising doctors who facilitated or referred patients for third-party reproduction overseas. That policy lasted four years before being rolled back when it demonstrated its impracticality and perverse effects. The reversals in Turkey, and the lack of prosecutions elsewhere, should serve as cautionary tales for Ireland, Italy, and any other jurisdictions considering similar legislation.

Why lawmakers keep doing it anyway

If these laws are ineffective and harmful, why do governments keep enacting them? There are several political and cultural drivers:

• Symbolic politics: Legislators often seek to signal moral disapproval of commercial surrogacy domestically by enacting prohibitions, even when those prohibitions will not be enforced against citizens who go elsewhere.
• Cultural anxieties: Misgivings about assisted reproduction, commodification of reproduction, and the role of third parties in family formation generate pressure for punitive responses.
• Lack of policy literacy: Lawmakers sometimes adopt quick-fix criminal measures without fully understanding the international legal and evidentiary constraints that make enforcement implausible.

What a sensible response looks like

Criminalisation is a blunt instrument for a nuanced problem. A constructive policy approach should focus on the welfare of children and the rights and safety of all adults involved. Practical reforms include:

• Repeal counterproductive criminal offences: If the point is to prevent exploitation, criminal offences against intended parents who seek surrogacy abroad are the wrong target. Repeal removes stigma and brings families back into the legal fold.
• Regulate domestic surrogacy clearly: Jurisdictions should create robust frameworks for both altruistic and commercial arrangements where they decide to permit them—covering informed consent, surrogate welfare, medical safeguards, and enforceable legal parentage.
• Provide clear recognition pathways for overseas surrogacy: Instead of criminalisation, provide transparent and predictable legal routes for recognising parentage, citizenship, and civil status of children born abroad via surrogacy, subject to welfare checks.
• Focus law enforcement on genuine exploitation: Where there is evidence of trafficking, coercion, or exploitation of surrogates—particularly vulnerable women—criminal law should be used. That is an enforceable and legitimate focus.
• Invest in international cooperation: Build bilateral and multilateral agreements that allow for evidence-sharing and the protection of rights in cross-border reproductive arrangements. Where possible, harmonise standards and safeguards.
• Support families with services rather than punishment: Offer counselling, legal assistance, and social services to families returning after overseas surrogacy to ensure the best interests of the child are met.

Practical realities for intended parents

For people considering overseas surrogacy, the presence of a prohibition at home is not the decisive factor it may appear to be. The real risks are clinical, contractual, and emotional: choosing reputable clinics and intermediaries, ensuring informed consent by the surrogate, securing parentage recognition, and planning for the legal status and citizenship of the child.

Criminal laws at home can make those practical matters more stressful, but they do not typically stop the practice. They create anxiety, uncertainty, and often lead to families having to navigate complex, time-consuming legal processes to secure stable status for their children.

Conclusion: Call it what it is and change it

Criminalising residents for engaging in overseas commercial surrogacy is an experiment that has failed wherever it has been tried. It is unenforceable in practical terms, it stigmatises families, and it distracts lawmakers from the real work of protecting vulnerable people and safeguarding children’s welfare. Judicial leaders have called these laws a “mockery of the law” and urged repeal. Turkey’s reversal is another clear signal that criminalisation is a policy dead end.

Lawmakers in Ireland and Italy, like those in Queensland, the ACT, New South Wales, and Hong Kong before them, should heed the evidence. If the aim is to prevent exploitation, direct law enforcement toward exploitation where it can be proven, and design regulatory frameworks that protect surrogates, intended parents, and children. Symbolic prohibition is not only ineffective; it is damaging. It’s time for reform grounded in reality, compassion, and the best interests of children.

“These laws are doomed…They really are an abomination and they equate surrogacy with such things as child porn, child exploitation, terrorism and piracy. And clearly commercial surrogacy is none of those.“

— Stephen Page

If you want constructive change, policymakers need to listen to evidence, not theatre. Repeal the unenforceable, regulate the preventable, and support every family that forms through assisted reproduction.