Queensland couple referred to police for surrogacy

A Queensland husband and wife, in the recent case of  Lloyd & Compton [2025] FedCFamC1A 28,  who had undertaken surrogacy in North Cyprus, were denied their chance of parenting orders and leave to adopt because they had undertaken commercial surrogacy.

Instead, they were referred to the Queensland Director of Public Prosecutions for engaging in commercial surrogacy. The ABC has since reported that police did not charge them.

Their lawyer was referred to the New South Wales Legal Services Commission for procuring and filing affidavits by the applicants, when they admit to committing the offence of entering into a commercial surrogacy arrangement, and for competence.

The immediate problem was that following the child’s birth in North Cyprus, steps were taken to obtain an Australian citizen (done), an Australian passport for the child (done), and leave to adopt in favour of the intended mother, so she could do a step-parent adoption later (refused).

One of several difficulties about North Cyprus and surrogacy is that as there is no law about who is a parent through surrogacy (as surrogacy is not regulated), the intended father and the surrogate were named on the birth certificate as the parents. The intended mother was not.

To try and fix this, an application was made to the Federal Circuit and Family Court of Australia for parenting orders, and critically, leave to adopt.

The requirement for leave to adopt under the Family Law Act is an anti-avoidance measure. Adoptions are undertaken in Australian state and territory courts. In the case of Queensland, a step-parent adoption order is made in the Children’s Court of Queensland. Divorce, and parenting, is however dealt with under the Family Law Act, which is federal law. Many years ago, two enterprising women, who had split up from their husbands and repartnered, figured out that if they had a step-parent adoption in place, they could cut out their ex from their children’s lives.

To stop that happening again, there is therefore a requirement under federal law to obtain leave to adopt – before going under state law to obtain an adoption.

Accordingly, an application was filed with the Federal Circuit and Family Court of Australia for leave, and parenting orders.

There was one obvious problem in doing so. Queensland’s Surrogacy Act makes it an offence to enter into a commercial surrogacy arrangement anywhere in the world, if the person ordinarily resides in Queensland.

The New South Wales solicitor for the couple, from Sun Legal, immediately conceded to Justice Carew that the surrogacy arrangement was a commercial one.  From there, the descent down the slippery slope was swift.

Her Honour refused to make any order that had been sought. Extraordinarily, the submissions of the solicitor did not address whether or not the couple had standing to bring an application for a parenting order. In order to do so, they must either have been parents of the child, or people concerned with the child’s care, welfare or development.

Her Honour noted that the couple could not bring an application for a parentage order in the Children’s Court of Queensland, because the surrogacy arrangement was a commercial one, and therefore they could not be parents under section 60HB of the Family Law Act. Section 60HB gives recognition under that Act to someone who is a parent under an Australian state or territory parentage order.

Her Honour cited a decision of the Full Court of the Family Court from 2017, Bernieres & Dhopal, the effect of which was that the parties were not the parents of the child. In that case, a husband and wife had undertaken surrogacy and egg donation in India. Because they had not obtained a parentage order in Victoria, they could not be considered the parents.

Justice Carew noted that since Bernieres, the High Court in Masson v Parsons in 2019 had changed the test of who is a parent under the Family Law Act to that of who is seen in the wider view of Australian society to be a parent is a parent. The difficulty identified by her Honour was that Masson was not concerned with surrogacy, and there had been no submissions about the point, so she was bound by Bernieres.

It is wise to stop at this point and note that by the time the submissions had been made in the case, there had been two decisions by other judges of the Court in 2021, in which the biological father through surrogacy had been found to be a parent, by applying Masson; and between when the submissions were provided to the Court and the judgment delivered, a third decision to this effect had been handed down. None of these cases was identified to the court by the lawyer concerned.

Her Honour said that she could not even find that the couple were concerned for the care, welfare and development of the child (who was the biological child of the man, and who had been in their care since day one), due to a lack of evidence, including the following which she needed:

(a) The current circumstances of the applicants and the child and their plans for the child in the event they are prosecuted and sentenced to a term of imprisonment for the criminal offence of entering into an international surrogacy arrangement contrary to Queensland law;

(b) Evidence that the child is an Australian citizen and has an Australian passport;

(c) A copy of the surrogacy and childbearing agreement between the surrogate, the applicants and C Ltd;

(d) A copy of the DNA report confirming that the surrogate has no genetic connection to the child;

(e) Expert evidence on the law of the Republic of Cyprus (being the only legitimate authority recognised by Australia) on commercial surrogacy in that country and the rights of the surrogate;

(f) Evidence from the surrogate about her current circumstances and what she received by way of remuneration or other benefits from the surrogacy;

(g) Medical evidence corroborating the applicants’ history of inability to have a child;

(h) An assessment from an appropriately qualified Family Report writer as to the suitability of the applicants as carers for the child involving a home visit and interviews with any other persons whom it may be proposed will have a significant relationship with the child.

It is clear that Justice Carew has a strong view that there is a strong public policy against surrogacy, which she set out in two previous judgments in 2018 concerning clients of mine (none of whom had acted illegally, and were therefore not referred, nor was I).

The judgment is a clarion call to be very careful when planning the overseas surrogacy journey, and very careful when planning action to recognise parentage at home. Few Australian intended parents undertake surrogacy in North Cyprus. The case illustrates again why few do so.

Australians living in:

• ACT, NSW and Qld are at risk of committing offences as to commercial surrogacy abroad – because there are clear offences on point.
• NT, SA and WA are at risk of committing offences as to commercial surrogacy abroad – because long arm laws can make what they are doing illegal.
• Every State and Territory can commit offences as to surrogacy abroad under the respective Adoption Acts, if the form of the overseas surrogacy journey is by way of adoption.

If you are considering going overseas for surrogacy, as most intended parents do, avoid the grief of this type of case, and get expert legal advice in Australia first.

Since 1988, I have advised in over 2,000 surrogacy journeys for clients in every part of Australia. I have acted for fertility law clients in 39 other countries as well. My clients have gone to 36 US states, 8 Canadian provinces, all current major surrogacy destinations, and many other countries as well. No other Australian lawyer has my level of expertise.