NSW: commercial surrogacy ban extended to overseas clinics

NSW has passed new surrogacy laws which now criminalise those who undertake commercial surrogacy arrangements overseas, such as in California and India. Commercial surrogacy remains illegal in NSW, but until these laws come into force, it has been perfectly legal for NSW residents to undertake commercial surrogacy overseas.

The NSW Surrogacy Act which makes these changes is likely to take effect possibly as soon as December.

NSW copies similar provisions in Qld and the ACT. The other states and territories do not have such a ban.

The section of the new NSW Surrogacy Act is section 11:

11 Geographical nexus for offences
(1) This section applies for the purposes of, and without limiting, Part 1A
of the Crimes Act 1900.
(2) The necessary geographical nexus exists between the State and an
offence against this Division if the offence is committed by a person
ordinarily resident or domiciled in the State.
Note. Section 10C of the Crimes Act 1900 also provides that a geographical
nexus exists between the State and an offence if the offence is committed
wholly or partly in the State or has an effect in the State.

In other words, if you live in Sydney, for example, and you then go to an Indian or Californian surrogacy clinic and enter into a commercial surrogacy arrangement, you commit an offence in NSW. The offence section is here:

8 Commercial surrogacy arrangements prohibited
A person must not enter into, or offer to enter into, a commercial
surrogacy arrangement.
Maximum penalty: 2,500 penalty units, in the case of a corporation, or
1,000 penalty units or imprisonment for 2 years (or both), in any other
case.

Entering into might happen overseas. Offering to enter into might happen in NSW. A person who has already entered into a commercial surrogacy arrangement overseas before the new laws take effect does not commit an offence under this Act as they will have already have entered into the arrangement. Those contemplating entering into commercial surrogacy arrangements overseas should get good legal advice.

The overseas element was added as a result of an amendement by Linda Burney, the Minister for Community Services, who said:

I draw members’ attention to the Queensland surrogacy legislation passed earlier this year. In Queensland it is not lawful to enter a commercial arrangement and it is not possible to get around that by going overseas and entering a commercial arrangement in another country. The bill that is currently before us does not specify that the prohibition on New South Wales citizens entering into commercial surrogacy applies whether they do this in New South Wales or in any other jurisdiction. I will have more to say about that as the debate goes on.

My amendment will rectify that situation and in so doing will give effect to the policy position agreed to by all States and Territories in Australia that commercial surrogacy is not supported in this country. We all know that the desire to be a parent is very powerful. That instinct is an important part of humanity’s survival. However, in this brave new world we must protect everybody involved, including the surrogate mother. People have had many discussions about and have put a great deal of effort into the crafting of this bill. I also recognise that people will go to great lengths to be in a position to love and nurture a child. I acknowledge the sadness of people who cannot realise that dream. However, gaining access to children by circumventing local laws and travelling overseas to engage the services of private clinics and then bring the children back to Australia is not a practice that we as the lawmakers of this State should encourage. The Standing Committee of Attorneys-General was clear on that issue in its 2009 discussion paper.

Commercial surrogacy provides a service to intending parents and in so doing it places their needs above the needs of the child. Commercial surrogacy is a growth industry and most overseas arrangements do not provide all the safeguards set out in this bill. The Attorney General said in his second reading speech in the other place that the Government believes that the children resulting from surrogacy arrangements should have access to information about the circumstances of their birth and their genetic history. That is important for a child’s psychological wellbeing and their sense of identity and it allows them to avoid what he calls genealogical bewilderment. That term struck me very deeply. The Attorney General is correct: There is nothing more important than to know who you are and where you come from. It is a fundamental human desire and a right.

This is what the NSW Attorney-General John Hatzistergos had to say about this issue:

The first amendment adds a new section that extends the geographical nexus of offences in division 2 of part 2 of the bill so that the relevant relationship exists if the offence is committed by a person ordinarily resident or domiciled in New South Wales. The effect is that if a person ordinarily resident or domiciled in New South Wales commits the offence outside of New South Wales territory, the offence is an offence against the law of this State. On the extraterritoriality of offences, Professor Anne Twomey’s The Constitution of New South Wales states:

• Early cases … suggested that the State’s legislative powers were confined to the area of their territory and could not have an extraterritorial operation. This doctrine … later developed so that a law could have an extra-territorial application as long as it was a law for “peace, order and good government” of the relevant jurisdiction. There must be a connection between the law and the territory in which it was enacted … The relationship may be presence, residence or domicile … “or even remoter connections”.

It is rare for New South Wales to pass laws criminalising conduct that essentially occurred outside the State. However, the reality of surrogacy is that the prohibitions on commercial surrogacy in New South Wales can be and are circumvented by people going to countries that allow it. The Standing Committee of Attorneys-General, as well as various speakers in this and the other place, reconfirmed the position that commercial surrogacy is not in the best interests of children born out of these arrangements. Extending the offences in the bill in this way is consistent with provisions already in place in Queensland and the Australian Capital Territory. It confirms this Parliament’s opposition to commercial surrogacy and prevents such arrangements from being used to circumvent our prohibition on it. I support the amendment to the bill.