What is Commercial Surrogacy?

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page delves into commercial surrogacy.

Transcript

G’day. I’m. Stephen Page from Page Provan Family and Fertility Lawyers. I’m a dad through surrogacy. Since 988, I have advised in over 1750 surrogacy journeys for clients from every part of Australia and at last count, 32 countries overseas.

Today, I’m talking about what is commercial surrogacy. Terms like altruistic surrogacy, commercial surrogacy, compensated surrogacy are bandied about. Have a look at my video about altruistic surrogacy because it’s altruistic surrogacy that’s allowed in Australia. 

But as you’ll see in that video, what is altruistic surrogacy varies in the eye of the beholder. It depends on the laws of each state. Each of our eight jurisdictions have laws about surrogacy except the Northern Territory. So everywhere else has a law about surrogacy. Queensland, New South Wales, ACT, Victoria, Tasmania, South Australia and WA. And they’re all different. So what is commercial surrogacy varies state by state. 

The other term that’s bandied about is compensated surrogacy. And I recall well back in 2015 when I went to the House of Representative surrogacy inquiry to give evidence, and I was sitting there at this huge table and we had all these people, these experts or advocates, getting into a language debate. 

Those who hated surrogates getting paid a fee talked about the evils of commercial surrogacy. Those who thought that women should be in control of their own bodies and therefore ought to be compensated for the role of being surrogates talked about compensated surrogacy. And then instantly there was this pointless, lengthy and bitter debate about language whether it should be compensated surrogacy or commercial surrogacy.

When I went to speak, I was asked about my view about that, and I didn’t want to talk about that. I wanted to talk about gays and lesbians undertaking surrogacy because LGBTIQ people are often discriminated against and certainly were in 2015 that’s got better, except in WA and the rules that were different between the various states. But that stale debate still remains. 

Those who hate women getting paid a fee talk about commercial surrogacy. Those who think that women should be in control of their bodies and be compensated for their work talked about compensated surrogacy. And of course, with anything, there are shades of grey.

In Australia. It is illegal to pay a fee to a woman to have a baby, and that’s under the law of every state and the ACT. The Northern Territory currently does not have any laws concerning surrogacy, but in effect, if you’re in the NT, unless you’re doing it at home, it’s impossible to do surrogacy there because the only clinic, the only IVF clinic in the Northern Territory will not handle surrogacy cases.

And the reason for that is obvious. No laws there means there can’t be any transfer of parentage. They don’t want to be at the back end where someone complains you made a baby for us, but you couldn’t enable the transfer of parentage. They just don’t want that backlash. In addition, any IVF clinic in Australia is banned by its licensing conditions from engaging in commercial surrogacy, and this isn’t under state law.

These are under licensing conditions set as a condition of having a license from the Fertility Society of Australia and New Zealand, and commercial surrogacy under those licensing conditions is not defined. What we see about what is commercial surrogacy is it varies greatly.

What is seen as altruistic in Queensland might be a surrogacy arrangement for award in Western Australia. You need to look at local law to see whether something is lawful or not. What is also clear is that if you live in most of the parts of Australia and engage in commercial surrogacy overseas as defined under our local laws, you might be committing a serious offence.

For example, in New South Wales, if you enter into or offer to edit into a commercial surrogacy arrangement as defined under the New South Wales Surrogacy Act, you commit a criminal offence punishable by up to $110,000 fine or two years imprisonment or both. The fact that no one’s been prosecuted since March 2011 is beside the point. The offence is still on the books and these offences apply overseas. 

Queensland specifically applies overseas if you’re ordinarily resident in Queensland and that’s entering into or offering to enter into a commercial surrogacy arrangement, or making payment or receiving payment under a commercial surrogacy arrangement. New South Wales if you’re ordinarily resident in New South Wales or domiciled in New South Wales, it’s a legal test.

But where is your parent at home? I’ve had cases where clients of mine have lived overseas on work visas, but lo and behold, they came from New South Wales. They remained domiciled in New South Wales even though they’d lived overseas for X number of years. Their surrogacy agreement had to comply with New South Wales law. Really bizarre stuff.

ACT, if you are ordinarily resident in the act and you engage in to a commercials substitute parent agreement overseas, then you commit an offence in the ACT. 

So those three places make it beyond doubt that you engage in commercial surrogacy overseas. And it’s often said, well, they’re the only states to worry about. No, they’re not.

No, they’re not. The other places to worry about are South Australia and Western Australia. Because in each place, if you enter into a commercial surrogacy agreement that’s South Australia, or if you enter into a surrogacy arrangement that is reward in Western Australia and part of the element of the offence or the effect of the element of the offence occurs in South Australia or Western Australia respectively, you could be committing that offence overseas. 

So you may think in West Australia because there is no specific extraterritorial ban on engaging in commercial surrogacy overseas, that it’s okay to do so. Take care because you might accidentally be committing an offence against the Surrogacy Act.

Western Australia is even more complicated because you cannot get advice from a local if you’re intending to engage in a surrogacy arrangement that is for award overseas. It’s an offence for them to do that for you and very serious offence. Luckily, you can get advice from lawyers on the other side of Australia, for example in Queensland. 

So you’ve got to take particular care and what you might see overseas about what is commercial surrogacy and what is altruistic surrogacy can vary. It is assumed that if you engage surrogacy in the United States that it is commercial well, not necessarily. 

A family court judge has held that if that a particular surrogacy agreement years ago in the United States was not commercial under either the Queensland Surrogacy Act or the New South Wales Surrogacy Act.

If you engage in a surrogacy arrangement in the United States, in certain parts, it might be lawful under the law here. 

The law here is incredibly detailed and difficult. You are walking through a minefield. It is absolutely wise to get legal advice, expert legal advice right at the beginning from someone who knows, like me, to make sure that you aren’t committing a criminal offence back home and that you can undertake the surrogacy journey of your choice.

Thank you.