Will I Get Prosecuted if I Do Surrogacy Overseas?
Surrogacy is a deeply personal and often complex journey for many Australian families. With the rise of international surrogacy arrangements, a pressing question frequently arises: Will I face prosecution if I engage in surrogacy overseas? While the answer may seem straightforward, the legal landscape surrounding overseas surrogacy in Australia is nuanced, layered with historical context, state-specific legislation, and potential pitfalls that can catch even the most well-intentioned families off guard.
Drawing from years of experience and legal expertise, Stephen Page of Page Provan Family and Fertility Lawyers offers a clear-eyed examination of the prosecution risks associated with international surrogacy. This article delves into the realities, dispels myths, and provides essential guidance for anyone considering surrogacy beyond Australian borders.
The Historical Context of Surrogacy Prosecutions in Australia
To understand the current legal risks, it’s important to first look back at Australia’s history with surrogacy laws and prosecutions. Between 1988 and 2008, Queensland was the most stringent jurisdiction, criminalising all forms of surrogacy—whether gestational or traditional, commercial or altruistic, and regardless of whether the surrogacy took place inside or outside the state. During that period, five prosecutions were documented in Queensland.
Outside Queensland, prosecutions have been exceedingly rare. The only other known case occurred in Victoria in 2008. Since then, there have been no recorded prosecutions in any Australian state or territory for surrogacy-related offences, either domestic or international.
This historical data might suggest that the risk of prosecution is negligible. However, as Stephen Page explains, “The chance of being prosecuted is pretty low, but it’s not zero.” Recent legal developments and specific cases highlight that the risk remains real and should not be underestimated.
State and Territory Laws: A Patchwork of Surrogacy Regulations
Australia’s legal approach to surrogacy is complex and varies significantly between states and territories. For families considering overseas surrogacy, it’s crucial to understand how these differences can affect their legal standing.
Queensland, New South Wales, and the Australian Capital Territory
Queensland, New South Wales (NSW), and the Australian Capital Territory (ACT) have some of the strictest laws regarding commercial surrogacy, including overseas arrangements. Engaging in commercial surrogacy overseas is clearly an offence in these jurisdictions. This means that individuals who pay a surrogate overseas for their services could potentially be prosecuted under these laws.
Stephen Page stresses the importance of compliance, stating, “Comply with the law. Do not commit offences.” The legal framework in these states is designed to discourage commercial surrogacy arrangements that involve payment beyond reasonable expenses, regardless of where the surrogacy takes place.
Northern Territory, South Australia, and Western Australia
The legal stance in the Northern Territory, South Australia, and Western Australia is more nuanced. In certain circumstances, commercial surrogacy overseas may also constitute an offence, but the laws are less prescriptive and may vary depending on the specifics of the arrangement.
Victoria and Tasmania: The “Free and Clear” Exception?
For families living in Victoria and Tasmania, the laws regarding overseas surrogacy are comparatively lenient. In fact, Stephen Page notes that these states are “free and clear” of offences related to commercial surrogacy overseas. However, this apparent leniency is not a blanket protection.
There is a crucial caveat involving adoption laws that can still pose legal risks for Victorian and Tasmanian families, as explained below.
The Adoption Loophole: A Hidden Legal Risk
One of the more surprising legal hazards for families pursuing overseas surrogacy involves the intersection with adoption laws. In some jurisdictions, including Victoria and Tasmania, surrogacy overseas is regulated through adoption mechanisms such as stepparent adoption or second parent adoption.
This means that even if commercial surrogacy itself is not criminalised, families may still commit an offence if they engage in paying for an adoption overseas. Adoption laws in Australia explicitly prohibit paying for adoptions, and this prohibition extends to overseas arrangements.
Stephen Page highlights this subtle but critical point: “If the method by which you do surrogacy overseas is adoption, then you can still commit an offence because our adoption laws make it plain that you commit an offence here if you are engaging in paying for an adoption overseas.”
Examples of places where surrogacy is regulated through adoption include New Zealand and some U.S. states like Florida, Tennessee, Minnesota, Iowa, and Hawaii. Families must be especially cautious if their overseas surrogacy arrangement involves adoption procedures or stepparent/second parent adoption processes.
Case Study: The Lloyd and Compton Matter
To illustrate the real-world consequences of ignoring or misunderstanding these legal complexities, consider the recent case of Lloyd and Compton. This Brisbane couple travelled to North Cyprus to undertake a surrogacy arrangement. Following their overseas surrogacy, they sought to resolve parentage issues through the Family Court of Australia.
Unfortunately, the advice they received led them into legal trouble rather than resolution. The court not only refused to grant the orders they sought but also referred the couple to the Director of Public Prosecutions in Queensland. Subsequent investigations by the police were reportedly underway.
This case serves as a cautionary tale about the risks of non-compliance and the importance of seeking expert legal advice before embarking on overseas surrogacy. Stephen Page’s blunt warning resonates strongly: “You don’t want to be at the receiving end of that. Certainly don’t commit an offense.”
Essential Compliance Strategies for Overseas Surrogacy
Given the complex and varied legal landscape, how can families protect themselves when considering overseas surrogacy? Here are key strategies to ensure compliance and minimise legal risks:
- Seek Expert Legal Advice Early: Before entering any surrogacy arrangement overseas, consult with a qualified family and fertility lawyer familiar with both Australian and international surrogacy laws. This step is critical to understanding the specific risks and legal requirements based on your state or territory.
- Understand Your State’s Laws: Different states have different laws regarding commercial surrogacy and adoption. Make sure you know what is legal and what could expose you to prosecution in your jurisdiction.
- Avoid Commercial Surrogacy Arrangements: Commercial surrogacy, especially where payment beyond reasonable expenses is involved, is criminalised in many Australian states. Altruistic surrogacy arrangements are generally more legally acceptable but still require careful navigation.
- Beware of Adoption-Related Arrangements: If your surrogacy involves adoption processes, such as stepparent or second parent adoption, be aware that paying for adoption overseas remains an offence in Australia, even in states with more lenient surrogacy laws.
- Maintain Transparent Documentation: Keep clear records of all agreements, payments, and legal advice. This transparency can be valuable if your parentage needs to be established or if legal questions arise later.
- Plan for Potential Legal Challenges: Even if prosecution is unlikely, be prepared for the possibility of legal scrutiny, especially if you live in states with stricter laws such as Queensland, NSW, or the ACT.
Conclusion: Navigating Overseas Surrogacy with Caution and Care
International surrogacy can be a wonderful pathway to parenthood for many Australian families, but it is fraught with legal complexities that cannot be ignored. While prosecutions for overseas surrogacy are rare, the risk is not zero, and the consequences of non-compliance can be severe.
Families must navigate a patchwork of state and territory laws that regulate surrogacy and adoption in varying ways. Queensland, NSW, and the ACT maintain strict prohibitions against commercial surrogacy overseas, while Victoria and Tasmania may expose families to offences under adoption laws. The recent Lloyd and Compton case starkly illustrates how quickly legal troubles can arise when proper guidance is not followed.
Above all, the key takeaway is to comply with the law and seek expert legal advice before embarking on any surrogacy journey overseas. The stakes are too high to proceed without a clear understanding of your legal obligations and risks.
For families dreaming of parenthood through surrogacy, knowledge, planning, and professional guidance are the best protections against legal challenges and prosecution. By approaching overseas surrogacy with care and caution, you can help safeguard your family’s future and ensure a smoother path to parentage.
Remember: Every surrogacy journey is unique, and laws continue to evolve. Always consult a qualified family and fertility lawyer who can provide tailored advice to your situation.
