NSW surrogacy figures demonstrate that the law is not fit for purpose
Like other Australian jurisdictions, other than the Northern Territory (and its laws will be starting soon), New South Wales laws regulate what is deemed to be altruistic surrogacy and criminalise what is deemed to be commercial surrogacy.
The thinking behind the laws is that while it is OK for the lawyers, doctors, IVF clinics, counsellors and the judge to be paid for what they do as part of the surrogacy process, the woman who is pregnant for nine months and gives birth (and who from that has a risk of death, like any other pregnant woman) ought not be paid, although her reasonable out of pocket costs can be met.
It is little surprise therefore that there is a shortage of surrogates. In rough terms, for every child born in Australia through surrogacy, close to four are born overseas. More Australian children are born through surrogacy in the United States than are born in Australia. Australia is very good at exporting its intended parents overseas. In 2021, the top 5 countries where Australians underwent surrogacy were:
In the most recent years when it is possible to do comparatives (as Australian domestic data is incomplete, and that which is available is from 2020), there were 275 children born overseas through surrogacy to Australians, and 76 born domestically. In 2021, 225 Australian children were born overseas through surrogacy.
In 2020, 120 Australian children were born in the US via surrogacy, and in 2021 that number was 76.
When Australian intended parents embark on an overseas surrogacy journey they navigate a legal minefield including:
These overseas laws have been labelled by the New Zealand Law Commission, when it looked at that country's surrogacy laws, as a "failed experiment". Who could rightly argue with that view? The data demonstrates it. When New South Wales decided in 2010 to criminalise its residents from undertaking commercial surrogacy overseas, there was a firestorm of publicity of parents caught halfway in their journeys, of stakeholders who had not been consulted, about the sudden U-turn. The intent of the laws was to protect women in overseas countries from exploitation in commercial surrogacy arrangements. What was unsaid was that this protection was for the benefit of potential surrogates in India, in particular, which was then a large surrogacy destination.
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The result? New South Wales kicked an own goal. In 2010 the number of overseas surrogacy births for children born to Australian parents was less than 10. By 2012, this number had jumped to 275, of which 227 births were in India. Since then, about 200 or more Australian children are born overseas through surrogacy.
India is no longer a surrogacy destination for Australians because the settings have changed in India to prevent foreigners from undertaking surrogacy there.
Not one person has ever been prosecuted anywhere in Australia for undertaking commercial surrogacy overseas. Nevertheless, many intended parents are quite rightly concerned that they might be prosecuted for seeking to become parents overseas, when avenues to do so locally are not available.
The only other place that says that its criminal laws should apply overseas to commercial surrogacy, Hong Kong, also has never prosecuted anyone there either.
Quite simply, the laws don't work.
A comparison of New South Wales figures between 2017 and 2021 of the number of parentage orders made in the Supreme Court of New South Wales with the number of children born overseas through surrogacy to New South Wales residents is stark:
It is certainly not impossible to do surrogacy locally. I have acted for many clients who have done so. My husband and I became parents through our local (Queensland) surrogacy journey. We did not have to go overseas, unlike most people. We were lucky.
Assuming the laws don't change anytime soon, those going overseas should get expert legal advice from an expert Australian lawyer as soon as possible (but if they are in Western Australia, it is almost certain that due to that State's laws, it won't be a Western Australian lawyer, as it is a crime for them to give advice on what might be deemed to be a surrogacy arrangement that is for reward, even one overseas).
Councillor, Physiotherapist, Complex Case manager
2 年Keep up the excellent advocacy work Stephen Page, it is so important. These laws are a joke, but can leave the door open for unfair prosecutions of people who are simply trying to have a family. There are enough hurdles to overcome with overseas surrogacy without worrying about criminal charges in Australia when you get back.