Couple face police inquiries after baby born to commercial surrogate

A Brisbane couple who paid for a surrogate mother to give birth to their child overseas could face criminal charges after a Family Court ruling on their bid to gain parental rights.

However, an expert in surrogacy law says she would be surprised if the pair ended up in front of a criminal court, as no one has ever been prosecuted in Queensland for having a baby through surrogacy – even before new laws came into effect 15 years ago.

In the latest case, the baby was born in 2024 to a couple living in Brisbane who said they had been trying to have a child for 15 years.

Under Queensland law, paying for surrogacy carries a maximum penalty of three years in jail.Credit: Luis Ascui

In evidence they gave to the Family Court, they said they had paid €84,000 (about $A140,000) to a foreign surrogacy service.

Paying for surrogacy is illegal in Queensland, and carries a maximum penalty of three years in jail.

The ABC first reported on the case, with the couple now referred to the Queensland director of public prosecutions after they sought a parenting order.

That order would have given them decision-making rights for the child, allowed the child to live with them, and prevented the child from spending any time with the surrogate mother.

They also asked to be allowed to get an Australian passport or other travel documents for the child, and to travel internationally with the child without needing the surrogate mother’s consent.

When they made the application, the couple were still overseas, and spoke to the court via video link. Later, their lawyer told the court they had travelled to Australia with the child.

“[We] are aware of the matter and are conducting inquiries,” Queensland Police told this masthead. “No further information is available at this time.”

Dr Tammy Johnson, an expert in commercial surrogacy regulation at Bond University, said surrogacy laws in Queensland, New South Wales and the ACT included the element of extraterritoriality, which meant residents could be potentially prosecuted for overseas arrangements.

Laws were different in Victoria and South Australia, and Johnson said she had heard anecdotal reports of people moving interstate before seeking surrogacy overseas.

However, she said the stricter laws seen in Queensland had never been enforced, despite several cases being referred to the DPP.

“Although these people are probably on tenterhooks in light of this particular case, I’d be very surprised if anything came of it,” she said.

“Ultimately [the DPP] are looking at what’s in the best interest of the child … Are we going to charge them with a criminal offence, and use all of these public resources to prosecute these people, when the result is you’re going to take these parents away from their child? Is that in the best interest of the child? Probably not.”

The Brisbane couple’s parenting order was not granted, with Justice Catherine Carew not satisfied that it would be in the child’s best interests.

“It is curious, to say the least, why the applicants have filed an application which will leave them to open to potential prosecution,” Carew said in her ruling.

“I am also concerned that to make the order sought by the applicants would act to circumvent the law in Queensland where commercial surrogacy is a criminal offence.”

The judgment noted the court had not been provided with a copy of the surrogacy agreement, DNA reports, or expert evidence on the law in the country where the child was born.

Carew said the couple had also not explained how the child would be looked after if they were jailed under Queensland law.

The judge also referred the couple’s lawyer, known only as Ms B, to the NSW Legal Services Commissioner, saying an investigation seemed to be warranted into whether Ms B had complied with her obligations as a legal practitioner.

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