Risks for commissioning parents

In addition to the human rights risks, commissioning parents can face the following issues when engaging in surrogacy overseas.

Legal risks

Australians are subject to the local laws of the country they visit. Many countries have commercial surrogacy industries in instances where governments of those countries have banned commercial surrogacy entirely or have banned commercial surrogacy for people from overseas.

In foreign countries, laws relevant to commercial surrogacy can change quickly. This can include instances where surrogacy activity may become a criminal offence, after previously being allowed.

New South Wales, Queensland and the Australian Capital Territory have criminal offences in their surrogacy laws that apply to their residents when they travel overseas and engage in commercial surrogacy. Penalties include fines or imprisonment.

There are limits to how much the Australian Government can help Australians who get into legal trouble overseas. See Smartraveller for more information.

Risks of in-country instability

Many of the countries Australians have gone to for international surrogacy have had situations such as natural disasters, war or changes to laws happen with little or no notice, leaving surrogates, commissioning parents and children in crisis. There are limits to how much the Australian Government can help in these circumstances. See Smartraveller for more information.

Costs and delays

The costs of surrogacy arrangements overseas can vary. Low costs can indicate that the human rights of a surrogate and child are not being protected. However, high costs do not guarantee that the human rights of a surrogate and child are being protected.

Timeframes for finalising international surrogacy arrangements, completing citizenship application processes and obtaining passports for children born through surrogacy arrangements, are also unpredictable. Commissioning parents should be aware that processes may take longer than expected and unforeseen costs can arise.

Parentage not recognised in Australia

Legal parentage is usually not recognised in Australia for parents who commission a child under a commercial surrogacy arrangement, or otherwise don't follow the rules of the relevant state or territory surrogacy law. This means that by law the surrogate will remain the legal parent of the child. In some jurisdictions, in exceptional or limited circumstances, a judge may have discretion to order the transfer of legal parentage from a surrogate to the commissioning parents.

The consequences of not being recognised as a legal parent will vary and will depend on the issue and the relevant law.