Commercial surrogacy is illegal is Queensland. Commercial surrogacy is when payment is made in exchange for a woman carrying a child for a person/couple. Queensland has in the last few years seen altruistic surrogacy legislated under the Surrogacy Act 2010. Altruistic surrogacy is where there is an agreement between the surrogate parents and the intended parents for the surrogate mother to carry a child for the intended parents but the only exchange of money is for medical fees. It is otherwise, an altruistic arrangement.
It is also illegal for parents to head overseas to participate in commercial surrogacy arrangements in other countries. Despite this, India has been a popular destination for want-to-be-parents with limited other options to have a child.
This has now all come to a halt. Prior to Christmas the Indian Government placed requirements on parents wishing to utilise commercial surrogacy in India. To be eligible, you must have been married for two years and can only enter into a commercial surrogacy arrangement in India if it is legal to do so in your home country.
This change effectively denies the use of such services to a large group of Australians. Up until now same sex couples and those not married living in Queensland, New South Wales and the ACT, have sought commercial surrogacy arrangements in India.
The only persons now eligible are those that are married for over two years and are living in the Northern Territory where commercial surrogacy is legal.
Family law practitioners who assist parents with surrogacy say that these couples searching for commercial surrogacy will simply look to other overseas destinations.
The Australian High Commission for India states:
Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution. They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur.
Why the change?
It seems the new direction is driven by cases like that of baby Manji. The baby’s Japanese and Indian parents divorced during the mother’s pregnancy. After its birth baby Manji was kept in a hospital in India for three months whilst her status was established. It created confusion and citizenship uncertainty. The result is the tightening of VISA requirements for those wishing to have a surrogate child in India.
If you are considering travel overseas for the purpose of entering into a surrogacy arrangement, seek legal advice first – to do otherwise could result in devastating consequences.