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Australian couple won't face prosecution after using alleged commercial surrogacy service to have baby abroad
A Queensland couple who was referred to authorities over allegations they used commercial surrogacy overseas to have a baby, will not be charged, police have confirmed.
The decision has been welcomed by surrogacy advocates who argue Australia's patchwork of laws were "not fit for purpose" and should be changed.
Last month, the ABC revealed Queensland police were making "inquiries" after a federal court ordered documents be referred to authorities to consider whether the couple should be prosecuted.
"It is not in contention that the applicants have entered into a commercial surrogacy arrangement … and as such are liable to prosecution," the Federal Circuit and Family Court judgement on January 28 said.
It said the Brisbane-based husband and wife were to pay at least 84,000 euros — about $140,000 — to an overseas company under a commercial surrogacy agreement in 2023.
But the court had no evidence before it of what payment or other benefits were made to the 37-year-old surrogate.
Commercial surrogacy is illegal in Australia, with Queensland, NSW and the ACT also making it an offence for its residents to engage in it overseas.
The couple, who had been trying for a baby for more than 15 years, had applied to the court for a parenting order of the child, who was born overseas last year.
A birth certificate, issued by the country where the baby was born, named the man from the couple as the father, and the surrogate as the mother.
The court said the surrogate mother deposed to having entered into a surrogacy and child-bearing agreement with the couple and the company, although a copy of that agreement was not before the court.
In 2023, she was implanted with an embryo using a donor egg from another woman and the Brisbane man's sperm. She gave birth in 2024.
"The surrogate eschews any intention of having any contact or relationship with the child," the judgement said.
Justice Catherine Carew ordered documents from the case be referred to the Office of the Director of Public Prosecutions Queensland to consider whether the Brisbane couple should be prosecuted under section 56 of the Surrogacy Act 2010 (Qld).
It is believed in cases such as this a complaint must be made within one year from the time when the matter arose.
In late April, the QPS confirmed it was aware of the matter and "conducting inquiries".
This week it told the ABC the case had been investigated by the Fortitude Valley Criminal Investigation Branch.
"As a result, the investigation is finalised. No one has been charged," a spokesperson said.
It is understood police liaised with lawyers and other agencies.
Law experts have previously told the ABC they believed no-one in Australia had been successfully prosecuted for overseas commercial surrogacy
Surrogacy Australia board member Sam Everingham hailed the decision as evidence Australia's surrogacy laws "aren't workable in the current form".
"We don't have a good enough surrogacy system here in Australia," he said.
"Penalising people for responding to that lack of appropriate surrogacy infrastructure in Australia is just crazy."
The decision comes amid an Australian Law Reform Commission (ALRC) review into the country's surrogacy laws, with its final report due by July 29, 2026.
Mr Everingham, who is also a director with Growing Families, an education and support organisation for Australians undertaking surrogacy internationally, said the Brisbane case reinforced the importance of the ALRC's review.
He said he hoped the review would lead to Australians having better access to surrogacy locally by "having a compensated model here" and not making criminals of "people creating families".
Accredited family law specialist and Surrogacy Australia president Sarah Bevan, whose practice represented the surrogate mother in the case, said the Queensland decision would come as a "significant relief" to all people who had become parents through international surrogacy.
"It is far preferable for Australians not to have to resort to international surrogacy," she said.
