The complex issues surrounding international surrogacy arrangements were thrust into the international spotlight, following the Baby Gammy case in 2014.
Since that time, a number of countries have introduced new laws and restrictions on foreigners entering into commercial arrangements using a surrogate parent. Despite this, many IVF clinics in countries where these recent restrictions are being implemented, continue to entice foreigners to their shores on the promise of viable and legal surrogacy arrangements.
Commercial surrogacy arrangements are currently legal for same sex couples in some US states but in other countries the position is far less certain. If you are considering trying to start a family using a surrogate mother, it is important to obtain legal advice before embarking on the process.
Commercial surrogacy arrangements have been banned in Thailand since 30 July 2015. Only married heterosexual couples, where at least one partner is Thai are allowed to use surrogates. The surrogate mother must also be Thai, over 25 years old and a relative of either the husband or wife. The surrogate cannot charge for her involvement.
Cambodia does not appear to have any laws relating to surrogacy and, as a result, the IVF clinics based there claim that there are no restrictions on foreigners entering into commercial surrogacy arrangements.
By contrast, the Cambodian authorities have advised the Australian Government that the act of commercial surrogacy, or commissioning commercial surrogacy, is illegal in Cambodia with penalties including imprisonment and fines. The Australian Government Foreign Affairs and Trade website currently advises that "while in Cambodia, Australians are subject to the local laws of Cambodia and should not rely on assurances from commercial clinics or other agencies suggesting there are ways to circumvent or influence local laws".
The Indian government is due to enact legislation to introduce further restrictions on surrogacy arrangements in India. Australians traveling to India for the purpose of entering into surrogacy arrangements are required to obtain a medical visa. It is unclear whether these visas will continue to be granted, or replaced with some other process.
In August 2015, Nepal immediately halted all commercial surrogacy, resulting in many children conceived through surrogacy being unable to leave the country. Exit visas have now been granted to children conceived before 25 August 2015 but the long term situation remains unclear.
For further information and updates, please refer to: www.smartraveller.gov.au/zw-cgi/view/TravelBulletins/Surrogacy.
At the end of the day…
If you are considering entering into a surrogacy arrangement overseas, it is imperative that you understand the steps and the risks that are involved. Not only could you be committing a crime in the country where the surrogacy arrangement is taking place, but you could also face significant problems when trying to return home to Australia.
David Harper, Senior Associate
Jodylee Bartal, Special Counsel
David Harper | Senior Associate
Family & Relationship Law
+61 3 9269 9145
Jodylee Bartal | Special Counsel
Family & Relationship Law
+61 3 9269 9406
All information in this article is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted