Talk about getting a bitter-sweet result:
A Queensland couple who won the right to raise three baby boys born to two surrogate mothers in Thailand could face criminal charges, in a case that has highlighted Australia’s complex surrogacy laws. The boys were artificially conceived using the sperm from the man and eggs from an anonymous donor, and were carried and delivered by two Thai women.
The Family Court in Sydney has ordered that the boys, a set of twins known as L1 and L2 and their brother, L3, are to live with the man and his wife, known as Mr and Mrs Dudley, in Queensland. However, Justice Garry Watts ordered the Office of the Director of Public Prosecutions in Queensland to consider whether the couple should be prosecuted for entering into a commercial surrogacy agreement, which is illegal in that state and carries a maximum three-year jail sentence.
The couple, both aged 42, tried unsuccessfully for 10 years to have children by IVF in Australia before turning to a fertility clinic in Thailand. In late 2008, one surrogate mother became pregnant with twins, and a second surrogate mother became pregnant with a singleton. An obstetrician induced labour in both women so that all three children, with the same genetic make-up, were born on the same day.
The babies were handed over to the couple almost immediately after birth and eventually bought to Australia. Justice Watts said he granted Mr and Mrs Dudley parental responsibility of L1 and L2 because it was in the twins’ best interests, despite a nationwide move to outlaw commercial surrogacy. However, he referred the case to the DPP.
Details of the financial arrangements entered into were not provided to the court. In a separate judgment in the Family Court in Sydney, Justice Janine Stevenson ordered that L3 live with Mr and Mrs Dudley and his brothers.
Each state has its own surrogacy laws, but in the past few years the states have been moving towards uniform laws. Under changes to NSW legislation last March, NSW residents who travel overseas and pay a surrogate mother to carry their baby can also face prosecution. Penalties include up to two years’ imprisonment and fines of $275,000 under the NSW Surrogacy Act. But NSW couples who entered into a commercial surrogacy agreement before the new laws came into force cannot be subject to criminal charges.
Professor Julie Shapiro provides some additional analysis about this case on her blog.
2 comment(s) for this post:
- Jon:
28 Jul 2011 They will probably get a hefty fine to send a message to others who are contemplating going this route. The quandary that Australian lawmakers are faced with is trying to reconcile their domestic laws (which ban commercial surrogacy in most states, BUT not at the Federal level) with the practice of prospective parents using a back-door approach that consists of engaging in an overseas commercial surrogacy arrangement and then repatriating the offspring legally as citizenship in Australia is conferred based on blood ties. It is a contradiction that opponents of surrogacy will fight tooth and bone to resolve and now, as we see, the criminal prosecution deterrent is being tested. I doubt these folks will ever see jail but they will have to pay a hefty fine as technically they have violated the laws. Very sad situation for Australians looking overseas as a means to become parents. And since the numbers are rather low, a few hundred Aussies each year who go overseas for surrogacy, combined with the fact that Australians tend to be a bit xenophobic (being generous here), means that there will probably be very little public support or empathy for the prospective parents who decide to take such a risky and expensive route to achieve parenthood. - Jon Loves Megan:
05 Aug 2011 Jon, you're the xenophobic one. We've actually started a fundraising drive to help this couple, who will most likely, if actually prosecuted, cop a $200 fine. That's what last couple from Qld were fined, hardly hefty (though maybe to a povvo like you) There is no backdoor approach being taken - 4 states and territories out of 7 in Australia - have no state legislation making it illegal for its residents to go abroad for commercial surrogacy. There is no federal legislation banning it. There is nothing risky for residents from most of the country. You have been told this time and time again and still you persist. Your hatred of Australians knows no bounds. But I guess we established a long time ago you are fixated on me and thus hate all Australians.