Overseas Commercial Surrogacy Arrangements


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Overseas Commercial Surrogacy Arrangements

Written 30 August 2012

Important Decision Made on Child Surrogacy Case

Judgement was delivered on 1 August 2012 in a matter heard in the Family Court of Australia at Sydney with orders made as follows:

  1. The biological father was declared to be the parent of the children;
  2. The wife of the biological father was declared to be the parent of the children;
  3. The mother and father as set out above were held to have shared parental responsibility for the children; and
  4. That the children could live with the father and his wife.

The parties in the matter were the biological father, his wife, the surrogate mother, the Australian Human Rights Commission and the Legal Aid Office of New South Wales on behalf of the children.

Paid Surrogate Arranged Through Thai Fertility Clinic

The facts of the matter were that on 19 March 2011, Mr Ellison (the biological father) and accompanied by his wife Ms Solano, brought two eight week old children from Thailand to Australia. The couple had paid $7,350 to a Ms Karnchanit (“the birth mother”) to be their surrogate birth mother in Thailand. Through a Thai fertility clinic, Mr Ellison’s sperm had been used to fertlise an egg provided by an unknown donor and the embryos were then implanted in the birth mother.

Illegal In Australia Legal In Thailand

The arrangement undertaken by the parties was illegal in Australia as it amounted to a commercial surrogacy arrangement. Such an arrangement is not illegal in Thailand.

Decision Made in Children’s Best Interests

As the birth mother was found to have no wish or desire to maintain a relationship with the children, the court held “that it is in the children’s bests interests that the applicant’s have shared parental responsibility for the children and each of them has all the duties, powers, responsibilities and authority which by law parents have in relation to children”.