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International Surrogacy Consideration

Nicholes Family Lawyers was involved with one of the last Thailand commercial surrogacy cases before the new laws banning commercial surrogacy in Thailand came into effect in August 2015, ending access previously available to foreign residents and same sex couples.

Under the new laws, parties must be a couple, a man and a woman, and must have been legally married for at least three years with one or both holding Thai nationality, before they can access surrogacy in Thailand. There are also rules relating to the relationship between the surrogate and the couple.

Our matter involved a heterosexual married couple engaging in a commercial surrogacy arrangement with Thailand and upon returning to Australia with twins, seeking orders for parental responsibility in the Family Court of Australia.

The Court referred to a previous international surrogacy case by the name of Ellison v Anor v Karnchanit [2012] FamCA 602 2012 (“Ellison”), where Ryan J summarised the best approach to international surrogacy applications and concerns to ensure that the surrogate has not been subject of exploitation, coercion or duress. The Court was of the view that there should be a high level of rigour imposed by the Court as a safeguard to the surrogate.

Ellison set out a checklist which includes some of the following considerations:

  1. Ensure an Independent Children’s Lawyer is appointed to represent the child;
  2. Obtain affidavit evidence from the applicants and the birth mother; and
  3. Independent evidence regarding the child’s identification should be put before the Court.

These factors should be considered in future to ensure that the Court has enough evidence to make the parenting orders sought.

By Nicholes Family Lawyers


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