In Lloyd & Compton [2025] FedCFamC1F 28, the Federal Circuit and Family Court of Australia (the Court) considered an application for parenting orders concerning a child born through an international commercial surrogacy arrangement.
The case presented several legal challenges, including the absence of admissible evidence regarding the domestic laws of Cyprus (where the child was born under the surrogacy arrangement), lack of proof of the applicants’ Australian citizenship, and an inability to address the implications of Queensland’s prohibition on commercial surrogacy arrangements. This resulted in a dismissal of the application for parenting orders.
Facts
In 2023, the applicants entered into a commercial surrogacy arrangement with C Ltd, with the agreement solely between the applicants and the company. As part of the arrangement, the applicants agreed to pay approximately $140,000 AUD.
The child was born in Cyprus in 2024. A birth certificate issued by the Turkish Republic of Northern Cyprus lists the second applicant as the father and the surrogate as the mother.
In 2023, the surrogate underwent an embryo transfer procedure involving a donor egg and the second applicant’s sperm. The egg donor’s profile indicates she is a national of Country H and was born in the year 2000.
Proceedings
On 29 July 2024, the applicants filed an Initiating Application with the court, seeking joint parental responsibility for the child to live with them, for the child to have no contact with the respondent, and for orders regarding the child’s passport and international travel. They also sought permission to initiate adoption proceedings under the same legislation.
The respondent, Ms Compton—the surrogate mother—indicated she did not wish to participate further in the proceedings.
Under the Surrogacy Act 2010 (Qld) (Surrogacy Act), it is a criminal offence—carrying a penalty of up to three years’ imprisonment—for individuals ordinarily residing in Queensland to engage in a commercial surrogacy arrangement outside the state.
The surrogate stated that in 2023, prior to signing the surrogacy and childbearing agreement, she met with a counsellor and received legal advice—both arranged by C Ltd. The surrogate made it clear that she does not wish to have any contact or relationship with the child and supports the first applicant’s intention to pursue step-parent adoption. She also confirmed that she provided a DNA sample for testing and expressed confidence that the results would show she has no biological connection to the child.
The Initiating Application represented that the applicants were present in Australia at the time of filing of the application. That was not the case. The applicants contended that the order sought in relation to the child’s passport was sought so that the surrogate’s consent was no longer required each time an application is made for a passport or its renewal for the child.
Leave was sought for the applicants to commence step-parent adoption proceedings in Queensland.
Decision
A parenting order can be sought by a parent, or any person concerned with a child’s care, welfare, or development. In determining whether to make such an order, the Court must prioritise the best interests of the child.
The Court found that the applicants lacked standing to apply for a parenting order due to insufficient evidence. The deficiencies included a lack of information about the applicants’ and child’s current and future circumstances (particularly if imprisonment were a possibility), proof of the child’s Australian citizenship and passport, the surrogacy agreement itself, a DNA report excluding a genetic link between the surrogate and child, expert legal analysis of surrogacy laws in Cyprus, updated information from the surrogate, evidence of any benefits she received, medical proof of the applicants’ infertility, and a family report assessing the applicants’ suitability as carers.
The Court went on to consider whether it would be appropriate to grant parenting orders even if the applicants had standing. Counsel for the applicants argued that, although the surrogacy arrangement breached the Surrogacy Act, this did not prevent the Court from making parenting orders. However, the Court held that granting parental responsibility and residency orders in these circumstances would undermine the legislative intent of the Surrogacy Act, which prohibits commercial surrogacy. As a result, the Court was not satisfied that making the proposed orders would serve the child’s best interests.
Furthermore, the applicants did not meet the definition of prescribed adopting parents under relevant adoption laws.
The Court referred the matter to the Queensland Director of Public Prosecutions to consider whether criminal charges should be pursued and also referred the case to the NSW Legal Services Commissioner to assess whether the applicants’ solicitor had fulfilled her professional obligations—particularly in relation to filing affidavits that may contain admissions of criminal conduct under the Surrogacy Act and whether competent legal services were provided.
Ultimately, the Court dismissed the Initiating Application.
Extraterritorial Surrogacy is not illegal in all states of Australia. If you are thinking of starting or growing your family through surrogacy, please do not hesitate to contact our office at 03 9670 4122 to arrange an initial consultation.