A Brisbane couple could face criminal charges and a NSW solicitor could face disciplinary action after they made a parenting order application which admitted commercial surrogacy.
In the Federal Court and Family Court of Australia in Brisbane earlier this year, Justice Carew dismissed the application by “Ms and Mrs Lloyd” through their lawyer “Ms B”, expressing concern that the making of the order would act to circumvent Queensland law.
“It is curious, to say the least, why the applicants have filed an application which will leave them open to potential prosecution,” she remarked.
In her 21-page decision published this month, she ordered that the court refer documents to the Office of the Director of Public Prosecutions Queensland so it could consider whether to prosecute the Lloyds under section 56 of the Surrogacy Act 2010 (Qld). Entering a commercial surrogacy arrangement carries a maximum penalty of three years’ imprisonment.
She also ordered that the court refer documents to the Office of the NSW Legal Services Commissioner so it could consider whether it should investigate Ms B’s conduct.
Specifically, whether Ms B had complied with her obligations as a legal practitioner, by procuring and filing affidavits on behalf of her clients in which they admitted to facts which establish an offence, or whether she had otherwise breached her obligation to provide competent legal services.
The child was born in Cyprus last year to a 37-year-old surrogate, after the Lloyds agreed in 2023 to pay about $140,000 to company “C Ltd” in “Country E” to arrange all aspects of the surrogacy.
The birth certificate names the surrogate “Ms Compton” as the mother and Mr Lloyd as the father. Ms Compton is an unemployed sole parent to three children and is separately represented in the proceedings by a NSW lawyer.
In July last year, the Lloyds, who are aged in their 50s, filed an initiating application for a parenting order for parental responsibility and the child to live with them.
Justice Carew found the couple did not have standing to bring the application.
She said because the surrogacy was a commercial one, neither applicant was a “parent” within the meaning of s 60HB of the Family Law Act 1975 (Cth).
She said they would still be eligible to apply for a parenting order if they were found to be people “concerned with the care, welfare and development of the child”.
She said, however, that had not been established due to a dearth of evidence to support such a finding, including proof of the child’s Australian citizenship and passport; a copy of the surrogacy arrangement between the parties; a copy of the DNA report to confirm the surrogate has no genetic connection to the child; evidence about the surrogate’s current circumstances and remuneration from the surrogacy; and an official assessment of the suitability of the applicants as carers for the child.
Justice Carew went on to consider whether it would be proper to make a parenting order in the circumstances, in the event she was wrong in her finding about standing.
“There can be no doubt that at the time of enactment of the Queensland law, the concept of commercial surrogacy was anathema to those promoting the passing of the Surrogacy Bill,” she said.
“Nothing has changed in terms of the applicable law. In my view, to make an order for the applicants to have parental responsibility and for the child to live with them would act to circumvent the clear intention of the legislature.
“That is a relevant matter in determining whether the proposed parenting order is proper.
“Further, in the absence of evidence outlined … I am unable to be satisfied the proposed parenting order would otherwise be in the best interests of the child.”
Justice Carew said it was not in contention that the couple had contravened the Surrogacy Act.
“It has long been the approach of this court to refer such matters to the appropriate authorities and I propose to do so,” she said.
She said although she was not privy to the exchanges between the Lloyds and Ms B, it seemed appropriate to refer the practitioner to the Office of the NSW Legal Services Commissioner.
“The facts seem to warrant an investigation into whether Ms B has complied with her obligations as a legal practitioner by procuring and filing affidavits on behalf of the applicants in these proceedings, in which they admit to an offence under s 56 of the Surrogacy Act and whether she has otherwise breached her obligation to provide competent legal services,” she said.
At the end of her judgment, Justice Carew pointed out that the Australian Law Reform Commission was conducting an inquiry into national surrogacy laws, including consideration of surrogacy arrangements made outside of Australia.
The final report is due in July 2026.
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