Parenting orders and overseas commercial surrogacy –  Australian court perspective

By Caitlin Elliott – Special Counsel

The recent judgment of Her Honour Justice Carew in Lloyd & Compton [2025] FedCFamC1F 28 is a fascinating illustration of how the Federal Circuit and Family Court of Australia determines parenting orders for a child conceived through an overseas commercial surrogacy arrangement.

Background

The child was a baby boy born in Cyprus in 2024 through a commercial surrogacy arrangement between a company and the first applicant (Ms Lloyd) and second applicant (Mr Lloyd).

The applicants began living together in 2006 and deposed to have married in 2012 (though there was no evidence of their marriage before the Court). They were both aged in their early 50s and ordinarily resident in Brisbane.

They had tried unsuccessfully to have a child for 15 years, including by IVF (although Her Honour noted there was no medical evidence filed in that respect).

The surrogacy agreement was entered into in mid-2023. The surrogate was not a party to the agreement, though was the respondent to the Court proceedings. The surrogate had her own legal representation in the proceedings.

Under the agreement Ms Lloyd and Mr Lloyd paid the surrogacy company approximately AUD$140,000 to, among other things, locate a surrogate, source anonymous donor eggs, arrange for fertilisation of the donor eggs with sperm provided by Mr Lloyd, arrange for the implantation of an embryo in the surrogate, ensure the surrogate complied with certain requirements to ensure as far as a possible a healthy baby was born and to make all necessary arrangements for the birth of the baby.

Ms Lloyd and Mr Lloyd travelled to Cyprus in 2024 and the child was born in 2024. The birth certificate issued in 2024 names Mr Lloyd as the father and the surrogate as the mother.

The surrogate was in her late 30s and deposes to having entered into a Surrogacy and Child‑Bearing Agreement with Ms Lloyd, Mr Lloyd and C Ltd (being the surrogacy company). A copy of the agreement was not presented to the court in evidence. There was no evidence before the Court of what payment or other benefits the surrogate received for her part in the surrogacy arrangement. The surrogate did not speak English and did not reside in Cyprus. She was not employed as she was the primary carer for her own three children aged 17, 9 and 6 years. The surrogate did not have a spouse or partner.

The egg donor, who was born in 2000, also did not reside in Cyprus.

The surrogate deposed to meeting with a counsellor in 2023 arranged by the surrogacy company, prior to signing the surrogacy agreement and to having obtained legal advice in 2023 arranged by the surrogacy company. Her Honour remarked that it was curious that the surrogate was unable to provide an actual date upon which she received counselling and legal advice, and that the counselling and the legal advice could not be considered independent as they had been arranged by the surrogacy company.

In 2023, the surrogate underwent a procedure where an embryo using the donor egg and the Mr Lloyd’s sperm was implanted. She gave birth to the child in 2024.

Ms Lloyd and Mr Lloyd filed an Initiating Application on 29 July 2024, applying for a parenting order as defined by s 64B of the Family Law Act 1975 (Cth) (the Act) for parental responsibility and for the child to live with them and spend no time with the surrogate. Ms Lloyd and Mr Lloyd also applied for leave to commence adoption proceedings pursuant to s60G of the Act. The surrogate filed an affidavit and a Submitting Notice indicating she did not wish to be further heard in the proceedings.

At the applicants’ request, their application was determined in Chambers in the absence of the parties.

Issues to be determined by the Court

Carew J stated the following issues needed to be determined:

1. Do the applicants have standing to apply for a parenting order?

Her Honour found the applicants’ written submissions did not address this fundamental jurisdictional requirement, noting:

A parenting order in relation to a child may be made in favour of a parent of the child or some other person (s 64C of the Act), and a parenting order may be applied for by a parent or any other person concerned with the care, welfare or development of the child (s 65C(a) and s 65C(c)).

1. Are either or both applicants a parent for the purposes of s 65C(a) of the Act?
   
   
   1. ‘Parent’ is not defined in the Act, but Subdivision D of Division 1 of Part VII of the Act defines how the Act applies to certain children. In relation to children born under surrogacy arrangements, s 60HB of the Act applies and provides:
      
      
      (1) If a court has made an order under a prescribed law of a State or Territory to the effect that:
      
      1. a child is the child of one or more persons; or
         
         
      2. each of one or more persons is a parent of a child;
         
         
         then, for the purposes of this Act, the child is the child of each of those persons.
         
         
   2. A prescribed law for the purposes of s 60HB of the Act includes one pursuant to section 22 of the Surrogacy Act 2010 (Qld) (the Surrogacy Act). Section 22 of the Surrogacy Act has the effect that the Children’s Court cannot make a parentage order if the child was born through a commercial surrogacy arrangement. Accordingly, neither Ms Lloyd nor Mr Lloyd was a parent within the meaning of s 60HB of the Act.
      
      
      In Bernieres & Dhopal (2017) 57 Fam LR 149 (Bernieres & Dhopal) the Full Court of the Family Court of Australia (as it was then called) held that section 60HB of the Act specifically addresses the position of children born under surrogacy arrangements and that the plain intention of the section is to “leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements”.
      
      
   3. No submissions were made about the effect, if any, of the subsequent decision of Masson & Parsons (2019) 266 CLR 554 (Massons & Parsons) regarding the question of whether a person is a parent of a child born of an artificial conception procedure. In that case the High Court held it is “is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand”. Carew J commented that Massons & Parsons did not involve a surrogacy arrangement, but it could be argued to have a more extensive application. Her Honour concluded that in any case, she was bound by the decision in Berniers & Dhopal.
      
      
2. If the applicants are not “parents”, are either or both applicants a person concerned with the care, welfare or development of the child for the purposes of s 65C(c) of the Act?
   
   
   Her Honour then considered whether Ms Lloyd and Mr Lloyd could still be eligible to seek a parenting order on the basis that they were persons concerned with the care, welfare and development of the child. Her Honour stated that while on one view it might be thought uncontroversial in the circumstances that the applicants were persons concerned with the care, welfare and development of the child, before that fact could be established the Court would need evidence including:
   
   
   
   • “The current circumstances of the applicants and the child and their plans for the child in the event they are prosecuted and sentenced to a term of imprisonment for the criminal offence of entering into an international surrogacy arrangement contrary to Queensland law.
     
     
   • Evidence that the child is an Australian citizen and has an Australian passport.
     
     
   • A copy of the surrogacy and childbearing agreement between the surrogate, the applicants and the surrogacy company.
     
     
   • A copy of the DNA report confirming that the surrogate has no genetic connection to the child.
     
     
   • Expert evidence on the law of the Republic of Cyprus on commercial surrogacy in that country and the rights of the surrogate.
     
     
   • Evidence from the surrogate about her current circumstances and what she received by way of remuneration or other benefits from the surrogacy.
     
     
   • Medical evidence corroborating the applicants’ history of inability to have a child.
     
     
   • An assessment from an appropriately qualified Family Report writer as to the suitability of the applicants as carers for the child involving a home visit and interviews with any other persons whom it may be proposed will have a significant relationship with the child”.
     
     
     Her Honour held that, without that evidence, she could not be satisfied that the applicants were persons concerned with the care, welfare and development of the child pursuant to s 65C(c), and that applicants therefore did not have standing to apply for a parenting order.
     
     

2. If the applicant/s did have standing, would it be proper to make the parenting order sought as one in the best interests of the child in circumstances and where, by their own admission, the applicants have committed a criminal offence under Queensland law?

In the event Her Honour was wrong in finding that the applicants did not have standing to bring an application for a parenting order, she then considered whether it would be proper (with reference to s 65C of the Act) to make a parenting order in the circumstances of the case.

In summary, Her Honour noted:

1. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s 65DAA and s 60CA). The best interests of the child are determined by reference to the matters set out in s 60CC of the Act.
   
   
2. Rule 1.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (which applies to “surrogacy proceedings”) is very specific about the evidence to be filed in support of an application for parenting orders for a child born under a surrogacy arrangement.
   
   
   Many of the documents required to be filed had not been filed by the applicants. For instance, there was no admissible evidence on the domestic law of Cyprus, no proof of the Australian citizenship of the applicants, and no submissions were able to be made about the fact that it is a criminal offence under the Surrogacy Act for a person usually resident in Queensland (where the proceedings were being determined) to enter into a commercial surrogacy arrangement outside Queensland, or the power of the Court to make a parenting order in the circumstances.
   
   
3. Turning to case law on this issue, Her Honour contrasted this case to Bernieres & Dhopal in which His Honour Berman J made a parenting order granting the applicants parental responsibility and for the child to live with them – even though they had entered into an overseas commercial surrogacy arrangement. His Honour did so on the basis that he was satisfied on the evidence before him that such an order was in the child’s best interests. In that case the parties lived in Victoria (where surrogacy legislation does not have jurisdiction over individuals when they are outside Victoria), so the arrangement was not unlawful under Victorian law.
   
   
   The facts in Bernieres & Dhopal differed in other ways from Lloyd & Compton which was being determined by Carew J. For example, in Bernieres & Dhopal, Berman J had a copy of the surrogacy agreement signed by all parties – including the surrogate and her husband, and was satisfied that the surrogate had given her full and free consent to the surrogacy arrangement and to never claim any right or entitlement in respect of the child. His Honour found that the applicants had an “overarching love for [the child] and have the ability, capacity and intention to meet the child’s needs”.
   

Carew J dismissed the Application, noting “Although there may be good practical reasons for making the order sought, I cannot be satisfied on the evidence before the Court that the proposed order is in the best interests of the child. I am also concerned that to make the order sought by the applicants would act to circumvent the law in Queensland where commercial surrogacy is a criminal offence”.

3. Are the applicants ‘prescribed adopting parents’ for the purposes of the application?

Her Honour held an application for leave to commence adoption proceedings could only be brought by a prescribed adopting parent. Neither of the applicants fell within the definition of a prescribed adopting parent for the purposes of the Act because they were not:

• A parent of the child;
  
  
• The spouse/de facto partner of a parent of the child; or
  
  
• A parent of the child and either his or her spouse/de facto partner.
  
  

4. Should the applicants be referred to the Office of the Director of Public Prosecutions for consideration of whether they should be prosecuted for an offence under the Surrogacy Act?

Consistent with the approach of the Court in similar cases, Her Honoured referred the Ms Lloyd and Mr Lloyd to the Office of the Director of Public Prosecutions Queensland for consideration of whether they should be prosecuted under section 56 of the Surrogacy Act 2010 (Qld).

5. Should the applicants’ solicitor be referred to the Office of the NSW Legal Services Commissioner for consideration of whether she has met her professional obligations to provide competent legal services?

Her Honour referred the Applicant’s solicitor to the NSW Legal Services Commissioner by for consideration of what, if any, investigation should be conducted as to whether she complied with her obligations as a legal practitioner by procuring and filing affidavits on behalf of her clients in which they admitted to facts establishing an offence under s 56 of the Surrogacy Act 2010 (Qld) and whether she had otherwise breached her obligation to provide competent legal services.

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