Talk about getting a bitter-sweet result:
A Queensland couple who won the right to raise three baby boys born to two surrogate mothers in Thailand could face criminal charges, in a case that has highlighted Australia’s complex surrogacy laws. The boys were artificially conceived using the sperm from the man and eggs from an anonymous donor, and were carried and delivered by two Thai women.
The Family Court in Sydney has ordered that the boys, a set of twins known as L1 and L2 and their brother, L3, are to live with the man and his wife, known as Mr and Mrs Dudley, in Queensland. However, Justice Garry Watts ordered the Office of the Director of Public Prosecutions in Queensland to consider whether the couple should be prosecuted for entering into a commercial surrogacy agreement, which is illegal in that state and carries a maximum three-year jail sentence.
The couple, both aged 42, tried unsuccessfully for 10 years to have children by IVF in Australia before turning to a fertility clinic in Thailand. In late 2008, one surrogate mother became pregnant with twins, and a second surrogate mother became pregnant with a singleton. An obstetrician induced labour in both women so that all three children, with the same genetic make-up, were born on the same day.
The babies were handed over to the couple almost immediately after birth and eventually bought to Australia. Justice Watts said he granted Mr and Mrs Dudley parental responsibility of L1 and L2 because it was in the twins’ best interests, despite a nationwide move to outlaw commercial surrogacy. However, he referred the case to the DPP.
Details of the financial arrangements entered into were not provided to the court. In a separate judgment in the Family Court in Sydney, Justice Janine Stevenson ordered that L3 live with Mr and Mrs Dudley and his brothers.
Each state has its own surrogacy laws, but in the past few years the states have been moving towards uniform laws. Under changes to NSW legislation last March, NSW residents who travel overseas and pay a surrogate mother to carry their baby can also face prosecution. Penalties include up to two years’ imprisonment and fines of $275,000 under the NSW Surrogacy Act. But NSW couples who entered into a commercial surrogacy agreement before the new laws came into force cannot be subject to criminal charges.
Professor Julie Shapiro provides some additional analysis about this case on her blog.