Extra-Territoriality and Surrogacy: The Problem of State and Territory Moral Sovereignty

Chapter 5
Extra-Territoriality and Surrogacy: The Problem of State and Territory Moral Sovereignty

Anita Stuhmcke*

I. Introduction

Crime and reproduction are areas of citizen activity that have historically been local or personal phenomena. Traditionally the regulation of such activities has been territorial in the sense that it has been applied within a particular geographical territory. Today, however, the application of extraterritorial criminal provisions to international reproductive practice is increasingly common. This accretion of jurisdiction by a (nation) state over conduct occurring outside its borders has been attributed to the rise of globalisation as ‘[c]heap travel, advances in technology and telecommunications and the anonymity of the internet have created rapid expansion of transnational crimes such as child sex tourism, terrorism, and human rights abuse’.¹ McSherry and Bronitt frame the emergence of a more flexible approach to jurisdiction and a move away from territoriality as being related to the ‘globalisation of crime’, observing that:

Crimes of international jurisdiction are those that international law regards as so ‘grave and heinous’ that every nation is entitled to try them irrespective of where the conduct occurred. There is disagreement over what crimes fall within this category. It is commonly agreed that war crimes, piracy and slavery fall within it.²

Internationally, extraterritorial offences apply to a small number of areas that impinge upon private sexual or reproductive practice. Commercial surrogacy thus joins this relatively small list of private-life offences, which includes female genital cutting and child sex.³

In March 2010, Turkey became the first country to legislate against its citizens seeking third-party reproductive assistance overseas through donor gametes or surrogacy.⁴ In doing so, Turkey joined the Australian jurisdictions of the Australian Capital Territory and Queensland, which introduced similar legislative provisions in 1994 (ACT) and 1988/2010 (Qld) respectively. In 2011, New South Wales became the third Australian jurisdiction to apply extraterritorial criminal laws to residents pursuing surrogacy overseas.

It is remarkable that three of the four jurisdictions worldwide which currently impose extraterritorial prohibitions on commercial surrogacy are Australian states and territories. Indeed, given the first extraterritorial commercial surrogacy law was introduced in Queensland almost 30 years ago, Australia has, without fanfare, become a world leader in both quantity and longevity of extraterritorial criminal legislation regulating cross-border assisted reproduction.

This chapter examines the cause, effect and validity of the ACT, NSW and Queensland extraterritorial laws.⁵ It questions the justifications offered for the restrictive extraterritorial regulation of commercial surrogacy, and refers to empirical research as to Australian usage of Thai reproductive services,⁶ media analysis as to the numbers of Australians who engage in cross-border commercial surrogacy⁷ and commentary as to the establishment of Australian owned and operated assisted reproduction clinics in Thailand.⁸ Such research reveals no evidence of harm and it is argued that criminal law should not apply to surrogacy in the absence of evidence as to harm⁹ and, as authors such as Storrow¹⁰ and Van Hoof and Pennings¹¹ argue, it is unjustifiable to impose an extraterritorial criminal law in areas of contested morality such as commercial surrogacy.

II. Overview of the Operation of Australian Extraterritorial Surrogacy Legislation

In Australia, as in the United States, there is a ‘state-by-state patchwork quilt of reproductive autonomy’.¹² As there is both a lack of constitutional power and political will on the part of the Australian federal government to make laws in relation to surrogacy, regulation has been left to the states and territories. The result has been described as ‘medicine by postcode’,¹³ where ineligible parents travel interstate for treatment with fertility services in restricted states actively facilitating such travel.¹⁴

This regulatory dissensus is exemplified by the fact that while almost all Australian jurisdictions (with the exception of the Northern Territory) render commercial surrogacy illegal, only three Australian jurisdictions have passed extraterritorial criminal provisions. Implicit extraterritorial regulatory measures such as geographical nexus requirements and parentage orders,¹⁵ which exist to indirectly restrict access to surrogacy, are not discussed in this chapter as they are discussed in-depth elsewhere in this volume. It is worth briefly noting that any intending parents who have entered into international surrogacy arrangements will have to request parentage orders and apply for visas for their children. A child (subclass 101) visa¹⁶ will enable a child born of a surrogacy arrangement overseas to enter, and reside permanently in, Australia. To obtain that visa, the child must satisfy certain requirements relating to age, biology, custody, health, character and sponsorship.¹⁷ If a visa is granted and the child enters Australia, they may then be able to apply for Australian citizenship by conferral.

While there is a general presumption that offences in state legislation do not have extraterritorial effect,¹⁸ it is now well established that state legislatures are nonetheless competent to make laws that operate extraterritorially by express provision in the relevant statute, as long as there is a sufficient nexus between the legislating state and the prohibited act.¹⁹ Following is a brief summary of the three Australian jurisdictions that have operational extraterritoriality provisions to prohibit their residents engaging in international commercial surrogacy.

A. Australian Capital Territory

The provisions with respect to extraterritorial application were first introduced in 1994 in the Substitute Parent Agreements Act 1994 (ACT). The aim of the legislation was to prevent people who are normally residents of the ACT from ‘procuring the services of a person for the purposes of a substitute parent agreement, or advertising for a birth mother in another State or country’.²⁰

The Substitute Parent Agreements Act 1994 (ACT) has since been replaced by the Parentage Act 2004 (ACT), section 45 of which provides the extraterritorial prohibition for all offences under Part 4 of the Act. The offences under Part 4 include: intentionally entering into (s 41), procuring someone for (s 42), advertising for (s 43) and facilitating pregnancy for (s 44) a commercial surrogacy arrangement.

The exact wording of s 45, titled ‘Geographical nexus for offences’, is:

1. A geographical nexus exists between the ACT and an offence against this part if, when the offence is committed, the person who commits the offence is ordinarily resident in the ACT.

2. This section is additional to, and does not limit, the Criminal Code, section 64(2) (Extension of offences if required geographical nexus exists).

In the ACT, the penalty for breaching these provisions is up to one year’s imprisonment and/or a $11,000 fine.

B. Queensland

In Queensland the penalty for breaching these provisions is up to three years’ imprisonment and/or a fine of $10,000.²¹

C. New South Wales

Since March 2011, it is an offence to enter a surrogacy agreement whether within or outside NSW as long as there is a geographical nexus with the state. Section 11 of the Surrogacy Act 2010 (NSW) is titled ‘Geographical nexus for offences’ and states:

1. This section applies for the purposes of, and without limiting, Part 1A of the Crimes Act 1900.

2. The necessary geographical nexus exists between the State and an offence against this Division if the offence is committed by a person ordinarily resident or domiciled in the State.

Note: Section 10C of the Crimes Act 1900 also provides that a geographical nexus exists between the State and an offence if the offence is committed wholly or partly in the State or has an effect in the State.

Section 8 of the Surrogacy Act 2010 (NSW) applies a penalty for paid surrogacy of $110,000 (1,000 penalty units) or imprisonment for two years or both for an individual. The Surrogacy Act 2010 (NSW) also amends the Assisted Reproductive Technology Act 2007 (NSW) to prohibit clinics from carrying on business in contravention of the Surrogacy Act 2010 (NSW) – meaning that ambiguity now surrounds clinic involvement in facilitating surrogacy overseas such as through the exportation of already generated embryos.

The extraterritorial criminal provisions which apply to commercial surrogacy have never been enforced in any of the three Australian jurisdictions. This remains the case despite the existence of high-profile legal and media cases where residents of the ACT, Queensland and NSW have used international commercial surrogacy agencies. There were only a handful of unsuccessful prosecutions of altruistic surrogacy arrangements in Queensland under the now repealed Surrogate Parenthood Act 1988 (Qld). As Brown, Willmott and White outline,²² there were only three prosecutions under that legislation in Queensland. None of them were extraterritorial in operation. In 1991, two women were charged and the magistrate dismissed them without recording a conviction; similarly in 1993, more women were charged under the Act and the magistrate recommended that the charges against them under the legislation should not proceed. Finally, in 1993, a medical practitioner was fined $2,000 and placed on a good behaviour bond for facilitating altruistic surrogacy.

This lack of appetite to proceed with prosecutions was also seen in a high-profile custody case concerning an altruistic surrogacy arrangement that went without criminal charge. The first case in Australia where the Full Court of the Family Court of Australia determined legal parentage following a dispute over the custody of a child following the breakdown of a surrogacy arrangement concerned a couple from Queensland and a couple from South Australia. In Re Evelyn,²³ the court applied the traditional family law test of the child’s ‘best interests’ to place her with the South Australian surrogate mother. There was no prosecution of the Queensland couple under the then-operational s 3 of the Surrogate Parenthood Act 1988 (Qld).

More recently, Justice Watts in the Family Court of Australia referred two Queensland surrogacy cases to the Director of Public Prosecutions with respect to contraventions of the extraterritorial provisions of the former Surrogate Parenthood Act 1988 (Qld). The first case, Dudley & Anor v Chedi,²⁴ concerned an application for parentage of two boys born in August 2009 through surrogacy in Thailand. The boys were conceived using Mr Dudley’s sperm and donated eggs, and were carried to term by a Thai surrogate. The second case, Findlay & Anor v Punyawong,²⁵ was an application to the Family Court by Mr Findlay and Ms Adrei to have equal shared parental responsibility for two children born in Thailand in January 2011, pursuant to a surrogacy arrangement. Like in Dudley, the surrogacy arrangement involved Mr Findlay providing his sperm to be used with eggs donated by an egg donor with the resulting embryo carried to term by a Thai surrogate mother. In each case it was reported that the egg donor was unknown and was not a party to the proceedings. Each Thai birth certificate showed the name of the father – Mr Dudley and Mr Findlay as applicable – and the name of the surrogate mother as the parents of the children.

In each case, the applicants applied to the Family Court for orders under the Family Law Act 1975 (Cth) for parental responsibility and for the children to live with them at their home in Queensland. The applicants required the said orders to assist them to apply for Australian citizenship for the children. Each surrogate mother consented to the orders being sought by the applicants. In each case, the Court examined whether the orders sought by the applicants were in the children’s best interests and made orders for the children to live with the applicants and for the applicants to have equal shared parental responsibility for making decisions about both long-term and day-to-day issues in respect of the children.

In both cases, the Australians travelling to Thailand were Queensland residents and, at the time the children were conceived (prior to 1 June 2010), had committed an illegal act under the Surrogate Parenthood Act 1988 then in force. The Court made an additional order that a copy of the judgment be provided to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under section 3 of the Surrogate Parenthood Act 1988 (Qld). In the final paragraph in Dudley at [32] (and in similar words in Findlay at [32]) Justice Watts stated:

It appears that what the applicants have done in this case is illegal. I would direct the Registrar to send a copy of the judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld) and if requested, the Registrar is to supply any document on the court file to the Office of the Director of Public Prosecutions.

There have been no resulting prosecutions.

The ongoing absence of any prosecution supports the view that the Australian laws are an exercise in pure symbolism. Of course this observation does not deny that even where laws are symbolic in application, symbolism can cause great harm.²⁶ For example, symbolism often uses pejorative language,²⁷ which not only results in immediate frustration and disappointment for those individuals who wish to use commercial surrogacy but casts people who evade the extraterritorial laws through travel as morally degenerate and even a national threat.²⁸