TWO couples who paid surrogate mothers to carry their babies face the possibility of criminal charges after their cases were referred to the Director of Public Prosecutions by the Family Court.
The ruling, in separate judgments handed down by Justice Garry Watts in Sydney, came after the couples applied to the Family Court for parenting orders after returning to Australia from Thailand, where the children were born.
The cases are among the first to come before the courts since altruistic surrogacy laws were passed on March 1 this year making it illegal for a NSW resident to pay a surrogate mother, either here or overseas, to carry their baby.
Both families live in Queensland, where bans on commercial surrogacy were set out in laws enacted in June last year.
Experts said the judgments were a precursor for what will happen in other states, including NSW, where similar laws have since been passed.
UTS family law specialist Professor Jenni Millbank described the decisions as "very surprising" and said they would encourage parents to lie about their children's conception and birth.
"I think parents from NSW, the ACT and Queensland are now very unlikely to approach the Family Court for orders," she said. "Such families now have a serious incentive to conceal the circumstances of birth in order to present themselves as legal parents to government authorities."
Altruistic surrogacy, where the surrogate mother receives no payment beyond medical expenses, is legal in Australia but commercial surrogacy is banned across the country.
It is believed at least 300 Australian couples travel to countries such as the US, India and Thailand each year for the purpose of entering a surrogacy arrangement.
In both cases before the Family Court the parents had tried to conceive via IVF before resorting to surrogacy.
Both surrogacies resulted in the birth of twins. In delivering the judgments, Justice Watts granted each couple "equal and shared responsibility for the children", but he did not make any ruling as to whether either of the couples were the legal parents of the babies.
Professor Millbank said that although there may be concerns about international surrogacy arrangements and the welfare of surrogate mothers, the Family Court needed to put the interests of children first.
"The Family Court is often faced with evidence that parents have potentially acted illegally - taken drugs, defrauded Centrelink or dodged taxes, for example," she said.
"But they don't send all those files to police because their job is to assess each child's needs and try to ensure the best outcome for them."
s"I would suggest an order which exposed the child's parents to jail, without advancing their welfare, cannot be in their best interest