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International Surrogacy

In-House Memorandum
International Surrogacy

The Family Court case of Fisher-Oakley v Kittur[1] earlier this year again raised grave concerns as to issues surrounding international surrogacy.

The case concerned an application by a gay couple known as Mr X and Mr Y Fisher-Oakley for equal shared parental responsibility in respect of a child who was born from a commercial surrogacy arrangement made with Mr and Ms Kittur of India. The Commonwealth had granted the child citizenship by descent, prior to its arriving in Australia, and the child was living with the applicants in Australia.

Judge Cronin expressed the Court’s disquiet on the granting of orders for parental responsibility and residence. It was His Honour’s view[2] that commercial surrogacy may be difficult to distinguish from child trafficking in certain circumstances because, in both, a party declares him or herself to be the biological parent of a child and the birth mother rejects any involvement in the child’s life.

The Kitturs did not participate in the proceedings and the Court received little information about the contractual arrangement, the agency involved or the circumstances under which the child might otherwise live if not relinquished to the applicants. His Honour observed that commercial surrogacy arrangements usually see the birth mother hand over the child to the other contracting party and then fade out of the child’s life. He noted the Court’s caution that such children can be seen to be either abandoned by their birth mothers or indeed crassly sold by their birth mother and expressed concern as to how this arrangement might affect the child:

“This is a new area for the law in an environment where science is far ahead of what lawmakers seem to be contemplating. I have no idea what this child will face in 15 years [sic] time if cultural issues arise or his issues about identity become a crisis. I have no idea what would happen in the event that the birth mother suddenly changed her mind and wanted to have some involvement in the child’s future”[3]

The Court, however, found in favour of the applicants and the child remained in their care. His Honour noted that:

“all evidence before me points to the fact … that the child will be well cared for and is currently in good hands”[4]

This recent case is a reminder of the disquiet expressed by Australian Courts in relation to international commercial surrogacy arrangements. For intending parents considering travel overseas for commercial surrogacy, it is imperative that specialist legal advice is sought prior to entering into a contract to ensure the best interests of the child are met and Australian requirements are taken into consideration.

Kellehers’ checklist is a useful aide memoire to any Australian proposing such an arrangement. http://kellehers.com.au/wp-content/uploads/KA-Surrogacy-Checklist-.pdf.

Loretta Houlahan

Cameron Algie

9 July 2014


[1] Fisher-Oakley & Kittur [2014] FAMCA 123

[2] Ibid, at [5]

[3] Ibid, at [9]

[4] Ibid, at [25]