“[We] are aware of the matter and are conducting inquiries,” Queensland Police told this masthead. “No further information is available at this time.”
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Dr Tammy Johnson, an expert in commercial surrogacy regulation at Bond University, said surrogacy laws in Queensland, New South Wales and the ACT included the element of extraterritoriality, which meant residents could be potentially prosecuted for overseas arrangements.
Laws were different in Victoria and South Australia, and Johnson said she had heard anecdotal reports of people moving interstate before seeking surrogacy overseas.
However, she said the stricter laws seen in Queensland had never been enforced, despite several cases being referred to the DPP.
“Although these people are probably on tenterhooks in light of this particular case, I’d be very surprised if anything came of it,” she said.
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“Ultimately [the DPP] are looking at what’s in the best interest of the child … Are we going to charge them with a criminal offence, and use all of these public resources to prosecute these people, when the result is you’re going to take these parents away from their child? Is that in the best interest of the child? Probably not.”
The Brisbane couple’s parenting order was not granted, with Justice Catherine Carew not satisfied that it would be in the child’s best interests.
“It is curious, to say the least, why the applicants have filed an application which will leave them to open to potential prosecution,” Carew said in her ruling.
“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.”
The judgment noted the court had not been provided with a copy of the surrogacy agreement, DNA reports, or expert evidence on the law in the country where the child was born.
Carew said the couple had also not explained how the child would be looked after if they were jailed under Queensland law.
The judge also referred the couple’s lawyer, known only as Ms B, to the NSW Legal Services Commissioner, saying an investigation seemed to be warranted into whether Ms B had complied with her obligations as a legal practitioner.
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