Privilege against Self-Incrimination
Residents of ACT, NSW and QLD who enter into overseas commercial surrogacy arrangements could face prosecution and even imprisonment. Naturally, there is concern over how such individuals can acquire legal status in relation to their children given the prospect of criminal sanction.
One way intended parents might circumvent the criminal provisions of the relevant State legislation is to invoke the privilege against self-incrimination enshrined in s 128 the Evidence Act 1995 (Cth). Section 128(1) of the Act provides that a witness may rely upon the privilege against self-incrimination if the witness objects to “giving particular evidence”, or “evidence on a particular matter”, on the ground that the evidence may tend to prove that the witness has committed an offence against, or arising under, an Australian law.
If the witness either elects to give evidence or is compelled by the court to do so, the court must grant a certificate which precludes the evidence given from being used against the witness. Likewise, if the court denies a claim for privilege but later determines that the evidence given tends to prove that the witness committed an offence, the court must then grant a certificate to that witness.
Ellison and Anor v Karnchanit  FamCA 602 is an example of the privilege against self-incrimination being successfully invoked in the commercial surrogacy context. The applicant were residents of Queensland who had sought parenting orders in relation to a child born from an overseas commercial surrogacy arrangement. They objected to giving evidence that would tend to prove that they had committed an offence under s 54 of the Surrogacy Act 2010 (Qld) and s3(2) of the Surrogate Parenthood Act 1988. Accordingly, Ryan J granted a certificate under s 128 of the Evidence Act 1995 (Cth). In granting the certificate, Ryan J indicated that it was also in the children’s best interest to issue the certificate given the potential for long term psychological damage to children stemming from the potential imprisonment of the intended parents.