International Surrogacy | Sarah Bevan Family Lawyers

Many Australians may be considering undertaking surrogacy arrangements with a person outside of the country. Surrogacy can take the form of either a selfless action or via a commercial arrangement. For any person who is seriously considering international surrogacy, they should obtain legal advice before undertaking such arrangements.

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Surrogacy in Australia

The laws relating to surrogacy arrangements within Australia falls mainly within the jurisdiction of State and Territory governments, and each jurisdiction has relevant legislation relating to the legal transfer of parentage following domestic surrogacy. Additionally in most jurisdictions, altruistic forms of surrogacy are legal, while surrogacy arrangements that have a commercial aspect are illegal.

Legal parentage is complex, involving considerations of the Family Law Act 1975 (Cth), various legislation in each State and Territory, as well as important case law. Until recently it was difficult, if not impossible, to obtain parentage orders in Australia following an international surrogacy arrangement. NSW and ACT, at the time of writing, now allow for a parentage order to be made following international commercial surrogacy. However, there are strict requirements which must be met, and these start prior to conception. It is essential to obtain legal advice early in the process.

Overseas surrogacy arrangements

Any Australian who is considering organising surrogacy arrangements should bear in mind the legal issues that may affect such arrangements. For instance, in the ACT, New South Wales, and Queensland, it is an offence for residents to make commercial surrogacy arrangements in a foreign country. Using s 9(1) of the Surrogacy Act 2010 (NSW) as an example, commercial surrogacy arrangement is defined as an arrangement involving the “provision of a fee, reward or other material benefit or advantage to a person for the person or another person”.

Furthermore, Australia is a party to a number of international treaties, such as the United Nations Convention on the Rights of the Child, the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption that emphasise that the protection of the rights of children is of paramount importance.

Bringing a child into Australia via an overseas surrogacy arrangement

In order to bring a child to Australia, in most circumstance the parents of the child will be required to apply for citizenship by descent for the child or a permanent visa. That application typically must be processed in the country of the baby’s birth but in some limited circumstances, it can be processed once back in Australia.

What is Citizenship by descent?

A child born via an overseas surrogacy arrangement will be eligible for citizenship if at the time of birth, at least one parent was an Australian citizen.

How is a parent-child relationship determined?

In most surrogacy arrangements, there will be at least one biological parent and this can usually be ascertained by medical or DNA testing, or a combination of both. Substantial weight will be given to the results of DNA testing if the test undertaken meets the standards approved by the Department.

It is also possible, but caution must be exercised, in certain circumstances for a child to obtain citizenship by descent even without a biological link.

Some of the evidence that the Department may consider can include, but not limited to:

any formal agreement entered before the child was conceived via surrogacy;
the transfer of parental rights that is legal, and carried out by an Australian citizen either prior to, or at the time of the birth of the child;
any evidence that the Australian citizen had been included as a parent on the child’s birth certificate, and with the prior consent of the parent;
any evidence that the Australian citizen had provided care for the unborn child and/or the mother of the child during the term of the pregnancy, which can include emotional, domestic, financial support, and any arrangements made for the birth, pre, and postnatal care of the child;
any evidence of social acknowledgement that the child was viewed as the child of the Australian citizen, such as presenting the child as the child of the person either within the family of the citizen and social groups.