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.

Surrogacy in Australia

The laws relating to surrogacy arrangements within Australia falls within the jurisdiction of state and territory governments, with the majority of jurisdictions having relevant legislation relating to the legal transfer of parentage following surrogacy. Additionally in most jurisdictions, altruistic forms of surrogacy are legal, while surrogacy arrangements that have a commercial aspect are illegal.

The transfer of legal parentage of children born via a surrogacy arrangements will be recognised for the purposes of any proceedings as noted in the Family Law Act 1975 (Cth) under orders of a state or territory court (s 60HB).

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, the parents of the child will be required to apply for citizenship by descent for the child or a permanent visa.

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.

In the event that the child’s parent became a citizen either by descent or overseas adoption, in accordance with The Hague Convention on Intercountry Adoption, the parent must have been lawfully in Australia for at least a total of two years before an application is made.

Applications for citizenship by descent for any person 16 years of age or under must be signed by a responsible parent.

It should be highlighted that under the following circumstances, citizenship for descent will not be approved by the Department of Immigration and Border Protection (the Department), and citizenship will not be granted if:

• the person does not satisfy the decision-maker of their identity;
• the person making the application is at least 18 years of age and the decision-maker is not satisfied they are of good character;
• the national security requirements have not been met by the person.

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.

If there is no biological relationship between the child born via an international surrogacy, or the Department has not been satisfied of a biological relationship, the citizen will be required to provide other evidence to show they were the parent of the child at the time of birth.

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.

Who is a responsible parent?

Reference has been made in relation to responsible parents for applications made on behalf of a child less than 16 years of age. For the purposes of the application, a responsible parent must meet one of the following requirements:

·         the person is the child’s parent, unless an order has been made under the Family Law Act 1975 that the person no longer has any responsibility for the child;

·         the child is to live with the person under a parenting order;

·         the person is responsible for the long-term or daily care, welfare, and development of the child under a parenting order;

·         either under Australian law or the laws of another country, the person has guardianship or custody of the child through adoption, operation of law, an order of a court or otherwise.

For an application, only one responsible parent will be required to consent to, and sign an application.

What are the requirements for a visa to Australia?

In circumstances where the child does not meet Australian citizenship criteria or no application will be made on the child’s behalf for Australian citizenship, an application for a visa will be required in order for the child to enter, and to remain in the country on a permanent basis.

Depending on the circumstances, either a subclass 101 or subclass 102 visas will be required.

Subclass 101 visas relate to international surrogacy cases where there is a biological connection and the person is also a citizen, permanent resident or eligible New Zealand citizen. Subclass 102 visas are in relation to cases where there is no biological connection, and generally speaking, the child would need to be formally adopted in accordance with the laws of the child’s country of usual residence, along with other additional residency requirements.

Other reasons where sponsorship of a child may not succeed

When a child is under the age of 18, sponsorship may not be approved if either the sponsor or the sponsor’s spouse or de facto partner has been convicted of an offence against a child, or they are facing an outstanding charge for an offence of a child. Only in very limited circumstances will a visa be granted in such instances. Additionally, there must also be no persuasive reason as to why the granting of a visa would not be in the best interests of the child.