by Ahmad Shady (Migration), Paul Blake (KPT), Jason Neo (LL FamLaw)
This article is a collaboration between our immigration law, family law, and criminal defence divisions
There’s an old expression that success has many fathers and failure is an orphan. This rings especially true in the complex realm of surrogacy laws in Australia, where legal intricacies abound.
This observation applies in a couple of senses for those wishing to start a family but unable to conceive and finding international surrogacy to be the only way to have a child of their own.
The confusion and uncertainty that can ensue between the varied requirements of more than one country can only add so much trouble and pain to those heading off down this route with the best of intentions.
Surrogacy is one of those complicated areas of law in which not only are there territorial jurisdictional overlaps between two or more countries, and sometimes several state/provincial jurisdictions, it also spans several legal practice areas, dragging in considerations of family law, criminal law, and – when done internationally – immigration and citizenship law.
Surrogacy can be done by using the genetic material from both parents, by using a combination of genetic materials from one of the intended parents and donated genetic material from a donor, either due to one of the intended parents being sterile, or in the case of same-sex couples.
In most Australian jurisdictions, the gestating mother can be compensated for reasonable costs incurred (e.g.: medical, transport, lost wages, etc.) but cannot be paid above that, otherwise it would be considered commercial surrogacy, which is a criminal offence.
Even more interestingly, it is a criminal offence for the residents of the ACT, NSW, and QLD to engage in commercial surrogacy (whether as intended parents or gestating parent) anywhere in the world, due to the extraterritorial provisions in the criminal codes in these three states/territories. Extraterritorial criminal law is unusual and seen in only a limited range of offences. This is one of those areas where you can offend an Australian domestic law outside of the territory of Australia.
For a child born under surrogacy arrangements to be considered a child of one or more persons, the Family Law Act 1975 requires the Court of a State or Territory to make an order under a prescribed law of the State or Territory. In the context of the State of New South Wales, section 12 of the Surrogacy Act 2010 authorises a Court to make a parentage order in relation to a child of a surrogacy arrangement.
In considering as to whether to make a parentage order, the Court must be satisfied that the mandatory preconditions to making of a parentage order detailed in division 4 of the Surrogacy Act 2010 (NSW) have been met, and one of these preconditions is that the surrogacy arrangement must not be a commercial surrogacy arrangement.
Hence, in the context of the State of New South Wales, there is no opportunity for a child born under a commercial surrogacy arrangement satisfy the requirements of section 60HB of the Family Law Act 1975 (Cth).
As one would imagine, finding a volunteer who is willing to undergo the process of pregnancy and birth on behalf of someone else altruistically is quite a big ask and not readily available for most people. Therefore, a lot of Australians aspiring to become parents seek surrogacy elsewhere where commercial surrogacy is legal.
Having said that, international surrogacy – commercial or otherwise – is a complicated affair that spans family law in the overseas jurisdiction, potentially criminal law in Australia (if one or both intended parents are ACT/NSW/QLD residents), and citizenship law.
Contrary to the popular belief, having an Australian Citizen parent (or even two Australian Citizen parents) does not confer citizenship automatically on the child if the child is born overseas. This confusion stems from the fact that for some other countries, the doctrine of jus sanguinis is an operation of law one.
Australians having a child born overseas whether by surrogacy or otherwise must apply for Citizenship by descent for the child AND receive the approval before they can even apply for an Australian Passport.
For children born without the use of a surrogate parent, it is usually a much simpler process, where the criteria have to be met, which is:
- At least one parent was a citizen at the time of birth (if a parent dies before the child’s birth, their status at the time of their child’s birth is deemed to be the same as their status at the time of their death).
- If the parent passing down citizenship by descent is a citizen by descent themselves, one of the following two criteria must be met:
- The child is stateless, or
- The parent had lived in Australia as a citizen or a visa holder for periods adding up to two years.
An application needs to be prepared, along with all the required documents, lodged, and approved before the child becomes a citizen. Unlike citizenship by birth where a citizenship certificate will show the child to have been retroactively a citizen since their birth date regardless of the certificate issue date, Citizenship by Descent takes effect only from the date of approval.
There is plenty of documents that have to be prepared beforehand to streamline the process, as often the parents need to fly back as soon as possible.
With surrogacy, things get a bit more complicated. The paperwork required for citizenship by descent is considerably and significantly more than other cases.
In some cases, if the country of birth is a jus soli country (birthright citizenship, e.g. USA, Canada, etc.) it might be faster to obtain a passport from the country of birth and an Electronic Travel Authorisation (ETA) if said country is ETA-eligible. This way the family can fly back home while the citizenship application is processed.
Unfortunately, not all passports are born equal, and this may not be readily available for most countries, and not all ETA-eligible countries are birthright citizenship countries, and if we add the additional filter of countries where surrogacy is legal that list gets much smaller.
There are also a lot of considerations that you must watch for, such as the importance of obtaining a parentage order from the courts in the other jurisdiction, the critical nature of the time of such orders, where getting it one day too late may preclude your child from eligibility for citizenship by descent and make their pathway to Australia
How can we help?
Your best bet before considering international surrogacy is to consult our multidisciplinary team so we can advise you on what documents and information you will need, pitfalls to avoid, and potential issues you may come into.
Also, although we cannot advise on the family or criminal law in the overseas jurisdiction where you are considering surrogacy, we will be able to tell you what exactly we would require from the lawyers in that jurisdiction, so you can ask the right questions and have a better understanding to surrogacy laws Australia, preferably before engaging the surrogate as well.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
