Surrogacy and Australian Citizenship by descent

Children born in Australia as a result of a surrogacy arrangement under a prescribed law of an Australian State or Territory

Surrogacy

Surrogacy is an arrangement, usually contractual, under which a woman (the “gestational” or birth mother) agrees to bear a child for another person or persons (the “commissioning parent/s”) with the intention that the child be handed over to those persons immediately or very soon after the birth. The persons involved may or may not be genetically related to the child.

Legislative framework

Surrogacy is regulated in Australia by the States and Territories. As at 1 May 2013:

• NSW, Western Australia, South Australia, Queensland, Victoria and the ACT had legislation in place to allow altruistic surrogacy (surrogacy arrangements without material benefits) and prohibit commercial surrogacy
• the NSW, ACT and Qld legislation make it an offence for people who are ordinarily resident in those states to enter into a commercial surrogacy arrangement overseas
• the Northern Territory did not have any law on surrogacy and
• Tasmanian law prohibits both altruistic and commercial surrogacy (a Bill to legalise altruistic surrogacy was before the Parliament).

The FLA provides for recognition under family law of certain parent-child relationships created through a surrogacy arrangement. The FLA in turn refers to the following prescribed state and territory laws:

• Surrogacy Act 2010 (QLD)
• Surrogacy Act 2008 (WA)
• Parentage Act 2004 (ACT)
• Family Relationships Act 1975 (SA)
• Surrogacy Act 2010 (NSW)
• Status of Children Act 1974 (VIC).

For the purposes of s8 of the Act and surrogacy, the immigration or Australian citizenship status of the sperm or egg donor or birth mother does not affect a person’s eligibility for Australian citizenship. It is the immigration or Australian citizenship status of the persons who are recognised as the parents of the child under the FLA that determine whether the child is eligible for Australian citizenship.

If the child was born in Australia through a commercial surrogacy arrangement

As a party to the United Nations Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, Australia is committed to protecting the fundamental rights of children. These Conventions include obligations to prevent the abduction, sale, or trafficking of children. While Australia does not have obligations towards children who are not within its jurisdiction, extreme caution should be exercised when deciding cases involving surrogacy arrangements entered into overseas to ensure that Australia’s citizenship provisions are not used to circumvent adoption laws and other child welfare laws.

Legislative framework

There is no national legal framework in Australia regarding surrogacy. As at 14 August 2013:

• NSW, Western Australia, South Australia, Queensland, Victoria, Tasmania and the ACT had legislation in place to allow altruistic surrogacy (surrogacy arrangements without material benefits) and prohibit commercial surrogacy
• the NSW, ACT and Qld legislation also bans people who are ordinarily resident in those states from entering into a commercial surrogacy arrangement overseas and
• the Northern Territory did not have any law on surrogacy.

Verifying biological parentage

In order to verify that the claimed Australian citizen parent was a parent of the child at the time of birth, the decision maker can request evidence of the parent/child link such as medical procedure documents, or suggest DNA testing – see section 18.3.1 DNA testing.

In some countries, where surrogacy arrangements are regulated and handled through a court process, the court documentation may already establish the biological link between the Australia citizen parent and the child. Documentation from the treating doctor of the relevant medical clinic may also confirm the biological link. In such cases, this documentation may be accepted as evidence of the biological link.

If the claimed parentage is not biological, or such a link is not demonstrated to the satisfaction of the decision maker, it will be necessary to assess whether other factors sufficiently support the claimed parental relationship – see section 18.4 Applicants who do not claim a biological link or who have insufficient evidence of a claimed biological link.