Surrogacy in Australia

There are a lot of talks about legal, ethical and medical parts of Surrogacy. Our Team knows for sure that nothing can stop the Intended Parents, willing to have a child. Today we want to share with you some information related to Surrogacy in Australia, it’s law regulation inside the country and some reasons to undergo Surrogacy program overseas.

Legal regulation of Surrogacy in Australia

Legal regulation of Surrogacy in Australia varies from state to state. Nowadays all Australian states and territories (except Northern Territory, where no legislation exist) have criminalized commercial surrogacy in their jurisdictions. Furthermore, the ACT, NSW and QLD have also legislated to make it illegal for residents of those jurisdictions to enter into commercial surrogacy arrangements overseas with penalties from 100 units to three years of imprisonment. For example, in NSW according to Surrogacy Act 2010, maximum penalty for entering into commercial surrogacy agreement is 2500 penalty units, in the case of corporation, or 1000 penalty units or imprisonment of two years (or both) in any other case. According to Parentage Act 2004 in ACT, maximum penalty of 100 penalty units, imprisonment for one year or both are penalties for Commercial Surrogacy deals. In Queensland, penalty for Commercial Surrogacy is specified in Surrogacy Act 2010 and varies from 100 penalty units to three years of imprisonment.

Commercial Surrogacy

As we can see, Australian law is not very friendly for Commercial Surrogacy. The main reason for this is that the Australian Government doesn’t want to contribute the “baby factories” creations, as there is a widespread belief that commercial Surrogacy is some kind of economical slavery for women, who are pressed by their financial problems. From another point of view, it is unlawful for a person to receive payment for her reproductive capacity.

In reality, the picture drawn by political forces and journalists is not so black. Certainly, each Surrogate Mother, who is ready to become a gestational courier for Infertile Couple will be glad to receive some financial support from them, as it will help to improve her own family welfare, to give good education for her own children or to facilitate the purchase of home. But the main reason for becoming a Surrogate is always something bigger, that just money earning. This is, first of all, a noble way to help infertile couple to find a happiness of parenthood.

Surrogacy overseas

On the other hand, increasingly more couples from Australia request Surrogacy services overseas. Australian Courts generally do not seek to ‘punish’ people who attempt to create a family by engaging a commercial surrogate. Over the last 40 years, no person has been found criminally responsible in an Australian court in relation to a surrogacy event. So, law regarding the penalty of Surrogacy in Australia is not enforced.

Of course, we recommend you to seek a specialized legal consultation about Surrogacy in Australia before participating in any International Surrogacy program. However, we can ensure you that we have experience of working with Australian couples in International Surrogacy field and we know that nothing is Impossible.

Pay attention to details

In case of Australia, it doesn’t matter which Surrogacy destination you choose (Ukraine, Russia, Georgia, Belarus, USA etc) and what will be the marital status of your future Surrogate mother. Pay more attention to the Company you will work with, to its experience, credibility and medical facilities. We strongly recommend you to use genetic material of at least one Intended Parent with Australian citizenship, as it will help a lot in future, during the obtaining of your baby’s citizenship.

Usually, in the end of Surrogacy program you receive the Certificate of your baby’s birth, where you are written as legal parents, without any mentioning about Surrogacy.

Nevertheless, it is not the end of your Surrogacy journey, as you need to bring your baby home, and without citizenship and baby’s passport it will be not possible to do. From this moment your Embassy process starts.

Embassy process

A child born outside Australia as a result of a surrogacy arrangement is eligible for Australian citizenship by descent if, at the time of their birth, they had a parent who was an Australian citizen.

Where there is no biological connection between an Australian citizen who is the intended parent and the child born through an international surrogacy arrangement, or where such a biological connection has not been satisfactorily established, it is necessary for an Australian citizen to provide other evidence to demonstrate that the Australian citizen was in fact the parent of the child at the time of the child’s birth.

Evidence of parent-child relationship

Evidence that the parent-child relationship existed at the time of the child’s birth may include, but is not limited to:

•           a formal surrogacy agreement entered into before the child was conceived

•           lawful transfer of parental rights in the country in which the surrogacy was carried out to the Australian citizen before or at time of the child’s birth

•           evidence that the Australian citizen’s inclusion as a parent on the birth certificate was done with that parent’s prior consent

•           evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support and making arrangements for the birth and prenatal and postnatal care

•           evidence that the child was acknowledged socially from birth or before birth as the Australian citizen’s child, for example, where the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child.

Certificate of baby’s citizenship by descend must be obtained in Department of Home Affairs of Australian Government and sent by post to the country where surrogacy is performed. This Certificate gives to your baby right to obtain Australian passport for travelling home.

Passport of a baby

Once all documentation needed for baby’s passport has been gathered, given to the Embassy and checked, at least one parent will be required to attend a personal interview at the Australian Embassy to lodge the passport application. Interviews are by appointment only and must be confirmed in advance of their travel to Embassy. Following that, the Embassy may need to contact them again or other individuals named as part of the application, including the non-lodging parent, the surrogate and witnesses. The completed application will then be processed in Canberra.

Finally, in the end you will get baby’s passport and travel home with new member (or maybe members) of your family! We really believe that you are not frightened of all this legal issues and the rule «forewarned is forearmed» is the best option for all Intended Parents.

Patience of our Intended Parents is very important for our Company, that’s why we provide them with full legal support during Surrogacy program from the moment of their first call to their travel home. Contact us today to know more information about medical and organization part of Surrogacy for Australian Couples!

Author: Sukhanova Anna, legal adviser of Pons Medical Group