Overseas surrogacy and parent rights

The recent ruling by the Australian Family Court may be a game changer for Australian families who have been overseas, or intend to go overseas to have their children through surrogacy. While clear figures are hard to obtain, it is estimated that around 250 children each year are born to Australian parents through overseas surrogacy arrangements – so this is a bit of a big deal.

Last week’s decision by three judges of the Family Court have made a new interpretation of the Family Law Act and ruled that an Australian couple who had their child through an Indian surrogacy arrangement are not the parents of the child.  The couple had sought to have their child considered to be a “child of the marriage” but the Full Court found that this ruling could not be made.  The impact of this decision is potentially far reaching.   The Family Court judgement stated

“Thus, it is plain that s60HB now specifically addresses the position of children born under surrogacy arrangements, leaving  s60H to address the status of children born by means of conventional artificial conception procedures.  Further, the plain intention of section 60HB is to leave to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act.  In other words, section 60HB covers that field, leaving, as we say, section 60H to address conventional artificial conception procedures.”

The unfortunate result of that conclusion is that the parentage of the child here is in doubt.  There is no order made under the relevant State legislation (and nor could there be…).

There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act.  Further, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.

What does this mean for any other family who use international surrogacy?

This ruling makes a clear determination that the majority of Australian parents who have a child born overseas through surrogacy, are NOT the parents in Australian law (there are some exceptions).  The ruling applies irrespective of whether the surrogacy was commercial or altruistic, as the Family Court has made reference to the relevant State legislations which restrict overseas surrogacy arrangements.  At this point, it remains unclear what impact this ruling will have regarding the citizenship of any future children conceived international surrogacy.  If the Department of Immigration and Border Protection adopts the view as ruled by the Family Court, then the majority of children born outside Australia through surrogacy would not be recognised as the child of a parent for the purposes of Australian citizenship.  This would mean that the child is not entitled to Australian citizenship and would have no entitlement to live in Australia.

I am grateful to Stephen Page for his summary of the recent ruling on his surrogacy blog.  For a more comprehensive assessment of the ruling, and information about the current exceptions to this ruling, you may wish to read his blog https://surrogacyandadoption.blogspot.com.au/2017/09/family-court-couple-who-went-overseas.html  Obviously, if you are an Australian who has been overseas for surrogacy, or you are planning to do so, I recommend that you seek independent legal advice regarding your individual situation.