Lately we’ve been getting a number of enquiries about surrogacy in foreign countries. Those who make those enquiries are normally frustrated in relation to the surrogacy process within NSW or within Australia.
In a recent case before the Family Court, Justice Ryan said:
“…the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved.”
This is especially true where international surrogacy arrangements are involved. There are many issues involved when it comes to international surrogacy. Some of these issues involve:
- Does the arrangement comply with Australian Law?
- If you are a resident of NSW, does the arrangement comply with the requirements of the Surrogacy Act 2010 (NSW)?
- Does the arrangement comply with the internal laws of the country where the child is born?
- Who is the parent of the child? As a rule, unless otherwise specified, the mother of the child is the birth parent.
- Can the country where the child is born make orders declaring that the parent of the child is the intended parent?
- Can the country where the child is born make any orders giving the intended parent authority or guardianship over the child?
- Will the child be an Australian Citizen? Can the child be an Australian Citizen?
- Can the intended parent apply for a passport on behalf of the child?
- How does everyone get back to Australia?
- Will Australia recognise the birth certificate of the child?
You also have to keep in mind that the absence of surrogacy legislation in the foreign country does not necessarily mean that they have mechanisms or processes in place to recognise the intended parent as the parent of the child.
As you can see there are many issues to deal with when it comes to international surrogacy. Intended parents would do well to consider the potential minefield that this area contains.