• Surrogacy and Australian Citizenship by descent

Surrogacy and Australian Citizenship by descent

To meet the citizenship by descent criteria DHA must be satisfied that a parent-child relationship exists.

In most cases, a person’s parents are their biological parents. However, in some circumstances such as those involving artificial conception procedures and/or surrogacy arrangements, determining who is a parent can be more complex.

We see applicants who do not claim a biological link or who have insufficient evidence of a claimed biological link for a variety of reasons, such as:

  • the applicant was born through a surrogacy arrangement that did not involve the contribution of genetic material by either commissioning parent
  • the applicant and their parent held a genuine but mistaken belief that they were biologically parent and child
  • the applicant acknowledges that there is no biological link to their claimed parent but contends that they nevertheless had a parent-child relationship at the relevant time (generally as of the date of the applicant’s birth).

Factors that are taken into account

For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth. The applicant (or, if applicable, their responsible parent) is to provide evidence of the length and nature of the Australian citizen’s or permanent resident’s parental relationship with the child.

Note: Evidence of the length and nature of the relationship between the claimed parents may corroborate the evidence of the relationship between the applicant and the Australian citizen parent, but is not in itself evidence of the parent-child relationship.

It is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship. The decision maker more likely will weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was) or is (was) not a parent of the applicant at the relevant time.

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

  • anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their 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, making arrangements for the birth and prenatal and postnatal care
  • evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child and
  • when a child is born through a surrogacy arrangement – a formal surrogacy agreement entered into before the child was conceived and lawful transfer of parentage before or at time of birth in the country in which the surrogacy was carried out.

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.

Application requirements – children born through an international surrogacy arrangement

As the legal status of surrogacy arrangements differs from country to country, and sometimes, between different jurisdictions within a country, each surrogacy arrangement needs to be looked at carefully in the context of the local laws where the child was born.

To satisfy application requirements, one of the following will usually be required:

  • the commissioning parent to provide a court order or other evidence from the country where the child was born, indicating that the commissioning parent who is signing the citizenship application form has parental responsibility for the child (as required under s6 of the Act) or
  • if the commissioning parent does not have parental responsibility for the child, the surrogate gestational mother (or another person with parental responsibility) would need to make the application on behalf of the child. Consideration will be given to interviewing the surrogate gestational mother (or other person with parental responsibility) to ensure that they have genuinely and voluntarily given their consent to the application being made.

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