International surrogacy arrangements: Who has parental responsibility under Australian law?
By Kirstie Barfoot
An Australian same-sex couple, Kyle and Kent Stewart, are currently facing legal issues in their attempts to bring their baby son Kaden into the country from Canada where they have been living. The couple has become aware that the Australian Foreign Minister is unable to grant Kaden a passport without the consent of his biological mother- a surrogate who has rescinded all parental responsibility under Canadian law and who is not listed as a parent on Kaden’s birth certificate.
The treatment of commercial surrogacy arrangements by Australian law has resulted in a stressful situation for the Stewarts, as the surrogate mother is reluctant to sign documents listing her as Kaden’s parent. In Australia, it is possible to bring children born through surrogacy back into the country but there are legal blocks that need to be addressed:
- In circumstances where one or both of the parents is a biological donor to the surrogate, and is Australian, the parents can apply for Australian citizenship for the child by descent
- If neither Australian parent is a biological parent of the child, whether they are considered the legal parents (and therefore able to apply for citizenship for the child) is dependent on the jurisdiction. As processes for adoption are lengthy, many parents apply for residency for the child, dealing with their child’s citizenship after they are in the country
- All parents must complete a ‘B4 (Child Born through Surrogacy)’ form including documentary evidence of a legal surrogacy agreement
- Parents must apply for an Australian passport to bring the child back into the country. When applying for a passport for a surrogate child, the Australian Passports Act 2005 requires the consent of each person who has parental responsibility for the child.
It is the fourth point above that’s proving to be the sticking point for the Stewarts. The definitions of ‘parent’ and ‘parental responsibility’ haven’t been defined by the Family Law Act 1975 in relation to children born through surrogacy. As a result, the general approach has been to expand the definition to include as many people as possible, in absence of an Australian Court order specifying who holds parental responsibility for the child. A spokesperson for Foreign Affairs Minister, Julie Bishop, has commented on the Stewart’s situation, stating that “Under Australian Law, a birth mother is considered to be a person with parental responsibility for a child, whether or not she has a biological link to the child or is named on the child's birth certificate.”
This legal stance in Australia regarding the rights of surrogate birth mothers is discussed in the 2011 Family Court case of Dudley and Anor & Chedi. In this case, the Court stated that the aim of the position is to “protect women and children from what the legislature has seen as abusive practices which potentially surround the commercialisation of surrogacy.” However this case, and other cases of involving surrogate parents, didn’t involve a scenario where the surrogate mother had deliberately severed parental responsibility a considerable period of time before the application for a passport was made.
The Stewarts are in continued contact with the Australian Government, and are attempting to resolve the issue.
If you would like to discuss surrogacy arrangements please contact our Family Law team.