Currently Australians are heading to India and to California in droves to have children via commercial surrogacy clinics. As I have posted previously, the demand for surrogacy services in both places from Australians is so great that the Department of Foreign Affairs and Trade has posted a DIY guide on the webpage of the Australian High Commission in India, and of the Australian Embassy in Washington. Neither webpage, regrettably, mentions that it is an offence for someone in Queensland or the ACT to access overseas commercial surrogacy clinics.
Be that as it may, Australians are the biggest export market in commercial surrogacy clinics in California, for example.
For a child born through surrogacy, both webpages emphasise the DNA link between the child and the parent. They do this because to enable the child to come to Australia, it is vital to show that the child is an Australian citizen by descent, and is therefore entitled to an Australian passport.
In California, commercial surrogacy clinics have both donor sperm and eggs available. It is therefore possible to have a child via a surrogate in which none of the DNA of the child is that of the intended parent. The intended parent is by Californian law deemed to be the parent of the child at the time of the birth. The implications of a recent Federal Court case appears to indicate that such a child may be an Australian citizen by descent. A word of warning: anyone contemplating international surrogacy ought to get good Australian legal advice (and legal advice from the country first) before going down what could be a very costly and fruitless path.
The case: Hudson v Minister for Immigration and Citizenship
There were two cases which were heard together by the Federal Court: a case of Hudson and another of McMullen.
In Hudson, Mr Hudson was conceived to a Chinese mother, before the mother married an Australian citizen.it appeared that the Australian citizen could not have been the genetic father. The parties were married while the mother was still pregnant. As a matter of law, the "father" was presumed to be the father by virtue of the marriage. The Department rejected Mr Hudson's application to be an Australian citizen by descent as the Department was not satisfied that there was a genetic link between father and son, and that therefore the child could not be an Australian citizen by descent.
Ms McMullen was born in Fiji to a Fijian mother. At the time of Ms McMullen's conception, her mother was seeing two Australian men. She believed that the father of her child was Mr McMullen. The mother and Mr McMullen married, and he brought up the child as his own. Subsequent DNA testing revealed that he could not have been the father. Mr McMullen always considered himself to be the father of the child, and she always (and even after the DNA testing ) considered him to be Dad.
The Department rejected Ms McMullen's application for citizenship as there was no genetic link between Mr McMullen and Ms McMullen, therefore Mr McMullen was not a "parent" within the meaning of the Australian Citizenship Act, and Ms Mullen was therefore not an Australian citizen by descent.
The unfortunate feature of the Australian Citizenship Act is that it relies upon the concept of "parent" but in general terms does not define it. The question that the Federal Court had to tackle was whether parentage was merely that involving DNA, or whether it was a broader concept.
In both cases, the court concluded that "parent" was a wider concept than that of genetics, and sent the cases back for decision about factual issues.
The court held:
(I)n human societies over time parentage is what society understands it to be...
Whether or not a person was a parent prior to birth is essentially a matter of fact to be determined in the ordinary way, by reference to the circumstances disclosed and the ordinary experience of a member of the Australian community...
There is little, if anything, in the text or structure of the Citizenship Act that would support the proposition that, in the specific context of s 16(2), the word "parent" only can mean biological parent, irrespective of the ordinary meaning of the word.
On the contrary, textual and structural considerations would support the proposition that the word "parent" in s 16(1)(a) bears its ordinary meaning and that it is essentially for the decision-maker to determine whether or not a person was a "parent" as ordinarily understood, having regard to the facts before him or her.
Whilst often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word "parent" is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships....
We accept that, where a child is said to be a child of a person, then that person is ordinarily described as a parent of the child. Where Parliament states in an Act that a child is a child of a person, then, absent any contrary indication, it is reasonable to assume that Parliament intended that that person has the status of parent of the child, if that status is relevant for the operation of the Act. We also accept that, having regard to the definition of "child" in the Citizenship Act, the Act clearly contemplates that, at least for some purposes (including where the word "child" is expressly used), the status of being a parent is not limited to a biological parent. However, the use of the words "parent" and "child" in a correlative sense may weaken, depending on the context in which the words "child" (in the sense "child of a person") or "parent" are used. Having regard to the absence of the word "child" from s 16(2), the definition of that term in s 3 does not greatly assist in answering the present question...
Let it be assumed that "parent" in s 16(2) is limited to a biological parent. Let it also be assumed that, acting under s 17(2), the Minister approved an applicant becoming a citizen, on the basis that the applicant was eligible under s 16(2), in circumstances that did not involve DNA testing. Typically, so counsel for the Minister said, there would be no DNA testing in circumstances falling within a presumption of parentage in the Family Law Act or State legislation (as, for example, s 5 of the Status of Children Act 1974 (Vic)). Let it also be assumed that the Minister so approved the applicant in his infancy. The applicant grew up in Australia and subsequently fulfilled the obligations of citizenship. If, for some reason (medical or familial perhaps), such a person in later life were to be the subject of DNA testing from which it appeared that his supposed citizen parent was not in fact his biological parent, then, on the Minister’s construction, such a person would never have become an Australian citizen. (In some circumstances a similar difficulty might arise under s 12(1).) Further, without a visa, such a person would be an unlawful non-citizen liable to deportation under the Migration Act 1958 (Cth). Perhaps, he might be eligible for a visa under s 35 of that Act, but eligibility for such a visa is limited and it would not permit re-entry to Australia.These difficulties would be unlikely to arise if "parent" in s 16(2) were not limited to biological parent in the way the Minister contends.
Rejecting the floodgates argument
The court rejected the argument that the wider view of what was a parent meant that the floodgates would be opened:
The Minister argued that a reading of "parent" as extending beyond biological parentage would create "anomalous and indeterminate" and "arbitrary" results. We doubt that this would be the case. First, as emphasized already, s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. For example, even infant adoptees would be unable to satisfy this requirement. Secondly, judicial acceptance that parentage is not limited to a biological relationship in analogous provisions in citizenship statutes elsewhere [such as the US] has not had the consequences described by the Minister.
There is specific provision, section 8, in the Australian Citizenship Act to deal with surrogacy. It deems that a child born as a result of a surrogacy arrangement can be deemed tobe a child (and therefore a citizen by descent). The provisions however in general terms only cover surrogacy within Australian schemes for surrogacy- they do not extend to international surrogacy.
The court said:
Broadly speaking, the effect of s 8 is to deem a child born as a result of surrogacy arrangements or artificial conception procedures to be a child of a person (in the circumstances outlined) although there is no relevant biological connection with the child; and, further, to deem that child to be a child of a person and a spouse or de facto partner to the exclusion of anyone else.
Counsel for the Minister argued that a separate section addressing surrogacy and artificial conception procedures would be unnecessary if s 16(2) encompassed a conception of parenthood broader than the biological. We reject this submission. The issues that may arise from surrogacy arrangements and artificial conception procedures are especially complex. Moreover, they are new issues in the sense that they are the consequences of comparatively recent major developments in science and technology and have required clear and specific responses from Parliament to protect the rights of persons, particularly children born under these regimes. It is therefore unsurprising that Parliament has addressed these circumstances separately.
At most one might observe that Parliament’s reference to "biological child" in s 8(1)(b)(ii) indicates that Parliament has turned its mind in this instance to the need to qualify a familial relationship in biological terms. It has not done so in the case of "parent" in s 16(2)(a). This may lend support to the contention that Parliament intended the word "parent" in s 16(2)(a) to be understood in its ordinary sense (what ever that may be), without any specific limitation of the kind for which the Minister contends.