Sunday, 28 November 2010

Going to the Family Court after the commercial surrogacy clinic

Intending parents of children born overseas through a commercial surrogacy arrangement or agreement, particularly gay or lesbian couples, are keen to know the hurdles of having the child recognised as theirs. Here is the short version.

Disclaimer: Every case is different! Those Australians entering into commercial surrogacy arrangements or agreements should get good Australian legal advice before entering into the arrangement. They may be committing an offence. Those Australians who have entered into commercial surrogacy arrangements or agreements overseas should get good Australian legal advice as soon as possible. They may have committed an offence. I have advised clients in several states and overseas about surrogacy. For a guide about the differences between the states and territories, try here or here.


Step 1: I have entered into the commercial surrogacy agreement/arrangement

Before step 1, if you are from Qld or the ACT [and soon NSW], don't- it is an offence in those jurisdictions to do.

The critical issue is to ensure that the child is an Australian citizen by descent. Engaging a reputable migration agent is essential. If the child is an Australian citizen by descent, it can migrate here, if not, it cannot. Both the Australian High Commission in New Delhi and the Australian Embassy in Washington DC require DNA proof- but a recent decision has made plain that even without DNA you might be a parent and the child a citizen by descent.

Step 2: The child is born: is the child legally yours?

Evidently, if the answer is no, then the child cannot leave that country. You will need to get advice, well in advance, from a lawyer in that country who knows what they are doing.

Step 3: Telling the Department of Immigration and Citizenship

You will need to get advice about whether or not you tell the Department about the surrogacy status of the child. The expectation of the Department is that you say. The four questions to get advice about are:

  • do I have a legal obligation to tell?
  • if I don't say, and my child comes to Australia, will/can/what risk is there in my child being stripped of Australian citizenship later on?
  • if I do say, what risk is there that I will be referred to police in Qld, ACT and soon to be NSW for prosecution? [So that it is clear beyond any doubt: I do not encourage anyone to commit any offence. Engaging a commercial surrogacy clinic overseas is an offence in Qld and the ACT and shortly NSW.]
  • if I am prosecuted, what risk is there in the child being taken away from me by the State?
Step 4: How is the child legally recognised as mine?

There are three options, none of which are pretty:

  1. Do nothing. Your partner may be legally recognised as mum or dad, but you are not. This may not cause troubles for you, except possibly in dealing with schools and doctors. It may be worse: if you and your partner split up, and you take your partner to the Family Court, the Family Court may not believe your story, and prevent you from seeing the child.
  2. Adopt. Three potential problems: 
    • is same sex adoption legal in your jurisdiction? Click here for my State by State guide. Adoption by those in a same sex relationship is legal in NSW, WA, ACT and in limited circumstances in Tasmania.
    • if you can adopt in your jurisdiction, did you commit an offence entering into the commercial surrogacy arrangement (which you would have done in the ACT, and may have done in NSW)? If so, assume that the adoption cannot proceed and that you will be reported to police.
    • in any case, is the bureaucracy of the State agency going to prevent you adopting, given that the child was born overseas?
  3. Get a parenting order from the Family Court. It's not cheap. It is usually the best option. There is a risk for those in Qld, the ACT and soon NSW that the judge could report you to police. Get advice about the reality of this risk.  In two reported cases (from Victoria), Re Mark and Cadet and Scribe it was illegal to have entered into surrogacy in Victoria. The judge did not report the parties to the Victorian police. Her priority was on the best interests of the child. For a summary of how the Family Court has decided these and other surrogacy cases, click here. Depending on what happened in the legal process overseas, the surrogate mother may need to be served with a copy of any court application. This will mean having to give her a copy of the the court documents. This may mean going through the Department of Foreign Affairs and Trade and the relevant government overseas, depending on the country, and may mean translation into the language of the surrogate by an expert translator.

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