If you have undertaken surrogacy overseas,
the obvious question to ask is whether you are parent in Australia. One might think that the answer to that
question is very simple – yes or no.
The answer is not so simple.
Let’s start with family law
The Family Court in the recent decision in
Bernieres and Dhopal said, in effect,
that if you go overseas for surrogacy but haven’t complied with your local
state law concerning surrogacy, then you are not a parent under section 60HB of
the Family Law Act and therefore not
a parent under the Family Law Act. An example of what you might have to do is
what happened to Mr and Mrs Bernieres, namely that to comply with section 60HB
of the Family Law Act, even though
they undertook surrogacy in India, they would have had to have undertaken IVF
at a Victorian IVF clinic!
What is not clear is if someone has
undertaken surrogacy overseas when they lived in Australia and obtained an
order from an overseas court saying that they are the parents – whether they
will be recognised as the parents.
If the intended parents lived overseas and
underwent surrogacy overseas, then a Family Court decision from 2013 says
provided that they comply with the law overseas, that they would be the parents
under the Family Law Act.
In some parts of the United States, post
birth surrogacy orders are made.
Typically, one parent (say the male in a heterosexual relationship or
one of the men in the gay relationship) will be identified as parent 1. He will be declared as the parent and
parental rights in favour of the surrogate and her husband will be
terminated. There will then be a second
parent adoption in favour of the other intended parent (whether they are genetically
or not the parent of the child), thereby naming the second parent as a parent
of the child as well. An adoption of
this kind would appear not to be within the intention of the Hague Intercountry
Adoption Convention. Once an adoption
order is made, it is clear that under the Family
Law Act, the second parent is therefore a parent as well.
Therefore, parent 1 may not be a parent
under the Family Law Act (if section
60HB of the Family Law Act apply) but
parent 2 will be because of other provisions of the Family Law Act, due to there being an adoption. A second parent adoption necessarily means
that there is a first parent –but the bizarre situation under the Family Law Act is that the first parent
may not be a parent under the Family Law
Act. Go figure!
A surrogacy order made in most parts of
the United States and New Zealand might be able to registered with the Family Court of Australia and that order
provides that the intended parents are the parents of the child, then the
effect of registration will mean that the intended parents are parents of the
child in Australia under the Family Law
Act.
Inheritance
It’s essential for anyone undertaking
surrogacy overseas to make sure that there is a properly drafted local will
prepared after the surrogate is pregnant and another one properly drafted after
the child is born.
Not having a will or a properly drafted
will is a grave mistake. What Bernieres and Dhopal has highlighted is
that the child may not be your child under the Family Law Act (and therefore for inheritance purposes) which means
that if you don’t execute the right documents in time and then die, you have
visited a terrible mess upon your child and committed a calamity. Your child may well be disinherited by your
failure to take action.
Child
Support
The bizarre outcome of the decision in Bernieries and Dhopal is that while it
would appear that you aren’t a parent or may not be a parent under the Family Law Act, i.e. when your child is
born or comes into Australia, if you and your partner separate, you will almost
certainly be a parent for the purposes of child support! Under section 29(2) of the Child Support (Assessment) Act 1989
(Cth) these are the ways that the child support registrar can be satisfied that
a person is a parent of a child, including:
·
The person is or was a party to a marriage
and the child was born to the person, or the other party to the marriage,
during the marriage.
·
That the person’s name is entered in a
register of births or parentage information, kept under the law of the
Commonwealth or of the State, Territory or prescribed overseas jurisdiction, as
a parent of the child.
·
A Federal Court, Court of a State or
Territory or of a prescribed jurisdiction has found expressly that the person
is the parent of the child or made a finding that it could not have made unless
the person was a parent of the child and the finding is still current.
·
The person has, under the laws of the
Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed
an instrument acknowledging that a person is a parent of the child and the
instrument is still current.
·
That the child has been adopted by the
person.
·
That the person is a parent under section
60HB of the Family Law Act.
What is a prescribed overseas jurisdiction
for section 29 of that Act is simply enormous and seems to fit almost every
country on the earth (although there are some notable exceptions, such as China and Russia):
Algeria
Argentina
Austria
Barbados
Belarus
Belgium
Bosnia and Herzegovina
Brazil
Brunei Darussalam
Burkina Faso
Canada, the following Provinces
and Territories:
Alberta
British Columbia
Manitoba
New Brunswick
Newfoundland and Labrador
Northwest Territories
Nova Scotia
Nunavut
Ontario
Prince Edward Island
Saskatchewan
Yukon
Cape Verde
Central African Republic
Chile
Colombia
Cook Islands
Croatia
Cyprus
Czech Republic
Denmark
Ecuador
Estonia
Fiji
Finland
Former Yugoslav Republic of
Macedonia
France
Germany
Greece
Guatemala
Haiti
Holy See, The
Hong Kong
Hungary
India
Ireland
Israel
Italy
Kazakhstan
Kenya
Kyrgyzstan
Liberia
Lithuania
Luxembourg
Malawi
Malaysia
Malta
Mexico
Moldova
Monaco
Montenegro
Morocco
Nauru
Netherlands
New Zealand
Niger
Niue
Norway
Pakistan
Papua New Guinea
Philippines
Poland
Portugal
Romania
Samoa
Serbia
Seychelles
Sierra Leone
Singapore
Slovakia
Slovenia
South Africa
Spain
Sri Lanka
Suriname
Sweden
Switzerland
Tanzania (excluding Zanzibar)
Trinidad and Tobago
Tunisia
Turkey
Ukraine
United Kingdom (including
Alderney, Gibraltar, Guernsey, Isle of Man, Jersey and Sark)
United States of America
Uruguay
Zambia
Zimbabwe
(I've highlighted places where Australians have undertaken surrogacy.)
It is an extraordinary thing that you may
not be recognised as a parent when your child comes into Australia – at a
moment of joy, because it is said you should not be recognised as a parent –
but when you and your ex split up it’s perfectly fine to call you a parent for
the purposes of child support.
Superannuation
If you’ve undertaken surrogacy in a place
where there has not been a Court order, then it is unlikely that your child
will be your child for the purposes of superannuation. Under section 10 of the Superannuation Industry (Supervision) Act 1993 (Cth):
““child”,
in relation to a person, includes:
(a)
an
adopted child, a stepchild or an ex-nuptial child of the person; and
(b)
a
child of the person’s spouse; and
(c)
someone
who is a child of the person within the meaning of the Family Law Act 1975.”
The same section says an adopted child:
“…in relation to a person, means a person
adopted by the first-mentioned person:
(a)
under
the law of a State or Territory relating to the adoption of children; or
(b)
under
the law of any other place relating to the adoption of children, if the
validity of the adoption would be recognised under the law of any State or
Territory.”
What’s unknown about the definition of child in that context is how it would be
interpreted. If it is interpreted in a
similar way to that taken by the Federal Court under the Australian Citizenship Act, then child might be seen as your child as generally seen within
society. However if a stricter view is
taken, then your client may not be your child.
If you have undertaken surrogacy overseas in a country where you have
relied on a contract or operation of law, rather than a Court order (such as
India or Ukraine) the chances are that your child may not be your child.
If you have gone to a country where there
has been a Court order, then see my comments about family law above.
If you went to a country with a second
parent adoption order and a post birth process (as happens in some parts of the
United States) then the definition of child
under the Family Law Act is wider
than the definition of adopted child
under this Act – and therefore the child if adopted by you would be your child
for the purposes of superannuation. If
the child was adopted by your spouse, then because the definition of child includes a child of the person’s spouse – then the child is also your child
for the purposes of superannuation.
Anyone with a superannuation policy should
look at having a binding nomination of beneficiary – and obtain advice from a
financial planner about whether that is a wise idea.
Citizenship
Yes, you say, all very interesting but can
I get the baby back home? The usual test
as to who is a parent of a child born overseas is:
1. Are
you genetically the parent?
2. Are
you a parent under the Family Law Act?
3. Are
you seen within society as being the parent (even if there is no genetic link)?
The Immigration Department has often
relied upon judgments made in Canada or the United States to establish
parentage.
The problem is that when there has been an
artificial conception procedure, then who is a parent is determined under
section 8 of the Australian Citizenship
Act by sections 60H and 60HB of the Family
Law Act. Section 60H, so the Family
Court told us, does not apply to surrogacy.
We come back to the possibility that if the Immigration Department takes
the same view of the effect of section 60HB as the Family Court did, then you
are not a parent for the purposes of the Australian
Citizenship Act.
The Immigration Department has taken the
sensible view that section 60HB of the Family
Law Act shouldn’t apply to people undertaking surrogacy overseas – either
because the State legislation means that they can’t undertake surrogacy
overseas or to comply with the State legislation is so stringent that it makes
undertaking surrogacy overseas impossible.
The unknown factor is whether the
Immigration Department decides, in light of the decision in Bernieres and Dhopal, to change its
policies. If it does so in line with the
decision of Bernieres and Dhopal,
that will make it next to impossible from that time on for intended parents to
undertake surrogacy overseas.
Given that approximately 250 children a
year are born to Australian intended parents through surrogacy overseas, a
decision of that kind could be momentous.
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