Children born overseas through international surrogacy may be eligible for Australian citizenship. Parents intending to enter into overseas surrogacy arrangement are strongly advised to first seek independent legal advice as well as professional advice about the citizenship requirements before starting the process.
Citizenship by Descent
Citizenship Act 2007 contains provisions for persons born overseas after 26 January 1949 to an Australian citizen parent to be granted citizenship by descent. A number of children born overseas though international surrogacy arrangements may be eligible for Australian citizenship subject to meeting legislative and requirements as well as conforming with relevant policies.
Legal issues affecting Australians undertaking surrogacy arrangements overseas
Surrogacy arrangements that are undertaken outside Australia may not fulfil the variety of requirements for a transfer of legal parentage under state and territory law. This may be because the arrangement entered into is commercial in nature and/or the parties may not have received counselling or independent legal advice. As a result, the transfer of legal parentage to the intended parents may not be available under Australian law. This result can have a range of effects for children born through an international surrogacy arrangement.
New South Wales, Australian Capital Territory and Queensland have legislation making it an offence for their residents to enter into overseas commercial surrogacy arrangements. You should seek independent legal advice about the possible consequences of not being recognised as a legal parent of a child who is born through an international surrogacy arrangement.