International surrogacy is an arrangement where intended parents engage a surrogate mother who lives overseas to give birth to a child. These arrangements may be commercial or altruistic.
Commercial surrogacy is where the surrogate mother makes a profit from the arrangement. Altruistic surrogacy, or non-commercial surrogacy, is where the surrogate mother volunteers her service.
This page covers Australian surrogacy laws and applying for a passport for a child born through international surrogacy.
Commercial surrogacy is a crime in all Australian states and territories.
In the Australian Capital Territory, New South Wales and Queensland, it’s also against the law to enter into an international commercial surrogacy arrangement.
Commercial surrogacy laws in other countries can change quickly. If you’re considering an international commercial surrogacy arrangement, make sure you:
are aware of the legal and other risks involved
seek independent legal advice about Australian and foreign laws.
The process is the same as applying for a standard child passport. The application can be lodged by the child’s parents or anyone who has parental responsibility for the child. It’s not necessary for everyone with parental responsibility to be in the same location.
B-5 form – if the surrogate consents to the child having a passport
B-7 form – if an Australian court order has removed the surrogate’s parental responsibility
B-9 form – if the surrogate doesn’t consent to the child having a passport and there’s no Australian court order to remove the surrogate’s parental responsibility.
Unless the child has held an Australian passport before, you’ll need to present documentary evidence of the surrogacy. This can be a surrogacy agreement or a foreign court order.
Any foreign documents not in English must be translated in full by an approved translation service. See Interpreting and translation.
If there’s an urgent need for your child to travel before we can issue them a passport, you can apply for an emergency passport. You must lodge your child's application overseas with full consent.
The simplest way to get a child passport is to get consent from every person who has parental responsibility for the child. This includes the child’s parents named on the birth certificate and the surrogate.
If you don't have consent from each person with parental responsibility, there are other ways, including with certain court orders. You can also ask for an assessment under special circumstances, but the process will take longer. In some situations, we may not approve the passport.
Under Australian passport law, a surrogate has parental responsibility for a child she gave birth to. This applies even if:
the surrogate isn’t genetically related to the child
the surrogate isn't listed on the child’s birth certificate
the surrogate has no rights to the child under overseas law
an Australian court order has given parental responsibility to someone else.
You don’t need consent from the surrogate or anyone else with parental responsibility if an Australian court order permits the child to:
have an Australian passport
travel internationally
live or spend time with a person who is outside Australia.
You’ll still need to complete a B-4 form and provide supporting documents.
Any parent not named on the birth certificate and without a biological link to the child should also consent.
Removing parental rights of a surrogate
A foreign court order may remove the parental rights of a surrogate. But it doesn’t remove the surrogate’s parental responsibility under Australian passport law.
You should still attach any foreign court orders to your application as supporting documents. If not in English, these must be translated in full by an approved translation service.
A surrogate's parental responsibility under passport law may be removed if:
a parentage order is made under Australian state or territory law, transferring parentage from the surrogate to another person
an Australian court order removing the surrogate's parental responsibility is made under family law
We generally expect to see the surrogate’s consent on a first-time passport application for a child born through surrogacy. But we understand you may not have a long-term relationship with the surrogate. It may also be difficult to get her consent for future passports.
We may issue a passport or other Australian travel document under the circumstances described in:
The information on this webpage is not intended to replace legal advice. If you're considering surrogacy, it's essential you seek independent advice from lawyers and counsellors who specialise in surrogacy matters.
