Do I need to be careful about surrogacy?
We strongly advise Australians who are considering an international commercial surrogacy arrangement to get information about the legal and other risks involved, and to seek independent legal advice about Australian and foreign laws.
Commercial surrogacy is a crime in all Australian states and territories, except the Northern Territory. In the Australian Capital Territory, New South Wales and Queensland it’s illegal for residents to enter into international commercial surrogacy arrangements. In foreign countries, laws relevant to commercial surrogacy can change quickly.
The Smartraveller website has important general information on international surrogacy.
For information on Australian citizenship or Australian visa requirements for children born overseas, see International Surrogacy Arrangements on the website of the Department of Home Affairs.
How do I apply for a passport for a child born through international surrogacy?
- a B5 form (PDF 566KB), if the surrogate consents to the child having a passport
- a B7 form (PDF 567KB), if an Australian court order has removed the surrogate’s parental responsibility
- a B9 form (PDF 211KB) if the surrogate doesn’t consent to the child having a passport and there is no Australian court order that removes the surrogate’s parental responsibility.
Unless the child has held an Australian passport in the past, you also have to present documentary evidence of the surrogacy, such as a surrogacy agreement or a foreign court order. Any foreign-language documents need to be translated in full by an approved translation service.
If an Australian court order permits the child to have a passport, travel internationally, or live or spend time with a person outside Australia, then you don’t need consent from the surrogate or anyone else with parental responsibility, but you still need to complete a B4 form and provide supporting documentation.
Why does the surrogate’s consent matter?
Under passport law, a surrogate has parental responsibility for a child she gave birth to unless an Australian court order extinguishes her parental responsibility. This applies even if:
- she isn’t genetically related to the child, and
- she’s not listed on the child’s birth certificate, and
- she has no rights to the child under overseas law, and
- an Australian court order has given parental responsibility to someone else.
Passport law also requires each person who has parental responsibility for the child to consent to a passport, unless an Australian court order permits the child to have an Australian passport, travel internationally, or live or spend time with a person outside Australia.
What if I have a foreign court order about the surrogacy?
Foreign court orders, even if they remove the parental rights of the surrogate, don’t remove the surrogate’s parental responsibility under Australian passport law. But you should attach any foreign court orders to your application as supporting documents.
What if I can’t get the surrogate’s consent?
We would expect to see the consent of the surrogate on a first-time passport application for a child born through surrogacy. However, we understand that you may not maintain a long-term relationship with the surrogate, and that it may be difficult to get her consent for future passports. Hence, if there’s no Australian court order that:
- permits the child to have a passport, travel internationally, or live or spend time with a person outside Australia, or
- extinguishes the surrogate’s parental responsibility
then we’ll consider issuing a passport under the special circumstances in subsection 11(2) of the Australian Passports Act 2005 and section 10 of the Australian Passports Determination 2015. You’ll need to complete a B9 form (PDF 211KB) to explain why you’re unable to obtain the surrogate’s consent.
Who else needs to consent?
The child’s parents named on the birth certificate. It’s not essential that a parent not named on the birth certificate and without a biological link to the child consent to a passport, but we recommend that they do so.
How do I lodge a passport application for a child born through international surrogacy?
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 when you apply.
What if my child born through international surrogacy needs a passport urgently?
If you’re lodging your child's application overseas with full consent, and there’s a need for the child to travel urgently, you can apply for an emergency passport.
What about Australian surrogacy?
Our requirements for parental responsibility and consent set out everything you need to know. Read them carefully to understand how they apply in your situation.