We strongly advise Australians who are considering an international commercial surrogacy arrangement to obtain information on the legal and other risks involved, and to seek independent legal advice regarding Australian and foreign laws.
Commercial surrogacy is prohibited in all Australian states and territories. In addition, the Australian Capital Territory, New South Wales and Queensland have made it illegal for residents to enter into international commercial surrogacy arrangements. The international regulatory environment for commercial surrogacy arrangements can change quickly.
See the Smartraveller website for general information on international surrogacy.
For information on Australian citizenship or Australian visa requirements for children born overseas, see Fact Sheet 36a – International Surrogacy Arrangements on the website of the Department of Immigration and Border Protection.
See Applying for a child passport for general information on children's passport applications and supporting documentation, including photo requirements. As well as the passport application form, the intended parent/s of a child born through surrogacy overseas must complete Form B4 (Child born through surrogacy) (pdf). They must present documentary evidence of the surrogacy, such as a surrogacy agreement or a foreign court order. If presenting a foreign court order, a Form B7 (No further court orders) (pdf) must be completed.
Any foreign language documents presented to support a passport application must be accompanied by a full translation by an approved translating and interpreting service. See English translations of foreign language documents for further information.
After lodgment, we may contact you for further information to assist in processing the application.
The Department of Foreign Affairs and Trade may disclose information provided in or with a child's passport application to any person or organisation that can verify the facts to establish the child's identity and eligibility for an Australian passport.
If applying for a passport for a child born through a surrogacy arrangement in Australia see Australian surrogacy arrangements .
In almost all cases, the written consent of each person considered to have parental responsibility, including the surrogate mother, is needed to obtain a passport for a child born through surrogacy.
If your child is the subject of any Australian court orders, the orders must be presented when the passport application is lodged. If an Australian court order permits your child to travel internationally, a passport may be issued provided all other requirements have been met.
If an Australian court order grants you parental responsibility for your child, you may lodge a passport application without the consent of the surrogate mother. However, you need to be aware that even when an Australian court order recognises the parental responsibility of the intended parents, the surrogate mother may still retain her parental responsibility. We will contact you if further information is required to process the application.
Foreign court orders, even if they remove the parental rights of the surrogate mother, do not override the parental consent requirements under Australian passport law. However, all foreign court orders should be presented as supporting documents with a surrogate child's passport application.
If persons with parental responsibility are in different locations when the child's passport application is lodged, those who are not lodging may provide written consent through any passport office in Australia, Australia Post or an Australian diplomatic mission or consulate overseas.
If the surrogate mother resides outside Australia, her consent may be given on the passport application form (if she is one of the persons lodging the application) or on a Form B5 (Supplementary Consent Overseas) (pdf). If she is completing a Form B5, her signature must be witnessed by a person from one of the categories listed on the form.
An intended parent without a biological link to the child may not be deemed to have parental responsibility under Australian passports law. In such a case, the intended parent's consent is recommended but not essential for the issue of a passport to the child.
If you are unable to provide all necessary consents, you may request that your child's application be referred to a delegate in the Australian Passport Office for consideration under special circumstances. To do this, you must complete a Form B9 (Child without full parental consent or Australian court order permitting international travel) (pdf) for each person whose consent is not obtained.
The delegate will make a decision taking account of all relevant circumstances. Please refer to the Children and parental consent brochure for further information.
If you are lodging your child's application overseas with full parental consent and there is a genuine need for the child to travel before a full validity passport can be issued, you may apply for an emergency passport (up to 12 months validity). The emergency passport fee will be charged.
It is advisable to apply for a full validity passport at the same time as applying for an emergency passport. The normal application fee and the overseas surcharge would apply. The full validity passport can be collected from a passport office in Australia (or an Australian mission or consulate) on presentation and cancellation of the emergency passport.
If the child's passport application does not have full consent, an emergency passport cannot be issued until the application has been approved.
Australian surrogacy arrangements
In the case of domestic surrogacy arrangements, an Australian court order issued under relevant State or Territory surrogacy/adoption legislation and a revised Australian RBDM birth certificate must be provided to show the transfer of parentage from the birth parents to the intended parents. A Form B7 (No further court orders) (pdf) will need to be completed and submitted with the application.
The intended parents who have parental responsibility for the child will need to consent for the issue of a passport to the child.