We are regularly asked if Intended Parents can undertake a surrogacy program if they use both donor eggs and donor sperm. Our answer is always depends on two elements. Firstly, whether the country in which they propose to undertake the surrogacy will allow a process where the intended parent has no biological link (eg: Argentina – yes, Georgia – no). Secondly, whether the nationality of the Intended Parents will support such a case by recognising the passing of citizenship by descent to the child without recourse to an adoption process (eg: Canada, Australia – yes, USA – no).
I am writing this post because I have been frustrated by the fact that in the last 12 months some Australian lawyers and surrogacy advocacy organisations are giving incorrect legal advice that it is not possible for Australian citizens to do surrogacy where they have no biological link to the child born through a surrogacy process in a country where it is permitted. That advice is WRONG. Here’s why:
The Australian Citizenship Act 2007 section 16(2) provides:
“a person born outside Australia . . . is eligible to become an Australian citizen if: (a) a parent of the person was an Australian citizen at the time of the birth;”
In a Full Federal Court decision of H v Minister for Immigration (2010) FCAFC 119 the Court held that the definition of “parent” in section 16(2) was broad enough to include a non-biological parent.
Since that decision the Department of Home Affairs has confirmed this interpretation in its Citizenship Procedural Instructions 21 (CPI 21) (most recently published in 2019. CPI 21 states: ‘Parent’ in relationship to citizenship by descent is not limited to a biological parent.
I hope this now resolves any confusion on the part of prospective Australian intended parents and that Australian lawyers or advocates giving advice on international surrogacy do some better research before giving it.