People entering into commercial surrogacy overseas are often anxious to know about returning home to Australia with their baby, any consequences, and whether they need to get court orders when they return to Australia.
Parentage Orders are made to transfer parentage from a surrogate and her partner, to the intended parents. These are made in State Courts. These Orders provide for the Birth Certificate to be changed, removing the surrogate and her partner, and replacing their names with those of the intended parents. Parentage Orders granted in this form are only available for surrogacy arrangements entered into in Australia.
Parenting Orders are often made when parents are separated and need to formalise the arrangements for where the children will live and who they will spend time with. These are made in the family law courts. Most commonly, they involve separating parents who are seeking to make arrangements for their children post-separation.
In some international surrogacy cases, intended parents may choose to obtain Parenting Orders to recognise both parents as having parental responsibility for the child, once they return to Australia. This is generally not necessary where both the intended parents are already listed on the Birth Certificate, unless they are separating.
Click here to see a Comparison of Parentage and Parenting Orders.
You may be told that you must have a Parenting Order if you had a child through international surrogacy. This is usually not the case. Parenting Orders can only be obtained if you have evidence of the surrogacy arrangement, and can provide evidence that the surrogate and her partner consented to the Order being made. The Parenting Order application process can be complex, time-consuming and expensive – if you don’t need to do it, why would you bother?
If only one (or neither) of the Intended Parents is listed on the Birth Certificate, Parenting Orders can provide acknowledgement that the intended parents have parental responsibility of the child (and that the surrogate does not), and can assist with accessing services such as Medicare and Centrelink. So for some parents, they are helpful and may even be necessary, depending on their circumstances.
Much has been written about Australian family laws and recognising parentage of children born through overseas surrogacy. Some parents, particularly those in QLD and NSW, are being advised to have a contract drawn up that makes the surrogacy arrangement look like an altruistic one, even though it is in fact a commercial contract, so that they can register the US Order with an Australian court. My advice is that this is both unethical and unnecessary. Many parents return from overseas and do not need a Parentage Order or to register an overseas order, to behave like parents, obtain Citizenship by Descent and an Australian passport, access services and enroll their child in childcare and school. If you are interested in the real-life experience of a parent, listen to Felicity on the Podcast.
The legal process to apply for the Order is expensive and very often, no Order is granted. My short advice is: don’t fix it if it’s not broken. Spend your money on your new baby, not more lawyers.
If you are exploring your overseas options and the processes for bringing the baby home to Australia, you can book in for a consult with Sarah below.