Do you need an Australian lawyer to assist you with your overseas surrogacy journey? The short answer is, mostly not. You can engage a lawyer in your destination country, who will guide you through the Surrogacy and Donor Agreements. You may like to ask an Australian lawyer to review the Agreements as well, but remember that Australian lawyers are not experts in overseas surrogacy laws, and they’re also not insured to practice in overseas jurisdictions.
That said, you should speak to an Australian surrogacy lawyer about the options and processes, and the laws in your State and how they apply to overseas surrogacy arrangements. A lawyer can also advise you about the process for bringing the baby home.
After the baby is born, the agency and lawyer in your destination country should facilitate the process to have the birth registered. Most countries now allow the intended parents to be listed on the Birth Certificate, even where there is no genetic connection between the parents and the baby. An Australian lawyer is not required for this process.
To bring the baby to Australia, you will need to apply for either Australian citizenship by descent, or a permanent visa for the baby. You should speak to a Migration Agent if you have any questions about this process. Many intended parents have completed the process on their own, often online, and with assistance from Australian embassy and immigration officials. For more information, visit the Australian Department of Home Affairs. You may be required to complete DNA testing, and you can expect to provide copies of the Surrogacy Agreement as part of the application.
Much has been written about Australian family laws and recognising parentage of children born through overseas surrogacy. At the time of writing, it is unlikely that an Australian family court will grant a Parentage Order in those circumstances. Parents through overseas surrogacy are often anxious that the lack of recognition places them in precarious position when it comes to accessing services and being recognised as the parents of the child. In practice, there is usually nothing to be concerned about. Parents of children through overseas surrogacy can apply for a passport, Centrelink benefits, Medicare benefits and enroll their child in childcare and school, without needing a Parentage Order. 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.
You might be interested in information about Surrogacy Brokers – chances are, you don’t need one of those either. And for extra precaution, make sure to read my blog post about Consultants and commissions.
If you are exploring options and processes overseas and within Australia, you can book a consult with Sarah below.