Australian Immigration Law Update
Surrogacy – Australian Citizenship by descent
Applications for Australian citizenship by descent may be made on behalf of children born through surrogacy arrangements but legal advice in relation to this point is essential as this is a complex area of Australian immigration law.
Jurisdictions that do not have a legal framework to support lawful surrogacy arrangements may have inadequate mechanisms to transfer the legal parentage to the commissioning parents after the child’s birth. In such cases, the only recognised lawful parent may be the surrogate mother who gave birth to the child. In these circumstances, the Department of Home Affairs (DHA) will satisfy itself that the surrogate mother has given her consent for the child’s application for citizenship by descent.
In jurisdictions where commercial surrogacy is legal, and there is a surrogacy contract that is consistent with the legal requirements and was properly entered into by the parties, additional information of the surrogate’s informed consent may not be required.
All applications involving overseas surrogacy are required to provide DNA evidence in support of the citizenship by descent application. However, while DNA may be of assistance to establish biological parentage, it is not determinative in establishing the identity of a child. Therefore, there DHA generally invites the (child) applicant and parent to undertake DNA only after satisfying themselves the circumstances of the claimed surrogacy and the identity of the child has been established.
In jurisdictions where commercial surrogacy is legal and arrangements are regulated through a court process, the court documentation may have already established the biological link between the Australia citizen commissioning parent and the child. In these cases, documentation from the treating doctor of the relevant medical clinic may also confirm the biological link and may be accepted as evidence of biological parentage.
Nevett Ford Lawyers has assisted many parents to obtain Australian Citizenship by descent under the surrogacy provisions. The process is complex and can be lengthy so legal advice from immigration lawyers who are experienced in this are is highly recommended.
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