In the past week there have been media reports of an Australian couple having difficulty obtaining an Australian passport for their child born through surrogacy in Canada some time ago. Based on the media reporting the problem has arisen because the intended parents did not apply for an Australian passport for their child soon after its birth. The surrogate mother is now reluctant or refusing to provide consent for the issue of an Australian passport.
Canadian Provincial law
Under Canadian Provincial law the intended parents are the legal parents and the surrogate has relinquished her parental rights. Under Australian law, Federal and State, the surrogate mother will always have parental rights and those rights will be superior to those of the intended parents UNLESS they are granted a declaration of parentage or parenting orders by the Family Court of Australia. Therefore there exists a conflict of laws. The surrogate mother is relying upon Canadian Provincial law to decline to take any action that contradicts her legal position in Canada.
This conflict of laws and the requirements for the surrogate mother’s consent for issue of an Australian passport are well established issues of which all our clients are informed. It has long been the Department of Foreign Affairs & Trade (“DFAT”) interpretation of the law and has recently been confirmed by the Minister. It is not appropriate to argue against the interpretation of the law now but rather try to convince the surrogate mother to sign the consent. Alternatively the intended parents can obtain an Australian Family Court order granting them parental rights.
We advise all our clients to take all of these steps from the outset, even if they don’t think they will need an Australian passport straight away. We ensure that all of our clients have surrogacy agreements in which the surrogate agrees to take all necessary steps and sign all necessary documents to obtain parenting rights for the intended parents and citizenship and passports for the child. It is important to take those steps while the surrogacy agreement is still on foot, immediately after the birth of the child. It is also the most cost-effective time to do it.
