Surrogacy is an arrangement, usually contractual, under which a woman (the “gestational” or birth mother) agrees to bear a child for another person or persons (the “commissioning parent/s”) with the intention that the child be handed over to those persons immediately or very soon after the birth.
Under Australian law, the surrogate mother should not receive material benefit from the arrangement, but there may be reimbursement of prescribed costs actually incurred. Such an arrangement would be regarded as an “altruistic” surrogacy arrangement as opposed to a “commercial” surrogacy arrangement.
Most Australian States and Territories have legislation in place that renders commercial surrogacy arrangements illegal. New South Wales, Queensland and the Australian Capital Territory have further legislation making it an offence for a usual resident of that State or Territory to enter into a commercial surrogacy agreement overseas.
What is surrogacy under Australian law?
The Family Law Act (FLA)’s meaning of “child” (and subsequently migration law’s meaning) includes those who are subject to a State or Territory court order giving effect to a surrogacy agreement. In other words, a surrogacy arrangement in Australia will not be recognised without it.
The migration policy position is that such a court order overrides biological parentage.
In many cases, a surrogate child born in Australia may be an Australian citizen at time of birth (if one of the commissioning parents is an Australian citizen or permanent resident).
If not, a child born in Australia may be eligible to be sponsored for the onshore Child (Subclass 802) visa provided:
- a court has made an order under State or Territory law that the commissioning parent is the child’s parent; and
- the child has not been adopted.
Overseas surrogacy and Australian immigration law
Some Australians choose to pursue surrogacy options outside of Australia. There may also be situations where non-Australians have a child through an overseas surrogacy arrangement and later seek to migrate to Australia together as a family unit.
While migration law recognises surrogacy arrangements that are subject to a State or Territory court order (as per the FLA), recognition of overseas surrogacy arrangements is not automatic.
When assessing an application for a child born through an overseas surrogacy arrangement, case officers must confirm that there is a biological link between the child and the commissioning parent.
The laws of the country of the surrogate child’s birth determine the legal parents and what is placed on the birth certificate. Therefore, the situation changes across different jurisdictions. Case officers cannot unreservedly accept the presence of a commissioning parent on the child’s birth certificate as definitive evidence of a legal parent-child relationship for migration law purposes.
Some countries or jurisdictions (for example, the United States) have advanced medical systems where surrogacy arrangements are accompanied by a range of documentary evidence. It is therefore possible that the authorities in other countries may already have assessed the “biological link” for the process of issuing the birth certificate. If such evidence is available and credible, Australian case officers may take this as sufficient evidence that the child meets migration requirements.
If documentary medical evidence of a biological link cannot be provided, it would be appropriate for case officers to ask for DNA testing to be undertaken.
Migration pathways for children born through overseas surrogacy
Provided there is a direct biological link between an Australian citizen, permanent resident or eligible New Zealand citizen parent, there are two potential options to bring the child born of a surrogacy arrangement permanently to Australia:
- Australian citizenship by descent (for the children of Australian citizens only) or
- Child (Subclass 101) visa.
On the other hand, if there is no biological link and no court order exists, then the only option available is an Adoption (Subclass 102) visa. However, it is extremely difficult for most surrogate children to meet the requirements of an Adoption visa.
Surrogacy and “member of the family unit” in visa applications
If a commissioning parent (who is not an Australian citizen or permanent resident) has a biological link to the child and can show this with evidence (either DNA testing or possibly advice from the specialist doctor involved), the surrogate child will be considered a member of the family unit for visa purposes.
This means that if the commissioning parent were eligible for a visa for migration to Australia, the child could be included in the application as a dependent (or ‘secondary applicant’).
How can Hannan Tew Lawyers help?
Surrogacy arrangements, particularly those involving overseas jurisdictions, can raise complex legal issues. Careful planning is essential to avoid delays, refusals, or unintended legal consequences. Seeking professional advice early can help ensure the appropriate visa or citizenship pathway is identified and that the necessary biological, documentary, and legal requirements are met before commencing the application process. If you have any questions about the best visa pathway to pursue, feel free to contact us by email at [email protected] or phone +61 3 9016 0484 to obtain further guidance.
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