Assisted Reproductive Technologies are becoming more and more common treatments. It extends the ability of human beings to create families in later life and where medical issues prevent a traditional pregnancy. Surrogacy is the result of a medical procedure which can take three different forms. Full surrogacy (also known as Host or Gestational) involves the implantation of an embryo created using either:

– the eggs and sperm of the intended parents
– a donated egg fertilised with sperm from the intended father
– an embryo created using donor eggs and sperm.

Partial surrogacy (also known Straight or Traditional) – Partial surrogacy involves sperm from the intended father and an egg from the surrogate. Here fertilisation is (usually) done by artificial insemination or intrauterine insemination (IUI).

There can be a variety of medical reasons and conditions that create the need for a surrogacy arrangement but in legal terms, the upshot is that surrogacy is a sensitive area which must be handled carefully to avoid implications for the genetic parents, birth parents and the children concerned. In New South Wales and most states around Australia, commercial surrogacy is illegal meaning that any person in these states must not engage in a commercial surrogacy arrangement. However, altruistic surrogacy arrangements are legal although there are a series of requirements that include:

(1) The surrogacy arrangement be in writing;
(2) Each of the parties obtain independent legal advice on the terms of the arrangement;
(3) The surrogate must be over 25 years old at the time of making the agreement;
(4) Each of the affected parties must have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement.
(5) The birth mother and the birth mother’s partner (if any) must have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order.

International surrogacy is an area involving a whole new level of complexity. If an expatriate goes overseas and adopts a child according to the laws of a foreign country, that adoption will generally not be recognised in Australia. It can only be recognised where it conforms to the requirements of the International Convention on Intercountry Adoption which Australia is a signatory to.

Immigration requirements must also be considered for international surrogacy arrangements. Lincoln Goldfinch Law is a reputable immigration law firm you can reach out to for guidance and assistance. Unless a biological link with a citizen can be proven by DNA test, the child will need to pass the necessary immigration requirements to enter without the benefit of citizenship by descent which is available to children where it can be proven that a child has been born to a citizen. This makes it very rare for children born to an international surrogacy agreement without a biological link to an citizen to be eligible for entry  on a permanent basis or for them to become a citizen by descent. As for those entering the country on the basis of employment, there are legal experts that can assist in acquiring an h1b visa in order to do so legally.

If you have a question about international surrogacy arrangements, we are more than happy to help. Please do not hesitate to contact us.