Birth of an Australian citizen overseas
A person born outside Australia who is the biological child of an Australian citizen can apply for Australian citizenship by descent with the Department of Immigration and Border Protection.
Parents of children born overseas should obtain an application for Australian citizenship by descent (form 118) from the Department of Immigration and Border Protection website. Contact the nearest Department of Immigration and Border Protection overseas office for information on how to lodge a citizenship application.
Further information on Australian citizenship is available at www.citizenship.gov.au or by calling the Citizenship Information Line on 13 18 80 from within Australia.
Intercountry Adoption (ICA)
ICA is the formal process which occurs when an Australian citizen or permanent resident, residing in Australia, adopts a child from abroad through a state or territory central authority.
Intercountry Adoption Australia has been established to guide people through the intercountry adoption process and connect them to a range of resources and services.
Call the information line on 1800 197 760, open 9am-5pm, Monday to Friday, across Australia or visit Intercountry Adoption Australia.
Expatriate adoption occurs when an Australian living abroad adopts a child from the country where he or she is living. Expatriate adoption occurs through the overseas country's domestic processes and is finalised in that country. Expatriate adoption can also include third country adoption, where an Australian living abroad in country B, adopts a child from country C. Although this adoption may be legal and final in countries B and C, it may not meet legal requirements in Australia.
The Australian, state and territory central authorities are not responsible for expatriate adoptions. They do not assess or approve applications for such adoptions.
Visas and citizenship
For information on immigration and citizenship requirements in relation to expatriate adoption and intercountry adoption, visit the Department of Immigration and Border Protection website.
International surrogacy is a complex and evolving area which raises significant legal and social considerations. Surrogacy is often poorly regulated in many countries, which gives rise to a range of concerns for the welfare of the parties involved. Concerns include both the potential exploitation of women and differing approaches among countries to the legal rights of children who are born as a result.
We strongly caution Australians to consider all legal and other risks involved in pursuing international surrogacy, and to seek independent legal advice regarding Australian and foreign laws. You should be aware that the regulatory environment in a host country may change and that transitional arrangements to ensure such changes do not unduly affect pending arrangements cannot be guaranteed. Further, the absence of rules and regulations governing surrogacy in some countries should not necessarily be seen as condoning commercial surrogacy. The risk of entering into such arrangements in less regulated markets is high. Australians entering into surrogacy arrangements overseas should be familiar with the entry and exit requirements for respective countries including visas to ensure full compliance with these from the outset. See our country-specific travel advice.
See our International surrogacy bulletin for information on the legal situation in India, Thailand, Nepal, Cambodia and Laos.
Applying for Australian citizenship and a passport for a child commissioned through international surrogacy
Children born overseas through surrogacy arrangements are entitled to Australian citizenship and an Australian passport provided they meet the requirements of the Australian Citizenship Act 2007 and the Australian Passports Act 2005.
You should be prepared for a lengthy process for returning to Australia with your child and should not confirm travel plans until you have finalised citizenship and passport processes. Should unforeseen legal complications arise, this time period could be considerably prolonged.
A child born overseas may be eligible for Australian citizenship by descent if they are born overseas and have at least one parent who is an Australian citizen at the time of their birth. Additional DNA testing and/or other evidence may also be required to demonstrate the parent-child relationship. Where an international surrogacy arrangement is declared or detected, medical procedure records and surrogacy agreement documents will be required to support the application. See Form 1259i - Information about DNA testing for visa and citizenship applicants and Fact Sheet 36a - International Surrogacy Arrangements for further information.
All citizenship applications lodged for applicants aged under 16 years must be signed by a responsible parent of the child. The definition of a responsible parent is set out in the Australian Citizenship Act 2007. A person is a responsible parent of a child if they are the child's parent under the Family Law Act 1975, or have parental responsibility, guardianship or custody under Australian or foreign laws.
Each country has its own rules about who will be recognised as the parent(s) of a child born overseas. In some overseas jurisdictions, only the birth mother and her husband are recognised as the child's legal parents and must sign the application form on the child's behalf.
You should be aware that not all countries have an Australian mission that processes visa and citizenship applications in that country. This may mean that your application will need to be sent to another country for processing. Once your application is lodged then that Australian mission will contact you should further information be required.
Further advice on citizenship applications for surrogate children is available from the Department of Immigration and Border Protection at citizenship.gov.au.
To obtain an Australian passport for a surrogate child, the written consent of each of the intended parent/s, and the surrogate mother is required. If you are unable to provide all necessary consents, you may request that the application be referred to a delegate in the Australian Passport Office for consideration under 'special circumstances'. You are advised not to commit to international travel before obtaining your child's passport as the processing times may vary depending on whether the application is lodged with full consent and all the required documentation.
For more information on how to apply for an Australian passport for your child, see the Australian Passport Office's information about applying for a passport for a child born through surrogacy.
Australian Surrogacy Legislation
In Australia, the regulation of surrogacy is a matter for the states and territories. All states and territories (except Northern Territory) have criminalised commercial surrogacy in their jurisdictions. The ACT, NSW and QLD have also legislated to make it illegal for residents of those jurisdictions to enter into commercial surrogacy arrangements overseas with penalties as set out below.
||Surrogacy Act 2010
||Maximum penalty: 2500 penalty units, in the case of a corporation, or 1000 penalty units or imprisonment for two years (or both) in any other case.
||Parentage Act 2004
||Maximum penalty: 100 penalty units, imprisonment for one year or both.
||Surrogacy Act 2010
||Maximum penalty: 100 penalty units or three years imprisonment.
It is important to note that surrogacy arrangements undertaken overseas may not fulfil the requirements to support a transfer of legal parentage under Australian state and territory law.