Birth of an Australian citizen abroad
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.
In Australia, the processing of intercountry adoptions is the responsibility of state and territory adoption authorities such as departments of family services. These authorities manage arrangements for adopting children from overseas including assessing and approving prospective adoptive parents.
The Australian Government, through the Attorney-General's Department, has the responsibility for managing existing programs and negotiating new programs with other countries. The website of the Attorney-General's Department provides information on individual intercountry adoption programs and Australia's obligations under the Hague Conventions on protection of children.
If you are considering adopting a child from overseas, contact your state or territory adoption authority. The eligibility requirements for overseas adoptions are different in each state and territory and may include criteria concerning partner relationship status, age, citizenship and health. Relative and known child adoptions are a matter for each state and territory adoption authority to consider on a case by case basis, and are conducted in accordance with the Hague Convention and state and territory legislation.
The Department of Immigration and Border Protection is responsible for assessing and deciding applications for visas in accordance with the requirements of the Migration Regulations. See the Department of Immigration and Border Protection's Fact Sheet 36 - Adopting a Child from Overseas for an overview of requirements for entry of children who are adopted overseas.
International commercial surrogacy
International commercial surrogacy is a complex area which raises significant legal and social considerations.
You should be aware that the following Australian states and territories have legislation making it an offence for their residents to enter into overseas commercial surrogacy arrangements:
|NSW||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.|
|ACT||Parentage Act 2004||Maximum penalty: 100 penalty units, imprisonment for one year or both.|
|Queensland||Surrogacy Act 2010||Maximum penalty: 100 penalty units or three years imprisonment.|
Surrogacy arrangements that are undertaken outside Australia may not fulfil the variety of requirements for a transfer of legal parentage under state and territory law. This result can have a range of effects for children born through an international surrogacy arrangement. You should seek independent legal advice.
Surrogacy is 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.
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.
We strongly caution Australians to consider all legal and other risks involved in pursuing international commercial surrogacy, and to seek independent legal advice regarding Australian and foreign laws.
Applying for citizenship for a child commissioned through international surrogacy
Children born pursuant to a surrogacy arrangement may be entitled to Australian citizenship provided they meet the requirements of the Australian Citizenship Act 2007. Further advice is available from the Department of Immigration and Border Protection, including Fact sheet 36a.
Applying for a passport for a child commissioned through international surrogacy
Australian citizen children born pursuant to a surrogacy arrangement may be entitled to an Australian passport provided they meet the requirements of the Australian Passports Act 2005.
Written consent must be provided by each person with parental responsibility for your child before a passport can be issued, including the surrogate mother. Under Australian law, the surrogate mother may have parental responsibility for the child she gave birth to regardless of whether she has a biological connection, is listed on the child's birth certificate or is considered to have parental responsibility under local law.
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 parental consent and all required documents have been provided.
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.