Australia is a party to the United Nations Convention on the Rights of the Child, the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption and other international treaties. Australia is committed to protecting the fundamental rights of children and the governments obligations to prevent the abduction, sale or trafficking of children.
The Department exercises extreme caution to ensure that, where surrogacy arrangements are made outside Australia, our citizenship provisions are not misused to circumvent adoption and other child welfare laws.
Laws both in Australia and overseas relating to surrogacy arrangements made outside Australia might change.
Before you make an international surrogacy arrangement:
- check the law on surrogacy arrangements in Australia and the other country
- seek independent legal advice
- find out how you might be able to bring the child to Australia, if you decide to go ahead with the arrangement
What is international surrogacy?
International surrogacy is a surrogacy arrangement involving a surrogate mother who lives in an overseas country. Surrogacy arrangements can be altruistic or commercial.
Altruistic surrogacy arrangements are arrangements where the surrogate mother does not make a profit. The commissioning parents might, however, repay her the cost of reasonable medical and legal expenses. Altruistic surrogacy is legal in most Australian states and territories.
Commercial surrogacy is where the surrogate mother makes a profit from the arrangement – that is, she is paid more than the cost of medical and legal expenses. Commercial surrogacy arrangements are illegal in most Australian states and territories.
Check the law and seek legal advice
In some countries international surrogacy is illegal or strictly controlled. Learn where international surrogacy is illegal from the Department of Foreign Affairs and Trade
SmartTraveller.
In some Australian states and territories it is an offence for a resident to make a commercial surrogacy arrangement outside Australia.
| Jurisdiction | Legislation | Penalty |
|---|
| Australian Capital Territory | Parentage Act 2004 | Maximum penalty: 100 penalty units, imprisonment for 1 year (or both) |
| New South Wales | Surrogacy Act 2010 | Maximum penalty: 2,500 penalty units in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both) in any other case |
Queensland
| Surrogacy Act 2010 | Maximum penalty: 100 penalty units or imprisonment for 3 years |
Before you make an international surrogacy arrangement, you should seek independent legal advice about the law related to international surrogacy arrangements, in both Australia and the other country.
Apply to bring a child to Australia
To bring a child to live in Australia you must apply on their behalf for either:
Australian citizenship by descent
A child born overseas to an Australian citizen does not become an Australian citizen automatically but you can apply for them to become an Australian citizen by descent. We assess applications for citizenship by descent according to requirements set out in:
- the Australian Citizenship Act 2007
- the Australian Citizenship Regulation 2016
- policy and operational guidelines
Evidence that an Australian citizen treated the child as their own from some point in time after birth is not evidence that the Australian citizen was the child's parent at the time of birth.
What to provide to support the child's citizenship by descent application
Evidence of a biological relationship might not be sufficient in the absence of other supporting information.
You must provide full information about the surrogacy arrangement.
The surrogate mother's identity and consent
We must confirm the child was not abducted or obtained via trafficking or other unlawful means.
It is very important to establish the surrogate mother’s identity. Provide:
- certified copies of the surrogate mother’s identity documents
- evidence she gave informed consent to the surrogacy arrangement
The surrogacy contract
Provide the surrogacy contract you entered into before the child was conceived. The contract should state:
- the surrogate mother’s full name, address and age
- that she gave informed consent to the surrogacy arrangement
- what procedures the surrogate mother and the commissioning parents undertook, such as collecting genetic material, implantation et cetera
- the source of the genetic material for the embryo – that is, the donor or other source
- a schedule of fees for milestones such as confirmation of pregnancy, 3-month scan, and any other tests or appointments
The contract should be signed by the surrogate mother, the commissioning parents and the clinic overseeing the surrogacy. It must:
- reference the surrogacy laws of the country where it took place, if applicable
- reference the country’s laws relating to the commissioning parents’ legal rights to the child, if applicable
- state how custody of the child will be transferred to the commissioning parents after the birth
The responsible parent’s consent and signature
If an applicant for Australian citizenship by descent is under 16 years old, their application must be signed by a
responsible parent.
In some countries where there are no surrogacy laws or the surrogacy laws are not clear, the responsible parent of a child born through surrogacy arrangements is the surrogate mother. Her husband or partner, if she has one, is also a responsible parent.
This means that, for applications on behalf of children born in such countries, we must have the surrogate mother’s signature and consent to the application for citizenship by descent.
We might require the surrogate mother to attend an interview.
DNA testing
Depending on the circumstances of the surrogacy arrangement, we might request
DNA testing.
Australian passport
If the child is becomes an Australian citizen by descent, they will need an Australian passport to enter Australia. See how to apply for the
child's passport.
Australian permanent visa
Children who are not eligible for Australian citizenship by descent, or whose parent chooses not to apply for citizenship on their behalf, must have a visa to enter and remain permanently in Australia.
Child visa (subclass 101)
Apply for a
Child visa (subclass 101) for the child if you are:
- the child’s biological parent
- an Australian citizen, holder of an Australian permanent visa or eligible New Zealand citizen
In most cases we will ask you to have a DNA test to prove you are the child’s biological parent.
Adoption visa (subclass 102)
If the child is not eligible for a Child visa, they might be eligible for an Adoption visa (subclass 102). You will need to formally adopt the child in line with the law of the child's country.
If the adoption does not involve an Australian state or territory central authority, it will be considered an expatriate adoption. You must meet the expatriate adoption requirements to be granted an Adoption visa. These include that at least one of the adoptive parents meets the overseas residence requirement before you apply.
See more about the
Adoption visa (subclass 102).
Other visa options
If the child can’t meet the legal requirements for grant of citizenship, a Child visa or an Adoption visa, there are generally no other visa options available that will let you bring the child to Australia as your child.
Visa sponsorship limitations
We must approve sponsorship of a Child or Adoption visa. We might not approve sponsorship if the parent, or their spouse or de facto partner, has been charged or convicted of offences involving children. See more about
measures for the protection of children.
