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International Commercial Surrogacy
|Note: The legal and regulatory frameworks regarding surrogacy, both in Australia and overseas, are complex and subject to change. Individuals considering entering into an overseas commercial surrogacy arrangement are urged to exercise extreme caution. You should seek independent legal advice and keep informed of developments.|
Indian visa regulations
Australians considering pursuing commercial surrogacy in India should be aware of new visa regulations which require medical visas for individuals coming to India for the purpose of commissioning surrogacy. The regulations place certain restrictions on eligibility for a medical visa.
The Australian Government is not able to advise intending parents on the application of Indian laws. We strongly recommend that confirmation of the latest requirements be sought from Indian authorities (i.e. Indian Embassy or Consulate) and that independent legal advice be obtained.
Failure to abide by Indian visa regulations may carry significant consequences. Our ability to provide assistance in such circumstances would be extremely limited.
The Indian Government requires that a medical visa application be accompanied by a letter from the foreign government stating that the foreign country recognises surrogacy and that the child will be permitted entry into their country as a biological child of the couple commissioning surrogacy.
The Indian Foreigner’s Regional Registration Office (FRRO) requires that children born to foreign parents in India obtain a valid visa within 14 days of their birth to avoid penalty.
If you are satisfied that you meet the Indian visa requirements, you may download the Australian Government’s letter here (Letter).
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.|
|Qld||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.
The Australian Government is concerned to ensure that a child not be removed from its birth mother unlawfully or against her wishes. 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.
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 Citizenship and Immigration at http://www.india.embassy.gov.au/ndli/vm_surrogacy.html.
You should also familiarise yourself with Fact Sheet 36a on International Surrogacy Arrangements, available on the Department of Immigration and Citizenship website.
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.
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 Sheet - Child born through surrogacy, available at http://www.dfat.gov.au/passports/surrogacy/