Tuesday, November 6, 2018

Complications with issuing Australian passports in overseas surrogacy journeys

When children obtain Australian citizenship after being born through surrogacy overseas, the next step (whether overseas or in Australia) is to obtain an Australian passport. 

The Australian Passports Act 2005 requires anyone who has parental responsibility for a child to consent to a passport issuing for a child.  The Department of Foreign Affairs and Trade has long taken the view that the surrogate, as the birth mother of the child, has parental responsibility.  As a result, the Department requires parents who have undertaken surrogacy overseas to have a Form B-5 to be filled out by the surrogate.

While this might seem pretty straightforward, this just doesn’t happen once.  With the exception of a child changing its name or its passport being lost, a child will typically have four passports issued, because they only last 5 years:

·         At birth
·         5 years
·         10 years
·         15 years

In other words, the parents have to go through this procedure for another three occasions.  To avoid this process, there are two ways to get around getting the consent of the surrogate:

1.      Obtaining an order of the right kind from an Australian court.
2.      Having the passports officer dispense with the surrogate’s consent.

There are several grounds for dispensation, but typically obtaining an order in the US or Canada has been enough to dispense with the requirements. 

The particular regulations give a series of grounds on which there can be dispensation, the significant one being:
            “An order of a court in a Convention country (within the meaning of the Family Law (Child Abduction Convention) Regulations 1986) permits any of the following:
(i)                 The issue of a passport to the child;
(ii)              The child to travel internationally;
(iii)            Contact between the child and another person outside the country where the order was made.”

The type of country that is described is a country that has signed the 1980 Hague Child Abduction Convention.  Both the US and Canada, for example, have done so.

One might think that if the surrogate and her husband are no longer the parents under US or Canadian law and therefore do not have rights of custody under the 1980 Hague Child Abduction Convention, that they will not be recognised as parents in Australia.

Without getting into too much detail, the Department of Foreign Affairs and Trade remains insistent that in its eyes the birth mother retains parental responsibility, unless there is an order of an Australian court removing that. An Australian court can do that in one of five ways:
-          By recognising that the intended parents are the parents under Australian law (and that therefore the surrogate and her husband do not have parental responsibility)
-          By registering the US surrogacy order with the Family Court of Australia, the Family Court of Western Australia or a Supreme Court of a State or Territory
-          By making an order for parental responsibility under the Family Law Act
-          By making an adoption order
-          By making an order dealing with parental responsibility under child protection legislation
These options may be impractical, inapplicable or costly.

Hang on- what about the US/Canadian order?

One might also think that it is a given - that if a court in the US or Canada declares that the intended parents are the only parents of the child - that therefore the parents (as declared by that court order) can decide whether a passport is issued or for the child to travel internationally, such terms being implied in the order. 

Apparently, the Department of Foreign Affairs and Trade has accepted that argument in many cases; and has many times dispensed with the need for the surrogate’s consent, without the need for the parents to obtain an order from an Australian court.

The Department’s requirements of an exception

However, the Department of Foreign Affairs and Trade indicated a couple of weeks ago to clients of mine that the Department would not dispense with the consent of the surrogate based on the making of an order in a Convention country, unless the order specifically stated one of the three grounds.

As a result of this change, intended parents who are undertaking surrogacy in the US and Canada in particular should be seeking that the orders specifically contain one of the three grounds, for example that the child is to travel internationally.  Whether the court in the US or Canada is able to make such an order without much fuss or cost is another matter entirely.

What if there is not the right type of order?
For those parents who have obtained a US or Canadian court order without those magic words- expect that you will still need to have the written consent of the surrogate to the issue of the Australian passport.

There are some other grounds for dispensation of the surrogate’s consent. One of those is that  there has been no contact between the child and the non‑consenting person for a substantial period before the application is made”. In my clients’ case, the child was two, and had had no contact with the surrogate since it had been born. The dispensation was able to be granted. 

The full list of grounds are:

“(a)  if the application is made by or on behalf of the child—neither the applicant nor the Minister has been able to contact the non‑consenting person for a reasonable period;
                     (b)  the non‑consenting person is either or both of the following:
                              (i)  missing;
                             (ii)  presumed dead;
                     (c)  the non‑consenting person is medically incapable of providing consent;
                     (d)  there has been no contact between the child and the non‑consenting person for a substantial period before the application is made;
                     (e)  the non‑consenting person:
                              (i)  is not an Australian citizen; and
                             (ii)  is separated from a person who has parental responsibility for the child and has consented to the child having an Australian passport; and
                            (iii)  has not had contact with the child since the child arrived in Australia;
                      (f)  a family violence order has been issued against the non‑consenting person;
                     (g)  if the child is outside Australia—there is evidence of family violence;
                     (h)  if the child is outside Australia—the Minister considers that there is a need for the child to travel internationally or the child requires a passport to continue to legally reside overseas;
                      (i)  an order of a court in a convention country (within the meaning of the Family Law (Child Abduction Convention) Regulations 1986) permits any of the following:
                              (i)  the issue of a passport to the child;
                             (ii)  the child to travel internationally;
                            (iii)  contact between the child and another person outside the country where the order was made;
                      (j)  an order of a State or Territory court, made under a child welfare law, grants parental responsibility or guardianship of the child to:
                              (i)  a parent of the child other than the non‑consenting person; or
                             (ii)  a person other than a parent of the child.”

If in doubt, get advice first!

Wednesday, October 31, 2018

Trump's plan for citizenship likely to complicate Aussie surrogacy journeys

The United States President Donald Trump has told HBO that he plans to terminate the right to US citizenship to babies born in the US to immigrants and non-citizens. 
Mr Trump said he was seeking legal counsel to determine if he was able to bypass Congress and end birthright citizenship through an executive order.  He said:
            “They’re saying I can do it just with an executive order.”

The President said that the US was the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States. As the US broadcaster NPR has pointed out- it’s not. It’s one of 30 countries allowing children born there to become citizens, including Canada and Mexico.
About 50 babies a year are born to Australian intended parents in the United States via surrogacy.  Currently, the babies are entitled – at birth – to US citizenship.  This is because of the 14th Amendment to the US Constitution.  That amendment starts:

            “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The Amendment occurred after the US Civil War to guarantee that former slaves and the children of slaves were US citizens.  The Amendment is frequently before the courts. There is rarely a surrogacy law conference I go to in the US where the subject of the 14th Amendment is brought up in conference presentations or discussions amongst delegates.

House Speaker Paul Ryan said such a move would be “unconstitutional” and “Well, you obviously cannot do that.  You cannot end birthright citizenship with an executive order.”

NPR reports that Ryan noted any change to a constitutional amendment requires an act of Congress, adding:
“We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as Conservatives we believe in the Constitution…I’m a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

One of the complications for Australians undertaking surrogacy in the United States is that if the executive order issues and is not stayed or frozen by the courts, then the children being born in the United States will not be recognised as US citizens.  They will not have in fact any citizenship at all unless and until an application for Australian citizenship is successfully made to the Australian Government.  Typically, Australian citizens undertaking surrogacy in the United States obtain US citizenship for their child, and then travel back to Australia where the child applies for and obtains Australian citizenship.  The change, which my colleagues in the US say is unlikely to succeed, might mean that Australian citizens caught up in the mess may have to apply for Australian citizenship in the United States. 

To travel to the United States, Australians typically do so on ESTA under the visa waiver program, allowing Australians to say in the US for a maximum of 90 days.  According to the Department of Home Affairs, 25% of citizenship by descent applications are not disposed of within 2 months and 10% are not disposed of within 4 months.  Intended parents and their children might be caught between a rock and a hard place of the delays in the application for citizenship by descent not being decided by the time that their visa to the US expires.  

What President Trump has put forward may be just electioneering ahead of the mid-terms, and probably should not be overblown, but who can say?