Tuesday, January 14, 2014

No DNA for surrogacy can make a hard journey

It is essential to get legal advice first for those contemplating going overseas and making babies through surrogacy, but not having a DNA link with a parent who is an Australian citizen. Australian legal advice. Not the advice of the clinic overseas. Not from a generalist lawyer here, either. But someone like me. As I have written before, don't believe what you have seen on the internet (excuse the irony here) and a birth certificate does not necessarily make you a parent in the eyes of the law.


It may sound like I am banging my own drum, and yes I admit that, but to go overseas for surrogacy and not have a DNA link can be extremely risky.


It may seem obvious (and for the moment I am ignoring the important fact that in Qld, NSW and the ACT you can go to jail for undertaking surrogacy overseas), but if you go overseas for surrogacy, authorities here will be rightly suspicious that you might have engaged in buying a baby.


No DNA link? Of course, so the grey mater goes, you are just engaged in child exploitation.


Think I'm exaggerating? Remember the case of Australian paedophile Peter Truong and his partner Mark Newton- jailed in 2013 for acquiring a child to be made available to a paedophile ring. This boy was bought from a woman in Russia- and then passed off to Australian authorities as surrogacy. Subsequently there were custody and adoption orders overseas. On the face of it a legitimate surrogacy with two loving (gay) parents. In reality, the sordid purchase and exploitation of a child. There was no genetic link by either man with the child- he was bought and sold like any other commodity.


Australian authorities, and especially the Department of Immigration and Border Protection, are quite rightly charged with trying to stamp out this abuse.


For this reason, the Department took the view that if a child were born overseas to an Australian parent and wanted to claim Australian citizenship, there had to be a DNA test to prove the link between the child and the parent. No DNA link, no citizenship.


That position changed in 2010 when the Full Court of the Federal Court held that a parent is someone that society ordinarily considers to be a parent, and is not limited merely to DNA, as I have blogged many times before. Thus a man who marries a woman who is pregnant to another man, with the aim of being named as the father on the birth certificate, and raising the child as his own is a parent. A man who believed for 30 years that he was the father of a child, paying child support, and seeing the child regularly, as well as telling his family that he was the father, but turned out was not the genetic father of the child- is also a parent.


As a result of this decision it is no longer necessary to show that there is a DNA link. For example, if the IVF clinic used the wrong sperm so that there is no genetic link, then it may still be possible to show that the child had an Australian parent.


BUT- and this is a big but - it is now assumed by some intended parents that it makes no difference if there is a genetic link or not, and that if there is no genetic link it is a straightforward process to obtain Australian citizenship for the child.


It mightn't be. It can be far from straightforward when there is no genetic link. Handled poorly and you might deprive your child of Australian citizenship. The Department has issued internal guidelines as to citizenship. These are not the law, but  guide officers about how they exercise discretion. The key phrase to be remembered when you are seeking to obtain Australian citizenship for your child but there is no DNA link is "utmost scrutiny"- the standard to be applied to applicants, to make sure there is not exploitation and abuse of children.


I don't think that the phrase "utmost scrutiny" can be downplayed. Fluff that- and you fail to make your child a citizen, with potentially devastating outcomes for your child.


Get it right first time. Get advice before you start the process. Help minimise your legal costs and your stress. Prevention, after all, is better than cure.

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