Monday, October 10, 2016

Why I believe that usually there is little point getting a parenting order for those undertaking surrogacy overseas

Recently a number of clients and an overseas colleague have raised with me about why there is a difference in viewpoints amongst Australian lawyers about whether or not it is advisable to obtain a parenting order in the Family Court after undertaking surrogacy overseas.

First the numbers

A legal answer does not rely upon statistics, but the statistics tell a story. In the last few years it is estimated that about 250 children a year have been born overseas via surrogacy and obtained citizenship here. The true figure will be higher- because some heterosexual couples pretend that they underwent pregnancy overseas, and those adults living here on visas don't seek Australian citizenship for their children.

But let's accept for the moment that there are 250 children born overseas via surrogacy who make their way back to Australia. About 3 of them each year will be the subject of parenting orders soon after returning. The other 247 won't be.

Their parents learn that while in theory it would be a good idea to have loose ends tied up and to obtain a parenting order, it is a very expensive process, and has a dubious outcome. Why bother?

Then the good news

The benefits an order can bring are that it says who has parental responsibility and says where the child resides. If one of the parents were to do a runner and abduct the child- and take the child to a Hague Convention country- then having the order would be very helpful.

And if the parents are lucky, they will be recognised by the court as parents.

The bad news

For parents who have paid say $120,000 undergoing surrogacy in Canada or say $200,000- $300,000 in the US, adding another $20-30,000 for a parenting order in Australia is a big ask.

What don't you get for the order?

You don't get citizenship. That will normally already be obtained. You don't get a Medicare card. You will have already done that. Armed with the citizenship certificate, the birth certificate and a Medicare, there should be no difficulty for most if not all parents in enrolling their child in day care, school, claiming Centrelink, including Family Tax Benefits, going to the doctor and to hospital in an emergency.

What do you get with the order?

Well just that you have parental responsibility and the child lives with you. If a declaration is made that you are a parent, then that will also mean that for inheritance purposes you will be recognised as a parent, and your child will inherit.

Quite simply, I am of the view that every adult should have a will. Those undertaking surrogacy have a special responsibility to their children to make sure that they have properly drawn wills- so that their children will be able to inherit- and uncertainty as to whether a child may or may not inherit, and subject to the rules of intestacy- will be completely avoided. Properly drawn wills provide certainty.

Won't the court declare that you are the parents?

In theory this might happen, but recent case law says otherwise. Take the couple known as the Dudley's, or the Dennis'es. Back in 2011 they went before one judge of the Family Court- who declared that they were the parents. They went before another judge (because they had had three children via surrogacy in Thailand) who said that he doubted that they were the parents- and here is the kicker- referred them to Queensland's Director of Prosecutions for possible prosecution for breach of the law in Queensland preventing people from undertaking commercial surrogacy overseas.

Queensland, New South Wales and the Australian Capital Territory have laws that stretch overseas. They make it an offence to go overseas for commercial surrogacy- as defined in those places. What you might think is altruistic surrogacy overseas might, because of the laws in those places, be commercial surrogacy back home.

South Australia and Western Australia also have laws that can make it an offence to go overseas for surrogacy.

The only places where it is clear that you can go overseas for commercial surrogacy without potential legal drama are Victoria, Tasmania and the Northern Territory.

Be that as it may, in 2012 one judge of the Family Court found that a Queensland man who went to Thailand for surrogacy was a parent. The following year she took the view in another case that she was probably wrong in the first case- and that a couple living in Sydney who had undertaken surrogacy in India were unlikely to be the parents. They later returned to the UK,  completely frustrated with the process here, overcame legal barriers and established in the UK that they were the parents.


  • a man who was the genetic father living in Victoria and went to India was found to be a parent.
  • a man from Western Australia who underwent surrogacy in India was found to be a parent.
  • a man from Victoria who went to India for surrogacy was held to be the genetic father- but said the court- it did not have the power to find that he was the parent. In the same case, the court found that the man's wife was NOT a parent because an egg donor was used- and in any case the court said that it did not have the power to declare her a parent. The couple have appealed.
  • a couple from Western Australia were found NOT to be the parents- and the judge criticised the earlier Western Australian case.
The simple point is that until there is clarification on an appeal, it is a simple lottery about whether you are going to be declared a parent or not- and for which you may the privilege of $20,000!


The South African case

In 2013, an Australian judge found that a man living in South African and who obtained an order there that he was the father of children was a parent here.

What was clear, unlike some of the other cases, was that the man was acting lawfully. The case may open the possibility that those who undertake altruistic surrogacy in Canada (provided it meets the description back here) or those undertaking surrogacy in the US from Victoria, Tasmania and the Northern Territory (and possibly South Australia) will be recognised as parents here- because they have lawfully in Australian eyes undertaken surrogacy there- and been recognised by the courts or authorities there as the parents (and should be recognised as the parents here).

So in a snapshot

I don't like clients wasting money. I don't like clients having uncertainty. Unless and until the process is a more certain and positive one- depending on the circumstances of my individual clients- I won't usually be recommending getting a parenting order from the Family Court. What at first seems like a real option is, on closer examination, not such a great idea for most people. The devil, as they say, is in the detail.


  1. Great article as always. It's one of those strange cross over places where the practical and legal definition cross over.

    Are the courts saying that if you illegally become a parent they cannot say you are a parent? Seems to me this is something far bigger than marriage equality in that even if the couple are married we are still potentially facing the risk of children being denied parents who love them who are therefore also stateless.

    Do we need to make the government see the real problem here and to put our children first? Maybe its time for some of our children to go to HREOC or even the UN and challenge the government to recogniae them.

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