Sunday, March 19, 2017

When can a Medicare card issue for a child born under a domestic surrogacy arrangement?

The simple answer is usually- as soon as the birth certificate issues- but getting consistency out of Medicare is a challenge. Surrogacy is a relatively rare and new concept in Australia (with the number of births overseas via surrogacy for example about 7 to 1 as compared to the number of domestic births)- and some people either do not know about surrogacy, or oppose the idea of surrogacy.

Every Australian citizen living in Australia is entitled to a Medicare card


This can't be put more simply: if the child at birth is an Australian citizen, then the child is entitled to a medicare card.

The child in being born in Australia is NOT an Australian citizen


For the child to be born as an Australian citizen, two things are required under the Australian Citizenship Act 2007:

  • the child is born in Australia
  • the child has at birth an Australian citizen parent (or permanent resident).

Who then are the parents of the child at birth?


Every case is different, but usually the parents of the child are the surrogate, and if she has one either  her husband or de facto partner. If one of those is an Australian citizen, therefore the child is entitled to Australian citizenship at birth, and is therefore then entitled (once the birth is registered) to a Medicare card.

For the purposes of citizenship, if the child was conceived through an artificial conception procedure, then before a parentage order is made, the surrogate (and if she has one, her de facto partner or husband) is the parent: s.8,12 Australian Citizenship Act 2007, s.60H Family Law Act 1975.

What if the surrogate and her husband/partner are not Australian citizens or permanent residents?


Then the child needs a visa to stay in Australia until a parentage order is made. The child will not be entitled to Australian citizenship (and a Medicare card)  until that point. It should not be assumed that the surrogate and her partner and husband are Australian citizens. It needs to be checked in every case.

OK- so the surrogate and her husband are Australian citizens- who applies for the Medicare card?


Either the intended parents can apply OR the surrogate and her husband can apply. If the former, then depending on who you get in Medicare, you might get help or hindrance.

I have had clients who have obtained a Medicare card without difficulty, and others who had extreme difficulty- because of who was behind the counter. There appears to be little consistency.

Can the baby be named on the Medicare card of the intended parents before an order is made?


The simple answer is yes, but the approach taken by Medicare offices varies. Some will refuse it. The legal test is that the child is in your "custody, care and control". Unhelpfully, this phrase is not defined- but appears to mean the reality of who is caring for the child, as opposed to the legality of who is caring for the child. If the former, then a family card should issue without drama. If Medicare take the view that it is the latter- then a family card won't issue, but a card can still issue for the child before the order is made. After the order is made- then the family card should then issue without difficulty.

If the child is born to a foreign surrogate (and her foreign partner/husband) how does the child obtain Australian citizenship?


Quite simply, the child obtains Australian citizenship on the making of a surrogacy parentage order. Excuse the legal journey to reach that conclusion:

  • Under s.8 of the Australian Citizenship Act 2007, where there has been an artificial fertilisation procedure, who is a parent of the child for citizenship purposes is determined by ss.60H and 60HB of the Family Law Act 1975.
  • Therefore, because of s.60H,  before the order is made, the surrogate and if she has one her husband or partner are the parents.
  • Under s.60HB, State and ACT parentage orders are recognised as making the intended parents as parents of the child.
  • The State and ACT legislation, for example, section 12 of the Surrogacy Act 2010 (NSW),  is listed for the purposes of s.60HB under regulation 12CAA of the Family Law Regulations 1984 (Cth).

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