Home > Uncategorized > Australian Gay and Lesbian Law Blog “Federal Government hasn’t warned about surrogacy risks” by Stephen Page

Australian Gay and Lesbian Law Blog “Federal Government hasn’t warned about surrogacy risks” by Stephen Page

The Federal Government in its how to websites has not warned Australians that they might risk prosecution in Australia  for engaging in overseas surrogacy arrangements.

The risk of prosecution was highlighted again a week ago when Queensland passed new surrogacy laws, which criminalise those ordinarily resident in Queensland from accessing overseas commerical surrogacy clinics.

Similarly, if residents of the ACT access overseas commerical surrogacy clinics, they also commit an offence and are at risk of being prosecuted.

No doubt because these are the countries that Australians go to the most for commerical surrogacy, the Federal Government has set up websites at theAustralian Embassy in Washington and the Australian High Commission in New Delhi containing  how to guides for those contemplating overseas commercial surrogacy.

On neither of the sites is there any mention that it is an offence for a resident of Queensland or the ACT to engage in a commerical surrogacy agreement overseas, nor whether the Department of Immigration and Citizenship will refer people to Queensland or ACT authorities for prosecution. The Department in its Australian Citizenship Instructions likewise makes no mention that ACT or Queensland residents accessing commercial surrogacy clinics overseas commit offences in the ACT or Queensland respectively, nor whether these residents will be referred by Departmental officials to ACT or Queensland authorities for investigation and/or prosecution. 

Australian Embassy, Washington DC

This is what the Australian Embassy says. It makes no mention of possible criminal charges or of whether ACT or Queensland authorities will be notified:

Children born through surrogacy arrangements applying for Australian Citizenship by Descent 
Information about applying for Australian Citizenship by Descent 
Please access our website for information and instructions related to Australian citizenship by descent.

Please access our checklist for instructions for how to lodge an Australian citizenship by descent application in Washington.

Children born through surrogacy arrangements 

Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution. They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur. 

Australia is a party to the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which include obligations to ensure the best interests of the child are a primary consideration in relevant actions, and aim to prevent the abduction, sale and trafficking of children. 

Applications for Australian citizenship by descent for children born outside Australia as a result of surrogacy arrangements are assessed according to legal requirements set out in the Australian Citizenship Act 2007 (the Citizenship Act), and the policy guidelines set out in the Australian Citizenship Instructions. 

Under these guidelines, a child born overseas as a result of a surrogacy arrangement may be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen who has been granted full parental rights by a court of law. 
In addition to the general documents required for applications for Australian citizenship by

descent, applications for Australian citizenship by descent for children born as a result of surrogacy arrangements need to be accompanied by: 
• evidence that the child is the biological child of the intended parent; and 
• evidence that this parent is also recognised as the legal parent of the child and that the surrogate mother and her husband or partner (if applicable) has relinquished all parental rights over the child. 

Evidence of the above must be in the form of: 

A statement from the doctor to the court stating clearly that genetic material from one or both of the intended parents has been implanted in the surrogate mother (note: the court may require DNA tests to confirm the genetic material of all parties); AND
a confirmation of the doctor’s statement regarding the person/s donating the genetic material; AND
court documentation stating clearly the legal custody of the surrogate child and waiving the rights of the surrogate mother and her husband or partner (where applicable).
This office may request that a client undergo DNA testing to confirm parentage. Please DO NOT undergo DNA testing prior to having it been specifically requested by this office. Further information regarding the procedures and arrangements will be provided by a case officer.

If you require additional information, please contact the Information Service for Australian Visas.

Australian High Commission, New Delhi

This is what the High Commission says. It also makes no mention of possible criminal prosecution in the ACT or Queensland, nor whether there willbe a referral to ACT or Queensland authorities:

Children born through Surrogacy Arrangements applying for Australian Citizenship by Descent 
Information about applying for Australian Citizenship by Descent 

For general information on Australian citizenship by descent, please see: http://www.citizenship.gov.au/applying/how_to_apply/descent/
For information on how and where to lodge an Australian citizenship by descent application in India, please see:www.india.embassy.gov.au/ndli/vm_citizen.html

Children born through surrogacy arrangements in India 

Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution. They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur. 

Indian legislation in respect to surrogacy is limited and Indian laws are expected to change in response to the growing demand for surrogacy arrangements. 

Australia is a party to the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which include obligations to ensure the best interests of the child are a primary consideration in relevant actions, and aim to prevent the abduction, sale and trafficking of children. 

Applications for Australian citizenship by descent for children born outside Australia as a result of surrogacy arrangements are assessed according to legal requirements set out in the Australian Citizenship Act 2007 (the Citizenship Act), and the policy guidelines set out in the Australian Citizenship Instructions. 

Under these guidelines, a child born overseas as a result of a surrogacy arrangement may be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen who has been granted full parental rights by a court of law. 

In addition to the general documents required for applications for Australian citizenship by descent, applications for Australian citizenship by descent for children born in India as a result of surrogacy arrangements need to be accompanied by: 
•evidence that the child is the biological child of the intended parent; and 
•evidence that this parent is also recognised as the legal parent of the child and that the surrogate mother and her husband or partner (if applicable) has relinquished all parental rights over the child. 

Evidence of the above can be given in the form of: 
(a) court documentation OR 
(b) DNA testing and written advice confirming legal parentage 

Further information on (a) and (b) is given below. 

(a) Court documentation 
This evidence must be in the form of: 
•a statement from the doctor to the court stating clearly that genetic material from one or both of the intended parents has been implanted in the surrogate mother (note: the court may require DNA tests to confirm the genetic material of all parties); 
•a confirmation of the doctor’s statement regarding the person/s donating the genetic material; and 
•court documentation stating clearly the legal custody of the surrogate child and waiving the rights of the surrogate mother and her husband or partner (where applicable). 

(b) DNA testing and written advice confirming legal parentage 
Where a client is unable to obtain the court documentation listed in (a) above, they will be requested instead to undergo DNA testing and to provide an independent legal advice confirming the validity of their surrogacy contract and their status as the legal parents of the child. More information on these requirements is given below. 
DNA testing – Surrogacy cases – Australian citizenship by descent – general information 
The child and the Australian citizen biological parent will be requested to undergo DNA testing. In this regard, please note: 
• You will need to meet all costs associated with DNA testing. 
• The Australian citizen biological parent is required to undergo DNA testing in Australia. Processing delays will result if the Australian citizen biological parent undertakes DNA testing while in India. 
• In India, DNA tests for the child must be carried out by specified Panel Doctors in New Delhi or Mumbai (more details below). 
•Only those Panel Doctors are authorised to carry out the DNA test. You should not make appointments for a DNA test with any other Panel Doctor, as the results will not be acceptable for the purposes of the citizenship application and will have to be repeated, with consequent delays to processing and extra cost for applicants.

  • Whilst the newborn child may undertake their DNA test in Mumbai by an authorised Panel Doctor, the Australian citizen biological parent will need to travel at their own cost to New Delhi to undergo DNA testing so that it may be witnessed by an Australian Government official.

• Travel costs associated with the DNA tests are at the applicant’s own expense. 
• Panel Doctors are required to use specific testing kits, which must be provided to them via a DNA laboratory in Australia with which arrangements are in place to do DNA testing for immigration and citizenship purposes. Details of these laboratories are copied below. 
• If the DNA test will be carried out in New Delhi, an appointment with a Panel Doctor will be arranged by the Australian High Commission in New Delhi. The DNA test must be witnessed by an Australian Government official from the Australian High Commission in New Delhi. You must give the Australian High Commission at least three working days’ notice to arrange an appointment. 
• If the DNA test (for the newborn child only) will be carried out in Mumbai instead of New Delhi, you may arrange an appointment directly with Dr Jayant Rele whose contact details are athttp://www.immi.gov.au/contacts/overseas/i/india/panel-doctors.htm
• The DNA sample and completed forms will be couriered to the DNA laboratory in Australia for assessment. 
• Fact Sheet 1259i ‘Information about DNA testing for visa and citizenship applicants’ contains further information on DNA testing. This fact sheet is available online at:http://www.immi.gov.au/allforms/pdf/1259i.pdf
• If you undertake DNA testing, it is your responsibility to contact one of the recommended laboratories to make arrangements for the testing (further details below). 
• Once you have selected and contacted a DNA laboratory, you must advise the Australian High Commission in New Delhi of the details of the laboratory you have selected. The Australian High Commission will then liaise with you and the laboratory regarding testing arrangements. We will provide you and the laboratory with a reference number which you should include in any correspondence with the Australian High Commission in New Delhi. 
• More specific information about arranging DNA testing in India is given below. 
• If you choose not to undertake DNA testing the application will be decided based on the information provided. 

Documents in relation to donors of genetic material 

If applicable, please provide copies of any documents or records in relation to donated genetic material (for example, anonymously donated egg or sperm). 

Written advice confirming legal parentage 
Where a client is unable to obtain court documentation stating the legal parentage of the child, as outlined in (a) above, clients will be requested to provide written advice from a lawyer expert in Indian family law and/or contract law that their surrogacy contract is legal and confirming they are the legal parent(s) of the child. 

This advice should include comment on the general legality of the contract (with reference to the provisions of Indian legislation that make it valid) and whether the contract confirms the legal parentage of the child (with reference to the relevant provisions of Indian legislation). It should also include comment on the following elements and state the grounds on which the lawyer is satisfied that these elements are met. 
•whether all parties consent to the contract; 
•whether the contract is legally enforceable; 
•whether the contract gives full legal parental rights to the Australian citizen parent; 
•whether the contract waives the parental or any other rights of any other parties to the contract; and 
•whether the contract includes evidence that all parties are still consenting and still agree to the contract after the birth of the child concerned. 
The lawyer should also state their level of experience and accreditation in the field, and declare any potential conflict/s of interest, such as whether the lawyer or their firm was involved in drafting the surrogacy contract. 

Recommended DNA Laboratories 
DNALABS Sydney IVF 
Level 3, 321 Kent Street, Sydney 
NSW AUSTRALIA 2000 
GPO Box 4384, Sydney NSW 2000 
Sydney: phone +61 2 9229 6495 
Melbourne: phone +61 3 8414 0605 
Perth: phone +61 8 9460 0810 
Canberra: phone +61 2 6210 0915 
Brisbane: phone +61 7 3811 0961 
Adelaide: phone +61 8 8220 0786 
Darwin: phone +61 8 8989 0820 
Hobart: phone +61 3 6218 0790 
Fax: +61 2 9221 9272 
Email: dnalabs@sydneyivf.com
Website: http://www.dnalabs.com/

Genetic Technologies Corporation Pty Ltd 
60-66 Hanover Street 
FITZROY VIC 3065 
PO Box 115, Fitzroy Vic 3065, Australia 
Phone: +61 3 9415 7688 
Fax: +61 3 9416 4076 
Email: immigration@gtg.com.au
Website: http://www.genetictechnologies.com.au/
Information pamphlets for these laboratories can be downloaded from their websites. 
DNA testing – procedure for India 

Before you leave Australia 
1. Choose the laboratory you would like to use – DNALabs or Genetic Technologies. 
2. Contact the laboratory and ask about the testing procedure, the expected timeframe for obtaining the results, the cost involved and any other questions you have. The Australian High Commission is unable to provide this information. 
3. Arrange for the Australian citizen biological parent to undergo DNA testing in Australia. 
Note: Australian citizen biological parents should undergo DNA testing in Australia and before travelling to India. Processing delays will result if the Australian citizen biological parent/s undertakes DNA testing while in India. This is because DNA testing of Australian citizen biological parents must be witnessed in New Delhi under the supervision of an Australian Government Official from the Australian High Commission. It is only the newborn child/children that may undertake DNA testing in Mumbai. If the Australian citizen biological parent chooses to be tested in India, then they will need to travel at their own cost to New Delhi to undergo DNA testing so that it may be witnessed by an Australian Government official from the Australian High Commission in New Delhi. 
4. Decide whether you would like your child to undergo DNA testing in New Delhi or Mumbai. 
After you arrive in India 

If the DNA testing will be done in New Delhi: 
1. Contact the Australian High Commission at Citizenship.NewDelhi@dfat.gov.au and request an appointment with a Panel Doctor. You must give the Australian High Commission at least three working days notice to arrange an appointment. 
2. The Australian High Commission will confirm an appointment day and time and send you some forms to complete prior to your arrival at the panel doctor’s office. Please bring at least two passport photos for each person being tested. 
3. You will be met at the Panel Doctor’s office by an Australian Government official, who will guide you through the testing process. 
4. The Australian Government official will take the DNA sample/s and completed forms back to the Australian High Commission and dispatch by courier on the same day. It will take approximately three working days for the samples to arrive in Australia. 

If the DNA testing (for the new born child/children) is to be done in Mumbai: 
1. Contact Dr Jayant Rele at jayant.rele@releclinic.com or on +91 22 2361 3838 and request an appointment. 
2. If you have not received the required forms for completion, please request these from the Australian High Commission atCitizenship.NewDelhi@dfat.gov.au and complete as much of the relevant forms as possible before your appointment. 
3. Please bring (a) the forms and (b) at least two passport photos for each person being tested to the Panel Doctor’s clinic. 
4. The Panel Doctor will guide you through the testing process.
5. The Panel Doctor will dispatch the DNA sample(s) and completed forms by courier on the same day. It will take approximately three working days for the samples to arrive in Australia. 

What will happen next? 

The laboratory will advise the Australian High Commission once the test results are completed. It usually takes 5-8 working days for the laboratory to provide the test results to this office. 
The Australian High Commission in New Delhi is responsible for deciding all applications for citizenship by descent in relation to children born via surrogacy arrangements in India. 
This means that whether your child/ren have undertaken DNA tests in New Delhi or Mumbai, the application for citizenship by descent must be forwarded to the Australian High Commission in New Delhi for assessment and decision. 
If the child meets all the requirements, the High Commission will grant the child citizenship and provide a citizenship certificate. 

Processing times 
Tips to make the process as quick and easy as possible 
1. Read all the information atwww.india.embassy.gov.au/ndli/vm_citizen.html andhttp://www.citizenship.gov.au/ before contacting this office. 
2. Download form 118 Application for Australian citizenship by descent from www.immi.gov.au/allforms/pdf/118.pdf before your child is born and complete the form as soon as your child is born. 
3. Obtain passport sized photos of your baby as soon as possible. You will need photos for the citizenship application, DNA testing forms and passport application. 
4. Obtain a bank demand draft (bank cheque) for the citizenship application fee. To find out the current fee please go towww.immi.gov.au/allforms/pdf/1298i.pdf . Please note that if you are lodging more than one citizenship application at the same time (for example if you have twins) the fee for the second application is less than the first. To convert the Australian dollar amount to Indian rupees, please use the currency converter at http://www.immi.gov.au/allforms/990i/converter.htm . Please note that a bank demand draft is the only acceptable form of payment for the citizenship application fee. The demand draft should be made payable to the ‘Australian High Commission New Delhi’, payable in New Delhi. 
5. You can lodge your child’s citizenship application as soon as you have completed it. You do not need to wait for the DNA testing to lodge the application. Seewww.india.embassy.gov.au/ndli/vm_citizen_lodge.html . You do not need to lodge you child’s citizenship application in person. You can send the application via our service delivery partner (preferred), by courier or by post. See http://www.india.embassy.gov.au/ndli/vm_howtoapply.html . If you choose to lodge the application in person you need to make an appointment by sending an email to appointments.newdelhi@dfat.gov.au or calling +91 11 4122 1000. 
6. For any further queries regarding Citizenship or DNA testing which are not covered in the website please contact us by email atcitizenship.newdelhi@dfat.gov.au
7. For any further queries regarding passport applications which are not covered in the website please contact the Consular section of the Australian High Commission New Delhi by email atausthighcom.newdelhi@dfat.gov.au.
Contacting the Australian High Commission 
• Please forward ALL QUERIES to Citizenship.NewDelhi@dfat.gov.au
• This mailbox is cleared daily and surrogacy queries are dealt with as a priority. Therefore using the mailbox will ensure the quickest possible response. 
• Please DO NOT contact individual officers for information as this will slow the process

Australian Citizenship Instructions

The instructions are the administrative basis for deicsions by the Department of Immigration and Citizenship. Aside from warning about "extreme caution" about overseas surrogacy arrnagements, the Instructions mention nothing about surrogacy being an offence in the ACT or Queensland, nor whether the Department will refer the matter to Queensland or ACT authorities. This is what the instructions say:

This part comprises:
Is a surrogate child eligible for citizenship by descent?
If there is no genetic link to the Australian parent.
As a party to the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, Australia is committed to protecting the fundamental rights of children. These Conventions include obligations to ensure that in all actions concerning children, the best interests of the child are a primary consideration. The Hague Convention focuses on the need for countries to work to prevent the abduction, sale, or trafficking of children. The ACIs seek to support Australia’s international obligations in this area.
Extreme caution should be exercised in cases involving surrogacy arrangements entered into overseas to ensure that Australia’s citizenship provisions are not used to circumvent adoption laws and other child welfare laws. Commercial surrogacy arrangements are illegal in Australia at this time.
Section 8 of the Act does not apply to surrogacy arrangements entered into overseas. Section 8 of the Act applies to couples who use artificial conception procedures or surrogacy  arrangements occurring under a prescribed law of an Australian state or territory to become parents to a child.
IS A SURROGATE CHILD ELIGIBLE FOR CITIZENSHIP BY DESCENT?
A surrogate child will generally be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen, who has been granted full parental rights by a court of law.
In the case of a child born as a result of surrogacy arrangements, it is a requirement for registration of citizenship by descent that there be a genetic link between a parent and the child in question and that that parent be recognised on the birth certificate.
Documents required to register a surrogate child as an Australian citizen by descent are:
a statement from the doctor to the courts stating clearly that genetic material from person A
and/or person B has been implanted in person C; and
court documentation stating clearly the legal custody of the surrogate child and waiving the
rights of the surrogate mother. The statement must also confirm the doctor’s statement
regarding the person/s donating the genetic material.
Family situation is not relevant to registration of citizenship by descent, provided at least one
biological parent is an Australian citizen who has been granted full parental rights by a court of law.
When the biological parent is an Australian by descent they will need to meet the requirement to have been lawfully present in Australia for a total of two years before the child can be registered as an Australian citizen by descent.
IF THERE IS NO GENETIC LINK TO THE AUSTRALIAN PARENT
It is possible for a birth certificate to be issued where neither parent has a genetic link to the child but their names are included on the child’s birth certificate. If there is no genetic link with either parent, then in spite of the fact that the birth certificate is in their names, they should be requested to seek an adoption order and sponsor the child for an adoption visa. DNA testing can be considered to establish the genetic link if appropriate documentation is not available.

[Source: Original Article]

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