Australians using Thai surrogacy: when is a parent a parent?

Australian intended parents on bringing their baby to Australia after going to Thailand for surrogacy may or may not be the parents of the child. Most importantly, the surrogate may remain the mother of the child, with all that flows from that. It can make a significant difference if a donor is used. It can make a significant difference if the surrogate is single, married or in a de facto relationship, even if that de facto relationship is a lesbian relationship (or even single but not divorced).

But what does this mean in practice?

OK, here is a potted version of the problematic legal landscape for Australians if you undergo surrogacy in Thailand ( you will appreciate that I am NOT a Thai lawyer, and I always recommend getting advice from a Thai lawyer before proceeding with surrogacy there):

1. It remains an offence for those ordinarily resident (or in NSW, domiciled) in NSW, Queensland and the ACT to enter into or offer to enter into a commercial surrogacy arrangement wherever it might be- including in Thailand, punishable by up to 1 to 3 years jail and/or a fine. It is also an offence in Queensland to make payment under that commercial surrogacy contract.
2. It remains an offence for those paying a commercial egg or sperm donor anything other than reasonable expenses, punishable by up to 15 years jail. Depending on the Australian jurisdiction, and the peculiarities of the criminal law in that jurisdiction, this offence might be committed by those undergoing commercial egg or sperm donor contracts overseas, including in Thailand.
3. Under Thai law the mother of the child remains the parent of the child. There is no law currently in Thailand concerning surrogacy. This may change this year or next year or at some later point. When it might change and what form the change takes are unclear. The Thai surrogate might be recognised as a parent under Australian law.
4. An Australian female intended parent will never be the mother of the child in Thailand. Her name will never appear on the child’s Thai birth certificate. However, she might be recognised as the mother of the child in Australia. Her name will only appear on an Australian birth certificate for the child if an adoption in Australia occurs, such as a step-parent adoption.
5. It is extremely unlikely that an anonymous egg donor in Thailand might be recognised as a mother, and an anonymous sperm donor might be recognised as the father in Australia. They are not recognised as parents in Thailand.
6. If the surrogate is married, then the surrogate’s husband will be recognised under Thai law as the father. This includes if the surrogate is separated but not divorced. The Thai father would ordinarily be shown on the birth certificate. The surrogate’s husband might be recognised as a parent under Australian law.
7. If the surrogate is living in a de facto relationship, then her partner will not be a parent under Thai law, but might be recognised as a parent under Australian law- whether the partner is male or female.
8. To bring the baby to Australia, the Australian intended parents need to show under the Australian Citizenship Act that the child was a child of an Australian parent.
9. The definition of who is a parent under the Australian Citizenship Act appears is not necessarily who is a parent under other Australian law.
10. When there is DNA evidence of that parentage, and clear evidence of a surrogacy arrangement, and the consent of the parent recognised under Thai law for the child to leave Thailand, then Australian authorities will recognise the child as an Australian citizen, who can then fly to Australia.
11. DNA evidence is not strictly required, but if anyone needs advice before undergoing international surrogacy (and in my view every Australian intended parent undertaking international surrogacy ought to get advice from an Australian  lawyer first, given the risks) it ought to be someone doing so without the DNA link- or for that matter anyone where there might be a risk of there not being a DNA link because for example there might have been a slip up in the lab. The latter is not a theoretical risk, unfortunately.
12. Presumably by this stage the baby is back in Australia. Armed with the birth certificate, the intended parents can presumably obtain Centrelink benefits, obtain a Medicare card, take the child to the doctor and enrol the child at school. However, the intended parents might not be the parents.
13. Therefore the best avenue to straighten out the legality of parenthood is to either pursue adoption (WA is by far and away the best for this) or possibly apply to the Family Court or a Supreme Court for a declaration of parentage. While some lawyers might recommend this, I do not usually- due to costs versus benefits. I see the benefits as being low and the costs being very high, and the result being more theoretical than real. Most intended parents choose to take the risk and do nothing.
14. The reasons why Australian authorities in Thailand make sure that they have the consent of the surrogate and her husband (if any) to the child leaving Thailand permanently is to ensure that there is not child trafficking, an illegal adoption in breach of the Hague Intercountry Adoption Convention (both Thailand and Australia are signatories), and that there has not been an abduction of the child in breach of the Hague Convention (both Australia and Thailand are signatories) – for a recent article I have written about the Hague Convention– see my post in the Australian Divorce Blog.
15. There would be nothing to prevent the surrogate and or her husband or partner from applying in an Australian court about the child. The only way to minimise or to stop that is to adopt the child or to obtain orders under the Family Law Act.
16. Rights of custody under the Hague Convention about child abduction are in the hands of the person in Thailand who is a parent under Thai law. Therefore within 1 year of the child leaving Australia, either the surrogate or her husband could apply for the child to be returned to Thailand. After a year, the Thais recognised as parents in Thailand could apply through the Australian courts under the Hague Convention for rights of access to the child. Just because it has never happened doesn’t mean it can’t.
17. All intended parents should have properly drawn wills to make sure that they do not accidentally disinherit their child if their child is not their child as a matter of law.
18. Passports Australia recognises the surrogate as having parental responsibility under Australian law, which means that the surrogate (and her partner or husband if they were together when the child was conceived) need to fill out any Australian passport application for the child, including any renewal every 5 years (although there are  means, which may be costly and difficult around this).

Now that you are thoroughly confused, how does Australian law recognise a parent of the child?

As I kept saying above, someone might be a parent of the child.

There are three ways the law can recognise someone as a parent:

• by DNA– as the Department of Immigration and Border Protection ordinarily does, and as one Victorian case has said.
• by intention– who intended to be the parents- as one WA case has decided, and that Victorian case also appears to have done.
• by who gave birth– as State and Territory legislation says- and as has been decided under a number of cases decided in NSW.

Therefore under State and Territory law the surrogate (and if she has a partner or a husband- then her partner or husband) is the parent. Depending on which judge you have it would appear that different approaches are taken as to whether you or may not be a parent under Federal law. For further discussion of the complexity of who is or is not a parent, see these posts by me. I should add, finally, that if you have done something illegal by engaging in surrogacy it is possible that you may not be recognised as a parent, as one judge has said.

The situation is a mess. The situation may be fixed by the Government’s (unknown) response to the (unknown recommendations of the) Family Law Council report, or by the proposed Hague surrogacy convention. We can but wait and see, fingers crossed.