Letter to Peter Dutton about children born through surrogacy in the US and Canada

Letter to Peter Dutton about children born through surrogacy in the US and Canada


I have this morning written to the Minister for Home Affairs, Peter Dutton urging him for the Australian Government to take urgent action to protect vulnerable infants born overseas and their parents, by doing what it can to enable the parents to go overseas and for the children to return.
If you are stuck or likely to be stuck, I urge you to provide a copy of this letter to your Federal MP or Senator. The more voters engage with their representatives, the greater the chances that action will be taken. If you need a copy of the letter so that you can send it on, please email me at stephen@pageprovan.com.au and let me know who you are going to be sending the letter to, and how you go. By letting me know, I can then help others who are in the same boat as you.
20 March 2020
The Honourable Peter Dutton MP
Minister for Home Affairs
By email:         peter.dutton.mp@aph.gov.au
c.c.       The Honourable Trevor Evans MP
            Member for Brisbane
By email:         trevor.evans.mp@aph.gov.au
Dear Peter
I seek an assurance that the Australian Government will:
1.     Take every step it can to ensure that:
(i)             it will assist in whatever way it can (including making representations to overseas Governments) to enable Australian intended parents to travel to those foreign countries to enable them to attend at the births of their children born through surrogacy;
(ii)           take every step it can to ensure that the children born overseas to Australian intended parents through surrogacy are able to return to Australia as quickly as possible.
Yesterday the Prime Minister announced that only citizens, residents and their dependents will be allowed into Australia – commencing at midnight tonight.
I have been contacted by clients and other intended parents who have undertaken surrogacy journeys in the US and Canada who are deeply concerned that they cannot get their babies back into Australia following the Prime Minister’s announcement.
No doubt the announcement will also impact on those Australian intended parents undertaking surrogacy elsewhere in the world, such as the Ukraine.
For Australian citizens undertaking surrogacy in the US or Canada, the process of returning home commonly occurs like this:
1.     They fly to the US or Canada to be present for the birth of their child.
2.     At about the time of the child’s birth, a US or Canadian court order is made naming the Australian intended parents as the parents of the child.
3.     A birth certificate issues, naming them as the parents.
4.     A US or Canadian passport is obtained for the child.
5.     An electronic travel authority is issued by the Australian Government allowing the child to travel to Australia.
6.     The parents and child then fly home to Australia.
7.     The parents fly for and then obtain Australian citizenship for the child.
Unless the Australian Government accepts that the child in this scenario is a dependent of the Australian citizens, this method will not be available.
The Australian parents apply for and obtain Australian citizenship in the US or Canada before returning home.
Except for those Australian intended parents living and working in the US or Canada, this approach is rarely adopted by Australian intended parents.  This is because of the delays within the Department of Home Affairs in processing Australian citizenship applications.  There is no guarantee that the child will be granted citizenship before the 90 day visa for travel to the US or Canada expires.
If the Australian Government does not allow the children to be brought back as dependents (while they are not yet Australian citizens) or does all it can to process those citizenship applications speedily, these children may be left without the care of their parents in either the US or Canada.  If the parents have to leave the US or Canada when the 90 days are up (leaving the children behind) it is unclear in today’s uncertain environment when or if the parents can get back.  This leaves those children in a particularly vulnerable situation.
I am told by US and Canadian colleagues that:
1.     Intended parents are now not being able to arrive in time for the birth of their children.
2.     Even when they do arrive in time, at times they are excluded by hospitals who deem them coming from high risk Covid-19 locations.
3.     Canada has imposed the same (or a similar) travel ban into that country as we have imposed.
4.     Canada has allowed an exception for those cases of special circumstances.
5.     Presumably the US has taken or will take similar action to Canada.
I ask that representations be made by the Australian Government to foreign Governments (including the US and Canada) having regard to the extraordinary circumstances to seek to allow intended parents to travel to those countries to enable them to be present at their child’s birth.
I am told by clients and US and Canadian colleagues that:
1.     Courts have either shut down or are operating on skeleton staff.  Delays are to be expected – but courts will seek where possible to accommodate urgent cases, such as that of the recognition of parents of children born through surrogacy.  We shall see how this develops.
2.     Birth registries have either shut down or are operating on skeleton staff.  Delays are to be expected.
I expect soon to receive similar news about the processing of Canadian passports. I have learnt this morning both from clients and overseas colleagues that US passport offices have closed down except in life and death cases.
Australia should be proud of its previous efforts to bring children home.  When there have been previous surrogacy crises in:
·      India (2012 and 2014).
·      Thailand (2014 – 2015).
·      Mexico (2015 – 2016).
·      Nepal (2015).
·      Cambodia (2016).
Australia has, aware of its international obligations under the International Convention on the Rights of the Child, worked efficiently, quietly (without embarrassing the other country) and compassionately to enable children and their parents to come to Australia as quickly as possible, and not be stranded overseas.
I ask that a similar urgent effort be made now. I appreciate that the Australian Government has its hands full, and that it cannot control what actions other Governments take. However, it can do what it can to help protect these children- and their parents.
The most complex way to become a parent is via surrogacy.  The most complex form of surrogacy is international surrogacy.  It is not for the faint hearted.  It is expensive.  Many of us take for granted the ability to have children.  Those who undertake surrogacy have often endured seemingly endless crushing cycles of IVF or have survived cancer.  They have often dug deep into their savings or borrowed money in order to become parents.  Their stories resulting in the birth of a child are a triumph of humanity, science, the law and modern medicine over what at times have been seemingly overwhelming odds. These miracle children are just as much in need of protection as any others.
I ask the Australian Government seek to protect these parents but above all their vulnerable infant children by whatever actions it can – and do so urgently.
I am deeply appreciative of the current enormous challenges facing the Australian Government arising from Covid-19, but I ask for an urgent response given the special vulnerability of these infants born overseas.
Yours Sincerely,
Stephen Page
Page Provan
family and fertility lawyers
Accredited Specialist Family Law
Email: stephen@pageprovan.com.au
Individual liability limited by a scheme approved under Professional Standards legislation.
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