Overseas surrogacy births now recognised in Australia

For years, the recognition of parents through overseas surrogacy has been unnecessarily uncertain. Australian intended parents could return home with a child, a foreign birth certificate and a foreign court order, yet still face questions about whether Australian law recognised them as parents.

That position changed on 1 April 2025. It may be April Fool’s Day, but this is no joke. The commencement of the Family Law Regulations 2024 has given real effect to an important parentage provision in the Family Law Act 1975.

For many children born through overseas surrogacy, their parentage is now presumed to be recognised in Australia where their parents are recorded on a birth certificate issued in a prescribed overseas jurisdiction.

The problem with overseas surrogacy parentage recognition

Section 69R of the Family Law Act provides a parentage presumption. In straightforward terms, if a person is named as a parent on a birth certificate issued under the law of the Commonwealth, a state, a territory or a prescribed overseas jurisdiction, that person is presumed to be a parent.

The difficulty was that, until 1 April 2025, no overseas jurisdiction had been prescribed for this purpose. The provision existed, but it did not assist families whose children were born overseas.

Birth certificates issued in Australia could support the relevant presumption. A birth certificate from overseas could not, even where the intended parents had obtained a clear parentage order from a respected overseas court.

This created an obvious gap for children born through international surrogacy. Families could have done everything properly in the country of birth, but still be left seeking further recognition once they arrived in Australia.

What changed on 1 April 2025?

The Family Law Regulations 2024 now prescribe a range of overseas jurisdictions. This means that a birth certificate from one of those places can support the parentage presumption under the Family Law Act.

The prescribed jurisdictions include well-known overseas surrogacy destinations, such as:

• the United States;
• Canada, except Quebec;
• India;
• Mexico;
• Colombia;
• Greece; and
• the United Kingdom.

The practical point is significant. Where intended parents are recognised as parents under the law of a prescribed overseas jurisdiction and are named on that jurisdiction’s birth certificate, Australian family law now provides a presumption in their favour.

This is not merely an administrative convenience. It is an important step towards recognising the reality of a child’s family and protecting the child’s legal identity.

Ing & Baso confirms the importance of the change

The decision in Ing & Baso demonstrated how these new regulations operate in a real international surrogacy matter.

The applicants were a gay couple who had undertaken a surrogacy arrangement in the United States. A United States court had made orders recognising them as the child’s parents, and they were recorded as parents on the child’s United States birth certificate.

The matter came before Judge Harland in the Federal Circuit and Family Court of Australia. As the United States is now a prescribed overseas jurisdiction, the couple could rely on the statutory parentage presumption.

The Court made a declaration that the couple were the parents of their child for the purposes of Commonwealth law.

It was a short decision, but its consequences are powerful. It confirms that the new regulations are not theoretical. They can provide meaningful recognition for Australian families formed through overseas surrogacy.

Why this matters for children born through surrogacy

Children born through surrogacy can face discrimination simply because of the way they were born. Their families may be required to take legal steps that other families never need to contemplate. Their parents can be forced to prove and reprove a relationship that has already been recognised where the child was born.

Judge Harland’s observations recognise the importance of addressing that problem. The changes support the principles in the United Nations Convention on the Rights of the Child, particularly a child’s right to an identity and to be cared for by their family.

Australian recognition of an overseas birth certificate is therefore about much more than a document. It is about reducing uncertainty for children and their parents in dealings involving Commonwealth law.

It also reflects a sensible policy judgment. By prescribing particular jurisdictions, the Commonwealth has identified overseas legal systems whose birth certificates can be relied upon for this family law purpose.

Does every family still need an Australian parentage order?

Not necessarily. That is the major practical impact of this change.

Where a child was born in a prescribed overseas jurisdiction, the intended parents have been recognised as parents there and are named on the birth certificate, they may already benefit from the parentage presumption in Australia.

That can substantially change the advice previously given to parents who completed overseas surrogacy arrangements. There has often been a strong push to obtain a further order from the Federal Circuit and Family Court of Australia, or to seek a parentage order where one may be available under state or territory law.

Those options may still be worth considering in particular circumstances. A court declaration can provide clarity and reassurance, especially where parents need to deal with a government agency or another institution that requires formal evidence of parentage. Each family’s documentation, the country of birth and the laws applying to the arrangement need careful consideration.

But the starting point is now different. For many families, the question is no longer whether Australian law recognises them at all. The question is whether an additional court order would provide a practical benefit in their individual circumstances.

Key steps for intended parents after overseas surrogacy

Parents returning to Australia after an overseas surrogacy arrangement should ensure their legal paperwork is complete, consistent and readily available. Important documents commonly include:

• the child’s full overseas birth certificate;
• any overseas judgment or parentage order;
• certified translations where documents are not in English;
• evidence of the legal process completed in the country of birth; and
• advice about whether the country of birth is a prescribed overseas jurisdiction.

International surrogacy remains a complex area because it brings together foreign law, Australian family law, citizenship issues and the particular facts of each arrangement. Parents should not assume that one family’s pathway will be identical to another’s.

Careful planning remains essential, including planning for unexpected legal or administrative issues. Families considering an overseas arrangement should ensure they have a surrogacy back-up plan before they begin.

A major step forward for overseas surrogacy families

The commencement of the Family Law Regulations 2024 on 1 April 2025 is a major development in Australian surrogacy law. It gives practical force to the Family Law Act’s overseas birth certificate provisions and provides a clearer pathway to recognition for many children born through surrogacy abroad.

The decision in Ing & Baso confirms the value of that pathway. Australian parents with a valid parentage outcome and birth certificate from a prescribed jurisdiction may now have their parentage presumed under Australian family law.

That is a sensible, child-focused outcome. It recognises families as families and gives greater protection to the identity and security of children born through overseas surrogacy.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers, a multi-award-winning accredited family law specialist and a recognised authority in family and fertility law. Through Page Provan Family & Fertility Lawyers, he advises intended parents on Australian and international surrogacy matters. For tailored advice, contact Page Provan.