In Surrogacy, Always Have a Back-Up Plan

Tuesday, August 19, 2025

Australians pursuing international surrogacy should always have a contingency plan. This article explains why planning is essential, outlines the real risks families face when surrogacy crosses borders, and provides a practical checklist to protect children from becoming stateless or stranded.

Why a back-up plan matters

When people think about international surrogacy they often imagine a straightforward journey: travel to the chosen country, complete the medical and legal processes there, collect the baby, and return home. In reality, the path is often more complicated. I’ve seen families living in places like China, Singapore, Hong Kong, and Indonesia undertake surrogacy in other countries—sometimes in the Americas—with seemingly everything set up. Yet hitches happen. Birth registrations can be delayed, local law may not recognise the intended parents, exit documents can be withheld, and unforeseen political or administrative hurdles can leave a newborn unable to leave the country.

The fundamental safeguard is this: make sure your child has Australian citizenship or an equivalent legal pathway lined up before or immediately after birth. Even if you never intend to live in Australia again, Australian citizenship is a safety net. It ensures your child cannot become homeless or stateless if something goes wrong overseas. That’s the difference between having to fight for the child’s legal status in a foreign jurisdiction and being able to return to Australia with the child as an Australian citizen.

Real-world problems families face

Here are examples of the kinds of “hitches” that have occurred:

Local authorities refuse to register the intended parents on the birth certificate because the surrogate is listed as the mother under domestic law.
Exit documents or permission to travel are delayed because the child’s legal parentage hasn’t been established under local rules.
Embassies require documentary proof of parentage or nationality that is slow to obtain, leaving families waiting in another country with a newborn.
Health complications, travel restrictions, or sudden changes in local regulation force families to remain abroad longer than planned, with no clear legal pathway for the child’s citizenship or travel documents.

These problems are not theoretical. We have represented clients in situations where the intended parents had to manage extended stays abroad, emergency legal proceedings, or complex applications to secure documents that would allow the child to travel.

Key legal principles to understand

Before you start the surrogacy journey, keep these legal principles in mind:

Nationality follows legal recognition of parentage: If a country will not recognise you as the legal parent, it can affect your child’s entitlement to your nationality or to travel documents from your home country.
Different jurisdictions have different rules: Each country treats surrogacy, parentage, birth certificates and exit documentation differently. Some countries recognise surrogacy agreements; others prohibit them or only allow altruistic arrangements.
Claims of statelessness are avoidable: A careful plan, built before conception or early in the pregnancy, can prevent the child from becoming stateless.

Practical roadmap: what to do, step by step

Below is a practical checklist to help you manage your international surrogacy project so your child is never left without legal status or a way home.

1. Pre-surrogacy due diligence

Engage specialist lawyers early: You need advisers in the country where the surrogate lives, in the country where you reside, and in Australia. Each jurisdiction has nuances that can affect parentage and citizenship.
Check local surrogacy law: Some countries prohibit commercial surrogacy and may refuse to recognise foreign intended parents. Others allow parentage transfers only after specific court orders are obtained.
Confirm nationality routes: Work out whether your child can obtain Australian citizenship by descent and under what conditions. If there are doubts, find alternative visa or travel document options before you leave.

2. During pregnancy

Make sure the surrogacy agreement and medical consent forms are professionally drafted and lodged with the relevant authorities if required.
Keep clear records: agreements, consents, IDs, medical records, gamete donor consents (if applicable), and travel plans.
Engage the Australian embassy or consulate early: They can advise on the documentation they will require to issue citizenship or travel documents.

3. At birth and immediately after

Secure a local birth certificate promptly. Get certified translations where necessary.
Obtain any local parentage or court orders that establish the intended parents’ legal relationship to the child. If this cannot be done immediately, get formal declarations from medical professionals and the surrogate.
Apply for Australian citizenship by descent as soon as practicable if you are eligible; if not, discuss alternative protection routes with your lawyer and the embassy.

4. Before attempting departure

Ensure the child has the appropriate travel documents: Australian passport, or a temporary travel document if the passport cannot be issued in time.
Check exit requirements for the birth country: some countries require exit permits, parental consent letters, or clearances before a newborn can leave.
Have a contingency fund and accommodation plan in case you must stay longer than expected.

5. After returning home (if returning to Australia)

If parentage is not recognised in Australia immediately, be prepared to apply for parentage or adoption orders through Australian family courts. These orders are often required to fully regularise the child’s legal status under Australian domestic law.
Keep copies of all foreign documents; you may need them for later court proceedings.
Engage your lawyer to finalise any legal recognition steps so the child is recognised as your child in Australian records.

Who should you involve on your team?

Your team should include:

A solicitor or lawyer experienced in international family and fertility law in Auustralia.
A local lawyer in the surrogacy country who understands surrogacy law, birth registration and immigration processes there.
Medical professionals and the clinic handling the surrogacy.
Consular contacts at the nearest Australian embassy or consulate.
If required, immigration or travel specialists who can advise on exit and entry documentation for the child.

Why Australian citizenship is the ultimate safety net

Australian citizenship for your child is more than a convenience; it is a protection. Citizenship gives your child a legal identity and the right to enter and reside in Australia. It opens consular support options and reduces the risk of being declared stateless. Securing citizenship early, or at least having a clear path to it, gives you leverage when dealing with foreign authorities and reduces the emotional and financial strain of being detained abroad with an infant over documentation issues.

Common myths and mistakes to avoid

Mistake	Reality
“We can sort the paperwork after we get home.”	Some things cannot be fixed retrospectively, especially if the birth country refuses to recognise your parentage or delays exit documents.
“The surrogate’s country will automatically register the intended parents.”	Local law may list the surrogate as the mother by default.
Assuming embassy support is automatic and immediate.	Embassies assist, but they require documentation and their ability to intervene is limited by local law.

Final practical tips

Plan for delays: Flights, court dates, birth complications, administrative processing—plan for extra time and money.
Keep digital and physical copies of every document in multiple secure locations.
Document genetic links if required: some authorities request DNA testing to verify biological parentage.
Consider temporary guardianship or authorised travel letters if one parent must return home temporarily.

Conclusion

If you are an Australian living overseas and considering surrogacy in a third country, don’t treat the process as merely logistical. Treat it as a legal project that spans multiple jurisdictions. Build your foundations carefully: consult expert lawyers, secure pathways to Australian citizenship for your child, and prepare for contingencies. Doing this work up front is not paperwork for its own sake—it’s protection for your child and your family.

In short: always have a back-up plan. Make sure your legal foundations are strong so your family stands upright, unlike the Leaning Tower of Pisa. If you would like help mapping a plan tailored to your specific countries and circumstances, engage one of our Surrogacy Lawyers Melbourne, Surrogacy Lawyers Brisbane, or Surrogacy Lawyers Sydney early in the process. A little planning now will save you from potentially heartbreaking and expensive problems later.