Australian Surrogacy Law Change: 3,000 Children’s Parentage at Risk

A change to Australia’s family law regulations threatens to remove an important layer of legal certainty for nearly 3,000 children born overseas through surrogacy. For their families, the issue is anything but technical. It concerns whether Australian law presumes that the people raising these children are their parents.

The repeal of regulation 10.3 of the Family Law Regulations 2024 is scheduled to take effect on 9 December 2026. It removes the prescribed overseas jurisdictions relied upon for certain parentage presumptions under the Family Law Act 1975.

That does not automatically mean every affected parent ceases to be a legal parent. It does mean that an important statutory pathway for establishing parentage will disappear, leaving families facing uncertainty that they should not have to confront.

What Does Regulation 10.3 Do?

Regulation 10.3 identifies prescribed overseas jurisdictions for the purposes of particular parentage presumptions under the Family Law Act 1975. In practical terms, these presumptions help establish who a child’s parents are by reference to recognised overseas records or legal processes.

The relevant presumptions concern:

• Birth certificates: a person named as a parent in an overseas birth record from a prescribed jurisdiction may be presumed to be a parent.
• Court findings: a finding of parentage by a qualifying overseas court may support a parentage presumption, subject to the applicable statutory requirements.
• Acknowledgements of paternity: a man who has formally acknowledged paternity under the law of a prescribed jurisdiction may be presumed to be the child’s father.

These are not interchangeable rules. A birth certificate, court order and acknowledgement of paternity each engage different requirements. Nor does every overseas court order necessarily qualify.

The value of the regulation is straightforward: it provides an identifiable statutory basis for recognising parentage, rather than leaving families to establish it through a more uncertain assessment of their circumstances.

What Changes on 9 December 2026?

The repeal removes that prescribed-jurisdiction framework. The change was described as having been made in September, with its substantive effect delayed until 9 December 2026. Those dates matter: making a regulation and bringing its consequences into operation are different steps.

There is a limited transitional exception. Where court proceedings have commenced before 9 December 2026 and remain undetermined on that date, the existing presumption continues to apply to those proceedings.

That exception is not a general safeguard for every family whose child was born before the repeal. It depends on proceedings having already begun and remaining unresolved.

For other affected families, the concern is that overseas documents which presently support a statutory presumption will no longer do so through regulation 10.3. A child’s birth certificate may remain unchanged, but its significance under Australian family law can change.

Why Nearly 3,000 Children Could Be Affected

The estimate is grounded in citizenship data, rather than guesswork.

Over many years, Stephen Page has made freedom of information applications to the Department of Home Affairs seeking figures for children born overseas through surrogacy who applied for Australian citizenship by descent.

The figures described cover the period from 1 July 2008 to late July 2026. Across that period, just under 4,000 children applied for citizenship by descent following overseas surrogacy.

Cross-checking those figures against the jurisdictions prescribed by regulation 10.3 produces an estimate of just under 3,000 potentially affected children. Relevant destinations include:

• The United States.
• Canada, excluding Quebec.
• Mexico.
• Colombia.
• India, historically a destination for overseas surrogacy.

This is an estimate of the scale of potential exposure, not a finding that every child will face the same legal outcome. Individual documents, circumstances and other available legal grounds still matter.

Nevertheless, the number is substantial. These are established families, not merely hypothetical future arrangements.

Losing a Presumption Is Not the Same as Losing Parentage

This distinction is essential. A parentage presumption provides a legal starting point. Removing it does not, by itself, determine that the person concerned is not a parent.

The High Court’s approach in 2019 recognised that parentage can be a question of fact. Depending on the circumstances, a person may therefore still be able to establish that they are a child’s parent without relying on the repealed regulation.

But the possibility of proving parentage another way is not an adequate substitute for clear statutory recognition. It may leave a family needing legal advice, further evidence or court consideration to resolve something previously supported by an express presumption.

The central problem is the loss of certainty. Families should not have to discover, at a moment of difficulty, that the legal significance of their child’s overseas records has changed.

Why Parentage Matters Beyond Family Court Proceedings

Legal parentage is not simply a label on a document. Questions about who is recognised as a parent can arise throughout a child’s life.

Childcare enrolment and everyday administration

Childcare enrolment commonly involves birth certificates and information identifying a child’s parents. If the legal recognition attached to an overseas certificate becomes uncertain, ordinary administrative tasks may become more complicated.

The concern is not that every enrolment will be refused. It is that families may encounter questions where there was previously a clearer legal foundation.

Medical decisions and parental responsibility

Medical treatment can require clarity about who has authority to make decisions for a child. Parentage and parental responsibility are related but distinct legal issues, and uncertainty about either can create difficulties.

Families need confidence in their position before a medical decision becomes urgent, not after a dispute about authority has arisen.

Inheritance

Inheritance is another serious concern, particularly where a person dies without a will. Whether a child is legally recognised as that person’s child may affect their entitlement under the applicable intestacy rules.

The repeal does not dictate every inheritance outcome. It does, however, underline why uncertainty about parentage can have consequences well beyond family law proceedings.

Why the Timing and Consultation Raise Concerns

Such a significant change warrants careful consultation with the families and professionals affected.

Stephen Page’s concern is that the regulation was made without apparent consultation. He identified no consultation with Equality Australia or Rainbow Families Australia and was awaiting clarification about whether the Law Council of Australia had been consulted.

That is not proof that no consultation occurred anywhere. It does raise a serious question about whether key stakeholders had an opportunity to explain the consequences.

The timing also matters. The change was made ahead of the Australian Law Reform Commission’s surrogacy inquiry report being provided to the Attorney-General. The timetable described required delivery by 11 September and parliamentary tabling by 8 November.

The Australian Law Reform Commission provides official information about its law reform work. The broader significance of that process is explored in the analysis of the ALRC Surrogacy Report 2026.

Removing a parentage safeguard ahead of that reform process risks increasing uncertainty before a coherent replacement framework has been considered.

Legal Certainty Should Protect Children

The strongest argument for reconsidering this repeal is its impact on children. They did not choose the jurisdiction of their birth or the legal framework surrounding their conception.

Affected families need advice about their particular documents, parentage position and any relevant proceedings. Overseas paperwork should not simply be assumed to settle every Australian legal question.

The policy priority should be clear: children born through surrogacy deserve dependable recognition of their family relationships, not an avoidable return to uncertainty.

About Stephen Page

Stephen Page is a leading Australian surrogacy lawyer and Principal of Page Provan Family and Fertility Lawyers. His extensive experience encompasses domestic and international surrogacy, fertility law and complex parentage matters.

This article provides general legal information, not legal advice. Laws and individual circumstances may change. Independent legal advice should be obtained about any particular arrangement or parentage issue.