Surrogacy & Passports: A Potential Breakthrough for Parents!

One of the most irksome issues for parents through surrogacy is the issue of a passport. For some years, the Australian Passport Office has taken the view that when the child is born overseas through surrogacy that the surrogate is one of the parents- as she gave birth. It doesn’t matter if the foreign court order or law says that she is not a parent – the Australian Passport Office has clung tenaciously to this view.

This view of who is a parent has caused parents all kinds of grief when parents have applied to have a passport issue. If they did not have a court order in the right wording, made in the right country, that said in effect that they did not need the permission of the surrogate, they needed to have the surrogate fill out a form to say that she consented to the issue of a passport. Easily done when the child is born, you might think, but annoying, stressful, slow and costly when 4 ½ years rolls around and they have to renew the passport.

One dad told us that his whole life seemed to be consumed with the stress of getting all the paperwork together to convince the complex cases team that he could get a passport issued for his child, when as soon as he had done so, it seemed like he had to repeat the process all over again.

Our director Stephen Page is a dad through surrogacy, as he sets out in his book, When Not If: Surrogacy for Australians. He and his husband Mitchell are parents of Elizabeth, now 4, through an order made in Queensland. And yet when it came to passport time this year, even they came to grief. “My passport expired. I applied to renew it earlier this year because we were all going overseas. The new passport issued in one business day”, Stephen said. “Happy at that speed, we then lodged Elizabeth’s passport application. When we put in Elizabeth’s we were told that our surrogate had to consent (she didn’t, because it was an Australian court order). When that got fixed, we had to prove that the Australian court order was still current. After a month of waiting for the passport, for the last week my husband and the local MP’s office, and Penny Wong’s office, regularly called the Passports Office asking for progress.”, he said. “The passport issued two business days before we flew out. It was very stressful- and completely unnecessary. It felt discriminatory that we had to be the subject of such an intrusive process when other parents don’t have such a level of intrusion.”

As you would be aware, Stephen has been campaigning for a number of years regarding surrogacy and parental consent requirements for the issue of an Australian Passport. Stephen recently wrote to Senator Penny Wong, Minister for Foreign Affairs raising this issue about both his own dramas in having a passport issue for Elizabeth, but also the experience of all intended parents through surrogacy.

The Government has responded positively. It said that the Passports Office is aware of the issues and is considering measures to better support customers, while remaining consistent with Australian family law principles. The Passports Office will undertake a future review of Australian passport legislation. The review will not be a closed shop internal review, but one seeking community engagement and submissions. HOORAY!

The Government said that the review will explore:

• the definition of ‘parental responsibility’ and the presumptions that underpin it; and consent
• requirements for child travel documents including considering options that both support and
• protect persons with parental responsibility, including parents of children born of surrogacy for second and subsequent applications.

Stephen and the team at Page Provan will keep you updated on future developments.