International surrogacy is a growing practice around the world, and for many Australians it offers a pathway to parenthood that might not otherwise be possible. However, it is also a complex and highly regulated area of law. Before you make any arrangements overseas, it is vital to understand both Australian and foreign legal requirements so that your arrangement is ethical, lawful, and recognisable in Australia. 

Understanding the types of surrogacy arrangements 

There are two main types of surrogacy: 

1. Altruistic surrogacy

Where the surrogate is reimbursed only for reasonable medical or legal expenses. This is the only form of surrogacy that is legal in Australia. 

2. Commercial surrogacy

 Where the surrogate or an agency receives payment beyond reimbursement. Commercial surrogacy is illegal throughout Australia, and residents of New South Wales, Queensland and the ACT can face criminal penalties for entering into such arrangements overseas. 

Some countries have banned or restricted commercial surrogacy for foreigners after widespread concerns about the exploitation of women and uncertainty surrounding children’s citizenship and legal parentage. These countries include Cambodia, India, Nepal, Thailand, and Russia. 

Know the law before you go 

Each Australian state and territory regulates surrogacy differently, and all prohibit commercial arrangements. Many other countries also restrict or criminalise international surrogacy, and laws can change without warning. Before committing to an arrangement, you should: 

• Check whether surrogacy is legal in your destination and whether foreigners are permitted to participate. 

• Confirm that you meet any local eligibility criteria, such as restrictions based on marital status or sexual orientation. 

• Obtain independent legal advice in both Australia and your destination country. 

• Ensure all agreements and medical procedures comply with both jurisdictions’ laws. 

Breaking surrogacy laws overseas can result in arrest and imprisonment both abroad and upon returning to Australia. 

Bringing your child home 

A child born overseas through surrogacy does not automatically acquire Australian citizenship. Parents must apply for Australian citizenship by descent or a child visa through the Department of Home Affairs. 

To support your application, you will need to provide: 

• Written consent from the surrogate mother 

• Certified identity documents for all parties 

• The surrogacy agreement or contract and medical reports 

• Evidence of the genetic and parental relationship, such as DNA testing 

Where local surrogacy laws are unclear, the surrogate mother (and her spouse, if applicable) may still be recognised as the child’s legal parent, meaning her consent will be required for citizenship or visa applications. 

Entry, exit, and citizenship issues 

You will also need to check local entry and exit requirements. Some countries require special medical or surrogacy visas for intended parents. In certain cases, your child may also need an exit visa before leaving the country. 

Citizenship laws vary between countries. Some nations recognise the birth mother as the child’s only legal parent, regardless of genetics. Others do not recognise citizenship by birth, meaning your child may not automatically become a citizen of the country where they were born. If your child cannot acquire citizenship locally, you may face challenges obtaining travel documents or permission to leave the country. 

The Australian citizenship and passport process 

If your child is eligible, you can apply for citizenship by descent under the Australian Citizenship Act 2007. Once granted, the child will need an Australian passport before travelling home. The Australian Passport Office requires consent from all responsible parents, including the surrogate, unless exceptional circumstances apply. 

It is essential to finalise citizenship and passport arrangements before booking travel, as these processes can be lengthy and may be delayed if documentation is incomplete. 

Proceed with care and seek advice early 

International surrogacy involves emotional, ethical, and legal complexities. Laws and requirements can change without notice, and failure to comply can lead to significant delays, financial loss, or legal consequences. 

Before making any commitments, seek advice from an experienced family lawyer who can guide you through the legal, documentation, and citizenship requirements to ensure your arrangement complies with both Australian and international law. 

If you require assistance or guidance in the area of surrogacy, please get in touch with our Family Law Team or call 1800 730 842 to speak with one of our family lawyers.