Going overseas for international surrogacy
International surrogacy is a growing practice worldwide. It's also a growing industry. If you plan to go overseas for surrogacy, get the facts first. Make informed choices about where you go, and that any arrangements you make are legal and ethical.
Explore this page to learn about:
- types of surrogacy arrangements
- Australian surrogacy laws
- staying within the law
- entry and exit requirements
- foreign citizenship
- Australian citizenship
- your child's passport
Also read about international surrogacy arrangements (Department of Home Affairs).
Types of surrogacy arrangements
Surrogacy is when intended parents engage a surrogate mother to give birth to the intended parents' child.
International surrogacy is when the intended parents travel to another country for it. In most cases, this is to developing countries.
Learn more about surrogacy (United Nations Human Rights, OHCHR).
Commercial surrogacy is when someone pays a surrogate mother for the service. This payment is more than just reimbursement for medical and other costs.
Commercial surrogacy is illegal in some countries. In some, it's only illegal for foreigners. This includes destinations previously popular for commercial surrogacy such as:
These, and other countries, banned commercial surrogacy for foreigners for many reasons. Concerns include:
- arrangements exploiting women, including bonded labour (International Labour Organisation).
- the legal rights and citizenship of children born through surrogacy
Learn more about international commercial surrogacy arrangements (Australian Human Rights Commission).
Altruistic (non-commercial) surrogacy is when the surrogate mother volunteers the service.
The surrogate doesn't charge any fees for their time, or receive payment in money or goods. They may still be reimbursed for medical and other costs, or you could pay the bills directly.
In some countries, all surrogacy arrangements are illegal. This includes non-commercial surrogacy.
Australian surrogacy laws
In Australia, the regulation of surrogacy is a matter for the states and territories.
- All states and territories, except Northern Territory, have criminalised commercial surrogacy.
- It is illegal for residents of the ACT, NSW and QLD to enter into commercial surrogacy arrangements overseas. Doing so could lead to arrest and jail in Australia.
- Overseas surrogacy arrangements may not fulfill the requirements for a transfer of legal parentage under Australian state and territory law.
Get legal advice before you go. If you break an Australian law overseas, you could be arrested and jailed when you return home.
Stay within the law
Before you commit to a surrogacy arrangement, seek independent legal advice. Find out about Australian and foreign laws before you go.
- Find out if it's legal in your destination. In particular check it's legal for foreigners to enter arrangements.
- If it's legal, know the details of the local law. It may only be legal in certain circumstances at specific medical facilities.
- Check you meet the conditions under the law. It may be legal only under certain conditions. For example, some specify no single women, or that couples can't be LGBTI.
- Some commercial arrangements can be classed as the sale of children. This breaches the Convention on the Rights of the Child (United Nations).
- Some surrogate mothers provide their services under bonded labor arrangements. This is a form of slavery, and against the law. It breaches the Abolition of Forced Labour Convention (United Nations).
Stay informed. Regulations overseas may change without warning and not allow for any transitional period.
If you break the law, authorities may arrest and jail you.
Entry and exit requirements
Other countries require Australians to have a visa to visit. You need to find out which one is appropriate for you.
- Some countries may consider international surrogacy arrangements and medical tourism. You may need a special medical tourist visa.
- Your child will need a passport to leave the country. They'll also need it to enter Australia.
- Your child may need an exit visa to leave the country. Ask the authorities there, before you book your flights home.
- If your child's travel document is not an Australian passport, they'll need a visa to enter Australia.
Be aware that if there are any local legal issues surrounding your surrogacy arrangement, authorities may stop you or your child leaving. They could put you or your child on a no-fly list until the matter is resolved.
The Australian Government can't intervene in visa matters relating to a baby born via surrogacy in a foreign country. Seek legal advice in your destination.
Learn more about applying for an Australian passport for your child.
Foreign citizenship for your child
Citizenship for children born through surrogacy is a contentious issue. It changes often.
Each country has its own rules about who will be recognised as the parents of a child born overseas.
In some countries, only the birth mother and her husband are recognised as the child's legal parents.
It's important to research and understand the citizenship laws in:
- your destination (citizenship by birth)
- the country of the surrogate mother's nationality (citizenship by descent)
Most countries don't recognise citizenship by birth. This means being born there does not grant your child citizenship of that country.
Find out if authorities recognise citizenship by birth in your destination.
Citizenship by descent
The citizenship of the surrogate mother is usually the determining factor. The child may be a citizen by descent in the country where the surrogate mother is from.
- If the surrogate is an Australian citizen, the child is an Australian citizen. Learn about Australian citizenship by descent (Department of Home Affairs).
- If the surrogate is a citizen in your destination, the child may be a citizen in your destination. Find out local citizenship laws. Contact their embassy or consulate in Australia.
- If the surrogate is a citizen of a different nation, the child may be a citizenship of their country. Contact their embassy or consulate in Australia.
It's important you find out and confirm the citizenship of the surrogate. Find out about that nation's citizenship laws. It can impact your child's citizenship status.
Your child's Australian citizenship
A child born overseas through surrogacy could get Australian citizenship by descent (Home Affairs).
The child must meet a range of eligibility requirements.
Eligibility for Australian citizenship
To be eligible, your surrogate child must meet the Australian Citizenship Act 2007 (Federal Register of Legislation) requirements.
- At the time of the surrogate child's birth, at least one of their biological parents must be an Australian citizen.
- You may need additional DNA testing or other evidence to demonstrate the parent-child relationship.
- You'll need to provide documents on the arrangement and medical procedure. Get copies of all medical records and surrogacy agreement documents.
Applying for Australian citizenship or a child visa
Overseas, you may be able to submit your child's application through an Australian embassy or consulate. Some can't process applications. Consular officials may send applications to our officials in another embassy to process.
Once you lodge your application, a consular official will contact you if they require more information.
Prepare for a lengthy process returning to Australia with your child.
Don’t confirm travel plans until you’ve finalised citizenship and passport processes. If unforeseen legal complications arise, this time period could be considerably prolonged.
Learn more citizenship for a child born under international surrogacy arrangements (Home Affairs).
Your child's passport
The Australian Passport Office (APO) in the Department of Foreign Affairs and Trade is responsible for Australian passports. Overseas, most Australian embassies and consulates provide passport services.
There's additional steps to the process to obtain an Australian passport for a surrogate child. This applies to passport applications in Australia and overseas.
- You must get written consent of intended parents and the surrogate mother.
- If you can’t provide all necessary consents, you may have another avenue. Ask for consideration under special circumstances (Australian Passport Office).
Don’t commit to international travel before getting your child's passport. Processing times can vary. It may depend on whether the application has full consent and all required documentation.
See how to apply for an Australian passport for your surrogate child (Australian Passport Office).
- Read our general advice for women and people travelling with children.
- Read our general advice on travelling while pregnant and international adoption.
- Understand how and when we can help. Read the Consular Services Charter.
- Learn more about surrogacy issues and concerns worldwide (United Nations Human Rights, OHCHR).
- Read the fact sheet on international surrogacy arrangements (Home Affairs).
- Learn about Australian citizenship by descent and child visas (Home Affairs).
- Getting an Australian passport for a surrogate child (Australian Passport Office).
Many Australians adopt children from other countries. There are legal implications surrounding overseas adoptions both in Australia and in the child's country.
All travellers face risks overseas. In certain countries or cultures, women face greater risks than men and may be more vulnerable.
In many countries age, gender and sexual preferences can pose challenges. Understanding the culture and laws in your destination will help things go smoothly.