On this page:
- What is international surrogacy
- Surrogacy and the law
- Entering another country for surrogacy
- Your child’s citizenship
- Bringing your child to Australia
Also read the Home Affair's advice on international surrogacy arrangements.
What is international surrogacy
Surrogacy is where a woman agrees to carry and give birth to a child on behalf of someone else. The woman is known as a surrogate.
International surrogacy is where the surrogate is outside of Australia, and the child will come to Australia after they are born.
If you plan to go overseas for surrogacy, get the facts first. Laws can change suddenly. This could impact your family after your child is already conceived or born. Be prepared to stay overseas for longer than you expect.
Make informed choices about where you go. Ensure that any arrangements you make are legal and ethical.
Learn more about international surrogacy.
Altruistic surrogacy
In altruistic surrogacy, the surrogate gets no commercial reward or profit.
You may pay for the surrogate's reasonable expenses. For example, medical and other expenses.
Commercial surrogacy
Commercial surrogacy is when a surrogate benefits, is paid or gets compensated beyond their reasonable expenses. Most international surrogacy arrangements are commercial.
Commercial surrogacy often uses a surrogacy broker. The broker may recruit the surrogate and set the fees.
Commercial surrogacy is illegal in some countries, including Australia. In others, it's only illegal for foreigners. This includes places that were popular for commercial surrogacy, such as:
Commercial surrogacy may be illegal in Argentina. Get legal advice from an Argentine lawyer who specialises in this area of law.
These and other countries have banned commercial surrogacy for foreigners for many reasons. Concerns include:
- arrangements exploiting women, including forced labour
- the legal rights and citizenship of children born through surrogacy.
Learn more about issues around international surrogacy.
Surrogacy and the law
Get legal advice before you commit to a surrogacy arrangement. Find out about Australian and foreign laws.
If you break the law, authorities may arrest and jail you.
Australian laws
In Australia, states and territories control surrogacy regulations.
- Commercial surrogacy is a crime in all states and territories.
- It's illegal for residents of the ACT, NSW and QLD to go overseas for commercial surrogacy. If you do, you could be arrested and jailed in Australia.
- Overseas surrogacy arrangements may not meet the requirements for a transfer of legal parentage in your state or territory.
If you break an Australian law overseas, you could be arrested and jailed when you return home.
Foreign and international laws
Stay informed. Laws overseas may change without warning and not allow for any transitional period. This could impact surrogacy arrangements that are already in progress.
Find out if surrogacy is legal where you're going. Get legal advice from a local lawyer who specialises in this area of law. In particular, check if it's legal for foreigners.
If it's legal, know the details of the local law. It may only be legal:
- in certain circumstances
- at specific medical facilities
- under certain conditions
- if the parents are married
- if the parents are not LGBTQIA+.
Some surrogacy arrangements may breach international laws or conventions.
- Some commercial arrangements can be seen as the sale of children. This breaches the Convention on the Rights of the Child.
- Some women are forced to be surrogates. This is a form of slavery. It breaches the Abolition of Forced Labour Convention.
Entering another country for surrogacy
Consider Smartraveller travel advice for your destination, including safety and medical standards. Keep informed about any changes to the advice level. If you travel to a location for surrogacy, you may be unable to leave the location quickly if your circumstances or the advice level change.
You need a visa to visit most other countries. Find out which visa you need. Talk to the embassy or consulate of your destination.
- If surrogacy is illegal where you’re going, they may not let you enter if that's your reason for travel. You're breaking the local law if you get the wrong visa or breach your conditions.
- Some countries view international surrogacy as medical tourism. You may need a special medical tourist visa.
When choosing your visa, be aware that you may have to stay for longer than expected. You may also have to travel earlier than planned if your child is born sooner than expected.
Your child's citizenship
Each country has its own rules about who is recognised as the child's parent when the child is born overseas. These rules can often change.
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:
- the country where the arrangement will happen (citizenship by birth)
- the country or countries where the surrogate mother is from (citizenship by descent)
- any countries where the surrogate mother may travel while pregnant
- Australia.
Verify your surrogate's citizenship(s). Find out about that nation's citizenship laws. It can impact your child's citizenship.
Citizenship by birth
Most countries don't recognise citizenship by birth. This means being born there does not grant your child citizenship of that country.
Under some countries’ laws, any child born to a parent from that country is automatically considered a citizen, regardless of their place of birth. In certain countries it is very difficult or impossible to renounce citizenship by birth.
Find out if authorities recognise citizenship by birth in your destination.
Citizenship by descent
Citizenship by descent depends on where the surrogate mother is from.
- If the surrogate is an Australian citizen, the child may be eligible for Australian citizenship. Learn about Australian citizenship by descent.
- If the surrogate is not Australian, the child may be a citizen of her country of citizenship. Contact the embassy or consulate in Australia of the country where the surrogate is from.
Australian citizenship
A child born overseas through surrogacy might be eligible for Australian citizenship by descent.
To be eligible, your child must meet the Australian Citizenship Act 2007 requirements.
At least one of their parents must be an Australian citizen at the time of the child's birth.
- You may need DNA testing or other evidence to prove the parent-child relationship.
- You must show evidence of the surrogacy arrangement and birth. Get copies of all medical records and surrogacy agreement documents.
If they aren't eligible, you have other options. Learn more about adoption visas. Also see our page on inter-country adoption.
Bringing your child to Australia
Arranging to return to Australia with your child can take a long time. Particularly if there are legal issues. Authorities may not let you or your child leave the country where they were born. They could put you or your child on a no-fly list until the issue is resolved. Don’t book any return travel until your child has what they need to depart their country of birth and enter Australia legally.
Australian parents have waited months or years to resolve legal issues for their children born overseas through surrogacy. Be prepared to stay overseas for much longer than expected. Make sure you have enough funds, including for:
- extended accommodation and other living expenses, including if you are unable to work for a long period
- ongoing legal advice, including if laws change
- medical expenses for you and your child
- other travel expenses, including travel insurance if your stay is prolonged
- translation and interpreting services.
The Australian Government can't get involved in visa or legal matters relating to international surrogacy. Get local legal advice.
Learn more about how to bring your child back to Australia from the Department of Home Affairs.
Your child's passport
Your child will need a valid passport to:
- leave the country where they were born
- enter Australia.
They can get either:
- an Australian passport, if they have citizenship
- a passport of their other country of citizenship.
There are more steps to the passport application process for a child born by surrogacy.
- You must have written consent from the parents and the surrogate mother.
- You may also need consent from the surrogate's spouse if she is married at the time of the child's birth.
- If you can't provide all necessary consents, you may be able to apply under special circumstances.
Don't book your travel until you have your child's passport. Processing times can vary. It will depend on whether the application has full consent and all required documents.
See how to apply for an Australian passport for a child born through surrogacy.
Visas
Your child may need an exit visa to leave the country where they were born.
You and your child may need a visa for any countries you are transiting through.
If your child's travel document is not an Australian passport, they'll need a visa to enter Australia.
Learn more about visas for a child born by surrogacy.
Read more
- 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.
See also
- Learn more about international surrogacy (Attorney-General's Department).
- Learn about Australian citizenship by descent and child visas (Home Affairs).
- Getting an Australian passport for a surrogate child (Australian Passport Office).