Surrogacy Overseas: Documents Australians Need Certified
Table of contents
Most documents in an overseas surrogacy matter are created abroad and certified there, not in Australia. Home Affairs asks for certified copies of the surrogacy contract, the surrogate's identity document and her written consent, plus medical reports. First, though, check the law: commercial surrogacy is illegal in Australia, and some states and territories also make arranging it overseas an offence.
Key takeaways
- Commercial surrogacy is a crime in every Australian state and territory, according to Smartraveller.
- Smartraveller says residents of the ACT, NSW and Queensland can be prosecuted for commercial surrogacy overseas; laws change, so see a family lawyer.
- A child born overseas does not automatically become an Australian citizen; parents apply for citizenship by descent or a visa.
- Home Affairs asks for the surrogate's written consent, certified copies of her ID and of the contract, and medical reports.
- Documents made overseas are usually certified or authenticated there; an Australian notary cannot vouch for them.
- An Australian notary handles only the documents you sign or hold in Australia.
What does Australian law say about overseas surrogacy?
Surrogacy is regulated by the states and territories. Smartraveller's page on going overseas for surrogacy says commercial surrogacy is a crime in all of them, and that residents of the ACT, NSW and Queensland who go overseas for commercial surrogacy could be arrested and jailed in Australia. Home Affairs puts it more generally: in some states and territories, it is an offence for a resident to make a commercial surrogacy arrangement outside Australia.
Altruistic surrogacy, where the surrogate is not paid beyond her reasonable expenses, is legal in all states and territories, but the eligibility rules vary. Smartraveller also notes that an overseas arrangement may not meet your state's requirements for transferring legal parentage, and that several countries once popular for surrogacy have since banned it for foreigners.
These laws change, sometimes without warning, and the consequences of getting them wrong are serious. See a family lawyer who specialises in surrogacy before any commitment, and a lawyer in the other country too. This article covers only the documents involved. It does not explain how to arrange a surrogacy, and nothing in it is legal advice.
Is a child born overseas automatically an Australian citizen?
No. Home Affairs says a child born overseas to an Australian citizen does not automatically become a citizen at birth. The parent applies on the child's behalf, either for Australian citizenship by descent or for a permanent visa, such as a Child visa or, in some cases, an Adoption visa. At least one parent must have been an Australian citizen when the child was born.
Home Affairs is clear that it takes great care with these applications. Its page on international surrogacy arrangements says it exercises extreme caution, to make sure citizenship is not used to get around adoption and child welfare laws. The parent-child relationship must exist at the time of the birth. Caring for the child afterwards is not, on its own, evidence of that relationship. Home Affairs may ask for DNA testing, and may interview the surrogate mother.
What documents does Home Affairs ask for?
For a citizenship by descent application involving surrogacy, Home Affairs says you must provide written and signed consent to the application from the surrogate mother, a certified copy of her identity document showing her photo and signature, a certified copy of the surrogacy contract signed by her and the intended parents, and medical reports including evidence of embryo creation and transfer.
It also sets out what it expects the contract to show, including the surrogate's full name, age, address and signature, and evidence of her informed consent. If the intended parents were represented by someone else, it asks for evidence of the power of attorney or similar authority, and a certified copy of the representative's ID. In countries with no clear surrogacy law, the surrogate mother, and her husband or partner if she has one, is treated as a responsible parent, so her signature on the application is needed.
| Document | Usually made | Usually certified |
|---|---|---|
| Surrogate's written consent | Overseas | Where she signs it |
| Surrogate's identity document | Overseas | Certified copy made there |
| Surrogacy contract | Overseas | Certified copy, often made there |
| Medical reports | At the overseas clinic | Issued and certified there |
| Foreign birth certificate | Registry in the country of birth | Authenticated in that country |
| Parent's Australian documents | Australia | Authorised person, or a notary if sent overseas |
| Translations | Either | As Home Affairs specifies |
Who certifies documents made overseas?
A document made or signed overseas is certified where it is made. An Australian notary cannot certify a copy of a document they have not seen in its original form, and cannot vouch for a foreign clinic's records or a foreign registry's birth certificate. The surrogate's consent and her ID copy, for example, would normally be witnessed or certified in her own country, by whoever Home Affairs or the local law accepts there.
If the foreign birth certificate is to be used in Australia, it is issued by the registry in the country of birth and, where needed, authenticated there. DFAT legalises Australian documents only. For how foreign documents are prepared for Australian use in general, see our guide to certified copies made overseas.
Some Australian embassies and consulates overseas offer notarial services, which may help with documents an Australian parent signs while abroad. Whether that is available where you are depends on the post, so check before relying on it.
Where does an Australian notary fit in?
Only at the edges. For Home Affairs itself, a copy of your own Australian document certified by an authorised person, such as a Justice of the Peace, is usually enough, and a notary is often not needed. A JP copy is not accepted overseas, though, and cannot be apostilled. A notary is needed when an Australian document goes overseas: for example, a foreign court, registry or authority may want a notarised copy of an intended parent's passport or marriage certificate, or a sworn statement signed in Australia. The receiving authority decides the form it needs. The notary certifies or witnesses the document, and DFAT adds an apostille or authentication, depending on the country.
A notary certifies copies and witnesses signatures. A notary does not certify that the contents of any document are true, does not give legal advice on surrogacy, and may decline to act if the document or the circumstances raise concerns. Our guide to certified true copies explains what a notary's certification covers.
How do you prepare the Australian documents?
- Get legal advice first. From a family lawyer in your state or territory, and a lawyer in the other country.
- Read the Home Affairs list. Its international surrogacy page sets out what a citizenship by descent application needs.
- Sort documents by where they are made. Anything made or signed overseas is certified there.
- Certify your Australian documents for Home Affairs. An authorised person is usually enough.
- Notarise only what goes overseas. A notary certifies or witnesses; DFAT then adds an apostille or authentication.
- Arrange translations. Follow Home Affairs' rules for documents not in English.
- Keep complete copies. Smartraveller suggests keeping copies of all medical records and agreement documents.
What about translations and the child's passport?
Documents not in English need an English translation for Home Affairs. A translation made in Australia should be by a NAATI certified translator; one made overseas should show the translator's full name, address, telephone number and qualifications. Our guide to certified translation explains what to look for.
The child needs a passport to leave the country of birth and to enter Australia. Smartraveller says an Australian passport application for a child born through surrogacy needs written consent from the parents and the surrogate mother, and possibly her spouse, with a special circumstances route where consent cannot be obtained. The Australian Passport Office handles those applications.
Common mistakes to avoid
The most serious mistake is proceeding without legal advice in both countries. The laws on surrogacy change, and an arrangement that seems lawful abroad may still be an offence for a resident of your state. The second is assuming that a DNA result is enough. Home Affairs says biological evidence may not be sufficient without other evidence of the arrangement. The third is expecting an Australian notary to certify foreign documents: consents, clinic records and foreign certificates are certified where they are made.
The fourth is booking travel early. Smartraveller warns that Australian parents have waited months or years to resolve legal issues, and advises against booking return travel until the child has what they need. Our guide to overseas adoption documents covers a related process where similar care is needed.
Here is an illustration, not a real case.
Priya and Mark have taken advice from a family lawyer in Victoria and a lawyer in the country where their child was born. An authority there asks for a notarised copy of Mark's Australian passport and of their Australian marriage certificate. They take the originals to a notary in Melbourne, who certifies the copies, and DFAT apostilles them because that country was a Convention member when they checked the HCCH table. The surrogate's consent and ID copy are certified in her own country, not in Australia.
In short
Commercial surrogacy is illegal in Australia, and some states and territories also make it an offence to arrange overseas; take legal advice before anything else. For citizenship by descent, Home Affairs asks for the surrogate's consent, certified copies of her ID and the contract, and medical reports, most of which are made and certified overseas. An Australian notary deals only with Australian documents going abroad. Our document notarisation services page explains that step.
People also search for
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- How do I notarise a child travel consent?
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Need an Australian document certified for use overseas? Tell us which document and where it is going, and we will explain each step before you book.
Frequently asked questions
Is commercial surrogacy legal in Australia?
No. Smartraveller says commercial surrogacy is a crime in all Australian states and territories. Altruistic surrogacy is legal, but eligibility rules vary by state.
Can I be prosecuted for commercial surrogacy overseas?
Possibly. Smartraveller says it is illegal for residents of the ACT, NSW and Queensland, and Home Affairs says some states and territories make it an offence. Laws change, so see a family lawyer.
Is my child automatically an Australian citizen?
No. A child born overseas to an Australian citizen does not become a citizen automatically. You apply for citizenship by descent or a permanent visa on the child's behalf.
What does Home Affairs ask for in a surrogacy case?
The surrogate's written consent, a certified copy of her photo ID, a certified copy of the surrogacy contract, and medical reports including evidence of embryo transfer. It may also ask for DNA testing.
Is a DNA test enough on its own?
Not necessarily. Home Affairs says biological evidence might not be sufficient without other evidence of the surrogacy arrangement.
Can an Australian notary certify the surrogate's documents?
Not if they are made or held overseas. A notary must sight the original, so documents made overseas are certified where they are made.
Do I need a notary for Home Affairs?
Usually not. For your own Australian documents, a copy certified by an authorised person is usually enough for Home Affairs.
When would I need an Australian notary?
When an Australian document, such as your passport or marriage certificate, is going to an overseas authority that wants it notarised. DFAT then adds an apostille or authentication.
Who translates foreign documents for Home Affairs?
In Australia, a NAATI certified translator. A translation made overseas should show the translator's full name, address, telephone number and qualifications.
What does the child's passport application need?
Smartraveller says written consent from the parents and the surrogate mother, and possibly her spouse. The Australian Passport Office can explain the special circumstances route.
