Australia’s International Obligations
As a party to the United Nationals Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, Australia is committed to protecting the fundamental rights of children.These Conventions include obligations to prevent the abduction, sale, or trafficking of children.
While Australia does not have obligations toward children who are not within its jurisdiction, extreme caution is exercised in cases involving surrogacy arrangements entered into overseas to ensure that Australia's citizenship provisions are not used to circumvent adoption laws and other child welfare laws.
Children born through surrogacy arrangements in India
Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution.They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur.
Indian legislation in respect to surrogacy is limited and Indian laws are expected to change in response to the growing demand for surrogacy arrangements.India legalised commercial surrogacy in *** however, it still lacks a regulatory framework for the industry.The Indian Council of Medical Research and Ministry of Health and Family Welfare, have put together The Assisted Reproductive Technologies (Regulation) Bill *** Bill is currently with the Indian law ministry for approval.
Legal requirements for Australian citizenship by descent
Applications for Australian citizenship by descent for children born outside Australia as a result of surrogacy arrangements are assessed according to legal requirements set out in the Australian Citizenship Act *** (the Citizenship Act), and the policy guidelines set out in the Australian Citizenship Instructions.
A child born overseas as a result of a surrogacy arrangement may be eligible for Australian citizenship by descent if at least one of their intended/commissioning parents is an Australian citizen and the person with legal guardianship of the child consents to the application.
In addition to the general documents required for applications for Australian citizenship by descent, applications for Australian citizenship by descent for children born in India as a result of surrogacy arrangements need to be accompanied by:
• evidence that the child is the biological child of the intended parent; and
• evidence that the intended/commissioning parent (s) is also recognised as the legal parent of the child.
The intended/commissioning parent and child will be asked to undergo DNA testing in accordance with departmental guidelines (see further information below on DNA testing).
The intended/commissioning parents will also need to provide written advice from a panel lawyer who is an expert in Indian family and/or contract law.This advice should include comment on the general legality of the contract (with reference to the provisions of Indian legislation that make it valid) and whether the contract confirms the legal parentage of the child (with reference to the relevant provisions of Indian legislation).It should also include comment on the following elements and state the grounds on which the lawyer is satisfied that these elements are met:
• whether all parties consent to the contract;
• whether the contract is legally enforceable;
• whether the contract gives full legal parental rights to the intended/commissioning parent(s); and
• whether the contract includes evidence that all parties are still consenting and still agree to the contract after the birth of the child concerned.
The lawyer should also state their level of experience and accreditation in the field, and declare any potential conflict/s of interest, such as whether the lawyer or their firm was involved in drafting the surrogacy contract.
DNA testing – Surrogacy cases
The child and the Australian citizen intended/commissioning parent will be requested to undergo DNA testing.In this regard, please note:
• You will need to meet all costs associated with DNA testing.
• The Australian citizen intended/commissioning parent is requested to undergo DNA testing in Australia.Processing delays will result if the Australian citizen parent undertakes DNA testing while in India.
• In India, DNA tests for the child must be carried out by specified Panel Doctors in New Delhi or Mumbai (more details below).
• Only those Panel Doctors are authorised to carry out the DNA test.You should not make appointments for a DNA test with any other Panel Doctor, as the results will not be acceptable for the purposes of the citizenship application and will have to be repeated, with consequent delays to processing and extra cost for applicants.
• Whilst the newborn child may undertake their DNA test in Mumbai by an authorised Panel Doctor, the Australian citizen intended/commissioning parent will need to travel at their own cost to New Delhi to undergo DNA testing so that it may be witnessed by an Australian Government official.
• Travel costs associated with the DNA tests are at the applicant’s own expense.
• Panel Doctors are required to use specific testing kits, which must be provided to them via a National Association of Testing Authorities (NATA) accredited laboratory that can satisfy the department’s testing requirements in an international context.A list of NATA-accredited DNA testing laboratories can be found under Accreditation – Facilities and Labs – Forensic Science – Parentage Testing on the NATA website at www.nata.asn.au .
• If the DNA test (for the newborn child only) will be carried out in New Delhi, you may arrange an appointment directly with Paul Wright whose contact details are at *** .
• The DNA sample and completed forms will be couriered to the DNA laboratory in Australia for assessment.
• Fact Sheet *** 'Information about DNA testing for visa and citizenship applicants' contains further information on DNA testing.This fact sheet is available online at: *** .
• If you undertake DNA testing, it is your responsibility to contact one of the recommended laboratories to make arrangements for the testing (further details below).
• Once you have selected and contacted a DNA laboratory, you must advise the Australian High Commission in New Delhi of the details of the laboratory you have selected.The Australian High Commission will then liaise with you and the laboratory regarding testing arrangements.We will provide you with a DNA testing offer letter which will include a reference number which you should include in any correspondence with the Australian High Commission in New Delhi.We will also provide you with a statutory declaration for the laboratory to complete confirming they can satisfy the department’s testing requirements.
• More specific information about arranging DNA testing in India is given below.
• If you choose not to undertake DNA testing the application will be decided based on the information provided.
Documents in relation to donors of genetic material
If applicable, please provide copies of any documents or records in relation to donated genetic material (for example, anonymously donated egg or sperm).
DNA testing - procedure for India
Before you leave Australia
1.Advise the Australian High Commission by email *** that you have entered into a surrogacy agreement.In your email please provide your full name, date of birth and passport number.The Australian High Commission will provide you with a DNA testing offer letter which will include a reference number and a statutory declaration for the laboratory to complete.
2.Choose the NATA accredited laboratory you would like to use for DNA testing.See www.nata.asn.au
3.Contact the laboratory and ask about the testing procedure, the expected timeframe for obtaining the results, the cost involved and any other questions you have.Some laboratories offer a fast track service if required.Ensure that the laboratory can satisfy the department’s testing requirements in an international context by asking them to complete the statutory declaration sent to you earlier.The Australian High Commission is unable to provide this information.
4.Arrange for the Australian citizen parent to undergo DNA testing in Australia.
Note: claimed Australian citizen parents should undergo DNA testing in Australia and before travelling to India.Processing delays will result if the Australian citizen parent/s undertakes DNA testing while in India.This is because DNA testing of Australian citizen parents must be witnessed in New Delhi under the supervision of an Australian Government Official from the Australian High Commission.It is only the newborn child/children that may undertake DNA testing in Mumbai.If the Australian citizen parent chooses to be tested in India, then they will need to travel at their own cost to New Delhi to undergo DNA testing so that it may be witnessed by an Australian Government official from the Australian High Commission in New Delhi.
Mumbai *** ***
India
If the DNA sample collection (for the new born child/children) is to be done in New Delhi, the testing kit should be sent to:
After you arrive in India
If the DNA testing (for the new born child/children) will be done in New Delhi:
1.Contact Paul wright at *** , *** or on +91 11 *** or Mobile at *** and request an appointment.
2.Please bring at least two passport photos for each person being tested, the forms sent to you by the laboratory, the client consent pro forma and the child’s birth certificate.
3.The Panel Doctor will guide you through the testing process.
4.The Panel Doctor will dispatch the DNA sample(s) and completed forms by courier on the same day.It will take approximately three working days for the samples to arrive in Australia.
What will happen next?
The laboratory will advise the Australian High Commission once the test results are completed.It can take up to 14 days from the date the laboratory receives the sample for the laboratory to provide the test results to this office.
The Australian High Commission in New Delhi is responsible for deciding all applications for citizenship by descent in relation to children born via surrogacy arrangements in India.
If the child meets all the requirements, the High Commission will grant the child citizenship and provide a citizenship certificate.
See: Get information about Processing time
Tips to make the process as quick and easy as possible
1.Read all the information on this website and www.citizenship.gov.au before contacting this office.
2.Download form *** Application for Australian citizenship by descent and complete the form as soon as your child is born.
See: Form ***
3.Obtain passport sized photos of your baby as soon as possible.You will need photos for the citizenship application, DNA testing forms and passport application.
4.Obtain a bank demand draft (bank cheque) in favour of the 'Australian High Commission New Delhi', payable in New Delhi for the citizenship application fee.To find out the current fee please go to *** .Please note that if you are lodging more than one citizenship application at the same time the fee for second siblings is currently less.Currently, the fee in Australian dollars is *** and in Indian Rupees is INR *** for a CBD application.For second and any subsequent siblings lodged at the same time it is *** or INR *** Payment can also be made by Australian credit card.
5.You can lodge your child's citizenship application as soon as you have completed it.You do not need to wait for the DNA testing to lodge the application.For informatation on how to lodge your application see: Where to Apply
6.For any further queries regarding Citizenship or DNA testing which are not covered in the website please contact us by email ***
7.For any further queries regarding passport applications which are not covered in the website please contact the Consular section of the Australian High Commission New Delhi by email at ***
Important: For children born of surrogacy arrangements, you should be aware that for the purposes of exiting India with your child as the holder of an Australian passport, the Foreigner Regional Registration Office (FRRO) may require (among other documents) a letter of "no objection" from the surrogate mother as well as a certificate from the hospital where the child was born confirming that no hospital or medical fees are outstanding.The FRRO may take up to 15 working days to process the exit permit.
Contacting the Australian High Commission
• Please forward ALL QUERIES to ***
• This mailbox is cleared within 2 working days.Therefore using the mailbox will ensure the quickest possible response.
• Please DO NOT contact individual officers for information as this will slow the process.
