At Circle Surrogacy, every intended parent has a lawyer on their Journey Coordination team who will assist them in establishing their parental rights to their baby(ies).
The Pre-Birth Order.
The Pre-birth order is a court order establishing the Intended Parents’ parentage of their baby being carried by their surrogate, and is one of the most important documents of the entire surrogacy process. This document ensures that the intended parents are the sole parents of the child immediately upon birth. Each state has its own set of requirements (either in statutes or case law) necessary to establish the intended parents’ rights through the court proceeding. In general, it’s best to start the parentage process as early as possible after confirmation of pregnancy so that the court order is in place prior to birth.
The Post-Birth Order.
Similar to the Pre-Birth Order, this court order establishes the Intended Parent's parentage of their baby being carried by the surrogate. A Post-Birth Order is needed for certain states where the non-biological parent is added to the birth certificate after the baby's birth.
Second Parent Adoption.
In some cases, the intended parents will need to complete an adoption process to attain full legal parental rights over the child. Most situations that require adoption typically involve intended parents where one parent is not biologically related to the child. In those cases, the non-biological parent is adopting his/her spouse’s biological child. It is usually a simpler more stream-lined process than a full-scale adoption.
Establishing Parentage in Australia
It would be reasonable to assume as an Intended Parent that you will be recognized as the 'parent' of your child upon your return to Australia, particularly if you are named on the birth certificate of your child and have an overseas order.
However, there is no automatic recognition of US pre-birth or post-birth orders.
The reason for this is that when determining parental status, Courts will apply Australian law, even to children born through international arrangements. All jurisdictions here have legislation which define the parentage of children born through assisted reproduction (including surrogacy).
The effect of the presumptions are that Intended Parents won’t automatically be recognized as parents of their children for the purposes of the Family Law Act. This is understandably concerning for Intended Parents and it is important that you are aware of this legislative issue.
Some intended parents elect to take additional steps upon their return to Australia to address their status in relation to their children, which can include:
- Careful estate planning
- Registration of overseas orders in Australia (where eligible)
- Obtaining parenting orders under the Family Law Act
Additionally, the practical reality is this issue hasn’t prevented Intended Parents from Australia being able to undertake international surrogacy or preclude them from accessing important entitlements or services, including their child becoming an Australian citizen, obtaining passports and enjoying the benefits available through Medicare.