An Australian same-sex couple, Kyle and Kent Stewart, are
currently facing legal issues in their attempts to bring their baby
son Kaden into the country from Canada where they have been living.
The couple has become aware that the Australian Foreign Minister is
unable to grant Kaden a passport without the consent of his
biological mother- a surrogate who has rescinded all parental
responsibility under Canadian law and who is not listed as a parent
on Kaden's birth certificate.
The treatment of commercial surrogacy arrangements by Australian
law has resulted in a stressful situation for the Stewarts, as the
surrogate mother is reluctant to sign documents listing her as
Kaden's parent. In Australia, it is possible to bring children
born through surrogacy back into the country but there are legal
blocks that need to be addressed:
In circumstances where one or both of the parents is a
biological donor to the surrogate, and is Australian, the parents
can apply for Australian citizenship for the child by descent
If neither Australian parent is a biological parent of the
child, whether they are considered the legal parents (and therefore
able to apply for citizenship for the child) is dependent on the
jurisdiction. As processes for adoption are lengthy, many parents
apply for residency for the child, dealing with their child's
citizenship after they are in the country
All parents must complete a 'B4 (Child Born through
Surrogacy)' form including documentary evidence of a legal
Parents must apply for an Australian passport to bring the
child back into the country. When applying for a passport for a
surrogate child, the Australian Passports Act 2005 requires the
consent of each person who has parental responsibility for the
It is the fourth point above that's proving to be the
sticking point for the Stewarts. The definitions of
'parent' and 'parental responsibility' haven't
been defined by the Family Law Act 1975 in relation to
children born through surrogacy. As a result, the general approach
has been to expand the definition to include as many people as
possible, in absence of an Australian Court order specifying who
holds parental responsibility for the child. A spokesperson for
Foreign Affairs Minister, Julie Bishop, has commented on the
Stewart's situation, stating that "Under Australian
Law, a birth mother is considered to be a person with parental
responsibility for a child, whether or not she has a biological
link to the child or is named on the child's birth
This legal stance in Australia regarding the rights of surrogate
birth mothers is discussed in the 2011 Family Court case of
Dudley and Anor & Chedi. In this case, the Court
stated that the aim of the position is to "protect women
and children from what the legislature has seen as abusive
practices which potentially surround the commercialisation of
surrogacy." However this case, and other cases of
involving surrogate parents, didn't involve a scenario where
the surrogate mother had deliberately severed parental
responsibility a considerable period of time before the application
for a passport was made.
The Stewarts are in continued contact with the Australian
Government, and are attempting to resolve the issue.
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