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More on Birth Certificates and Australian Passports
by Tony and Lee

Hi everyone,

Further to the recent discussions about obtaining a birth certificate for your child born overseas through surrogacy, and the ultimate need to apply for an Aussie passport down the track, Tony and I thought that we’d share our recent experience in applying for Xan’s second Aussie passport (kids’ passports expire every five years).

Below is a sample statement in support of an application for a child’s passportwithout full parental consent. This will be of interest to you if you are planning on returning to Australia and obtaining an Australian passport for your child or even if you’ve already done that and intend to renew the existing passport.

Here is some quick context:

  • If your child is born in the US, you will probably obtain a US passport for your child and return to Australia with that child travelling on his/her US passport. That’s because it’s just a lot quicker and simpler to do that, as others have referenced recently.
  • In some other countries (I think India) your child may not be eligible for a passport issued by the country of birth. Therefore, you probably can’t travel with your new born until s/he is granted an Australian passport. As a result, you may need to spend some weeks in that country before being able to return home with your child. The process for obtaining any Australian passport out of the jurisdiction is not fast!
  • Whatever your circumstances, you’ll need a valid local birth certificate and Australian citizenship before you can take the steps to obtain an Australian passport for your child. Once you have completed those steps you can then apply to the Australian Passports office, administered by the Department of Foreign Affairs and Trade (visitwww.passport.gov.au)
  • Probably the main issue you confront when you make this application is whether to complete the application with both parents’ consent (i.e. a mother and a father) OR apply without full parental consent. You’ll need to accept that for the purposes of Australian law, the mother on the birth certificate is the “mother” of your child – no matter what foreign court orders or decrees may have been issued. If you are willing to accept this, then you may make your life simpler and request your surrogate to sign all the Australian passport consent forms etc and make your application accordingly. However, even if you do this (and it’s most logically done shortly after the birth while everyone has access to each other) remember that you may not have such immediate or even helpful assistance if and when you apply for a passport renewal every 5 years.
  • In our case, we decided to apply for both of our kids’ Aussie passports without our surrogate’s consent as the “mother”. Of course, she would have given it, but since she had relinquished her US parental rights (albeit a fact not formally recognised by Australian law) we thought it best to proceed on the basis that we were the two dads with parental responsibility.
  • When making a passport application for a child without full parental consent, you are required to complete a Form B-9. This then requires the applicant (biological father) to explain why “special circumstances” exist as to overturn the presumption that both biological parents must consent for the issuance of a passport. (If anyone’s still reading this, sorry but I am starting to sound like a lawyer). In our attached sample application, you’ll get the gist of the issues we raised. In some respects, we have provided detail that may be unnecessary. However, for both our children, including the application for the passport renewal, the process went smoothly.
  • If your child is born in the US and both dads are listed on the birth certificate, you’ll almost certainly have to apply for a child’s passport without full parental consent (using the Form B-9 process). In that case, you can also use the attached draft Statement as a guide to the content and process you’ll need to follow.

Hopefully this makes sense. It is somewhat complicated. But we all wanted to become parents didn’t we!

Tony (mainly…with bits from Lee!!)

 

 

 

            Application No: [insert]

Statement in Support of an Application for Child’s Passport without full parental consent

1                    My name is [insert biological father’s full name per application] of [insert address].

2                    This statement is made in support of a Child’s Passport Application for my son/daughter, [insert full name]. This statement is attached to the statement Form B-9, which is also submitted with [first name’s] Child Passport Application.

3                    Section 13B of [first name’s] Child Passport Application, as well as that part of section 15 which relates to the declaration and consent in respect of the ‘mother’ has been left blank. This is because the woman who gave birth to [first name] is not his/her biological mother, but was a surrogate engaged pursuant to a Surrogacy Agreement, entered into and enforceable under the laws of [California] in [the United States of America.]

4                    [First name] was born as a result of a process known as ‘gestational surrogacy’. That is, the female ovum of an [anonymous] donor was fertilised with my sperm and a resulting embryo was implanted into the surrogate using an in vitro fertilisation (IVF) procedure.

5                    [Child’s first name] was born in [insert town, state and country] on [insert date]. His/Her birth certificate records me as his/her ‘father’ and the ‘mother’ is listed as [insert name of surrogate if this is on the birth certificate. Further explanation may be required if both fathers are on the birth certificate]. A copy of the Certificate of Live Birth dated [insert date] is attached (Attachment 1).

6                    Commencing immediately with his/her birth on [insert date], [my partner and] I assumed full custody and parental responsibility for [First name]. My partner’s name is [insert name].  We have been living as a couple for [insert number] years.  Although my partner is not the biological father of [first name], he is an equal parent in all aspects of our child’s life. [insert references here to any Australian parenting orders if applicable]

7                    [First name] was granted a passport by the [USA] Passports Office on [insert date] (Passport no. #######). That application was granted on my application, as [first name’s] father. His/Her [US] passport was renewed again on [date]. He/She was eligible for a US passport on the basis that he/she acquired American citizenship by reason of his birth within the borders of [the USA]. [Obviously modify this for Indian or other country birth].

8                    [First name] travelled to Australia in the custody of my partner and me, and his/her USA passport is date stamped to record his entry into Australia.

9                    On [insert date], [First name] received formal recognition of his/her Australian citizenship, as an Australian citizen by descent. A copy of the extract from Register of Citizenship by Descent is attached (Attachment 2).

10                On [insert date], the [insert relevant foreign court order etc reflecting custody etc of child e.g. Iowa District Court for Magic County] ordered, adjudged and decreed that, pursuant to Iowa Code 600.A.8, the parental rights and responsibilities of [insert name of surrogate], concerning my child were terminated]. Attached to this statement is the formal Decree terminating parental rights, dated [insert] (Attachment 3).

11                [The U.S Court’s] Decree/Order made the following findings:

·        [First name] was born on [insert date] pursuant to a surrogacy contract;

·        the surrogate has no intention of establishing a relationship with the child; and

·        Terminating the surrogate’s parental rights with respect to the child would not be detrimental to the child’s best interests or welfare.

12                Immediately following [First name’s] birth he/she has been in the sole and exclusive custody of my partner and me. All decisions regarding his/her welfare are shared exclusively by us. By way of example, [First name] is included on both of our Medicare cards and also in our family cover health insurance with [insert e.g., Medibank].

13                The surrogate is engaged in occasional correspondence with my partner and me. [Insert any appropriate details e.g., She last visited us in Australia, as friends, in 2008]. However, she has no legal rights in respect of our child nor does she seek to assert any such rights over him/her now or in the future.  She has no biological relationship to [First name].

14                In making this statement, I am aware that I must explain why the necessary consent has not been obtained and to explain the ‘special circumstances’ of the application. I do not believe it is appropriate for the surrogate, who bears no biological relationship to [First name], and who has relinquished her parental rights before a validly constituted court in [the USA], to be asked for her consent to this Child Passport Application.  Moreover, if it is the intention of the Australian Passports Act 2005 to restrict access to a passport for a child so that the child cannot be taken outside of Australia without the consent of the other ‘parent’, that is not a consideration in this case. [First name] already holds a valid and lawfully issued passport from [the USA]. That passport entitles him/her to travel to countries outside the USA, or Australia for that matter. [He also already holds an Australian passport which was granted in [insert year if this is an application to renew] on almost identical grounds as this application.]

15                I now briefly respond to some of the specific sections of the Form B-9:

(a)                Section 4 “Parents’ marital status”

The first section of the form was left incomplete by me with a notation of ‘not applicable’. The question does not indicate clearly the response that is being sought. The following information may be helpful. The surrogate, [inset her name here], was married at the time of [First name’s] birth.  She has subsequently divorced her husband in 2006. She has never been married or in any de facto relationship with me or my partner. My partner and I are not permitted to marry under Australian law, although we have cohabitated in a same-sex de facto relationship for approximately 20 years. [Some of you may be able to answer this differently if married abroad, not that it’s recognised here!].

(b)               Section 6 “Contact with other parent”

This section asks whether we have attempted to locate or contact the “other parent” for their consent. The answer to this is no. We have not sought to contact the surrogate for the reasons outlined earlier in this statement. However, as also explained in this statement, we are in occasional contact with the surrogate and enjoy a close and friendly relationship with her.

(c)                Section 7 “Special circumstances”

For the reasons outlined above we seek the issuance of the renewed Child Passport Application for [inset child’s full name]. We clearly believe the circumstances of this application are exceptional. We also submit that, in any event, the surrogate is not a person with parental responsibility for the child.

[For renewal applications the following may be inserted] This is an application for renewal of an expiring Australian passport for my child. His/Her first Australian passport was issued to him/her on [insert date], based on almost identical grounds under the (then) Passports Act 1938.The information provided in support of this application mirrors that which was considered by the Department in the 2004 application (No. #######). For the reasons outlined in this statement and the relevant accompanying documents, it would be inappropriate to require additional consent for this application.]

16                Thank you for the consideration of this statement. Should you have any queries regarding its contents, please contact me via phone: or
email as follows: [insert].

 

Signed:            _____________________________________                      Dated: 2009

 

 

Attachments:

1.      Certificate of Live Birth, dated ######

2.      Extract of Citizenship by Descent, dated #######

3.      Decree terminating parental rights, dated #######

 

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