An Australian couple living in Canada is in the midst of an awful situation in securing an Australian passport for their son, who was born via surrogacy. Kyle and Kent Stewart were legally married in Canada and decided to build their family with the help of a surrogate, using sperm from one of the men and a donor egg.
The men celebrated the birth of their son, Kaden, last fall, and in accordance with Canadian law, both were listed as parents on their child’s birth certificate.
With his business studies wrapping up in Canada, Kyle put in for a transfer back home to Brisbane, Australia. The men thought applying for Kaden’s Australian passport would be swift since they were able to obtain Australian citizenship for him with relative ease.
Unfortunately, this hasn’t been the case.
As the men were making preparations to return home, they were informed that despite the fact that their surrogate did not have parental rights over Kaden in Canada, Australia viewed the situation of parentage through an entirely different lens.
Nathanael Cooper of the Brisbane Times underscored that even with the “statutory declaration” the former surrogate signed, rescinding her parentage would not be recognized by the Passport Office in Australia.
“The Passport Office interprets the Family Law Act to consider that she [former surrogate] is a parent and requires her consent to issue a passport, even though she is neither a citizen nor a resident of this country,” Cooper writes.
As one can imagine, the former surrogate does not want any involvement with the Passport Office – she’s not the parent.
“It’s an extraordinary proposition that you need to have her consent,” the Stewarts’ Australian lawyer, Stephen Page, said. “If you have two parents, as we have here, and there is no court order in Australia saying that they don’t have parental responsibility, [the Department of Foreign Affairs and Trade] has this idea that there is a third person who has parental responsibility.”
In his piece, Cooper suggested that the challenge the men are facing is related to the fact that Australia does not recognize gay marriage, causing the Passport Office to substitute the former surrogate as Kaden’s other parent.
A spokesperson for Julie Bishop, the Australian Foreign Affairs Minister, released a statement regarding the predicament the Stewart family is embroiled in.
“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 certificate. This means that, in surrogacy cases, the surrogate mother’s consent is required for the issue of a passport to the child,” the spokeswoman stated. She added, “Surrogate parental responsibility ceases only through an order made under the Family Law Act 1975 or Family Court Act 1997 (WA), or where the child in question is adopted in accordance with Australian law.”
While Page is preparing his legal arguments, aimed at both the Passport Office and other Australian governmental authorities, Kyle and Kent have delayed their move back home for the time being.
Their choices are limited to filing a court order with the Australian courts, asking their former surrogate to sign the passport form, or not applying for an Australian passport for their son. None of these are feasible, as a battle through the Australian courts would be time-consuming and costly, without any guarantee of victory. Also, the surrogate does not want to be placed in the role of parent, and Kaden would not be able to travel to Australia on his Canadian passport, as he is ineligible for an Australian visa as a citizen of the country.
What a frustrating state of affairs these fathers are facing given the fact that they are the legal parents of Kaden.