Navigating Australian Citizenship by Descent for Twins Born Through Surrogacy in China
Background Story
The client was an Australian citizen who was the father of twins born through a surrogate mother in China. He was seeking Australian citizenship by descent for his twins.
However, on the twins’ birth certificate, the client’s sister was listed as the mother instead of the Chinese surrogate mother. The client was also not listed as the father on the birth certificate.
The client chose not to list themself as the father on the birth certificate since this would have prevented his children from accessing the Chinese ‘hukou’ booklet. The ‘hukou’ booklet is important in China as it determines access to healthcare, education, housing, and social welfare. The client had his sister listed as the mother because surrogacy is illegal in China.
The Law around Australian Citizenship by Descent
A child born overseas to an Australian citizen does not automatically become an Australian citizen at birth.
Under the Australian Citizenship Act 2007, you can apply for the child to become an Australian citizen by descent, so long as the child meets the following requirements:
Has been born outside Australia;
The person the child is claiming descent from was their parent at the time of their birth and was also an Australian citizen at the time of their birth;
They satisfy the identity requirements;
Their application for citizenship is valid and, if the child does not have capacity to make the application themselves, then the application was lodged by a responsible parent.
Our Assessment
Based on our assessment, we advised the client that he could still pursue Australian citizenship by descent for his twins.
We informed the client that we would need to collate evidence that demonstrates the client was in fact the biological father of the twins and that they were born from a surrogate mother, instead of the client’s sister.
Our Successful Story
The client took our advice and we had him book a DNA test through an Australian DNA testing organisation. This DNA testing confirmed that the client was the biological father of the twins.
We also initiated contact with the Chinese surrogacy agency used by the client. Through our communications with this agency, we were able to gather the following evidence:
A certified copy of the surrogacy contract signed by the surrogate mother and the client;
The surrogate mother’s written consent to the twins’ citizenship application;
Medical reports and photos including evidence of the embryo creation and progress of the pregnancy; and
Certified identity documentation of the surrogate mother showing her photo and signature.
After we had gathered this evidence, we could demonstrate that our client was the biological father of the twins and that the twins were born from a Chinese surrogate mother, not the client’s sister.
We also lodged submissions to the Department of Home Affairs explaining why the twins’ birth certificate did not include the client and incorrectly listed the client’s sister as the mother.
Subsequently, the client was able to successfully apply for his twins to become Australian citizens by descent.