An Aussie gay couple are stuck in Canada after unsuccessful attempts to obtain an Australian passport for their young son born to a surrogate mother.
The couple, Kyle and Kent Stewart (pictured), are married in Canada and became dads last year when they welcomed baby Kaden.
One of the men is Kaden’s biological father and under Canadian law they are both recognised as parents on the child’s birth certificate.
The couple told Fairfax Media they’ve legally obtained Australian citizenship for Kaden but Australia’s laws have hindered their attempts to obtain a passport for him.
In Canada, the surrogate mother signed a statutory declaration rescinding her parental rights over the baby. But Australia’s Passport Office follows the Family Law Act and still considers the mother a parent, requiring her consent for the application.
But because she isn’t Kaden’s legal parent and has officially rescinded any parental responsibility for him, she doesn’t want to give the consent, the family told Fairfax Media.
“At the moment we can’t take [Kaden] home so he is missing out on seeing his aunties and uncles; he has a new cousin who was born a few weeks ago,” Kyle said.
“We have two daughters with a same-sex female couple on the Sunshine Coast so he has two siblings that he can’t meet.”
A spokesperson for Foreign Affairs Minister Julie Bishop said in a statement: “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.”
Brisbane family lawyer Stephen Page told Fairfax Media he disputes the Passport Office’s interpretation of the law.
“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,” he said.
Mr Page said the family was left with three options, none of which provided them any guarantees.
“Option one is they persuade the surrogate to sign the form, which she finds offensive to do because she isn’t the parent. Option two is to go to an Australian court and seek a declaration that they are the parents. Option three is not to apply for an Australian passport,” he said.