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However, as Jyothi Kanics observes, ‘[i]nternational surrogacy presents a very
specific contemporary challenge [to statelessness] because in such cases it
may be difficult for the child’s legal parentage to be established or recognised.’134 Kanics explains that:
The child may be able to demonstrate a relation to several adults such as: a genetic link to a biological intending parent, a social link to the other intending
parent as well as a link to the gestational surrogate mother. Although the intending parents and surrogate mother will most likely all possess a nationality,
it may not be possible for them to pass this on to the child. Furthermore, it may
be impossible for the child to acquire either the nationality of the State of his or
her birth or the nationality of his or her parents (intending parents or
surrogate mother).135
Recent high-profile overseas surrogacy cases involving Australians have
illuminated the risks involved for children in such arrangements, including
ultimately being rendered stateless.136 Partly in response to these cases, the
House of Representatives Standing Committee on Social Policy and Legal
Affairs recently undertook an inquiry into the regulatory and legislative
aspects of international and domestic surrogacy arrangements. It recommended that, inter alia:
the Australian Government establish an interdepartmental taskforce (which
should include eminent jurists with relevant expertise) to report in 12 months
on ways to address the situation of Australians who choose [to] enter into offshore surrogacy arrangements, with respect to: protecting the rights of
the child …137
This relatively new challenge to the prevention of statelessness indicates that
ongoing vigilance is necessary. As the UNHCR notes, despite renewed
134
Jyothi Kanics, ‘Preventing and Addressing Statelessness: In the Context of International
Surrogacy Arrangements’ (2014) 19 Tilburg Law Review 117, 119 (citations omitted).
135
Ibid (citations omitted). Other scholars have identified surrogacy as potentially having an
impact on statelessness: Sanoj Rajan, ‘Transnational Surrogacy and Statelessness’ (Paper
presented at the Workshop on Researching Statelessness and Citizenship in Asia and the
Pacific, Melbourne Law School, January 2016).
136
See, eg, Samantha Hawley, Suzanne Smith and Michael McKinnon, ‘India Surrogacy Case:
Documents Show New South Wales Couple Abandoned Baby Boy Despite Warnings’, ABC
News (online), 13 April 2015 <http://www.abc.net.au/news/2015-04-13/australian-coupleabandon-baby-boy-in-india-surrogacy-case/6387206>.
137
House of Representatives Standing Committee on Social Policy and Legal Affairs, above n
133, xiii (recommendation 7).