Legal limbo: Aussie dads stuck in Canada over baby’s passport fiasco
Two Aussie dads living in Canada have found themselves at the centre of a bureaucratic and legal nightmare while trying to bring their newborn son home to Australia.
The fathers, Kyle and Kent Stewart, are legally married in Canada and became first-time fathers last year when they welcomed baby Kaden through a surrogate.
However, their marriage is not legally recognised in Australia.
One of the men is the biological father of baby Kaden and under Canadian law they are both recognised as parents on the child’s birth certificate.
The pair were able to legally obtain Australian citizenship for Kaden.
However, under Australian’s current laws obtaining a passport for the baby have left the parents in a legal nightmare.
"The process of getting him Australian citizenship was quite a smooth process," Kent told News Corp.
"We thought everything was going to plan and all the indications were showing there wouldn't be any issues in getting him a passport."
"We were going to be celebrating Kaden's first birthday in Australia so my mum has booked tickets to visit [from New Zealand] in October for that," Kyle told News Corp.
However, things quickly began to get complicated for the couple.
Under British Columbia, a surrogate has no parental rights over the baby.
However, in Australia, the Passport Office adopts the Family Law Act and considers that she is a parent.
They require her consent to issue a passport, even though the surrogate is neither a resident or citizen of Australia.
Under Canadian law, upon delivery of the child the suggorate signed a statutory declaration rescinding any parental rights, rendering her as not a legal parent to the infant.
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However now, as the surrogate is not Kaden's legal parent and has rescinded any parental responsibility for him, she doesn't want to sign the form.
"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."
The Stewarts' frustrating story is not the first, with a number of surrogacy cases having gone through the Family Court identifing that a child can have only two parents.
Australian law does not recognise the relationship of two men and therefore Passport Office is unable to insert the surrogate as a second parent.
Foreign Affairs Minister Julie Bishop wouldn't comment directly on the Stewarts' case according to News Corp.
Her office issued a statement through her spokeswoman outlining the Passport Office's interpretation of the law.
"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," the spokeswoman said.
"This means that, in surrogacy cases, the surrogate mother's consent is required for the issue of a passport to the child."
Currently baby Kaden cannot travel to Australia to meet his extended family.
"At the moment we can't take him 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.
"We wanted all the kids to grow up together."
Sadly for this family, no near-term resolution seems to be available to them.
Newsbreak - July 17
