Surrogate families battle fine print under both Australian and Jewish law

When Jeremie Bracka became a father through international surrogacy, bringing his child home meant navigating citizenship, passports, embassies and recognition of parentage.  He calls it an “extraordinary bureaucratic obstacle course”. 

Years later, his family encountered a different problem when they sought Jewish childcare for his son Matteo. 

Matteo’s egg donor and biological father were Jewish and Matteo also underwent a Conservative Jewish conversion in Toronto. But because the person who carried and gave birth to Matteo was not Jewish, his status under Jewish law has caused difficulties. Bracka says the family could not enrol him in an Orthodox Jewish preschool in Melbourne because his halachic status was not accepted. 

The preschool confirmed there had been discussions about Matteo’s enrolment, saying the issue was solely his Jewish status, not his parents being gay or the family having used surrogacy. It said it sought rabbinic guidance and was advised that an Orthodox conversion in infancy would remove the uncertainty. 

Both Bracka’s children have since undergone Orthodox conversion in Israel so the family will not have to go through the same issue again.    

The Australian Law Reform Commission’s deadline to deliver its final report on surrogacy laws to the federal Attorney-General was September 11. The report will become public once it is tabled in Parliament. For families using domestic surrogacy, a legal problem can arise immediately after birth.  

The surrogate — and sometimes their partner — is the child’s legal parent at birth. Parentage must then be transferred to the intended parents by court order. Surrogacy lawyer Stephen Page calls the period before that order “limping parentage” and says it commonly lasts about six months. Page encountered the problem when his own daughter was born through surrogacy in 2019.