Allbring & Barsotti [2026] FedCFamC2F 602 (5 May 2026)
A recent decision of the Federal Circuit and Family Court of Australia (Division 2) has provided important guidance on how Australian courts will approach applications by intended parents to be recognised as the legal parents of children born through overseas surrogacy arrangements. The case of Allbring & Barsotti [2026] FedCFamC2F 602, decided by Judge Harland on 5 May 2026, is a significant example of how changes to the Family Law Regulations 2024 (Cth) are now giving effect to parentage orders made in reciprocating overseas jurisdictions.[1]
Background
The applicants, Mr Allbring and Mr Barsotti, are a same-sex couple who had been trying to form their family for six to seven years. After an initial domestic surrogacy arrangement in Sydney fell through when the surrogate changed her mind,[2] they looked to the United States. In mid-2023, they entered a gestational surrogacy arrangement in the United States.[3] Their son, X, was born in 2024.
X has biological connections with both families: he was created using Mr Barsotti’s sperm and eggs donated by Mr Allbring’s sister.[4] Before X was born, the applicants obtained a pre-birth parentage order from a District Court in the United States, which declared that neither the surrogate nor her partner had any parental rights and confirmed the applicants as X’s natural parents.[5] X’s US birth certificate names both men as his legal parents.[6] He holds both Australian and US citizenship.[7]
The applicants initially sought recognition through the Attorney-General’s Department. Following changes in the law, they were directed to apply to the Court instead.[8] They appeared without legal representation.
The Legal Issues
The central issue was whether the Court could recognise the applicants as X’s legal parents for the purposes of all Commonwealth laws, and consequently authorise the registration of X’s birth in New South Wales and the obtaining of an Australian passport.
Judge Harland also addressed a secondary issue concerning the Surrogacy Practice Direction, court forms, and the requirements under rule 1.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which had been prepared for disputed matters and did not adequately cater for joint applications with no opposing party.
Key Findings
Recognition of legal parentage under the Family Law Regulations 2024
Her Honour found that the United States of America is listed in Schedule 2 of the Family Law Regulations 2024 (Cth) as a prescribed overseas jurisdiction for the purposes of the parentage presumption provisions in Division 12 of Part VII of the Family Law Act 1975 (Cth) (“the FLA”). Under section 69R of the FLA, where a person’s name is entered as a parent in a register of births kept under the law of a prescribed overseas jurisdiction, that person is presumed to be a parent of the child. As both applicants were named on X’s US birth certificate, the presumption of parentage applied.[9]
Her Honour was satisfied that the presumption had not been rebutted and made declarations of parentage in favour of each applicant under section 69VA of the FLA, which provides that such declarations are conclusive evidence of parentage for the purposes of all Commonwealth laws.[10] The Explanatory Statement to the regulations makes clear that these changes are intended to give effect to Australia’s obligations under the United Nations Convention on the Rights of the Child, including the right of every child to know and be cared for by their parents and to have their identity and family relations recognised.[11]
Birth registration and passport
Her Honour made orders authorising the applicants to register X’s birth with the NSW Registry of Births, Deaths and Marriages under sections 13(4) and 19 of the Births, Deaths and Marriages Registration Act 1996 (NSW), and to apply for and renew an Australian passport for X under section 11 of the Australian Passports Act 2005 (Cth).[12] The Court noted that passport difficulties are commonly experienced by parents in similar situations, and that including the order would assist in avoiding such problems.
Commercial surrogacy and section 128 certificates
Her Honour noted that the gestational surrogacy contract involved various categories of payment to the surrogate. As the applicants are ordinarily resident in New South Wales, sections 8 and 11 of the Surrogacy Act 2010 (NSW) prohibit and apply criminal liability to commercial surrogacy arrangements, including those entered into overseas.[13] Her Honour granted both applicants a certificate under section 128 of the Evidence Act 1995 (Cth) in respect of any self-incriminating evidence about the overseas arrangement.[14]
Surrogacy Practice Direction and court forms
Her Honour observed that the existing court forms and Surrogacy Practice Direction are designed primarily for contested matters between opposing parties, and do not adequately cater for joint applications such as this one where there is no respondent.[15] The applicants, acting without legal representation, had filed a number of family law forms that were irrelevant to their circumstances. Her Honour dispensed with the requirements under rule 1.10 pursuant to rule 1.04, noting that significant developments in surrogacy law since the 2012 decision in Ellison & Karnchanit warranted reconsideration of the evidence required in surrogacy matters.[16][17]
Why This Decision Matters
This decision illustrates the practical operation of the Family Law Regulations 2024 in the context of overseas surrogacy arrangements and demonstrates how the Court is giving effect to the rights of children born through surrogacy to have their functional parents recognised as their legal parents under Australian law, particularly if the parents are named as such on the child’s foreign birth certificate.
Her Honour also reinforced that the Court’s focus in these applications is on the best interests of the individual child, and that making parentage declarations does not constitute an endorsement of surrogacy.[18] This is consistent with the Verona Principles published by the International Social Service in 2021, which call on States to protect the rights of children born through surrogacy regardless of the State’s position on the practice itself.[19]
The decision is also a timely one, given that the Australian Law Reform Commission is due to deliver its final report on the review of surrogacy laws on 29 July 2026. That review is examining how surrogacy should best be regulated to reduce risks of exploitation and to ensure compliance with Australia’s human rights obligations.[20]
How Nicholes Family Lawyers Can Help
If you are an intended parent who has entered into an overseas surrogacy arrangement and are seeking recognition of your legal parentage in Australia, or if you have questions about your rights and obligations under Australian family law, please do not hesitate to contact Nicholes Family Lawyers on 03 9670 4122.
[1]Allbring & Barsotti [2026] FedCFamC2F 602 (“the judgment”), [1].
[2]Judgment, [4].
[3]Judgment, [5].
[4]Judgment, [9].
[5]Judgment, [10].
[6]Judgment, [11].
[7]Judgment, [12].
[8]Judgment, [3].
[9]Family Law Act 1975 (Cth) s 69R; Family Law Regulations 2024 (Cth) sch 2; Judgment, [17]–[18].
[10]Family Law Act 1975 (Cth) s 69VA; judgment, [27].
[11]Judgment, [16]; United Nations Convention on the Rights of the Child (1989) arts 7, 8.
[12]Births, Deaths and Marriages Registration Act 1996 (NSW) ss 13(4), 19; judgment, [19]; Australian Passports Act 2005 (Cth) s 11; judgment, [20].
[13]Surrogacy Act 2010 (NSW) ss 8, 11; judgment, [5].
[14]Evidence Act 1995 (Cth) s 128; judgment, [5].
[15]Judgment, [22]–[24].
[16]Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.10; judgment, [25].
[17]Ellison & Karnchanit [2012] 48 Fam LR 309; judgment, [25].
[18]Judgment, [28].
[19]International Social Service, Principles for the Protection of the Rights of the Child Born through Surrogacy (Verona Principles, 2021); judgment, [28].
[20]Australian Law Reform Commission, Review of Surrogacy Laws: Discussion Paper (2025), pp 9–10, 25–28; judgment, [6].