Two Australian fathers living in Canada have been caught in a nightmarish situation as they try to bring their baby son home.
Kyle and Kent Stewart, who are legally married in Canada, became dads to Kaden through a surrogate in Canada in October last year. Their marriage is not recognised in Australia.
![Kyle (left) and Kent Stewart's marriage is not recognised in Australia.](/web/20160718053749im_/http://www.theage.com.au/content/dam/images/g/q/7/3/m/r/image.related.articleLeadwide.620x349.gq6u4e.png/1468714678609.jpg)
One of them is the biological father and through Canadian law they are both recognised as the parents on Kaden's birth certificate.
The couple were able to successfully obtain Australian citizenship for Kaden through descent, but when it came to getting him a passport, Australia's laws, and the Passport Office's interpretation of those laws, have left the family in legal limbo.
![Kyle (left) and Kent Stewart with their son Kaden.](/web/20160718053749im_/http://www.theage.com.au/content/dam/images/g/q/6/v/v/2/image.related.articleLeadwide.620x349.gq6u4e.png/1468714678609.jpg)
"The process of getting him Australian citizenship was quite a smooth process," Kent said.
"We thought everything was going to plan and all the indications were showing there wouldn't be any issues in getting him a passport."
Kyle was able to secure an internal transfer within his company back to Brisbane and Kyle's accountancy and business management studies were finishing at the same time.
The couple sold their home in British Columbia, began the process of putting their dog through quarantine in preparation for his return to Australia and began packing their belongings to make their return home.
![Kent (left) and Kyle Stewart with their son Kaden.](/web/20160718053749im_/http://www.theage.com.au/content/dam/images/g/q/6/v/u/v/image.related.articleLeadNarrow.300x0.gq6u4e.png/1468714678609.jpg)
"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 said.
Then things began to unravel.
In British Columbia, the surrogate has no parental rights over Kaden.
Upon delivery of the child, she signed a statutory declaration rescinding any parental rights and the law in Canada doesn't recognise her as a parent.
But in Australia the Passport Office interprets the Family Law Act to consider that she is a parent and requires her consent to issue a passport, even though she is neither a citizen nor a resident of this country.
As the surrogate is not Kaden's 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' story is not without precedent: a number of surrogacy cases that have gone through the Family Court have identified that a child can have only two parents.
The problem may be that Australian law does not recognise the relationship of two men and the Passport Office is therefore able to insert the surrogate as a second parent.
Foreign Affairs Minister Julie Bishop wouldn't be drawn on the Stewarts' case but 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."
Mr Page, who is an internationally regarded expert on family law, disputed the Passport Office's interpretation of the Family Law Act but said that, as they are the ones who issue the passports, their interpretation seems to be final.
"Surrogate parental responsibility ceases only through an order made under the Family Law Act 1975 or Family Court Act 1997 (WA), or where the child in question is adopted in accordance with Australian law," the minister's spokeswoman said.
"Foreign Court orders or private legal arrangements do not extinguish parental responsibility under Australian law unless registered by an Australian court under the Family Law Act 1975 or Family Court Act 1997 (WA)."
But while the Department of Foreign Affairs and Trade, the Australian Passport Office and, perhaps, Australian law fail to keep pace with modern families, the Stewarts are left with limited options.
"Option one is they persuade the surrogate to sign the form, which she finds it offensive to do because she isn't the parent," Mr Page said.
"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."
To seek a declaration through the Australian courts is costly and offers no guarantee that they will be in a better position than they were before.
And without a passport, Kaden cannot travel to Australia to meet his Australian family.
Despite having a Canadian passport, he cannot be issued with a visitor visa because he is an Australian citizen.
"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."
For Mr Page, the situation is exasperating.
"The Department of Foreign Affairs and Trade are obviously properly concerned to make sure we don't have child trafficking occurring, but [Canada] isn't a developing country," he said.
"It is a fellow Commonwealth country, which has a common law system with open and transparent justice.
"It is an extraordinary position to take, I would have thought."
With the department unable to offer any reasonable way to move forward, the Stewart family now has to wait and weigh up their options.
A spokesman for shadow foreign affairs minister Tanya Plibersek said they were seeking information from the department.