Wednesday, 16 October 2013

Family Court: South African man who underwent surrogacy there is a parent here

Since the invention of Austlii, it can be very hard to keep abreast of all the recent family law cases. I am thankful to Anthony Brien of Gay Dads NSW for alerting me to this case.

In Carlton and Bissett, Mr Bissett was  both a South African and Israeli citizen. He pursued an altruistic surrogacy in South Africa, where it is legal. A surrogacy arrangement was signed and a South African judge then made an order which meant that when the children were born that Mr Bissett was the sole parent of the children, the surrogate relinquishing her rights.

Following the order being made, medical treatment started and the children were then conceived.

During the course of the pregnancy, Mr Carlton, an Australian resident but originally from South Africa, happened to be visiting South Africa, when he met Mr Bissett. They fell in love and became an item.

Justice Ryan held that the question of whether Mr Bissett was a parent was:

Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.


Her Honour then said that under South African law Mr Bissett was the parent.

After examining the labyrinth under the Family Law Act  as to whether Mr Bissett was a parent, her Honour made a declaration of parentage in favour of Mr Bissett:

It will be apparent that I have accepted that Mr Bissett is able to rely on the general presumptions of parentage notwithstanding the provisions of s 60H [donation to a couple] and s 60HB[ State based parentage orders] , both of which were inserted into the Act after the general presumptions. Those provisions are not directed to children born in another country to a person or people ordinarily resident in that country at the time of conception and birth. (emphasis added)


It will be interesting to see how expatriate Australians may be able to take advantage of what her Honour said.

Registration of overseas orders

It is possible to register with the Family Court overseas custody orders made in specified jurisdictions so that they have the same force and effect as if they had been made under the Family Law Act.

Her Honour rejected the possibility of registration because South Africa was not a prescribed overseas jurisdiction. What she did not do was to reject the possibility of registration on the basis that the Family Court could not make a surrogacy order i.e. the view that the only orders that could be registered were like for like. Her Honour was silent on this point.

I mention this because in the past Family Court registrars have rejected overseas surrogacy orders from prescribed jurisdictions- as I wrote about in my initial submissions to the Family Law Council- because they were not like for like- as the Family Court could not make a surrogacy order, therefore it could not register an overseas surrogacy order.

In light of her Honur's silence on the point, it may now be possible to register those overseas orders, such as from California.

Let's see.

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