One of the most vexed issues for those in alternative families is working out who is or who is not a parent, and if not a parent, then what happens?
This was the mammoth topic I was given to present about at the Television Education Network conference last week on the Gold Coast. Here is my paper:
This was the mammoth topic I was given to present about at the Television Education Network conference last week on the Gold Coast. Here is my paper:
TELEVISION EDUCATION NETWORK
23-24
July 2015
GOLD
COAST
WHO IS A PARENT THEN – IS THREE A
CROWD?
By Stephen Page[1]
Introduction:
Getting pregnant
Welcome to the wonderful world
of making babies!
There are only three ways to
get pregnant:
·
The old fashioned way- by heterosexual vaginal
intercourse;
·
By artificial insemination- when sperm is
injected into the uterus by use of some device, such as a catheter, a syringe
or a turkey baster;
·
By implantation of an embryo created somewhere
else.
Such is the jargon that comes
with the territory; a decoding of the jargon at this point might be helpful:
ART is the
process of getting pregnant with the help of doctors. It is commonly called
assisted reproductive treatment, but can also be called artificial reproductive
treatment or artificial reproductive technology. It can cover artificial
insemination, IVF and other techniques.
Blastocyst is a
developed embryo, typically 5 days old. It remains microscopic.
Conception is the
act of creation of a person. It could be the fertilisation of the egg, but has
been held to be at the time of pregnancy, i.e., with ART after the implantation
of the embryo.
Embryo is a
fertilised egg.
Implantation is the
act of placing an embryo (which is microscopic) via a very fine catheter into
the uterus of a woman.
ICSI is
intra-cytoplasmic sperm injection-where a catheter or tube is used to place one
sperm into an unfertilised egg
IVF or in
vitro fertilisation is the act of having an egg fertilised by a sperm outside
the body, typically in a petri dish, hence in glass or in vitro.
Oocyte
(pronounced oh-a site) is a human egg.
Ryan J stated in Ellison & Karnchanit [2012] FamCA
602:
“Spread across
different divisions in Part VII there are a number of provisions that deal with parentage, presumptions and declarations
of parentage. Those in Division 1 operate
to irrebuttably deem the child for the purposes of the Act, in the
circumstances there identified, the
child of designated people. Those in division
12 create rebuttable presumptions for the purpose of the Act. Notably by s69U it is acknowledged that two
or more presumptions under that
subdivision may apply, in which case (excluding s69(1)). It is
for the Court to determine which presumption should prevail. Then in division
12 subdivision B, the Court is
empowered to issue a declaration of parentage that is conclusive for the purposes of all laws of the
Commonwealth. In essence there is a
scheme which operates so that,
for the purposes of the Act or Federal law, children may variously be deemed, presumed or declared the
child of a person.”[2]
G v H (1994)
A good starting point in
discussing the issue of who is a parent is G
v. H (1994) HCA 48. H sought that G, her former de facto partner, undertake
a DNA parentage test, to determine if he were the father of her child. H
refused, on the basis that G was a prostitute.
Deane, Dawson & Gaudon JJ stated
at [17] as to the parenting presumptions:
“The presumptions
operate in the interests of the child and provide the basis for the imposition of parental duties and a
responsibility unless and until proved to the contrary is forthcoming.”
Their Honours stated:
“While a
determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the
child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity
in the traditional sense.”
The High Court held that an adverse
inference could be drawn against G for his refusal to submit to parentage
testing therefore it could be inferred that he was the father.
Brennan and McHugh JJ stated at
[7]-[8]:
“When the question
of paternity arises and the evidence discloses that one of two or men must be the father but it is uncertain which
of those men is the father, a slight preponderance
of evidence tending to show that a particular man is the father may be sufficient to establish paternity if that
man fails without reasonable excuse to comply with the parentage testing order. That is because, first, paternity is an issue
that, as between two or more men,
is inherently difficult to prove without proper parentage testing, so that a slight preponderance of evidence may
be all that can be offered in proof and, secondly, the testing procedures now available have been demonstrated to
be so accurate that the results will
almost inevitably conclude the issue.
At [8]:
“We do not suggest
that paternity is not a serious issue.
It is serious because paternity carries
with it both significant privileges and grave responsibilities, only some of
which relate to monetary
obligations. The attribution of
paternity may be seen by a child’s mother to
be no more than the means of procuring a means of a maintenance order during
the child’s infancy, but a finding that a particular man is the
child’s father might well be of a greater
significance to the child in establishing his or her life time identity
but, when a court is deciding whether a
party on whom rest the burden of proving an issue on the balance of probability says discharge that
burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on
the part of the other party to adduce
available evidence in response. …
In order that justice be done so far as the
nature of the subject permits, the burden of proof of paternity in proceedings
for the maintenance of a child born to an unmarried mother must be discharged
when the party on whom it rests adduces the evidence available to her or him
and that evidence tilts the balance of probability in favour of the paternity
alleged and the punitive father, having the sole capacity to provide conclusive
evidence by submitting to a parentage testing order, fails or refuses to do
so.” (emphasis added)
Not only did H use condoms but
also spermicide and a diaphragm when with clients.
Deane, Dawson & Gaudron JJ
held at [16]:
“Paternity is a
serious matter, both for father and for child.
However, it is not clear that the question
of paternity should be approached on the basis that it involves a grave or
serious allegation in the
Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes
that the person concerned is more likely than anyone else to be the father.
After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to
see why, if a person who could be the
father declines to participate in procedures which will provide proof one way or the other, the child’s rights to
maintenance and support should none the less depend on the biological fact of paternity being established on the
basis that, so far as the putative father
is concerned, the biological fact involves an allegation in much the same
category as an allegation of moral or
criminal wrong doing.”
Their Honours did some numbers
about statistics, in particular G’s combination of 3 contraceptive methods, at
[13]:
“If,
on a given occasion, there were one chance in ten of any one of the measures
failing (in the sense of not offering complete protection against the
possibility of conception) and the reasons for the failure of any one measure
were unrelated to the others, there would only be one chance in a thousand of
all three failing at the same time. Then
on that statistical basis, if one assumes that H had intercourse with 250
clients during the period in which conception could have occurred (a figure
towards the upper end of the range postulated by the trial judge, there would
only be less than one chance in four that all three contraceptive methods would
fail on at least one occasion.) (If the
probability of the combined contraceptive methods not failing on any given
occasion is assumed to be 999 chances in 1000, or .999, then the probability of
their failing at least once on 250 independent occasions is 1-(.999), or about
.22.) whereas the evidence indicated that she had actually had unprotected sex
with H on a number of occasions during the relevant period. Of course that, says nothing about the
statistical probability of conception either during unprotected voluntary
intercourse with G or in the event of such a failure of contraceptive methods
during intercourse with a client.
Moreover, there is a difference between statistical and legal
probability.”
These presumptions are
rebuttable: section 24(5) Status of Children Act 1978 (Qld)[3], section 69U Family Law Act.
Who
is the mother?
The
mother is always certain: Mater semper
certa est
Since the time of the Emperor
Justinian, in the 7th Century, a fundamental principle of our law
has been that the woman who gives birth is the mother. This remains true for
both naturally conceived children, and those conceived through assisted
reproductive treatment, such as artificial insemination.
While in the US courts have
considered that there have been three potential bases for who is a parent,
namely:
·
Who is genetically
a parent
· Who intended to be a parent
·
Who gave
birth
The approach in Australia so
far as the mother is concerned is clear- to determine who is the parent is
based on the principle that the mother is the woman who gave birth. There have
been some exceptions to this, but in general this principle remains true.
Where there has been a
fertilisation procedure, or as described under the Family Law Act, an artificial
conception procedure[4],
the woman who gave birth remains the mother of the child. What is clear when there has been an
artificial insemination of a woman who is married that it is assumed that the
woman who gave birth is the mother: see sections 17,18 Status of Children Act 1978
(Qld).
Where a donor ovum is used then
the married woman shall be presumed for all purposes to have become pregnant as
a result of the fertilisation of an ovum produced by her, into the mother of
any child born as a result of the pregnancy and the woman who produced the ovum
from which the embryo used in the procedure was derived shall be presumed, for
all purposes, not to be the mother
of any child born as the result of the pregnancy, which presumption is
irebuttable: section 19 (2), (3) Status
of Children Act. Similarly the woman
who gave birth will be presumed to be the mother under section 60H Family Law Act.
If the woman had a female
partner and donor semen has been used, then the woman who gave birth is the
mother: section 19D Status of Children
Act 1978 (Qld) Where a donor ovum
has been used then she is the mother and the donor is not: section 19E(2) Status of Children Act 1978 (Qld). Similarly in those last two examples the
woman who gave birth is the parent: section 60H Family Law Act. Note that the parenting presumptions where there is
a female de facto partner are irebuttable presumptions: section 19F, although
the presumption about the de facto partner’s consent is a rebuttable
presumption with a reverse onus: s.19G Status
of Children Act.
Who
is the father?
If
the man had sexual intercourse with the mother; that resulted in the conception
of the child, he will be the father.
If ever there were any doubt, G v. H makes that plain. No matter the
intent of the parties, or their relationship status, genetics triumph.
What
if there has been an artificial conception procedure?
Is
the husband or de facto partner of the birth mother a parent?
The answer is,
ordinarily, yes.
Where there is an artificial
conception procedure the man may be presumed to be the father, by way of rebuttable presumptions, as follows:
Presumption
|
Section of Status of Children Act
|
Section of Family Law Act
|
Marriage
|
24
|
69P
|
Birth
Registration
|
25
|
69R
|
Court
finding
|
26
|
60S
|
Acknowledgments
|
27
|
69T
|
Cohabitation
|
28
|
69T
|
There is a limitation with
birth records as they must be only birth certificates “under a law of the Commonwealth, a State or a prescribed overseas
jurisdiction”. As was noted by Ryan
J in Ellison & Karnchanit [2012]
FamCA 602[5], there has been no
overseas jurisdiction prescribed for the purposes of section 69R[6].
Those who undertake surrogacy
overseas often believe that by virtue of the overseas birth certificate that
they are the parents of the child. The answer as seen in Ellison and Karnchanit is that an overseas birth certificate may
not be evidence of parentage here.
If there is any doubt that
there is a scheme between the Family Law
Act and the various State and Territory Status
of Children Acts as to parenting presumptions, one only need to compare,
for example, the mirror wording of section 25 Status of Children Act 1978 (Qld) and section 69R Family Law Act.
Will
the male partner be a parent when there has been an artificial conception procedure?
Subject to the comments about Groth & Banks, below, and subject to
the rebuttable presumptions, a husband or male partner will only be a parent to a child where his
wife or de facto partner gives birth and he falls fair and square within
section 60H of the Family Law Act and
the related provisions of the State or Territory legislation. I will cover this in a discussion of section
60H below.
When
will a female de facto partner be considered to be a parent?
If a woman was living in a
lesbian relationship at the time of conception[7] i.e. the implantation[8] then either:
A.
If the birth mother conceived the child
naturally, then the female partner is not
a parent; or
B.
If the birth
mother conceived the child through an artificial conception procedure
then the female partner will, subject to the discussion about Groth & Banks below, only be a parent if she falls fair and
square within section 60H of the Family
Law Act and/or the related State provisions.
Section
60H and related State provisions
Section 60H of the Family
Law Act provides:
“Children born as a result of artificial
conception procedures
(1) If:
(a) a child is
born to a woman as a result of the carrying out of an artificial conception
procedure while
the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(b) either:
(i) the woman and the other intended parent consented
to the carrying out
of the procedure, and any other person who provided genetic material
used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory,
the child is
a child of
the woman and of the other intended parent;
then,
whether or not the child is
biologically a child of
the woman and
of the other intended parent, for
the purposes of this Act:
(d) if a person other than the woman and the other intended parent provided
genetic
material--the child is
not the child of
that person.
(2) If:
(a) a child is
born to a woman as a result of the carrying out of an artificial conception
procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory,
the child is
a child of
the woman;
then,
whether or not the child is
biologically a child of
the woman, the child is
her child for
the purposes of this Act.
(3) If:
(a) a child is
born to a woman as a result of the carrying out of an artificial conception
procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory,
the child is
a child of
a man;
then,
whether or not the child is
biologically a child of
the man, the child is
his child for
the purposes of this Act.
(5) For the purposes of subsection (1), a person is to be presumed
to have consented to an artificial conception procedure being
carried out unless it is proved,
on the balance of probabilities that the person did not consent.
(6) In this section:
The term “artificial
conception procedure” is defined as in section 4 as including:
(a) “ Artificial insemination; and
(b) The implantation of an embryo in the body
of a woman.”
What is clear is that Parliament did not intend that the
creation of an embryo was an artificial conception procedure but it is the act
of enabling a pregnancy to commence i.e. the conception of a child that is the
critical element. This is consistent with
the decision by Judge Clare SC in LWV &
Anor v LMH [2012]QChC 026, in which her Honour found that conception did
not occur at the time of the creation of an embryo but occurred at the time of
pregnancy i.e. at or about the time of an implantation of an embryo.
It is essential to be careful with dealing with case law
concerning section 60H as the current section was largely rewritten in
amendments in 2008.
Although the current section came about due to lobbying
particularly by the New South Wales Government to ensure the recognition of
children born to lesbian couples, what is clear from the first element in
subsection (1) (a) is that the birth mother must be married to or a de facto
partner of another person. This is gender neutral. The relevant time for the de facto
relationship is at the date of the artificial conception procedure, not the
birth[9].
Paragraph 60H (1)(b) has alternate limbs. The first is that the birth mother, the other
intended parent and the donor consented
to the use of the material in an artificial conception procedure. This would ordinarily able to be proved by
consent forms that are required by any IVF clinic. This would apply in respect of any egg donor,
sperm donor or embryo donor[10].
However with a home insemination, such as the use of either
syringe or turkey baster, there may not be obvious documentary evidence of consent.
The alternative limb is that there is a prescribed law by
which the child is the child of the woman and of the other intended
parent. The prescribed laws are set out
in regulation 12C of the Family Law Act
Regulations 1984.
STATE
|
LAW
|
Sections
|
NSW
|
Status of Children Act 1996
|
The
whole
|
VIC
|
Status of Children Act 1974
|
10A,
10B, 10C, 10D, 10E, 13 and 14
|
QLD
|
Status of Children Act 1978
|
17,
18, 19, 19C, 19D, 19E
|
WA
|
Artificial Conception Act 1995
|
The
whole
|
SA
|
Family Relationships Act 1975
|
10A,
10B, 10C, 10D and 10E
|
TAS
|
Status of Children Act 1974
|
Part
III
|
ACT
|
Parentage Act 2004,
|
11
|
NT
|
Status of Children Act
|
5A,
5B, 5C, 5D, 5DA, 5E and 5F
|
Beware to check the sections and that they are the correct
ones. I recently looked at the Family Relationships
Act 1975 (SA), where there is now no section 10D or 10E. There is currently a Bill before the South
Australian Parliament to amend sections 10B and 10C of the Family Relationships Act allowing de facto partners to elect, by
regulation, with the result that the woman and her partner are the parents and
that the partner conclusively presumed to have and caused the pregnancy.
In Queensland if the birth mother was married and there was
artificial insemination either by sperm produced by a man other than a husband
or a mixture including sperm produced by a husband, then a husband, by way of
irebuttable presumption shall be presumed for all purposes to have caused the
pregnancy and to be the father and the other man will not be: s.17 Status of Children Act.
The same applies where there is an implantation procedure
and donor semen is used: s.18 Status of
Children Act.
Where an embryo is implanted in a woman then whoever
produced the semen the husband is presumed, by way of an irebuttable
presumption, to be the father and the birth mother is presumed to be the mother
and the egg donor is not, also an irebuttable presumption: s.19 Status of Children Act.
Where the woman has a female de facto partner then the
female de facto partner is presumed for all purposes to be a parent and the man
who produced the semen has no rights or liabilities relating to the child: s.19C
Status of Children Act.
Similarly if there has been an implantation procedure the
man is not a parent if the man is someone other than the birth mother’s husband
and the woman’s female de facto partner is presumed for all purposes to be a
parent: s.19D Status
of Children Act.
There may be a problem if the birth mother in a lesbian relationship has not
divorced her husband.
Where there has been a donor then the birth mother is
presumed for all purposes to be the mother, her female partner to be a parent
and the egg donor for all purposes is presumed not to be the mother. The man who produced the semen similarly has
no rights or liabilities to any child born as a result of a pregnancy for which
the semen has been used: 19E Status of
Children Act.
The effect of section 60H is therefore that the child is the
child of the woman and of the other intended parent but not of the donor.
She
wants a baby, he doesn’t: too bad”
In a number of recent
cases I have had female clients who have wanted to have children. They have
wanted to have a child, but their male de facto partners have not. Their
partners typically already have children, have been through the Family Court
process, and are paying child support. While they are happy for their partner
to have a child (to satisfy their partner’s yearnings) they do not want the
child as their own.
This is where things get
tricky. If the parties reside in a de facto relationship, and the woman goes to
a bar or more likely these days finds a man via a social media app like Tinder
and gets pregnant, her partner will be presumed to be the father- but the
presumption can be rebutted easily via a DNA test.
If however she decides
that she will go through ART, then ART cannot proceed without her partner
having had counselling and consenting in writing to the procedure[11]. As soon as he has
consented, whether or not he wants to have a child, then the partner will be
presumed, as an irebuttable presumption, to be the parent.
The choice for the
desperate woman is then to:
° Give
up
° Get
pregnant by usual means from someone else
° Split
up, and then pursue ART as a single woman. However, as seen in Groth and Banks,
this too has its risks.
Section
60H(2)
Section 60H(2) has a different test, namely that if the
child was born to a woman after the carrying out of an artificial conception
procedure and under the prescribed law of the Commonwealth, State or Territory,
the child is a child of the woman then whether or not the child is biologically
a child of the woman, the child is her child for the purposes of the Family Law Act. Similarly if the woman gives birth following
an artificial conception procedure and under a prescribed law of the
Commonwealth or of the State or Territory the child is the child of a man, then
whether or not the child is biologically his the child is his child for the
purposes of the Family Law Act.
The laws are prescribed under reg. 12CA:
State
|
Law
|
Section
|
NSW
|
14
|
|
Vic
|
15,16
|
|
Qld
|
23
|
|
WA
|
The whole
|
|
SA
|
10B, 10C
|
|
Tas
|
Part III
|
|
ACT
|
11(2) and (3)
|
|
NT
|
Status of Children Act 1978
|
5B, 5C, 5E
|
Section
60H(3)
Under s.60H(3) a man may be presumed to be the father, but
only under a prescribed law. There are
no prescribed laws for the purposes of section 60H(3)(b).
Can a
person be a parent under the Family Law Act when there has been an artificial
conception procedure but they are not the birth mother or birth mother’s
partner under section 60H?
Depending on who you listen to, the answer is yes.
There have been a series of disparate cases, usually
involving surrogacy.
The cases seem to turn on:
(a) Whether
there is a national scheme;
(b) Local
legislation and approaches;
(c) Biology
and intent;
(d) Comity.
First
the easy one, comity:
Carlton
& Bissett [2013]
FamCA 143
Mr Bissett was a resident and citizen of South Africa when
he undertook surrogacy there. Under
South African law Mr Bissett obtained a pre-approval order from a South African
court, the effect of which was that when the children were born he was deemed
to be the father.
Subsequently Mr Bissett fell in love with Mr Carlton and Mr
Bissett and the twins moved to Sydney.
Mr Bissett sought that he be recognised as the parent. There were three arguments. The first argument was to seek to have the
South African order registered with the Family Court as an overseas child order
under section 70G of the Family Law Act. Ryan J held the definitions of “parent” and “child” under sections 60F to 60HB:
“have no application to Mr Bissett. Simply put, whether he is the children’s
parent needs to be determined in the first instance by the application of the
laws where he was ordinarily resident and the child was domiciled (or origin)
at the time of their birth; namely South Africa.”[12]
Her Honour found that the order met the definition of “overseas child orders”[13]. Hopefully this puts paid to the proposition
raised by at least one Registrar in the past that the court could not register
an overseas surrogacy order because it was only able to register “like for like” orders. Basically the argument went that if the
Family Court of Australia could not make a surrogacy order then it could not
register an overseas surrogacy order under section 70G. Clearly the form of the South African order
in which it was a pre-approval for surrogacy is not the type of order that the
Family Court of Australia could ever make, but nevertheless according to her
Honour met the definition.
However, the order was unable to be registered because South
Africa was not a prescribed overseas
jurisdiction. This is contained in schedule 1A of the Regulations. Most American jurisdictions are listed there,
for example Alabama and Wyoming[14], but be careful because
many jurisdictions that we ordinarily think ought to be included there are
not. While New Jersey, New Zealand and
Papua New Guinea are included, no Canadian province, nor England or Wales are.
No European jurisdiction is included.
The second argument in Carlton
& Bissett was to rely on section 69S of the Act whereby a court of a
reciprocating jurisdiction had found that Mr Bissett was a parent. This section required that the reciprocating
jurisdiction was either within the meaning of section 110 of the Act or a
jurisdiction mentioned in schedules 4 or 4A to the Regulations. Schedule 4 is for those countries defined
under the “Hague Child Maintenance
Convention” and schedule 4A is where Australia has entered into an “international child support agreement”,
for example with Finland.
South Africa was not a country within either of these
schedules. Section 110 covers
jurisdictions with restricted reciprocity, meaning a country or part of a country
outside Australia declared by the Regulations to be a jurisdiction with
restricted reciprocity for the purposes of this section. The jurisdictions set out in schedule 2 to
the Regulations are the reciprocating jurisdictions for the purposes of section
110. Here we have jurisdictions as far
removed as Austria and Zimbabwe and now, at least, South Africa.
Her Honour held in effect that because the limited nature of
section 110 relating to international maintenance orders then section 69S
simply did not have application and must fail.
However for comity purposes her Honour found:[15]
“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 section 60H and section 60HB, 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.”
What is unclear is whether an order made overseas has the
effect under the comity principle that it ought to be recognised in Australia.
Recent case law from Europe would seem to indicate that this is the approach to
be taken, notwithstanding domestic law in the relevant countries banning
surrogacy. European parents have travelled to the US for surrogacy;
notwithstanding that surrogacy is illegal or not recognised back home. Courts
in Spain, Germany and France have adopted the comity principle and for the benefit
of the child, have recognised the US order.
Going
overseas for surrogacy
When Australians undertake surrogacy overseas, as they
commonly do, they:
(a)
Undertake surrogacy in a country where reliance
is upon contract (as has occurred in the past, for example in India); or
(b) Rely
primarily on the making of an order in the best interests of a child as, for
example, in the United States.
When Australians undertake surrogacy overseas they do so
either lawfully (as is clearly the case for those, for example, from Victoria,
Tasmania or the Northern Territory) or they do so unlawfully (as is clearly the
case for those undertaking commercial surrogacy if they are from Queensland,
New South Wales or the ACT all of which jurisdictions have laws of extra-territorial
application)[16]. In four cases decided in 2011, concerning New
South Wales and Queensland couples undertaking surrogacy in Thailand, Watts J
questioned whether the intended parents were parents because of the parenting
presumptions under the relevant Status of
Children Act and of concern that what was done was illegal.[17]
In Ellison &
Karnchanit [2012] FamCA 602 Mr Ellison and his wife Ms Solano undertook
surrogacy in Thailand. Mr Ellison and Ms
Solano came from Queensland. The first
aspect of the case is that the DNA evidence was inadmissible.
Her Honour noted that she was not bound by the Thai birth
certificate stating that Me Ellison was the father even though genetically he
was the father.
Ryan J held that section 60H applies even with children born
overseas whereas section 60HB (which deals with surrogacy orders made under
prescribed law of a State or Territory) only covers orders made in the relevant
State or Territory[18]. At the time of Ellison & Karnchanit there were no laws prescribed for the
purpose of section 60HB, but they are now prescribed under Regulation 12CAA[19].
Ryan J formed the view that section 60H(1) is not intended
to be an exhaustive definition and thus does not operate to exclude a person as
a parent if his or her circumstances do not coincide with those identified in
the section.[20] Her Honour found that section 60HB does no
more than say that if a relevant order is made by a State Court, then for the
purpose of the Family Law Act it will apply.[21]
Relying upon the International
Convention on the Rights of the Child, her Honour accepted submissions of
the Australian Human Rights Commission that it would be contrary to the rights
of the children for Mr Ellison not to be recognised as a parent where the
evidence supports such a finding[22] and then found it was in
the best interests of the children that an order be made.
Blake
& Anor [2013]
FCWA1
Mr Blake and Mr Marston were the intended parents. They went
to India. Mr Blake applied for
step-parent adoption of the children on the basis that Mr Marston was the
father of the children. The critical
issue was whether Mr Marston could be considered a parent. The children were born as the result of surrogacy
in India following a contract being entered into between Mr Marston and a
surrogate and her husband. Crisford J
found that the contract was binding under Indian law and that the surrogate and
her husband relinquished all their rights to any children born of the surrogacy
procedure. There was no evidence about
whether the surrogacy laws were commercial or otherwise.
The children were granted Australian citizenship, following DNA tests showing that Mr Marston
was the genetic parent. At the time of
the judgment Mr Blake, Mr Marston and the children were living overseas.
Contrary to Ellison
& Karnchanit her Honour noted that the court was dealing with different
legislation and a different factual matrix which included a legal opinion about
the validity of the arrangement in India.[23]
Her Honour noted that parent
was not defined under the Adoption Act
1994 (WA), but that there was a definition of parent under the Interpretation
Act 1984 (WA), being an inclusive definition, including:
(a)
A parent who is a parent within the meaning of
the Artificial Conception Act 1985
(b)
Be a person who is an adoptive parent under the Adoption Act 1994
(c)
A person who is a parent in a relationship of
parent and child that arises because of a parentage order under the Surrogacy Act 2008.
The Artificial Conception
Act is the Western Australian version of the Status of Children Act and the effect of that would appear that the
surrogate and her husband were the parents and that Mr Marston, as the sperm
donor, shall be conclusively presumed not to have caused the pregnancy and is
not the father of any child.
As her Honour noted, the Artificial
Conception Act was intended to apply to “an artificial fertilisation procedure carried out before or after the
commencement of this Act either within or outside Western Australia” and as
such would appear to apply to the procedure carried out in India. Marston would therefore not be included in
the definition of a parent provided in the Interpretation
Act.
However as her Honour noted, that definition was not
exhaustive. Her Honour stated:[24]
“In the Court’s view, there is scope to
enlarge the definition and determine what other people might be considered a ‘parent’ or a ‘father’ within its
ordinary meaning. Unless the court so determines, a person in Mr
Marston’s position would not be considered a birth parent for the purpose of the Act.”
Her Honour then considered the various parenting
presumptions under the Family Law Act. None of them applied. The Indian lawyer noted that the surrogate
has no rights over the children as she has relinquished all her parental rights
in the agreement. Counsel for the State
Department submitted that the court was able to take into account any
declaration of parentage made by Mr Marston under a law of the Commonwealth the
law of Australian State or Territory including documents provided to the
Department of Immigration for the purpose of obtaining Certificates of
Citizenship. However, the documents
signed by Mr Marston in support of the Certificate of Citizenship were not
provided. Her Honour noted that there
wasn’t strict compliance with the Family
Law Regulations as to the DNA testing as the containers of bodily samples
had not been appropriately labelled[25].
Her Honour stated:[26]
“One overarching consideration is
that since 2010 Mr Marston and Mr Blake have acted as parents to these
children. They have fulfilled that role
for over two years without input from any other person who might be seen as a
parent… the Act does not specifically define a father or a parent of the child
to be adopted the Interpretation Act does provide a definition, albeit not an
exhaustive definition. The examples that
are given do not encompass Mr Marston.
In circumstances where provisions enlarge rather than restrict here it
can’t be said that the provisions operate to exclude a person as a parent if
his or circumstances do not coincide with those identified in this
section. To suggest that Mr Marston is anything other than a parent or a father
within its ordinary meaning is to turn a blind eye to the reality of ‘family’
in present day society. It is also
turning a blind eye to the reality of the situation presently before the Court.
The objective facts surrounding the
birth and the manner in which various agencies have treated those circumstances
couple with the fact of the genetic father acting in that role since the birth
of the twins points to the use of an expanded definition of parent. To adopt any other interpretation would serve
no purpose in addressing any public policy issues if, indeed, any exist. It would serve no purpose in enhancing the
future welfare and best interests of these children… there is no valid reason
to disadvantage children of surrogacy arrangements.”(emphasis
added)
Mason & Mason [2013] FamCa 424
A gay couple, Mr A and Mr B Mason undertook surrogacy in
India, resulting in the birth of twins.
Mr A Mason entered into a surrogacy arrangement in India.
The issue in question was whether either of them were the
parents. There was no reference to Re Blake.
Ryan J held[27]:
“Spread across different divisions in Part
VII there are a number provisions to do with parentage,
presumptions and declarations of parentage.
Those in division 1 subdivision (D) operate
to irrebuttably deem a child for the purposes of the Act, in the circumstances
there identified, the child of
designated people. Those in Division 12
subdivision D create rebuttable
presumptions for the purpose of the Act.
Notably by little s69U it is acknowledged
that two or more presumptions under that subdivision may apply, in which case (excluding s69S(1)) it is for the Court to
determine which presumption should prevail. Then in division 12 subdivision E, the court
is empowered to issue a declaration of parentage
that is conclusive for the purposes of all laws of the Commonwealth. In essence there
is a scheme which operates so that, for the purpose of the Act or Federal law,
children may variously be
deemed, presumed or declared the child of a person the effect of section 12 of the Status of Children Act 1986
(NSW)… is that declaration of parentage made under the Act will be recognised by the State.”
Her Honour considered sections 60H and 60HB. Her Honour referred to the Status of Children Act as the “Children’s Act” her Honour took a
contrary view to that in Ellison &
Karnchanit, stating that there was a scheme of who is a parent under the Status of Children Legislation and the Family Law Act. Her Honour stated[28]:
“It follows, that without the benefit of argument, a
cautious approach to the issue is necessary. However,
it is my preliminary view that for the purposes of the Act the 2008 amendments, events and intentions by
Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy
arrangements will be determined by
reference to those provisions and not the general parentage provisions. This
interpretation achieves, on a state by state (and territory) basis, a uniform system
for the determination of
parentage. [34] The effect of this is that unless an order is
made in favour of the applicant pursuant to the
surrogacy Act, the provisions of the Act do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I’m inclined to respectfully agree with Watts J
in Dudley & Anor and Chedi [2011] … where… his
Honour determined that ultimately state law will govern the determination of
parentage [if children born
under surrogacy arrangements] and that state law will be recognised by federal law.[35] This is only to the extent that the laws of a
state or territory are prescribed laws
for that provision. [36] Although there
is evidence which may tend to indicate that this was a commercial rather than altruistic surrogacy
arrangement, the evidence is not so clear that
a finding in relation to the nature of the agreement needs to be made. If that is an issue, it is one more appropriately dealt with by the Supreme
Court should an application for
a parentage order or adoption be made.” (emphasis added)
In other words it would appear that if you are going
overseas for surrogacy then, according to that analysis you are not the
parents. The surrogate and her partner
are.
Green-Wilson
& Bishop [2014]
FamCa1031
Mr X Green-Wilson and Mr Y Green-Wilson were a gay couple
who undertook surrogacy in India. They
lived in New South Wales but moved to Victoria so they could undertake
surrogacy overseas. A child Y
Green-Wilson was born as the result of a commercial surrogacy arrangement. Mr X Green-Wilson provided his sperm. The egg was supplied by an anonymous donor in
the Ukraine. Johns J held that although
Mr X Green-Wilson was the biological father[29]:
“That fact alone does not mean that he is a
parent pursuant to the provisions of the Family Law Act. The Act
provides no definition of ‘parent’, save as respect to adopted children. Clearly,
that definition is not applicable in this case.
The status of persons in the position of the applicants (as well as other non-traditional families)
has long vexed this court…”
Her Honour stated at[30]:
“Whilst the provisions of s60H of the Act
have been amended since the observations made by
Guest J in Re Patrick [2002] and Brown J in Re Mark[2003] so as to clarify the
status of parties undergoing
artificial conception procedures, including same sex couples undergoing such procedures, they do not clarify
the position of people such as the applicants who have undertaken artificial conception procedures in the context of
a commercial surrogacy arrangement
in another jurisdiction, in this case, India.”
In referring to section 60H(1) her Honour said[31]:
“Hence, while Mr X Green-Wilson provided his
genetic material to enable the artificial conception
procedure to occur, with the express intent that he and his partner, Mr Z
Green- Wilson parent any child born
of that procedure, pursuant to the provisions of s60H(1)(d), the child the product of that
procedure is not deemed to be a child of Mr X Green-Wilson.”
It was submitted that section 60H did not extend
extra-territorially and therefore did not apply to the surrogate or her husband
whom were resident in India and undertook the artificial conception procedures
there.
The applicants relied upon section 69ZE, which deals with
the extension of the operation of part VII of the Act to the States and
Territories of Australia. Relying on
that provision it was submitted that the language in 60ZE confines the
operation of Part VII to the States and Territories of Australia and therefore
did not apply to India.
Walls J rejected that position and found that section 69ZE
did not place limitations on the operation of Part VII[32]:
“If one were to adopt that position, all
orders made under Part VII could only be made with respect to children present in the states or territories of
Australia referred to in s69ZE. That approach is clearly inconsistent with
provisions of s69E of the Act which enlivens the jurisdiction of the Act with respect to a child who is an
Australian citizen or is ordinarily resident
in Australia on the day proceedings are commenced. It is not necessary for a child who is an Australian citizen or ordinarily
resident in Australia to be present in Australia on the day Part VII proceedings are commenced.”
He Honour noted also that Mr X Green-Wilson be named as the
father on the child’s birth certificate did not fall within the presumption
under section 69R of the Act because India was not a prescribed overseas
jurisdiction as no overseas jurisdictions were in fact prescribed.
Her Honour noted section 60HB of the Act dealing with
children born under surrogacy arrangements and prescribed laws. She noted that the prescribed law in Victoria
was section 22 of the Status of Children
Act 1974 (Vic) and that a requirement of that section and of section 20 of
that Act was that conception must have occurred as a result of a procedure
carried in Victoria with the assistance of a registered ART provider after
patient review panel approval. Therefore
an international commercial surrogacy arrangement as was entered into would not
invoke the provisions of section 22 of the Status
of Children Act and accordingly section 60HB would not apply.
The question raised by the applicants was in circumstances
where neither State nor Commonwealth legislation makes provision for the
determination of parentage in commercial surrogacy arrangements and where the
registration of Mr X Green-Wilson on the child’s Indian birth certificate is
not determinative, who are the child’s parents?
Her Honour considered the decision in Mason & Mason and in
particular the intention of having a uniform system for the “determination of parentage”.
Walls J held[33]:
“That may be so in States or Territories
where there is legislation specific to the issue of determination of parentage in respect of such surrogacy
arrangements. However it does not resolve the issue of what is to occur for
children born in States that do not have the benefit of such provisions.
In circumstances where the State legislation
is silent with respect to the determination of parentage
of children born of commercial surrogacy procedures (which are not prohibited in Victoria), I am satisfied that it
is appropriate to make a declaration with respect to a child born of such procedures who is now living in
Victoria. To do otherwise would be to elevate public policy considerations (as to
eh efficacy or otherwise of commercial surrogacy arrangements) above a consideration to the welfare of children
born of such arrangements. In my view, the interests of the child
must outweigh such public policy considerations.”
Her Honour then took into account the best interests of the
child and determined that it was appropriate and in the child’s best interests
that she make a declaration confirming that Mr X Green-Wilson is a parent of
the child.
Groth
& Banks [2013] FamCa430
This is a case that has thrown IVF clinics into a spin.
Mr Groth and Ms Banks were in a relationship. They split up. They had a property settlement. Some years later Ms Banks told Mr Groth that
she wanted to be a mother and wanted his sperm.
He agreed to be a sperm donor.
They went to a clinic and, along the lines of Verner & Vine [2005] FamCa763, they
told the clinic that they were a couple.
They weren’t. Mr Groth signed a
form required under Victorian law stating that he wasn’t a parent, but was a
donor.
The child was conceived and born.
Mr Groth had no involvement with the child until one day his
partner observed messages on his mobile phone.
He then made application to the Family Court seeking declaration that he
was a parent. Ms Banks submitted, not
surprisingly, that Mr Groth could not be a parent because under the Status of Children Act (Vic) she was the
woman who gave birth, she was the only parent and his role was merely that of
donor.
Mr Groth’s argument was ingenious:
·
He was undoubtedly the child’s biological
progenitor
·
The word parent
is not exhaustively defined in the Family
Law Act
·
By use of its language Part VII of the Family Law Act envisages that there are
two parents, that is, the biological progenitors of the child unless they are
otherwise displaced by express provisions in the Family Law Act
·
Section 60H does not apply where the mother was
not married or in a de facto relationship
·
The Status
of Children Act does not apply because section 79 of the Judiciary Act 1983 (Cth) does not bring
it into operation and alternatively section 109 of the Constitution provides
that the Commonwealth law prevails in the event of inconsistency between the
Commonwealth and State laws.
Cronin J accepted this argument. He declined to rule on the issue of intention
namely as to the form required under the State law, saying that it was
irrelevant given section 109 of the Commonwealth Constitution. His Honour stated[34]:
“(The applicant’s) argument is that the course of conduct
leading to the conception of the child
is clearly distinguishable from a donor who does not wish to have an
involvement in the child’s
life. Concerns of public policy, such as
those raised by Guest J in Re Patrick… that
unknown sperm donors could be considered ‘parents’ under such an interpretation
become irrelevant because the Act does
not impose obligations on an unknown person who has donated biological material.
Thus, the interpretation of ‘parent’ in the Act allows
each case to be determined on its particular
facts.
The fact that a child has two parents who are her or his
biological progenitors permeates the
language of the Act. The whole
Commonwealth statutory concept is outlined in the Part VII of the Act is one in which biology is the determining
factor unless specifically excluded by
law …
Part
VII of the Act contains multiple references to the parents of the child as
‘either’ or ‘both’. These can be found at s.60B(1)(a), 60B(2)(a)
and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2),
65C(a), 66B(2), 66F(1) and 69C(2). The
logical presumption which follows is that the
legislature envisaged two parents when dealing with parental responsibility
under the Act.
The applicant fits that presumption in the Act of who is
a parent. He is the biological progenitor and one of two people who
set about a course of conduct with the intention of fathering a child.
On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant
is the parent of the child. If one turns
to the sections of the Act that
displace biological progenitors as parents, little changes.”
Discussion
as to Groth & Banks
It might be seen that the impact of Groth & Banks immediately applies to single women who are
relying on sperm donors.
If the test is that of biology and section 60H does not
apply, does that mean a single woman who is relying on an egg donor and a sperm
donor is not the mother but that a known egg donor could be the mother? Is it a case of we need to rely on intent?
If a single woman similarly relies on a known embryo donors
– are they the parents and she is not?
Was Ryan J correct in Mason
& Mason in saying that there is a statutory scheme between the Status of Children legislation and the Family Law Act? There are numerous references in each piece of
legislation either directly or by inference to the other, for example in Status of Children Legislation there is
a reference to prescribed overseas jurisdictions – but there is no prescribed
overseas jurisdiction under the Status of
Children Legislation. The
prescription is only under the Family Law
Regulations which in turn rely on the Family
Law Act.
But the real question is – is this what Parliament
intended? Did Parliament intend someone
like Mr Groth to be a parent? In my view
the answer is simple and it is no. When
the amendments were made to the Family
Law Act to amend section 60H, Parliament simultaneously amended the Child Support (Assessment) Act. The bills ran parallel, and as Hansard
reveals changes to the Child Support
(Assessment) Act were suggested after the relevant Senate committee had
considered the ability to recognise lesbian couples (which resulted in the
amendment to section 60H). Section 5 of
the Child Support (Assessment) Act
was amended in those 1998 amendments and provides in respect of the definition
of “parent”:
“(a) When
used in relation to a child who has been adopted - - means an adoptive parent of the child; and
(b) When used
in relation to a child born because of the carrying out of an artificial conception
procedure - - means a parent who is a parent of a child under section 60H of the
Family Law Act; and
(c) When used
in relation to a child born because of a surrogacy arrangement - - includes a
person who is a parent of the child under section 60HB of the Family Law Act 1975.”
In other words if Cronin J is correct and Mr Groth is a
parent under the Family Law Act could
he have his cake and eat it too? Namely
he is not a parent under section 60H
of the Family Law Act and therefore
has all the benefits that come from parental responsibility but has no
obligation to pay child support because he is not a parent under section 60H of
the Family Law Act. Surely that is not what Parliament
intended. Surely Parliament intended a
consistent definition in both statutes as stated in Newbold & Others v Coal Authority [2013]EWCA Civ584, [2014]1
wlr 1288:
“We assume that Parliament in the case of
legislation… would have intended a sensible… result.”
We then come to s.29(2) of the Child Support (Assessment) Act 1989 (Cth) and in particular that
someone is a parent because a federal court, or a court of a State or Territory
or a court of a prescribed overseas jurisdiction has found expressly or by
implication that someone is a parent.
Bateman
& Kavan [2014] FCCA 2521
A declaration was sought that Mr Kavan was a liable parent for the purposes of the Child Support (Assessment) Act 1989. He originally sought dismissal of the
application on the basis that he was not in a de facto relationship with the
applicant at the time of artificial insemination and was therefore not a deemed
parent within section 60H. Both the Child
Support Registrar and the Human Rights Commission intervened. It was found by consent Mr Kavan was
determined to be the father. The Human Rights
Commission submitted:
“Following amendments to s29 of the CSA Act
introduced by the Same-Sex Relationships (Equal
Treatment and Commonwealth Laws – General Law Reform) Act 2008 (Cth)…, there is an ambiguity in the CSA Act about
how the child support Registrar… is to determine whether a person is a parent of a child born because of the
carrying out of an artificial conception
procedure.
In particular, since 1 July 2009, whether or not a person
is a parent under section 60H of the
Family Law Act (Cth)(dealing with children as a result of artificial conception
procedures) is one of a number
of factors that the Registrar must evaluate in determining whether he or she is satisfied that a person is
a parent of a child.
The amendments introduced by the Reform Act mean that
older cases such as B v J (1996) Flc92-716
and W v G (1996)(20 FamLR 49) which looked only at the definition of ‘parent’ in s5 of the CSA Act can be
distinguished. On one view, the new
structure of s29 in the older cases
about s5 give rise to an ambiguity about how to determine whether a person is a
‘parent’ for the purposes of the CSA
Act.
The ambiguity in the CSA Act can be resolved by adopting
and an interpretation of ‘parent’ in
the CSA Act that is consistent with Australia’s international law obligations
under the convention on the
rights of the child.
The commission submits that such an interpretation would
involve the registrar taking the following
steps when determining whether the person is a parent of a child born as the result of artificial conception
procedures. First, to the extent that
s60H of the Family Law Act applied to
either deem a person to be a parent or not to be a parent, the Registrar would make a determination consistent with the
requirements of that section. This would
be consistent with an object of
the definition of ‘parent’ in s.5 that the answers given by an application of s60H are to be binding. Secondly, to the extent that s.60H of the
Family Law Act does not apply
(i.e. to the extent that s60H says nothing about whether a particular person is a parent) the Registrar would
consider whether any of the other criteria in s29(2)of
the CSA Act apply.
This interpretation would allow consistency in the
definition of ‘parent’ between the CSA Act
and the Family Law Act. As a result, it
is more likely to promote a child’s right under Article 27(4) of the CRC to recover maintenance from his or
her parents.”
Section 29(2) of the Child
Support (Assessment) Act 1989 provides:
(2)
The Registrar is to be satisfied that a person is a parent of a child
only if the Registrar is satisfied:
(a) that the person is or was a party to a
marriage and the child was born to the person, or the other party to the
marriage, during the marriage; or
(b) that the person's name is entered in a
register of births or parentage information, kept under the law of the
Commonwealth or of a State, Territory or prescribed overseas
jurisdiction, as a parent of the child; or
(c) that, whether before or after the
commencement of this Act, a federal court, a court of a State or Territory or a court of
a prescribed overseas jurisdiction has:
(i) found expressly that the person is a parent
of the child; or
(ii) made a finding that it could not have made
unless the person was a parent of the child;
and
the finding has not been altered, set aside or reversed; or
(d) that, whether before or after the
commencement of this Act, the person has, under the law of the Commonwealth or of a
State, Territory or prescribed overseas jurisdiction, executed an instrument
acknowledging that the person is a parent of the child, and the
instrument has not been annulled or otherwise set aside; or
(e) that the child has been adopted by the
person; or
(f) that the person is a man and the child was
born to a woman within 44 weeks after a purported marriage to which the
man and the woman were parties was annulled; or
(g) that the person is a man who was a party to a
marriage to a woman and:
(i) the parties to the marriage separated; and
(ii) after the parties to the marriage separated,
they resumed cohabitation on
one occasion; and
(iii) within 3 months after the resumption of
cohabitation, they again separated
and afterwards lived separately and apart; and
(iv) the child was born to the woman within 44
weeks after the period of cohabitation
but after the dissolution of the marriage; or
(h) that the person is a man and:
(i) the child was born to a woman who cohabited
with the man at any time
during the period beginning 44 weeks and ending 20 weeks before
the birth; and
(ii) no marriage between the man and the woman
subsisted during any part of the period of cohabitation;
or
(i) that the person is a parent of the child
under section 60H or section 60HB of the Family Law Act 1975 .
The Human Rights Commission went on to submit:
The definition of ‘parent’ in the CSA Act,
particularly as it relates to children born as a result of artificial conception procedures, relies on the
operation of the Family Law Act. As a result, in order to understand the definition
of ‘parent’ for the purposes of the CSA Act, it is first necessary to examine who can be a parent for the
purposes of the Family Law Act.”
The Human Rights Commission relied on Groth & Banks, and other cases to say “section 60H is not an
exhaustive statement of whether a person is a parent of a child born as the
result of an artificial conception procedure.
In particular section 60H does not deal at all with the man who provided
his sperm where a child is born to a single woman as the result of an
artificial conception procedure[35]. The Commission stated:
“If a woman who is not married and not in a
de facto relationship has a child as a result of an artificial conception procedure, then section 60H of the
Family Law Act does not assist in
determining the status of the man who provided his sperm for use in the
procedure. In order to assess the status of the man in these cases, it is
necessary to return to the ordinary meaning
or parent discussed in Tobin & Tobin, and consider whether he has
‘begotten’ with a child. Several cases have noted that a man can be a
parent of a child born as the result of an
artificial conception procedure even if section 60H of the Family Law Act does
not apply. Importantly
these decisions suggest that a ‘mere’; sperm donor, and particularly an anonymous sperm donor, would not be
a parent for the purposes of the Family Law Act. There
are good public policy reasons for this including consistency with the general expectations arising out of State and Territory
regimes dealing with sperm donation.
A common element in these decisions is that a relevant
factor in assessing whether someone has
‘begotten’ a child as a result of an artificial conception procedure is an
intention to become a parent…
these cases indicate that the definition of parent for the purposes of the Family Law Act in cases of children born as a
result of artificial conception procedures of the
Family Law Act in cases of children born as a result of artificial conception
procedures is wider than the class of
people covered by section H.
The importance of intention in cases involving artificial
conception procedures is reinforced by
considering the position of the other intended parent under the section 60H(1)
of the Family Law Act. The partner of the woman who gives birth to a
child as a result of an artificial
conception procedure is referred to in the legislation as the ‘other intended parent’.
That person will only be considered to be a parent if he or she consented
to the carrying out of the
procedure[36].”
The Commission submitted[37]:
There have been amendments to the CSA Act
since the decisions in B v J and W v G.
In particular, the Reform Act
inserted section 29(2)(i) into the CSA Act with effect from 1 July 2009.
The effect of this change was that a person’s status as a [parent under
section 60H of the Family law Act
was included as one of the things that the Registrar needed to consider in weighing up whether he or she
identified that the applicant was apparent.
This can be seen from the
operation of section 29(3): if two or more paragraphs of section 29(2) are relevant to a particular application those
paragraphs, or some of them, conflict with each other, then the paragraph that appears to the Registrar to
be the more or less likely to be the correct
presumption prevails.
This amendment seems to create an ambiguity between
section 29 and section 5. Section 29 suggests that a person’s status under
section 60H of the Family Law Act can be weighed against other criteria to determine whether the person is
a ‘parent’ for child support purposes. The interpretation given to section 5 in B v
J and W v G suggests that a person’s status
(or non-status) under section 60H is determinative of whether a person is a
parent for child support
purposes.
The Commission submits that this ambiguity could be
resolved by an interpretation that involves
the Registrar taking the following steps when determining whether the person is
a parent of a child born as a result of
artificial conception procedures. First,
to the extent that s.60H of the Family
Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would make a
determination, consistent with the requirements of those sections.
This would be consistent with an object of the definition of ‘parent’ in
section 5 that the answer is
given by an application of section 60H are to be binding. Secondly,
to the extent that section 60H of the Family Law Act does not apply (i.e. to
the extent that section 60H says
nothing about whether a particular person is a parent) the Registrar would consider whether any of the
other criteria in section 29(2) applies.
Such an interpretation would allow consistency in the
definition of ‘parent’ between the CSA
Act and the Family Law Act.
Section 7 of the CSA Act provides that, once the contrary
intention appears, especially when it’s
used in the CSA Act and Part VII of the Family Law Act, have the same
respective meanings as in part VII of
the Family Law Act. This tends to
support an interpretation of section 29
of the CSA Act that would permit a person who is a parent for the purposes of
the Family Law Act to also be a parent
for the purposes of the CSA Act (provided at least one of the criteria in section 29(2) of the CSA Act is
satisfied).
For the reasons set out in the following section, the
interpretation described in paragraph …
above would also be more likely to promote a child’s right under article 27(4)
of the CRC to recover maintenance from
his or her parents.”
The applicant submitted that the definition of parent under
section 5 of the Child Support
(Assessment) Act 1989:
“It is not exhaustive in that in it applies only in
certain situations. Clearly, this
definition of ‘parent’ is not a
closed class or the vast majority of parents would be excluded from liability.
It relates only to bringing in adopted children, children born via
artificial conception and
children born from a surrogacy arrangement, in circumstances where a child’s adoptive, non-biological AI or
non-surrogate parent might otherwise be excluded from liability.
The definition of ‘parent’ does not include a natural
parent or a parent who has acknowledged
being a parent by signing the birth certificate. That is the case, with [X]’s father who has signed his birth
certificate. Therefore the definition is
inclusory rather than exclusory. It is not an exhaustive list of who may be a
liable parent. Without a doubt, the definition is intended to include
‘intended parents’ who accept the responsibility of parenthood but might otherwise not be liable rather than to exclude
a parent who is without a doubt a
natural parent and would in all other circumstances be a liable parent. This section
does not include the word ‘only’ nor ‘and no other person’ which one would
expect if only those persons
could be a ‘parent’ for the purposes of the Assessment Act. The plain meaning
of the definition is to bring in persons not to exclude them… it is the finding
of Justice Fogarty in B v J… which
it is submitted is in error: ‘…it is the use in s.5 of the Assessment Act of the term ‘Means’ which
confines an artificial conception procedure ‘parent’
to a parent under section 60H of the Family Law Act. The effect of that provision, is I have said, is that where a child
is born as a result of an artificial conception procedure, for the purposes of the child support
legislation, only s.60H parents are parents of the children’.
However, Justice Fogarty goes on to say:
‘However, there is no corresponding provision
in the Family Law Act which would exclude
the biological parent from otherwise being regarded as a parent. That is to say
that it is not clear that the provisions of section 60H do not enlarge, rather
than restrict, the categories of persons who are regarded as
the child’s parents.’
However, he again falls into error in saying:
‘In the case of the Assessment Act it is the
word ‘means’ which makes it clear that the
provision is exhaustive. Prima facie,
section 60H is not exclusive, and so there would
need to be a specific provision to
exclude people that otherwise would be parents.’
Justice Fogarty falls into error because the section 5
definition is not exhaustive of the categories
of ways in which a person may be a parent for the purpose of the Assessment
Act.
B v J can be distinguished from the present case in that
it involved a same sex couple, both of
whom were available to support the child.
B v J and W v G are at odds with cases where biological fathers sought to spend time with children. Kemble & Ebner [2008] FamCA579… and Groth & Banks [2013]
FamCA430… How can it be said as a matter of public
policy children have a right to know the biological parent but at the same
time, those same children do not have
the right to be maintained by that parent.
The net result is that Applicants
for time suceed whereas applicants for financial support fail?”
The Child Support Registrar submitted that section 5 of the Child Support (Assessment) Act provided
an exhaustive definition of the meaning of “parent”
with respect to the children it describes for the purposes of the Assessment Act. The Registrar noted that the mother’s primary
contention was that she and the father were in a de facto relationship such
that the father was a “parent” of the
child within the meaning of section 5 because he would be a parent of the child under section
60H. The Registrar noted that if the
Court didn’t accept that they were in a de facto relationship then the mother
argued in the alternative that because the respondent’s name was entered as the
father of the child on the birth certificate in New South Wales then the
presumption in section 69R of the Family
Law Act applied and ought not to be overridden. The Registrar took the view that B & J was correctly decided and
stated that section 69R of the Family Law
Act did not apply to the Assessment
Act, was not consistent with the orthodox principles of statutory
construction nor the explanatory memorandum to the Family Law Amendment Bill 1987, which became the Act which inserted
section 69R, and in any event section 69R was merely a presumption and not
conclusive.
The Registrar further said:
“Finally, even if this were not the case and
the general presumptions section 69R of the FL Act
was properly considered to be in conflict with the definition of ‘parent’ then
section 5 of the Assessment Act (and
not just directed towards the matters relevant to that presumption in the FL Act), there cannot prevail
over the specific definition of ‘parent’ in the Assessment Act: generalia specialibus non derogant (where
there is a conflict between general and specific
provisions, the specific provisions prevail)…”
Harman J held[38]:
“To the extent that it is submitted the
provisions of the Family Law Act are irrelevant to a determination of parentage for the purpose of the Child Support
(Assessment) Act I reject the
submission.”
His Honour held that section 29 of the Assessment Act “clearly takes
the issue beyond the presumption of parentage under the Family Law Act”[39], and in particular[40]:
“I am conscious that section 29(2)(d) would
elevate the registration of birth in the father’s inclusion upon the child’s birth certificate as ‘father’
beyond a mere presumption under the Family
Law Act.”
His Honour rejected the Registrar’s submissions and adopted
the submissions of the Australian Human Rights Commission in totality[41].
His Honour went on to say[42]:
63. The Australian Human Rights Commission
argues, and I accept, that provides nothing more than a regime by which
parties to a de facto relationship, at the time that a child is conceived by
artificial conception, are both deemed to be parents of a child. The “deemed” parentage is, to some
extent, a legal fiction.
64. The reference to such a deeming provision
as a “legal fiction” is not
intended in any way to be offensive to the partner in such relationships who is
not a donor of genetic material. The provision is intended for cogent, sound
and appropriate public policy reasons to acknowledge both partners as “parents” when neither is “obviously” a parent as neither is a
biological or adoptive parent.
65. This legislative recognition of a “deemed” parent potentially sits
somewhat uncomfortably with a focus upon adoptive or biological parentage. But
it is a law enacted by Parliament and thus creates a category of parent that is
legally recognised though not “traditionally”
so.
66. The means of young [X]’s conception might
be described as “nontraditional”.
I am loath to use terms such as “nontraditional”
in reference to a means of conception or a relationship particularly when the
use of such language in other contexts has led to most disastrous and
unfortunate consequences, such as the reference in some legislation, thankfully
not Australian, to “traditional”
relationships and the persecution of those who do not fall within some
normative and undefined concept of what is “traditional”. There is nothing to be gained from using such
terminology.
67. There is a simple scientific reality in
this case. Mr Kavan provided the genetic material ( sperm ) which fertilised Ms Bateman’s genetic
material (egg) and thus led to the eventual birth of this child.
68. It is a simple reality that in this day and
age children can be and are conceived in a variety of ways starting with but
not limited to heterosexual vaginal intercourse. It is not the act of
intercourse, however, which leads to conception or “begetting”. Intercourse can
occur without conception (through use of birth control or contraception) or
infertility. Heterosexual vaginal intercourse is simply one of many mechanical
means of or catalysts to the act of conception.
69. Medical science has moved well beyond such
methods of conception. Children have, for well over 35 years, been born as a
consequence of artificial conception procedures. More recently conception and
child birth via surrogacy has become more common.
70. Having the means to do something and the
advisability of doing it, as Oppenheimer realised after atomic bombs were
dropped on Japan, are entirely different propositions. The advisability of and
a consideration of the consequences of that which can be are separate and
distinct from the capacity to do.
71. I do not propose to engage in the
controversy regarding the latter of the above two methods of conception
(surrogacy). Clearly, they are matters that require and indeed cry out for some
public discourse to appropriately balance those matters within a social and
legal context rather than simply to stand by idly wringing one’s hands saying “what is to be done?” or to assume
that because once can procure children by surrogacy, including commercial
surrogacy, that this makes it desirable or acceptable to do so.
72. The “traditional”
method of conception, heterosexual vaginal intercourse, as the sole definition
of parentage is perhaps as relevant in 2014 as the “traditional” model of relationship is to defining human
interaction (noting that whenever the term “traditional relationship” is used it would appear to be left
deliberately undefined to allow its use as an instrument of persecution and
oppression on a case by case basis).
73. Change happens over time and the law needs
to be conscious of and responsive to change. As was opined by Oliver Wendell
Holmes in “The Path of the Law”:
o
“It is revolting to have no better reason
for a rule of law than that it was so laid down in the time of Henry IV. It is
still more revolting if the grounds upon which it as laid down have vanished
long since, and the rule simply persists upon blind imitation of the past”
74. To illustrate change one might examine the
bases of jurisdiction in parenting disputes. Absent the referral of powers by
States in 1987 the basis of this Court’s jurisdiction would be confined to the
constitutional heads of power of “marriage”
and “matrimonial causes”. This
limited basis of jurisdiction reflects that which was relevant at the time of
the drafting of the Constitution in 1900 when the only legally recognised and
only socially approved form of relationship was a marriage between a man and a
woman and children born within wedlock. Thus, until relatively recent times
(1987), children born “outside of
wedlock” (such as a child born to parties to a de facto relationship)
were treated differently and treated differently from State to State.
75. Since 1900 society has moved a great deal
forward. There are now a variety of different relationships, all of which are
equally valid and as diverse and different.
76. Relationships should be the last and
ultimate domain of the private. Each relationship is authentic and genuine to
the people within it and anything that comes from without is judgment.
77. Relationships ought not to be categorised
as abnormal. In that regard and not entirely flippantly Derek Jarman had
commented:
“heterosexuality isn’t normal it’s just common”
78. To take the view that there is or should be
a traditional or normative relationship or prescribing a particular model of
family which is preferred as acceptable socially or otherwise is a
manifestation of hierarchy and privilege. It is also offensive to all who do
not fall within that norm. That includes not only those who are gender diverse
but those who are culturally diverse. There are many formulations of family and
many understandings of who is a parent extending well and truly beyond the
cultural confines of Anglo normative thinking.
79. Different relationships are simply
different. Children are born to single parents, increasingly so (and I am not
ignorant of the volumes written addressing the disadvantages that can arise for
parents and children within those structures though they can be addressed readily
especially those which are financial). Children are born to same sex couples
through artificial conception procedures. Children are born into a variety of
families and conceived by a variety of means.
80. The one thing that is common to every
conception is the fertilisation of an egg by a sperm no matter how the two may have met.
81. These are not matters, by and large, which
need be dealt with by these Reasons as the parties have agreed. These issues
do, however, speak to the rights-based approach which I am urged by the
Australian Human Rights Commission to adopt. In this case I accept that such an
approach has some real force and application.
82. The Australian Human Rights Commission
submits that section 60H of
the Family Law Act, providing, as it does, for the
recognition of a nonbiological parent as a parent, steps outside of that which
is discussed in a body of case law regarding the “begetting” of children as a fundamental element of parentage. An
erudite discussion of case law relating to same is contained within the Australian
Human Rights Commission’s submissions.
83. I am satisfied, as is submitted by the
Australian Human Rights Commission, that the changes brought to the child
support legislation by section 29 are such that this earlier body of case law
can be distinguished.
84. To the extent that the definitions relied
upon in the earlier applicable legislation were far more limited they are no
longer relevant to the circumstances of this family and this child.
85. Ultimately, I am satisfied that to ignore
the simple scientific reality of this child’s conception would be an injustice.
It is the role of courts to ensure justice.
86. To distinguish between a child, the
conception of whom is clear and undisputed (even though there are many other
disputes regarding the relationship between the parents), and another child
whose conception is equally clear and undisputed purely on the basis that, in
one case, the genetic material of the two parents was introduced by vaginal
intercourse and, in another, the genetic material of the two parents was
differently introduced is unjust and would make, in the words of George
Chapman, “an ass of the law”.
87. To treat a child born as the agreed product
of the genetic material of two known and consenting individuals differently to
another child, purely as the penis of one did not enter the vagina of the
other, even though both are born in circumstances of equal certainty as to the
donators of genetic material, the child’s“begetters” would
be, I am satisfied, inherently unjust.
88. The simple reality that this young lad has
been conceived from one parent’s sperm and
the other’s egg, without vaginal intercourse as the mechanical means of
conception, should be irrelevant. He is born of two known individuals who
acknowledge that fact. The child has a right to know that and a right to be
financially supported by both in accordance with the means of those individuals
and in accordance with law.”
His Honour went on to say[43]:
91. “There is an abundant body of research in
the modern world relating to children who are removed from family, children who
have been adopted and children born as a consequence of artificial conception
procedures, particularly those born from procedures with anonymous donors. That
research alerts the community, of which the Court is a part, to the great
distress that can be caused for children by and as a consequence of being
deprived of that right to have knowledge of these matters.
92. There should be no distinction between this
child and any other child whose donator of genetic material is clearly known and
based upon a distinction drawn purely on the means by which fertilisation of a
human egg occurred. The child has a right to know his parentage and, as is
indicated by the submissions of the Australian Human Rights Commission and
those of the mother, a right to receive financial support from his parents.”
All
very good – but can a child have three parents?
The law in Australia recognises only two parents. In some foreign jurisdictions, recognising
the complexity of children conceived through donors, courts or legislature has
recognised that a child can have three parents.
The typical scenario would be a gay sperm donor providing sperm to a
lesbian couple enabling the conception of a child.
In Australia we have consistently found, particularly in light
of section 60H that these men are not parents.
I want to explore two recent cases:
Packer
& Irwin [2013]
FCCA 658
A non-biological mother of two children sought various
parenting orders, including extra time with the children. The biological mother (for whom I acted) had
conceived the children following sperm from a known donor. The three parties had executed a sperm donor
agreement.
The children had a distant relationship, at best with the
non-biological mother. By contrast the
relationship with the sperm donor who, in the opinion of the family report
writer was to all intents and purposes the father, even though no one called
him that, was solid. He was very much
involved in the children’s lives.
Turner J stated, under “additional
issues”[44]:
“Much was made of Mr Jeffrey lack of legal
status as the father of the children. I
find that as a person actively
involved in the care, welfare and development of the children pursuant that it is appropriate for Mr Jeffrey to
part of the Court proceedings. Further
it was suggested that Mr Jeffrey
may be trying to displace Ms Packer as the parent. I agree with the
comment of the report writer in cross-examination ‘that’s just silly’ and that
‘children can have three parents!”
Reiby
& Meadowbank [2013]
FCCA 2040
In January 2010 Mr Reiby had been a friend of Ms Meadowbank,
sent her a text message:
“Hey does anyone want to be a surrogate for
me or have a baby with me?”
The text message was not sent to anyone else.
Somehow out of this text message and subsequent discussions,
Mr Reiby thought that he was going to be the father of a child and Ms
Meadowbank and her partner thought they were going to be the parents of the
child and Mr Reiby merely a sperm donor.
Not surprisingly this train wreck reached court. The child was two. This case is an illustration of two things:
1.
The latest illustration of differences between
the parties as to their respective roles;
2.
The complete disregarding of the sperm donor
agreement.
Mr Reiby in going to trial considered that it was
appropriate for an equal time arrangement to be entered into such that the two
year old would spend week about between his care and that of the
respondents. He altered his position at
trial proposing 9/5 fortnight in their favour, with equal shared parental
responsibility between the three adults.
The respondents proposed that they have between them equal shared
parental responsibility and that he have some vague day time contact.
The respondents were successful.
The case is a classic example of why parties ought to have
fertility counselling before entering into such an arrangement as well as being
just the latest demonstration about the dangers of using a known donor and when
things go wrong, they go badly wrong.
Small J noted that the donor was not a parent, by virtue of
section 60H but was “clearly” a person concerned with the care, welfare and
development of the child and noted the Full Court decision in Donnell & Dovey [2010] FamCAFC 15,
which made it clear that not only might children’s best interests be served by
them spending time or even living with people who are not parents under the Act
but those relationships may be of more importance to a child than his/her
relationship with his/her legally defined parents. It was submitted on behalf of Mr Reiby that
the amendments to section 60H[45]:
“To exclude the donor of genetic material as
a ‘parent’ were never intended to override the principles
discussed in the two cases referred to above or to exclude a known and involved
father (sic) from parenting a
child. Very clear legislative intent
would be required to do that.”
Her Honour in noting Groth
& Banks noted that the child was born while the mother was the de facto
partner of another person, that section 60H applies and[46]:
“Therefore any argument that I should
consider this case as affording an opportunity to expand the category of ‘parent’ must fail.”
Her Honour placed no weight on the sperm donor agreement:
“The concepts of ‘intention’ or of ‘intent’
are in my view, better suited to the jurisdictions of general, civil and criminal law than to family law
parenting matters. In the words of the Respondents’ counsel’s written
submissions: ‘the submissions are not a contract dispute’. The
Family Law Act 1975… makes clear that any rights contained in Part VII of the
Act belong to the child and not
to the parents or any other party (s.60B).
Thus it is not possible for
parents and any other person or persons to make contractually binding
agreements about a child’s care unless
those agreements are contained in a Minute of Proposed Consent Orders which is then made an order of the Court. Further, s60CA makes clear that in making any particular parenting order,
the court must regard the best interests of the child as its paramount consideration. I can find no mention of the ‘intention’ or
the child’s parents (or other
parties) as a consideration anywhere in Part VII of the Act other than s.60H(1)(a)… For these reasons I do not place any weight
on any agreements the parties might
or might not have reached about X’s care before the institution of these
proceedings. She has statutory rights under the Act and there simply
cannot be contracted away by her parents
and/or any third party. …regardless of
whether the parties agree to certain matters before
the institution of these proceedings, that alleged agreement, and/or the
intention behind it, is not a matter
that should influence the court’s decision in this parenting case. The
parents are not in agreement now, and that is the starting point for the
court’s consideration.[47]”
Her Honour ordered that the Respondents have sole parental
responsibility for the child and the child live with the donor to have daytime
contact on a weekly basis gradually increasing over time. Once the child commenced school it would be
once a weekend per month during school term from 10am Saturday to 5pm Sunday,
each Wednesday from afterschool until after dinner, by telephone every other
Saturday and two weeks a year in school holidays as well as other special
occasions.
Removal
of the sperm donor as a parent on the birth certificate
AA
v Registrar of Births Deaths and Marriages and BB [2011] NSWDC100
A lesbian couple were in a relationship – AA and AC. AC was the birth mother. BB was a known sperm donor. AB and AC separated. BB was registered for many years as the
child’s father.
The issue before the court was whether the non-biological
mother, AA should be registered under Births,
Deaths and Marriages Registration Act 1995 (NSW) as a parent of the child
and therefore BB as the father should be removed from the Register. AA and AC placed an advertisement in a gay
newspaper seeking a donor, view to being “uncle” figure to child. No financial obligation. At the same time BB placed an advertisement
in a lesbian newspaper “sperm donour(sic)
professional male mid-forties would like to meet lesbian lady to view of
producing a child.”
BB donated sperm. The
sperm was inserted into AC by syringe.
After 3 or 4 attempts, AC became pregnant. BB visited the child the day after the
child’s birth and was invited to visit whenever he chose. He contributed close to $10,000 towards
midwifery consultations. After the
child’s birth he paid $150 per week for her maintenance for some years. The child’s birth was registered in August
2001. AC was registered as the
mother. The section for father was left
blank. At that time there was no
legislative provision in New South Wales permitting registration of more than
one female as a child’s parent. The
mother stated in evidence:
“I left the spot for ‘father’ blank. It was not possible to list a second female
parent in NSW at that
time. If it had been possible, I would
have listed [AA] as [AB’s] other parent.”
Within months of the birth BB’s relationship with AA and AC
had ceased to be amicable. In 2002 BB
applied to the Family Court for contact orders.
Contact orders were made in 2003.
In 2002 BB’s name was placed on the birth register as AB’s
father. Both AC and BB signed a
statutory declaration giving BB’s name, address and occupation, date of birth
in the section called father’s particulars.
The non-biological mother stated in evidence:
“As [BB] was the sperm donor and AB was
conceived through assisted conception, my understanding
at the time that [AC] and [BB] arranged to include [BB’s] name on the birth certificate was that it was intended as a
purely symbolic gesture without any legal effect.”
In 2006 there was a relationship breakdown between AA and
AC, resulting in the child in a week about basis between the two women. In 2007 there were further orders in the
Family Court sharing parental responsibility between AA and AC and allowing for
an increase of time between AB and BB.
In 2008 the law of New South Wales was changed to allow the
recognition of the non-biological mother on the birth certificate. The legislation was retrospective.
AA sought to have her name registered as the second
parent. The Registrar refused without
BB’s consent or a court order.
BB not surprisingly refused the request:
“In addition to me being [AB’s] biological
donor, I take offence at this description as far as I am concerned I am and always will be [her] father…”
Counsel for AA noted that BB was presumed to be a parent
because he had executed an instrument acknowledging his paternity and he was
entered on the Register of Births, Deaths and Marriages as the father. However the presumption that AA was the other
parent was irebuttable and must prevail over the rebuttable presumptions. Once AA was presumed to be the parent on
which she had rights on the Births,
Deaths and Marriages Registration Act.
Judge Walmsley SC accepted the arguments of AA and distinguished a
Canadian decision which concerned an application of a declaration of parentage
for three parents based on the parens patriae jurisdiction which enabled the
sperm donor father in obtaining the declaration the child had three parents, on
the basis that the jurisdiction being exercised in the District Court was not
the parens patriae jurisdiction.
AA v Registrar of
Births, Deaths and Marriages and BB was followed in similar facts
in Dent & Reece [2012] FMCAfam
1303.
In Lu v Registrar of
Births, Deaths and Marriages (2) [2013]NSWDC123 P Taylor SC DCJ followed AA v Registrar of Births, Deaths and
Marriages and BB stating:
“I do not think a finding of the father is a
biological father of the child is relevantly a finding
that the father ‘is the child’s parent’ and adopted child, is at law, parents
that commonly would not include the
biological father, for example. … In my
view, the creation of an
operative presumption on section 12 of the Status of Children Act[48]requires
a judicial determination that a
person is the legal father, or the legal parent, not merely the biological parent.”
His Honour therefore found that the non-biological mother or
mother should have her name added to the child’s birth registration.
A &
B v C [2014] QSC111
This was a similar case to the New South Wales case. Ann Lyons J followed AA v Registrar of Births, Deaths and Marriages and BB holding:
“A Registrar of Births, Deaths and Marriages
is, as has been discussed in the NSW decisions,
a register of statistical and evidential Information mainly for the purposes of
succession law. It is not a register of genetic material.”
That the Supreme Court had parens patriae jurisdiction, but the
sperm donor was self-represented. He did
not appear to raise the issue of whether or not the court should exercise its
parens partiae jurisdiction.
Use of
donor agreements
I was once of the view that donor agreements were a waste of
time. As Reiby & Meadowbank demonstrates, they may in large part be
ignored by the court.
I am of the view, however, that if you have clients who
against your advice are insistent on having a known donor, then to avoid a
train wreck such as Reiby &
Meadowbank they ought to take three steps:
1.
There should be extensive, meaningful
discussions between them about their respective roles. There shouldn’t be 3 or more shades of grey.
2.
They should have comprehensive counselling with
a fertility counsellor, typically a psychologist who is a member of the
Australia New Zealand Infertility Counsellors Association (ANZICA).
There are some fertility counsellors in private practice and others
associated with IVF Clinics.
3.
There should be a sperm or other donor agreement
in place.
As Reiby & Meadowbank
makes plain, a sperm donor agreement is not legally binding. However, it can contain strong moral
arguments which may have an impact in reducing conflict between the parties,
simply because it is in writing and each of the parties has signed up.
It is therefore essential that any sperm or other donor
agreement is properly drafted and not merely one downloaded from the web. Parties need to have put thought into the
process. Part of my thinking has come
about from two surrogacy cases in which I have been involved.
Surrogacy Case A
I acted for the intended
parents, a gay couple. The biological
father had been friends for 14 years with the surrogate. It was a traditional surrogacy, which means
that the surrogate was also the mother.
The surrogate was single.
One embryo was implanted. The embryo divided, resulting in the
conception of identical twins. The
pregnancy was difficult and child birth worse.
Following the births, the surrogate (and mother) considered that she may
want to have the children living with her (along the lines of Re Evelyn [1998] FamCA
55. My clients contacted me late at
night because it seemed that whatever they were discussing with their friend
the surrogate didn’t seem to be working.
At their request I sent them a copy of the signed surrogacy arrangement.
The surrogate was
particularly unhappy to see, at her hospital bed, a copy of the signed
surrogacy arrangement, with the finger pointed “you signed there”. The shock
value had its impact, however, and with some delicate negotiations it was
agreed that the children would be in the care of the intended parents and not
the surrogate.
Subsequently a parentage
order was made amicably.
Surrogacy Case B
The intended parents and
surrogate entered into a surrogacy arrangement in Victoria. Written surrogacy arrangements are not
required in Victoria. The parties
attended counselling and obtained legal advice.
They obtained approval from the patient review panel. Treatment commenced and a child was conceived
and born.
Subsequently there was a
falling out between the intended parents and the surrogate.
I became involved at the
time of filing proceedings. It was hard
to see what the parties had agreed to when there was not a written surrogacy
arrangement.
The court ordered that
the parties attend counselling. One of
the issues addressed in counselling was that the surrogate and the intended
parents had different expectations arising from the surrogacy arrangement. It was clear that part of the reason they had
different expectations was because that those expectations had not been reduced
to writing in a surrogacy arrangement.
It was clear that if they had done so much of the trouble between the
parties might have been avoided.
Swapping
Eggs
The practice that has become more and more common in recent years
occurs with lesbian couples. One may
offer her eggs to a partner. This may be
so that they can have a child together.
At least in Queensland, this does not constitute surrogacy.
The presumption of the clients that I have seen who have
undergone this practice is that they know that they are both the parents as a
matter of law of the child. If they are
using a known donor they may have considered that the donor is not a parent but
have failed to consider whether the donor is a person who is concerned with the
care, welfare and development of the child and who therefore has standing to
make application before the court.
One of the features that I have seen is that the birth
mother (irrespective of genetics) may consider herself to be the mother and the
donor or partner is not the mother. The
non-birth mother will consider herself just as much mother of the child.
An example of this conflict (although not where there was
any gifting of eggs) was in Lusito &
Lusito [2011] FMCAfam55 this involved a primary school age boy called
X. It was a fight between the biological
and non-biological mother. I was the
independent children’s lawyer. The first
feature of the case was that Purdon-Sully J wanted evidence to demonstrate that
the father had been served or if he was not capable of being served some letter
from the clinic about his anonymity.
This was after receiving evidence from both parties that the child was
conceived from an anonymous sperm donor.
Evidence was obtained from the IVF clinic that there was an
anonymous sperm donor and the letter was tendered.
During the course of the case the law changed in Queensland
to allow the non-biological mother to be registered on the birth certificate as
a parent. Not surprisingly she wished to
be registered as a parent. The
biological mother was opposed to the non-biological mother being registered,
her evidence at trial was that their son, who was soon to reach high school might
be discriminated against at school and in prospective employment if his birth
certificate showed that he had two women as the mother and parent. The biological mother was also concerned that
the child had the ability at the age of 18 to be able to locate his father if
he so wished and to have the option to have his father named on the birth
certificate as his father.
The non-biological mother did not press the issue as she did
not ultimately seek an order that she be named on the birth certificate as a
parent but stated in cross-examination that she merely wanted to have an
on-going relationship with her son.
Ownership
of embryos
It is a topic for another day but there are currently a
number of disputes or potential disputes between parties who have split up
where there are embryos stored in IVF clinics.
It is incumbent upon all of us as family lawyers to identify when we
have that first interview with the client or shortly thereafter to see if there
are embryos stored in IVF clinics and what is to happen with those
embryos. They may well be property under
the Family Law Act and failure to
properly advise clients about the consequences of taking or failing to take
action under section 79 of the Family Law
Act of other action could result in a professional indemnity claim.
Care,
Welfare and Development
The law only recognises two parents. However as we have commonly seen sperm donors
may well be someone concerned with the care , welfare and development of a
child and therefore have standing to obtain orders under the Act. Probably the best illustration of that was Halifax & Fabian.
Halifax
& Fabian & Others [2009]FMCAfam
972
Ms Halifax and Ms Fabian were a lesbian couple. They each decided to have children. Ms Halifax’s child was conceived from a known
donor, a family friend Mr Dalton. The
child, X, was aged 7. Ms Fabian’s child,
Y, was conceived from an anonymous donor accessed through an IVF clinic. There was no genetic relationship between the
two children, but they were treated as sisters.
After they separated Ms Fabian wanted to move interstate
from Brisbane to Sydney with her child.
That intention was opposed by Ms Halifax and by Mr Dalton and his
partner Mr Ballard. The preliminary
question determined by Judge Purdon-Sully was whether Mr Dalton and Mr Ballard
had standing to seek any parenting orders with respect to X, Ms Fabian’s
child. There was after all no genetic link
by Mr Dalton to that child. Similarly
there was no genetic link by Mr Ballard to X.
Ms Halifax argued that discretely or even cumulatively,
occasional dinners in the city, attendance at X’s first birthday party,
attendance at an ultrasound procedure, a subjective desire to care for a child
and being a designated RSVP contact on an invitation, do not create parental
rights and legal standing. However in
the circumstances of the case the evidence pointed to something more than this,
something more than supportive friends helping each other out without intending
to create any other parenting rights, resulting in the necessary degree or
strength of the nexus or concern between each of Mr Dalton and Mr Ballard and
the care, welfare and development of X, such that they had the necessary
standing.
The evidence of Mr Dalton and Mr Ballard was:
· They
were involved in the parenting of both children. They had established a home to accommodate
the development of the relationship and had made employment and residential
adjustments to that end.
· Decisions
were made prior to conception of both children including with respect to
religion, education, circumcision, discipline and all four adults agreeing to
remain living in South -East Queensland.
· They
accepted Ms Fabian’s invitation to attend her 12 week pregnancy scan.
· They
visited the hospital the day of X’s birth and daily thereafter and cared for Y
until X was brought home.
· They
were introduced as “daddy” to the friends and family of both women. It appeared to be conceded that X referred to
her mother and Ms Halifax as “mummy” and “mamma” and to Mr Dalton as “daddy”,
Mr Ballard by either his first name and possibly “daddy (and his first
name). The family report writer observed
that the children used these names with the four adults during her interviews
notwithstanding that those interviews occurred some months after separation.
· The
children developed a close attachment to each other and to them. The family report writer observed that the
children were strongly attached and affectionate with both mothers and
affectionate and secure with both men.
Ms Fabian acknowledged to the family report writer that the men loved X,
that X was comfortable with them and that they had a bond with her and she’d
spend time her, her complaint being that they should not be permitted to assume
a parental-decision making role.
· They
spent regular time with the children including on weekends and week days and
they were also asked to babysit from time to time. Whilst Ms Fabian’s refusal to agree to
overnight time caused some angst and created problems, on their evidence, with
Y’s arrangements, on one occasion Ms Fabian did agree to this to enable X to
spend time with Mr Ballard’s mother who was visiting H.
· They
exchanged gifts with the children on birthdays, special occasions, on Fathers
Day and at Christmas, including after the women had separated. Ms Fabian accepted that they celebrated
Fathers Day with the men, albeit her evidence was that Ms Halifax usually
initiated the purchase of gifts for the men and that on a shopping trip with
the children at Christmas she helped the children purchase gifts for the men
and that she purchased Easter Eggs the following year as a gift from the
children for the men.
· They
socialised, attended activities, celebrated special occasions and had holidays
together.
· They
attended with the children and Ms Fabian at the annual gay pride parade
marching in the family section of the parade.
· They
established a separate bedroom for the children with a bed that converted to
two single beds to accommodate any overnight stays and did so with the
knowledge and without objection from either of the women.
· X had a
photo of the men in her bedroom.
· They
were listed by Ms Halifax as emergency contacts in two years at X’s daycare centre.
· Ms
Fabian consulted Mr Dalton about some medical issues to do with X given his
medical background.
The matter was ultimately litigated in the Family Court as Halifax & Fabian [2010] FAMCA 1212
but proceedings with the men by that stage had settled.
Cronin J noted a paper by psychologist Kathryn Boland at the
National Family Law Conference (2010) “Outside the nuclear family – children’s
outcomes and experiences in same sex families”:
“In many lesbian families there is a
conscious avoidance of language that makes distinctions
around biology. Unfortunately in
research that looks specifically at the role of the co-mother, the child’s attachment to her and the
strengths and challenges of this role, are
still in its infancy. …very little
research specifically examines the experiences where women in a lesbian couple each have a pregnancy or
multiple pregnancies and yet this seems
to be an emerging variable of importance and certainly seems to be a typical
pattern of family formation.”
It might be noted in Halifax
& Fabian that Mr Dalton was named on Y’s birth certificate but that no
father was recorded on X’s birth certificate.
Ms Fabian did not seek to be named on the birth certificate of Y (which
would have resulted in the removal of Mr Dalton) but an issue in the case was
whether Ms Halifax should be recorded on the birth certificate of X. Cronin J stated[49]:
“Ms Halifax wants to be on the birth
certificate of X. When Ms Halifax was
questioned about why it should be
done, she simply said it was because it was she was the parent of X. Ms
Fabian refuses the option now open under State Law. Ms Fabian was cross-examined about her position. She pointed at the fact that she could not be
on Y’s birth certificate and did not
see what the point was all about. Her
view of the law is not entirely correct because an application could be made at the Supreme Court for an
alteration of the birth certificate in
respect of Y. This however, is another
example of Ms Fabian separating out what was once
a family unit.
Ms Halifax’s submission was that her addition to the
birth certificate of X was a ‘proper recognition’
of the relationship between she and X. All
that is to do with practical assistance
for the determination of ‘legal rights’ involving X. Counsel for Ms Halifax described Ms Fabian’s position as one in
which it was ‘unfair’ to Ms Halifax because the same position could not apply in respect of Y. In my view, two points need to be made. First,
Ms Fabian’s evidence was that she saw no need for the addition rather than it
being unfair. I accept that. Secondly, the issue must still be determined
on what is in the best interests of
X. No such demonstration was made on the
evidence.
Accordingly, I fail to see what benefit these children
would have at this time in their lives where
there is a psychological separation occurring by Ms Fabian from Y and an
attempt at distancing X from Ms
Halifax. It is not therefore in the best
interests of these children for that
birth certificate entry to be made.”
A further example of difficulties involving a lesbian couple
each of whom has a child was Connors
& Taylor [2012] FamCA 207. In
that case Watts J found that each of the women was a parent of each of the
children. Each of the children had the
same known sperm donor, who was named on their birth certificates as the
father.
Conclusion
The law currently recognises only two parents. Advances in the UK (which no doubt over time
will be replicated here) to allow mitrochrondial DNA to be inserted into the
DNA of an embryo such that an embryo has 3 genetic parents is unlikely to
change who is a parent as a matter of law but no doubt will make the life of
the child and his or her identity even that more complex. It will be interesting to see if courts do
recognise three parents or continue to take the current approach which is that
there are two parents only and that someone in a position of a known donor is
not a parent but maybe someone concerned with the care, welfare and development
of a child and despite any agreement between the parties and maybe removed from
the birth certificate as a parent.
Stephen Page
6 July 2015
Connect with me on the web:
Australian Surrogacy
[1] Stephen
Page is a partner of Harrington Family Lawyers Brisbane. He was admitted in 1987 and has been an
accredited family law specialist since 1996.
He is an international representative on the Artificial Reproductive
Technologies Committee of the American Bar Association, a fellow of the
International Academy of Matrimonial Lawyers and the first international fellow
of the American Academy of Assisted Reproductive Treatment Attorneys
(AAARTA). He is the author of the Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au
[2] At [34].
[3] I have for the
sake of convenience used the Queensland Act. Similar legislation is in place in
all States and both Territories.
[5] At [70]
[6] See also and as to 6GT: Fisher –Oakley and Kittur [2014]FamCA
123
[7] They need to be
living together at the date of the procedure: Keaton and Aldridge [2009] FMCAfam 92, upheld on appeal: Aldridge and Keaton [2009] FamCAFC 229
[8] LWV & Anor v LMH [2012] QChC
026-conception is the act of pregnancy, not fertilisation of the embryo.
[9] Keaton
and Aldridge [2009] FMCAfam 92
[10] See Ryan
and Fraser [2014] FamCA 763 and Keaton
and Aldridge [2009] FamCAFC 229
[11] As required under licensing
requirements, such as the National Health and Medical Research Council, Ethical Guidelines on the Use of ART in
Clinical Practice and Research (2007)
[12] At [17]
[13] At [23]
[14] Of the US states, Missouri, New Mexico
and South Dakota are not prescribed.
[15] At [33]
[16] People in WA and SA, although not
subject to explicit extra-territorial laws, may still be committing offences
because of the Criminal Law Consolidation
Act 1935 (SA) and the Criminal Code
(WA). Laws just passed in SA require
those undertaking surrogacy overseas to obtain the permission of the SA
Attorney-General.
[17] Dudley
& Anor & Chedi [2011] FamCA 502; Findlay and Anor & Punyawong [2011] FamCA 503; Hubert & Anor and Juntasa [2011]
FamCA 504 and Johnson and Anor &
Chompunut [2011]FamCA505. Curiously Mr Dudley although Watts J declined to
find that he was a parent, had been held for the purposes of the legislation by
Stevenson J to be a parent in the earlier case of Dennis and Anor & Pradchaphet [2011]FamCA123.
[18] At [49]
[19] Which are the various State and ACT
surrogacy legislation.
[20] At [61]
[21] At [68]
[22] At [100]
[23] At [12]
[24] At [31]
[25] As also seen in Ellison and Karnchanit, for example.
[26] At [46, 50, 51, 52]
[27] At [15]
[28] At [33] – [36]
[29] At [21] – [22]
[30] At [25]
[31] At [27]
[32] At [29]
[33] At {43} – [44]
[34] At [12] – [16]
[35] At [24]
[36] At [30] – [32], [37] – [38]
[37] At [52-57]
[38] At [42]
[39] At [46]
[40] At [47]
[41] At [51], [52]
[42] At [63-88]
[43] At [91-92]
[44] At [96] – [99]
[45] At [145]
[46] At [150]
[47] At [51] – [57]
[48] Where there has been a finding by the
relevant court
[49] At [172] – [174]
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