Family Court of Australia court registers US pre-birth surrogacy order
Until this decision, reported as Re Halvard and Another, there were only two ways that Australians going to the United States could be recognised in Australia as parents (other than for citizenship purposes), either:
- to apply to the Family Court for a declaration as to parentage. The problems with this approach are that it is extremely expensive, is slow and may not be successful. I am told that a colleague charges $18,000, and that would be a fair figure. However, recent cases have indicated that different judges of the Family Court have different approaches, so that it was unclear whether the parents would be recognised as the parents; or
- if living in Western Australia, to apply to the Family Court of Western Australia for a step-parent adoption order. That possibility arose from a 2013 case. However, the judge in that case told a legal conference in WA in 2015 that she was unlikely to continue to do so, out of concerns for surrogates. Further, following the Baby Gammy decision in the Family Court of Western Australia, it is doubtful whether that type of application would be successful now.
There is another risk. Those who were from Queensland, NSW and the ACT in particular were at special risk that in going to the court that they might be referred to authorities to see if they had committed an offence, and then be prosecuted. A Sydney judge referred two Queensland couples to the Queensland Director Prosecutions for this purpose back in 2011. As it happened, neither couple was prosecuted.
The parents lived in the United States. One of the parents was an Australian citizen and the other was a US citizen. The boy, X, lived with them in the US. The father had family members in Australia, and the intention was to travel to Australia from time to time.
The parents underwent surrogacy in Tennessee.They entered into a surrogacy agreement with a surrogate. X was conceived from the father's sperm and the mother's egg. A court in Tennessee ordered, when the the surrogate was 30-32 weeks pregnant that when the child was born, the parents would be declared to be the parents and that they would have custody of the child.
What is the effect of registration?
The Family Law Act provides that an overseas child order, made in a prescribed overseas jurisdiction, can be registered with the Family Court of Australia. Once it is registered, the overseas child order takes effect in Australia. Therefore if it is possible to register an overseas child order, and the form of that order recognises the intended parents as the parents of the child, then that order will transform the child's identity and legal relationship with the parents, not only in the overseas country [as happened when the overseas order was made], but also in Australia.
This means, for example, that the only people who have been granted parental responsibility for the child, in effect for the Australian Passports Act, are the parents, not the surrogate. Therefore the surrogate's consent for new Australian passports for the child will not be required.
If the parents were to die, then they would be recognised under Australian law as the parents of the child for inheritance purposes. They would also be recognised as the parents for child support purposes.
If the order were not registered, it is uncertain if this were the case.
Why did it go a judge?
The parents had first made an application to a registrar of the court, who had declined to register the order. Because there was no ability to review the registrar's decision, and the law allowed the parents to bring an application before a judge, they did so.
What are reasonable costs?Justice Forrest rejected the submissions of the parents' lawyer that the surrogacy arrangement was a commercial surrogacy arrangement under the Queensland and NSW Surrogacy Acts. His Honour found that the surrogacy agreement was altruistic and was not a commercial surrogacy arrangement disguised as altruistic surrogacy. His Honour stated:
"The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided."
Implications of the decision
Any Australian intended parents who have undertaken surrogacy in the US should consider making application to register their US orders with the Family Court of Australia. However, they should get expert legal advice on doing so. Properly handled, the registration application should be relatively quick, cheap and effective.
Registration may also be relevant in Hague child abduction cases where the order has been made in the US, and the child is wrongfully removed to Australia or wrongfully retained in Australia.
Those contemplating or in the process of undertaking surrogacy in the US should get expert Australian legal advice before the orders are made there- because of making sure they are the right form for the Australian courts.
Those who have undertaken surrogacy overseas, especially in the US, and believe that they have committed a criminal offence in Australia in undertaking surrogacy in the US should get expert Australian legal advice. They may not have committed any criminal offence after all. This is particularly important in NSW for example, as there is not time limit for offences there.
The case makes it plain that pre-birth orders made in the US are covered. Pre-birth orders are made in about 40 US states.
Australian citizens who live abroad who contemplate returning to Australia at some stage with their children should, in my view, seriously consider undertaking registration.
Obtaining registration should be a lot cheaper than having to obtain a parenting order under the Family Law Act.
Limitations of the decision
The case will only apply to surrogacy orders made in the US and New Zealand. It will not apply to surrogacy orders made elsewhere, for example in Canada. This is because only those jurisdictions that are prescribed overseas jurisdictions can have their orders registered in Australia by this method. Regrettably very few jurisdictions are prescribed overseas jurisdictions. 48 of the 51 US jurisdictions are prescribed overseas jurisdictions. The ones that miss out are: South Dakota, Missouri and New Mexico.
Justice Forrest noted that in a previous decision in 2013, Justice Ryan declined to register a pre-birth surrogacy order made in South Africa because:
"The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court."
Those contemplating registration should NOT do so by registering their order through the Attorney-General's department. They should also be very careful about how they undertake the registration process. The judgment shows that the parents had been rejected by a registrar, and that the process before a judge is discretionary. If the judge believes that it is commercial surrogacy, then the application might be rejected.
Every case is different
What might be great for one couple, might end up exposing another to not getting registration or, worse, possibly being prosecuted. Expert advice is needed. Where intended parents lived at the time they underwent the surrogacy is also relevant, because each State and the ACT have different laws as to surrogacy:
- Queensland: If the limitation period has run out for prosecution (1 year after the last payment), then it should be considered, with careful consideration to whether the expenses were reasonable.
- NSW: If the parents underwent surrogacy before 1 March 2011 or signed their surrogacy agency retainer before that date, then registration is appealing. For those after that date, consideration should be given first as to whether the expenses were reasonable.
- ACT: Consideration should be given first as to whether the expenses were reasonable.
- Victoria: Registration is recommended for those who entered into the surrogacy arrangement after 1 January 2010. For those who entered into before that date, consideration should be given as to whether the expenses were reasonable.
- Tasmania: Registration is recommended.
- South Australia: Care should be taken to make sure if it is a pre- July 2015 or post-July 2015 surrogacy arrangement. If the latter, was the consent of the Attorney-General obtained? Consideration either way would need to be given as to whether the expenses were reasonable and whether there has been the payment of valuable consideration.
- Western Australia: Care should be taken as to whether there is a surrogacy arrangement for reward has been entered into in breach of the Surrogacy Act and the Criminal Code. If not, then registration is recommended- but it may not be advisable to do so in Western Australia.
- Northern Territory: Registration is recommended.