On Friday I had the privilege of presenting
to the annual Queensland Law Society/Family Law Practitioners
Association of Queensland Family Law Residential. In my paper, I note
that who is a parent is determined by the law, not by genetics. Someone
who is genetically a parent may not be the parent at law. Someone who
has no genetic relationship with the child might be the parent at law
for all purposes. The law in this area is complex at times.
Here is my paper:
Here is my paper:
QUEENSLAND LAW SOCIETY/FAMILY LAW PRACTITIONERS ASSOCIATION
OF QUEENSLAND
FAMILY LAW RESIDENTIAL
14 July 2017
GOLD COAST
WHO’S YA DADDY?
By Stephen Page[1]
“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.
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.
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.”[2]
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[3], but can also be called artificial
reproductive treatment or artificial reproductive technology[4]. It can cover artificial
insemination, IVF and other techniques. Confusingly, the Family Law Act 1975 refers to artificial
conception procedure, but the Status
of Children Act 1978 (Qld) refers to fertilisation procedure.
Blastocyst
is a developed embryo, typically 5 days old. An embryo can be seen by the human
eye, although it is smaller than the ball on a ball point pen.
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 intracytoplasmic sperm injection-where a catheter or tube is used to place
one sperm into an unfertilised egg. The tail of the sperm is cut off before the
head (which contains the DNA) is placed into the egg. It is typically used when
the man has low fertility.
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.”[5]
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[6]
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[7]:
“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.
“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[8]:
“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[9]:
“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)[10], 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.
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[11]
·
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[12],
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.
When
is the woman who gave birth not the mother?
The woman who gave birth
is the mother in all circumstances except when her role as a parent is removed
from her:
·
An adoption order; or
·
A surrogacy order of some kind.
Even if the woman might
be considered overseas to be the parent or not the parent, consideration has to
be given to what Australian or the relevant State law might determine about
whether or not she is the parent: cf. Farnell and Chanbua[13] [the Baby Gammy case].
A woman who did not give
birth to but intends to be a parent is not automatically a parent. She can only
be a parent if:
·
There is an adoption order in her favour;
or
·
There is a surrogacy order in her favour;
or
·
By operation of law, e.g., s.60H of the Family Law Act 1975, or a situation akin
to that in Groth and Banks (see
below).
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[14], there has been no
overseas jurisdiction prescribed for the purposes of section 69R[15].
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 is not proof of parentage, and may not be evidence
of parentage either.
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 were living in
a lesbian relationship at the time of conception[16] i.e. the commencement of
the pregnancy, after implantation[17] 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[18].
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[19].
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[20].
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. Do not assume that the interstate provisions are exactly the
same- there are some differences, State to State. The Family Relationships Act 1975 (SA), has now no section 10D or 10E. The Family
Relationships Act allows 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. Husband includes
male de facto partner: s.15.
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[21]. 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.”[22]
Her Honour found that the order met the definition of
“overseas child order”[23].
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[24], 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.
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:[25]
“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; or
(c)
Become parents through a non-judicial
process by operation of law, such as British Columbia, Illinois, the Ukraine
and Russia.
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)[26]. 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.[27]
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 Mr 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[28]. 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[29].
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.[30] 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.[31]
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[32] 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.[33]
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:[34]
“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[35].
Her Honour stated:[36]
“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)
The approach taken by her
Honour was criticised in Farnell and
Chanbua[37].
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[38]:
“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 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[39]:
“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.
Subsequently, the Masons returned to England and
obtained a parentage order there[40].
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[41]:
“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[42]:
“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[43]:
“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[44]:
“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[45]:
“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 the 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[46]:
“(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[47]. 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[48].”
The Commission submitted[49]:
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[50]:
“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”[51], and in particular[52]:
“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[53].
His Honour went on to say[54]:
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[55]:
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.”
Bernieres
and Anor & Dhopal and Anor [2015] FamCA 736
Mr and Ms Bernieres undertook commercial surrogacy
overseas. Mr Bernieres was the genetic father. An egg donor was the genetic
mother. Mr and Ms Bernieres sought from Berman J a declaration of parentage and
parenting orders. The surrogate and her husband did not file a response.
His Honour held that, following the 2012 amendments, a
declaration under s.69VA was not a parentage order. His Honour found that that
the Status of Children Act 1974
(Vic.) was not of assistance because this was an overseas commercial surrogacy,
not a domestic one. S.60HB did not apply.
His Honour noted that, unlike the situation in Mason and Mason, Victoria did not
prohibit overseas commercial surrogacy, and then stated that the Status of Children Act was silent “with respect to the determination of
parentage of children born of commercial surrogacy procedures”.
His Honour held that he did not have the power to make
the declaration under the section:
“Section 69VA was enacted by the
Family Law Amendment Bill 1999 to enable the court to make a declaration of
parentage for the purposes of all laws of the Commonwealth, however, I do not
consider that s 69VA is the stand alone power but rather requires “parentage”
of a child to be in issue in proceedings in respect to another matter.
The construct of subdivision E in
respect of parentage evidence appears sequential and provides with some clarity
the necessary steps to resolve the parentage of a child. The first requirement
is that the parent of a child must be in question and if the court considers
that it is in the best interests of the child (as at least one of the relevant
considerations) then the order that is made is that a parentage testing
procedure be carried out. Section 69W(5) does not seek to effect or limit the
generality of s 69V. I accept that the focus is to ensure that the court has a
wide discretion in relation to the types of orders that can be made in order to
determine the parentage of a child in issue. The reference to “receiving
evidence” in s 69VA is directed to determining the biological connection and
therefore the parentage of a child.
Section 69VA is not a stand-alone power but requires parentage of a
child to be in issue in proceedings in respect to another matter. The power is
limited by the fact that the court can only make a declaration if it finds that
a person is a biological progenitor. In McK & K v O [2001] FamCA 990;
(2001) FLC 93-089 Mullane J noted in relation to the evidence of parentage:
[s69VA is not a free standing power. It is clearly expressed to be
dependent upon there being proceedings before the court in which the parentage
of the child is already an issue.
The insertion of section 69VA implies that the parliament considered
there was no separate power in the Act at that time to make a declaration of
parentage. Section 69VA is the only express power to make a parentage
declaration. There is no express power to make such a declaration except in
proceedings in which the parentage of the child is already in issue.
Use of the power by the Family Court is
limited to situations where the application is incidental to the determination
of another matter within Commonwealth power. This can created difficulties for
the applicants in circumstances where a parent may be seeking a declaration of
parentage for the purposes of obtaining a passport for a child that is not
“incidental to the determination of any other matter within the legislative
powers of the Commonwealth” before the court.”
His Honour also said that the court did not have an
inherent power to make the declaration. He also said that there was not “an
issue” in the proceedings as to parentage. Although his Honour accepted that Mr
Bernieres was a parent, he did not accept that Ms Bernieres was a parent under
the Status of Children Act, and that it was not his role to correct any
legislative vacuum.
The matter has been appealed. The Full Court heard the
appeal in October 2016, but judgment on the appeal has not been delivered.
Crisp
& Clarence [2015] FamCA 964
This is the third case before Berman J where the issue
of whether the approach in Mason and
Mason or that of Groth and Banks
was correct.
As he did in both the previous cases, his Honour did
not indicate a preference.
This was a case of a lesbian couple who wanted to make
babies. Ultimately the birth mother became pregnant from an embryo that was
donated to her by the genetic mother, where the gametes were those of the
genetic mother and an anonymous sperm donor.
A prime issue at trial was whether the genetic mother
was a parent. Before the transfer took place, the genetic mother moved out. The
parties represented to the clinic that they were a couple. The transfer
occurred in Queensland, but the birth occurred in South Australia,
necessitating a consideration of the Status
of Children Act 1978 (Qld) and the Family
Relationships Act 1975 (SA).
Berman J found that the parties had not separated, and
therefore s.60H and the relevant provisions of the State legislation applied.
He did not need to consider the position as to whether the genetic mother was a
parent if s.60H had not applied.
The case is a good illustration of how not to plan a
pregnancy. The birth mother was of the view throughout that the role of the
genetic mother was that of a donor only. The genetic mother throughout was that
she was a parent. The evidence between the parties was in conflict about
whether their relationship had broken down at the relevant time.
I acted for the birth mother, who appealed. The Full
Court in Clarence and Crisp [2016] FamCA 157 dismissed the appeal, upholding
the reasoning of the trial judge. The appeal decision is one that ought to be
considered in any de facto case, the Full Court setting out various criteria,
including that the test in property and parenting matters as to whether or not
there is a de facto relationship is the same.
Farnell
and Chanbua
[2016] FCWA 17
This is the commonly called Baby Gammy saga. It is an
enormous judgment. Much of what you thought about the Baby Gammy saga was
wrong. Thackray CJ found:
·
As it turns out, the surrogate, Ms
Chanbua, put her age up illegally.
·
Mr and Mrs Farnell were advised, after
learning that Gammy in utero had Down’s syndrome, to go to China to have an
abortion, as apparently doctors there will do anything for money. They did not
do so. They wanted Gammy.
·
Ms Chanbua fell in love with the idea of
having a boy, and wanted to keep Gammy.
·
Mr and Mrs Farnell wanted to take Gammy,
as well as Pipah, out of Thailand, but couldn’t. At the time, riots and
shootings (ahead of the coup) were occurring in Bangkok- and they were told to
get out for their safety.
·
Mr and Mrs Farnell came home and told
everyone that Gammy had died. [His Honour criticised them for doing so, but
having seen many couples struggle with infertility, their reaction- to me-
appears entirely understandable.]
·
Mr and Mrs Farnell did not try and rip off
the trust fund set up for Gammy.
·
Pipah should remain in the care of Mr and
Mrs Farnell, Mr Farnell being low risk for future sexual abuse of her.
·
It was in the best interests of the
children that a publication order was made.
In the about 200 page
judgment, there is lots to read about risk, commercial surrogacy, and whether
offences might have been committed.
His Honour noted that
there was a plethora of relevant statutory provisions concerning the matter.
His Honour found that s.60H did not apply, because it was not intended to apply
to surrogacy. His Honour went through a series of statutory interpretation
presumptions, and the history of enactment of s.60H and s.60HB. Similarly,
s.60F (as to who was a child of the marriage) did not apply, and therefore he
had to have recourse to WA law (as WA did not refer). His Honour was critical
of the decision in Blake but adopted
an earlier decision of Crisford J in W
and C in finding that Mr Farnell was not a parent- and that intention was
irrelevant. There was no reference to Groth and Banks in the judgment.
His Honour stated, in a
passage that would appear to be directly at odds with the approach in Groth and Banks, at [381]-[384]:
“It was said that in Blake, the sperm donor intended to be
the “social father”, whereas in W and
C the intention was different. In my view, any interpretation which
makes the paternity of a child dependent upon the intention of the donor of the
sperm would be a recipe for disaster. As W
and C itself demonstrates, arrangements involving artificial fertilisation
procedures come in a variety of forms. Some sperm donors intend to have no
involvement in the life of the child; others intend to live with the child
full-time; and others intend to have an ongoing relationship with the child,
falling short of living with the child full-time. If the intention of the sperm
donor was to be determinative, the question would arise, at what point on the
spectrum does the father’s intended involvement in the life of the child change
his status from sperm donor to father?
382 If intention was to be
determinative of paternity, what would happen where the intentions of the sperm
donor and the birth mother differ? For example, in AA v Registrar of Births, Deaths & Marriages and BB (2011) 13 DCLR (NSW) 51, a lesbian couple advertised in the Sydney Star Observer for a sperm donor who would become an
“uncle” figure to the child they ultimately had. However, the male who donated
his genetic material after the women responded to his advertisement in Lesbians on the Loose offering to be
a “father”, wanted his own mother to know he had a child.
383 What would be the position in
the present case if Mr Farnell really had decided he did not want Gammy because
he had Down syndrome? Would he then have become the father of Pipah but not of
Gammy? And what would be the position if a birth mother refused to hand over a
child in places where altruistic surrogacy arrangements are not enforceable –
does the sperm donor still become the “parent” given his intention to be the
“social father”?
384 In my view, the law in this area is already
sufficiently fraught for it to be highly undesirable to introduce the
contestable element of “intention”. One need only look at the time and
money expended on this litigation to see how difficult it can be to establish
intention.” (emphasis
added)
His
Honour was also critical of the Australian Human Rights Commission in seeking
to have a consistent definition of who was a parent under the Family Law
Act and the Australian Citizenship
Act- at [385]-[389]:
“385 The second submission of the
Human Rights Commission that I do not accept stated that:
144.
... To ensure consistency across
Commonwealth legislation it is appropriate to adopt a meaning of parent that is
consistent, to ensure greater protection of Pipah’s rights to know who her
parents are and to have her status as a child of [Mr Farnell] appropriately
reflected.
145.
This is particularly the case
where there has been a finding by [the] Commonwealth that [Mr Farnell] is a
parent and the vesting, through Citizenship, of a significant set of rights and
obligations on Pipah ... under Australian law...
386 It was submitted that the
desired consistency would be achieved by adopting the approach that was applied
in determining that Mr Farnell was a parent of Pipah for the purposes of the
Citizenship Act. This submission should be rejected for two reasons.
387 First, the question of
whether Mr Farnell was Pipah’s “parent” for the purposes of federal law was
relevant only to the preliminary question of whether she is a “child of a
marriage”. As I have found Pipah is not a “child of a marriage”, the answer to
the question of whether Mr Farnell is Pipah’s “parent” is relevant only in
working out how various provisions of the State Act are to be applied. In those
circumstances, I consider that consistency should be achieved by interpreting
the various laws of Western Australia in a harmonious way, rather than
attempting to achieve consistency with a law of the Commonwealth.
388 Secondly, the Full Court of
the Federal Court in H v Minister for
Immigration at [39] and [40] expressly rejected the proposition that the
provisions of the federal Act should inform the interpretation of the
Citizenship Act, and held that the two statutes “do not in truth deal with the
same subject matter”. If there is no need for laws of the Commonwealth to be
interpreted consistently, there is even less need for state law on the same
subject to be interpreted consistently with federal law.
389 Thirdly, if the Citizenship
Act has been correctly applied in permitting the Farnells to obtain citizenship
for Pipah, then I consider it is that Act which sits completely outside what
otherwise seems to be a coherent national legal framework aimed at discouraging
Australian citizens from participating in commercial surrogacy arrangements
overseas.”
His Honour then traced
the legislative history of the Artificial
Conception Act and the Surrogacy Act
2008 (WA), and found that it was WA Parliament’s intention that the
presumptions in the Artificial Conception
Act applied to child born as a result of a surrogacy arrangement.
His Honour also found
that the presumption that may have arose under WA law that the execution by Mr
Farnell of an instrument acknowledging paternity (which was the citizenship
application for Pipah) meant that he was a parent - was rebutted by the
operation of the Artificial Conception
Act.
All
very good – but can a child have three parents?
You may think this an odd question, but in limited
circumstances it has been allowed in the US and Canada, typically when there
has been artificial reproduction treatment:
Jurisdiction[56]
|
Approach
|
Alaska
|
In recent years there
have been third-parent adoptions.
|
British Columbia
|
Changes to their Family Law Act allowed for three
parents. The first such child, born to a lesbian couple and a biological
father, had all three named on her birth certificate in 2014.
|
California
|
Since 2013, the law has
allowed a court to declare more than two parents for child support and
custody. The law was prompted by a child ending up in foster care when the
lesbian parents were troubled, but the biological father lost custody as he
was unable to be declared the father.
|
Delaware
|
Courts have recognised
three legal parents in some families. In one, a man married a woman pregnant
with another man’s child. The child called both men dad. The husband was
included as a de facto parent.
|
Florida
|
In 2013 a judge ordered
that three parents be named on a child’s birth certificate. They were a
lesbian couple and the biological father. The women initially envisioned him
having a non-parental role. He felt hurt when they asked him to sign away his
rights during the pregnancy. He was to have weekly contact with the child,
but parental responsibility remained with the mothers.
|
Maine
|
In 2016, a statute
passed which reflected the pre-existing practice of the courts in allowing a
third de facto parent, and set out
criteria needed before making the declaration.
|
Maryland
|
I understand that
judges there have recognised third parents.
|
New Jersey
|
In 2009 a woman, a man
who had been her best friend since college and his husband had a child
together. They were proud of their three parent arrangement. Things went
downhill when she proposed to move to California. A judge prevented the
relocation and gave custody to all three, finding that the husband was a
psychological (but not legal) parent.
|
New York
|
A
three-part intimate relationship among a husband, his wife and a female neighbour
Long Island eventually led to the state's first known "tri-custody"
ruling, in March 2017. The three decided together to have and raise a child, whom
the neighbour bore. The women later split off as a couple, and the husband
and wife divorced. Although the ex-wife lived with the biological mother and
boy, she wanted
the
legal protection of shared custody. A judge granted it, citing the best
interest of “a well-adjusted 10-year-old boy who loves his father and his two
mothers.” There is apparently a tri-custody case pending in New York,
involving a mother and a gay couple.
|
North Dakota
|
A
court ruled in 2010 on the case of a man who'd raised a boy as his son for
six years, before learning that another man had fathered him. With both
biological parents also in the boy's life, the court found the man was an
additional, psychological parent.
He was granted rights including contact and invitations to special school
events. But only the mother was given parental responsibility. The court said
that the child should not be shuttled among "three different homes with
three different 'parents' each week."
|
Oregon
|
Oregon
judges have been inconsistent. Some judges have approved three parent
adoptions- when the three adults in an intimate relationship embarked on
having a child together- but other judges have declined to do so.
|
Pennsylvania
|
A
court decided in a 2007 that a man who fathered children for a lesbian couple
had to contribute to child support after the couple broke up. He had agreed
to be a sperm donor and then became involved in the two children's lives,
encouraging them to call him "Papa" and paying thousands of dollars
toward their care.The court said he had shown an intention "to
demonstrate
parental involvement far beyond the merely biological" and ordered that
he be factored as an "indispensable party" in child support, though
it didn't expressly
declare
him a parent. By the time of the ruling, he had died — and left his estate to
the
children.
|
Washington State
|
Courts
have recognised third parents, such as a
man
who was told he had fathered his girlfriend's baby. He served as the child's
primary parent after the mother left him, before her former boyfriend was
shown to be the biological father and embraced paternity. A court found in
2013 that the first man was "a father to this child," with contact
rights and child support obligations.
|
The law in Australia recognises only two parents.
In Australia we have consistently found, particularly
in light of section 60H that these men are not parents. I want to explore two 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”[57]:
“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[58]:
“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[59]:
“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.[60]”
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.[61]
Just
because you’re on the birth certificate does not make you a parent
Ryan J made this plain in Ellison and Karnchanit [2012][62] FamCA 602.
In a number of NSW cases, an intended parent has been
named as the father before the making of the parentage order. In each case the
intended father should not have been named as a parent. I note that it is
offence to provide false or misleading information to the Registrar of Births,
Deaths and Marriages about who is a parent[63].
In S v B; O v D
[2014] the intended fathers under two surrogacy arrangements were named as the
fathers on the birth certificates before parentage orders were made under the Surrogacy Act 2010 (NSW). White J
stated:
“25. A
difficulty in both cases was that the husband of the birth/surrogate mother was
not prepared to complete a birth registration statement that named him as the
father of the child, notwithstanding that until a parentage order were made
under the Surrogacy Act (or an adoption order made if that were required),
he was irrebuttably presumed to be the child's father.
26.
The
solicitor for the plaintiffs advised that she provided legal advice to the
parties that the birth mother (that is, the surrogate mother) should be
recorded on the birth certificate as the child's mother and that the intended
father should be named on the birth certificate as the child's father. She
advised that in both cases the husband of the birth mother did not wish to be
named on the birth certificate as the child's father. She stated:
"As the husband of the surrogate mother did
not wish to be recorded on the birth certificate, as there was the intention by
the plaintiffs to apply for a parentage order with the consent of the
defendants and as there was no penalty for registering the second plaintiff as
father, or no specific exclusion not to be registered, the advice given by me
was for the second plaintiff to be recorded on the birth certificate as father.
(In each case the second plaintiff was the intended father.)"
27.
The
solicitor for the plaintiffs submitted that it was in the best interests of
each child from the outset that the intending fathers be registered as the
children's fathers. Having their name on the birth certificate as father
assisted in the process of having the child's name on the Medicare card of the
intending father soon after the birth of the child. The children lived with
their intended parents very soon after birth. If there had been any post-birth
complications for which a father's consent to medical treatment might have been
required, having the intended father's name on the birth certificate could have
avoided complications.
28.
In one of
the cases the solicitor advised that following the birth of the child the
surrogate mother and her partner separated and remain separated and the partner
of the surrogate mother initially refused to sign a consent to the application
for the parentage order, although it was always the intention and agreement of
the parties that the intending father would become the father of the child and
the partner of the surrogate mother would never act as the father of the child.
29.
Hence,
recording the intending father as the child's father on the birth certificate
reflected the physical realities of the situation.
30.
The
pre-condition in s 38 to the
making of a parentage order is not met. Despite that pre-condition not having
been met, the parentage order can be made if I am satisfied that exceptional
circumstances justify the making of the order (Surrogacy Act, s 18)....
32.I am
satisfied in the present case that there are exceptional circumstances that
justify ignoring the non-satisfaction of the pre-condition in s 38. I think it
must be unusual and out of the ordinary for parties to be advised by a
solicitor that they need not comply with the requirements of the law. That is
what the solicitor's advice amounted to in this case. No doubt the advice was
well-meaning, but it was wrong.
33.
The
solicitor said that it was intended that the plaintiffs (the intended parents)
would apply for a parentage order with the defendants' (the surrogate mother
and her husband) consent. But the application initially made was only for the
transfer of the mother's parentage. If that had been the only order made the
child would be without a father. The incorrect details on the birth certificate
would not withstand scrutiny if the child's parentage were in issue. I infer
that the reason that the intended fathers in the present case did not initially
seek a parentage order for the transfer of the parentage of the children from
the partners of the surrogate/birth mothers to them was that they considered
that having been recorded on the birth certificate as the children's fathers,
they would have that status and nothing more would need to be done. Whilst their
registration as the children's fathers gave rise to a presumption that they had
that status, the presumption could readily be rebutted with potentially
irreversible consequences, for example, if one of the intended fathers died and
the question was whether his estate should pass to his child on intestacy.”
Under the principle that there are only two lawful
parents, there have been several cases when the biological father’s name has
been removed from the birth certificate. A birth certificate is after all not
proof, but merely evidence of parentage.
AA
v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100
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 the 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, with a view to being an “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 Dent & Reece [2012] FMCAfam 1303- a
case where the birth mother, Ms Rees, unsuccessfully opposed her former partner,
Ms Dent being added to the birth certificate following the law change in 2008.
The court evidently believed it had relevant jurisdiction.
In LU v
Registrar of Births, Deaths and Marriages (No 2) [2013]NSWDC 123, a female
couple sought to have a child. They enlisted the help of a known sperm donor.
It worked- and the mother gave birth. The father was registered on the birth
certificate with the consent of the mother. Five months after birth, the mother
and her partner separated. The partner sought successfully to have her name
entered on the birth certificate and the father’s removed. 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[64]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 mother’s partner
should have her name added to the child’s birth registration.
A
& B v C
[2014] QSC 111
Ann Lyons J followed AA v Registrar of Births, Deaths and Marriages and BB in holding:
“A Register of Births, Deaths and Marriages
is, as has been discussed in the NSW decisions,
a register of statistical and evidential Information mainly foSAr the purposes
of succession law. It is not a register of genetic material.”
Her Honour noted an Oregon case in which a sperm donor
was named as the third parent, based on the parens patriae jurisdiction. The
parens patriae argument was not run before her Honour. Her Honour noted that
the jurisdiction she was exercising was not the parens patriae jurisdiction.
Registration
of US surrogacy orders
In two cases, Re
Halvard [2016][65] and Re Grosvenor [2017][66], Forrest J has for the
first time registered US surrogacy orders under s.70G of the Family Law Act.
In Re Halvard,
the intended parents (who resided in the US) obtained a pre-birth order in
Tennessee - when the surrogate was about 31 weeks pregnant - which said that
when the child was born they were the parents. The parents were therefore the
de jure parents in the US. Whether they were the parents in Australia was
doubtful. They had sought to register the US order with a registrar, who
despite having a requirement under seg.23 to shall register, declined to do so. His Honour’s obligation under
reg.23 was to may register. The child
was an Australian citizen.
Forrest J registered the US order. He did so on these
bases:
·
A pre-birth order, being of the same
nature as a post-birth parentage order made in Queensland or NSW, was an overseas child order. In this he was
consistent with the approach of Ryan J in Carlton
and Bissett [2013].
·
The order was still current- as required
by reg. 23.
·
The order was made in a prescribed
overseas jurisdiction- as required by reg.23 and as set out in schedule 1A to
the Regulations.
·
The parties and child, although living in
the US, would in due course be proceeding
to Australia- required by reg. 23.
·
As a matter of discretion, he should register
because it was an altruistic arrangement.
Forrest J stated:
“32. In
his written submissions for the applicants when addressing discretionary
considerations, the applicants’ solicitor refers to public policy
considerations surrounding surrogacy arrangements. He refers to the fact that
the Australian States of New South Wales and Queensland as well as the
Australian Capital Territory have expressly criminalised the entry into
commercial surrogacy arrangements abroad by persons ordinarily resident in those
States or in the ACT and he points out that as the applicants are not
ordinarily resident in one of those places the prohibition does not apply to
them. It appears thereby, that the solicitor’s submission is that,
consequently, the discretion should not be exercised against the registration
of the Tennessee Court’s Order.
33. With
all due respect, I do not quite understand the submission, as I do not
understand the surrogacy agreement that the applicants entered into to have
been a commercial one. The Queensland Surrogacy Act 2010 defines a commercial surrogacy arrangement as one
in which a person receives a payment, reward or other material benefit or
advantage other than the reimbursement of the birth mother’s reasonable
surrogacy costs. The New South Wales’ legislation defines commercial surrogacy
in very similar terms, also permitting payment to the birth mother for
reimbursement of her reasonable surrogacy costs.
34. 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.
35. Whilst an overseas child order that came into
existence as a consequence of a commercial surrogacy agreement might have
difficulty attracting a favourable exercise of the discretion to register it in
this Court for public policy reasons, I do not consider that applies in this
matter.”
The effect of registration was
that the parents became the de jure parents in Australia as well as the US,
which while important to them was transformative in the life of their child.
Re
Grosvenor involved an ACT couple who were posted to the US, and
while there they underwent surrogacy. A pre-birth order was made, in North
Carolina, naming them as parents. The child had obtained Australian
citizenship. The family remained in the US but expected to return to Australia.
Forrest J registered the
order even though there had been a commercial surrogacy arrangement and it was
pre-birth order:
“31.
Given that the applicants and their solicitor tell the Court that the child in
this case was brought into the world with the assistance of an arrangement
regulated by a commercial surrogacy agreement, I am clearly required to more
deeply consider that proposition expressed by me only six months ago. The
public policy context within which this consideration is set includes the fact
that in Queensland, New South Wales and the Australian Capital Territory entry
into commercial surrogacy arrangements abroad by persons ordinarily resident in
those jurisdictions is a criminal offence. Of course, I have already observed
that Mr and Ms Grosvenor reside in the USA and not one of those jurisdictions.
Nevertheless, they have entered into a commercial surrogacy agreement and they
seek the registration of the Court order that gives them the parenting rights
over their child in this Court.
32.
Having
considered the matter further, particularly having regard to:
o
the
unique circumstances of this couple and their inability to biologically parent
and carry their own baby;
o
the
well-regulated nature of the surrogacy arrangements entered into between the
applicants and the surrogate, notwithstanding its commerciality;
o
the
judicial oversight to the arrangements given by the Court in the USA, including
the procedural fairness offered thereby to the woman who carried the baby for
the applicants;
o
the
acceptance by the Australian Government of that US jurisdiction as a prescribed
jurisdiction for the purposes of the registration of ‘overseas child orders’
made in Courts of that jurisdiction, thereby, I am satisfied, signifying the
Australian Government’s satisfaction with the standard of the judicial
processes that would have occurred in the making of the order; and
o
the fact
that the arrangements entered into, regardless of their nature, brought into
the world a child who is the biological child of at least one of the
applicants, the legal child of both of them, who is being loved and raised as
their child, who as an Australian citizen, like her parents, will be coming
back to live in Australia in the near future, and who has every right to expect
that the legal nature of her relationship with both of her parents is
appropriately recognised in this country of hers;
I am
satisfied that the commercial nature of the surrogacy agreement alone in this
particular case should not determine the exercise of discretion against the
applicants.
33.
As I also
said in my previous decision in December last year, another matter to consider
is the fact that the overseas parenting order sought to be registered was made
two weeks before the child was actually born whereas under the legislation
governing surrogacy in the Australian Capital Territory, parentage orders that
regulate the parent-child relationships created through the surrogacy agreement
that may be obtained from the Supreme Court of that Territory may only be
applied for a minimum number of weeks after the subject child is born.
34.
The
Explanatory Notes published in the Australian Capital Territory when the
surrogacy legislation was before Parliament casts no light on anything that
might make the difference I have identified of some relevance in this matter.
As I understand matters, parentage orders, as they are described in the
Australian States’ legislation, are of the same effect as the Order of the
North Carolina Court under consideration in that they transfer parentage from
the carrier to the parent so that legal parental rights are created and are
registrable with the government maintained registries of births, deaths and
marriages in the respective jurisdictions. That they can only be made after
birth in this country whilst they are clearly able to be made in North Carolina
(and South Africa) prior to the birth of the subject child is of little apparent
consequence and is not, in my judgment, good reason for refusing to register
the North Carolina Court’s Orders in this Court.”
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.
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[67].
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] FMCAfam 55 which 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.
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[68]:
“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 may be
someone concerned with the care, welfare and development of a child and despite
any agreement between the parties and may be removed from the birth certificate
as a parent.
Who is a parent under surrogacy arrangements,
especially international and non-compliant surrogacy arrangements, continues to
be an evolving area. Watch this space!
Stephen Page
27 June 2017
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]
Bateman and Kavan [2014] FCCA 252, [68]-[70] per Harman J
[3]
Such as the Assisted Reproductive
Treatment Act 2008 (Vic.)
[4]
Such as the Assisted Reproductive
Technology Act 2007 (NSW)
[5] [34].
[6]
[17].
[7]
[7]-[8].
[8]
[16].
[9]
[13].
[10] I have for
the sake of convenience used the Queensland Act. Similar legislation is in
place in all States and both Territories.
[11]
E.g, In re marriage of Buzzanca
(1998) 61 Cal. App. 4th 1412
[13]
[2016] FCWA 17
[14] At [70]
[15] See also and as to 6GT: Fisher –Oakley and Kittur [2014]FamCA 123
[16] 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.
As an example, see Ryan & Fraser
[2014] FamCA 763.
[17] LWV & Anor v LMH [2012] QChC 026-conception is the act of
pregnancy, not fertilisation of the embryo.
[18]
See the lengthy discussion on this in Farnell
and Chanbua [2016] FCWA 17.
[19] Keaton and Aldridge [2009] FMCAfam 92
[20] See Ryan and Fraser [2014] FamCA 763 and Keaton and Aldridge [2009] FamCAFC 229
[21] 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)
[22] At [17]
[23] At [23]
[24] Of the US states, Missouri, New Mexico
and South Dakota are not prescribed.
[25] At [33]
[26] People in WA and SA, although not
subject to explicit extra-territorial laws, may still be committing offences
because of the Family Relationships Act 1975 (SA), and the Criminal
Law Consolidation Act 1935 (SA); or the Surrogacy Act 2008 (WA) and s.12 Criminal Code (WA), as was made plain in
Farnell and Chanbua [2016] FCWA 17.
[27] 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] FamCA 505. 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]
FamCA 123.
[28] At [49]
[29] Which are the various State and
ACT surrogacy legislation.
[30] At [61]
[31] At [68]
[32] At [100]
[33] At [12]
[34] At [31]
[35] As also seen in Ellison and Karnchanit, for example.
[36] At [46, 50, 51, 52]
[37]
[2016] FCWA 17.
[38] At [15]
[39] At [33] – [36]
[40] AB and CD and CT [2015] EWHC 12 (fam)
[41] At [21] – [22]
[42] At [25]
[43] At [27]
[44] At [29]
[45] At {43} – [44]
[46] At [12] – [16]
[47] At [24]
[48] At [30] – [32], [37] – [38]
[49] At [52-57]
[50] At [42]
[51] At [46]
[52] At [47]
[53] At [51], [52]
[54] At [63-88]
[55] At [91-92]
[56]
For much of this I am thankful to Associated Press for summarising this issue
across various US jurisdictions in June 2017.
[57] At [96] – [99]
[58] At [145]
[59] At [150]
[60] [51] – [57].
[61] Two further similar examples,
though interim, are Purcell and Nelson
[2015] FCCA 274 and Budd and Horne
[2015] FCCA 1576. In both cases Scarlett J noted the animosity between the
parties and therefore the need for caution.
[62]
[2012] FamCA 602, [70].
[63] Births,
Deaths and Marriages Registration Act 2003 (Qld), s.50.
[64] Where there has been a finding by
the relevant court
[65]
[2016] FamCA 1051
[66]
[2017] FamCA 366
[67] One such case was Crisp and Clarence; Clarence and Crisp-
referred to above.
[68] At [172] – [174]
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