In May I presented to accredited family law specialists at a
conference in Sydney run by the College of law. My topic was about
parentage presumptions. There is a view that just because someone is the biological parent, therefore they must be the legal parent. That view is - it depends. The law is pernickety at times about parentage presumptions- someone common sense would tell you is a parent is not- or is not for some purposes.
Here is my paper:
Here is my paper:
COLLEGE OF LAW
2018 SPECIALIST CONFERENCE
19 May 2018
SYDNEY
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]
A common feature of family law has been that society is
changing before our eyes. Family law has
struggled to keep up. Nowhere is this
more true than in the realm of in vitro fertilisation and assisted reproductive
treatment. Currently we are witnessing
in Australia transgender men becoming pregnant and giving birth. As recent research stated:[3]
“A
transgender man is a person who identifies as male, but whose sex may have been
designated female at birth. As such,
transgender (trans) men are commonly born with a reproductive anatomy that
allows them to become pregnant and give birth…with the recent cultural shifts
in community and legal attitudes around the trans community, the openness of
transmen desiring parenthood and becoming parents through gestational pregnancy
may be more a reality now than ever before.”
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[4], but
can also be called artificial reproductive treatment or artificial reproductive
technology[5]. 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.”[6]
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.
“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.
“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.
“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[10]:
“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)[11],
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 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[13], 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 irrebuttable:
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 irrebuttable
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 Chambua[14] [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).
Transmen
becoming pregnant. Is a transman a
mother?
Charter et al undertook research of 25
transmen. They say:
“The
participants in our study chose to pursue pregnancy for a variety of
reasons. Some participants had cisgender
female partners whose fertility was affected by medical issues as Sam (32)
describes:
(My partner’s)
endometriosis was really severe…when we started talking about a family I just
knew it wasn’t going to be possible for her (to get pregnant) so I decided that
I’d do it. It wasn’t an altogether happy
decision but I knew it was the right one for us and I feel, actually, very
grateful that I could do that for us.
For other participants, being able
to have a child that was biologically related to them was positioned as
important and valuable: “It just seemed like a huge privilege to be able to
have a child that shared by DNA” (Justin, 30).
Equally, Bill (31) commented:
We’d had some close friends who had really
struggled with not being genetically related to their kids…it really made an
impression on me and (my partner)…so we decided we’d take turns having a baby.
The researches then say:
“As
18 of the 25 participants in this study were partnered cisgender women at the
time of conceiving children, they would not be able to conceive their children
without accessing some form of external support, such as pursuing formal or
informal assisted fertility, including the acquisition and insemination of
donor sperm, and, in some cases, in vitro fertilisation… Whilst transpeople are
protected legally in Australia from discrimination by [healthcare
providers]…these protections are not necessarily borne out in their actual
experiences. No participant in this
study who attempted to access a fertility clinic was actually granted
treatment. This type of rejection and
discrimination is reported to be pervasive in the trans community, and has a
very significant impact on mental health and wellbeing…As such, like many in
the broader LGBTQI community, transmen turn to informal networks and methods,
indicated in the above accounts of using known donors and at home insemination,
to assist them in achieving their goal to conceive.”
The obvious question to pose is that if a transman
gives birth through the use of assisted reproductive treatment, whether at home
or through IVF, is the transman the mother or a parent at law?
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[15], there
has been no overseas jurisdiction prescribed for the purposes of section 69R[16].
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[17] i.e.
the commencement of the pregnancy, after implantation[18] 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:
(a) the standard
Rules of Court; and
(b) the related
Federal Circuit Court Rules.”
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[19].
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[20].
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[21].
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 irrebuttable 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 irrebuttable presumption, to be the father and the birth mother is
presumed to be the mother and the egg donor is not, also an irrebuttable
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.
If a transman has given
birth through the use of assisted reproductive treatment, i.e. an artificial
conception procedure, whether at home or through an IVF clinic, is a transman a
woman for the purposes of section 60H?
If the transman is considered to be female due to the ability to carry a
child, then the transman, who identifies as female nevertheless would be
considered to be a parent under section 60H(1) and their partner would be
considered to be a parent under the same provision.
However, if a
transman were considered to be male much along the lines of Re Kevin and Jennifer (Validity of Marriage
of Transsexual) [2001] FamCA 1074,
then the transman is not a woman for the purposes of section 60A and that
presumption does not apply. You may
recall that Kevin in Kevin and Jennifer
had fully transitioned, not only identifying as being male but also having
undertaken surgery etc.
Facts of Re Kevin
The husband was
identified as a girl at birth and named Kimberley (not the real name). His genitalia and gonads were female, and he
continues to have female (xx) chromosomes.
For as long as he could remember he perceived himself to be male. Despite pressure to dress and behave as a
girl, he wore boys’ clothes whenever he could, refused to play with girls’
toys, and had many attributes of a boy, and saw himself as a boy, while
growing up. He described his
adolescence, and the feminisation of his body, as a “time of pain and dread”.
He was harassed at school because of his male attitude and
appearance. During his adolescence and
early adult years he kept most of his thoughts to himself and felt extremely
alienated from people.
In 1994 he
generally presented as a male, wearing trousers and shirts to work. In mid-1995 he saw and article about sex
reassignment treatment, and he had feelings of relief and excitement upon
learning of other people like him, and of how they had discovered the medical
means to express their true sex as men.
He embarked in 1995 with hormone treatment. In 1997 he had breast reduction
surgery. In September 1998 he had a
total hysterectomy with bilateral oophorectomy. As a result he was no longer able to
reproduce or engage in sex as a woman.
The parties met
in 1996. Kevin told Jennifer of his
predicament. She perceived him as a
man and supported his desire to bring his body into harmony with his
mind. They agreed to marry. In 1997 Kevin changed his name from
Kimberley to Kevin. In September 1997
the couple applied successfully to an IVF programme. Jennifer became pregnant by an anonymous
sperm donor. The team concluded that
Kevin should be considered male biologically and culturally and that the
parties should be considered a heterosexual couple within fertility
consequent to absent sperm production.
In 1998 Jennifer
changed her family name to Kevin’s.
Kevin obtained a new birth certificate showing his sex was male. In 1999 Jennifer gave birth to a son. Whilst pregnant they married.
The date of
marriage in the words of Chisholm J, “Kevin’s
male secondary sexual characteristics were such that he would have been
subject to ridicule if he had attempted to appear in public dressed as a
woman; he could not have entered a woman’s toilet; and he was eligible to
receive an Australian passport showing his changed name and stating his sex
as male. He has been treated as a man
for a variety of legal and social purposes, including his employer, Medicare,
the Tax Office and other public authorities, banks, and clubs. Evidence from numerous family, friends and
work colleagues testified to his acceptance as a man and to the acceptance of
him as a husband and father”. His
Honour held:
“Unless the context requires a different interpretation, the words
“man” and “woman” and used in legislation have their ordinary contemporary
meaning according to Australian usage.
That meaning includes post-operative transsexuals as men or women in
accordance with their sexual reassignment.”
An appeal by the
Commonwealth to the Full Court was unsuccessful.
|
If Chisholm J’s
view were adopted in respect of section 60H and used in that example Kevin was
the one giving birth, then the presumption under section 60H would not
apply. My paper has been primarily
devoted to looking at the Queensland Status
of Children Act. For the sake of the
exercise here, I looked at the Status of
Children Act 1996 (NSW). There is no
definition of man or woman.
Nor, not surprisingly, is there any definition of either in the Interpretation Act 1997 (NSW). The presumption underlying the Status of Children Act 1996 (NSW) is that a woman gives birth –
back to the presumption that has existed in our law since the time of Justinian
mater certa semper est: the mother is always certain. The answer is I don’t know whether a transman
who gives birth is a parent and then how do the parenting presumptions apply to
the other parent? Unlike Re Kevin, Charter et al in their
research paper say this:
“Transitioning
is a process, rather than a single event, and can take a variety of forms. A transman may transition physically by using
hormonal or surgical treatment; they may change their appearance, their name,
and their gender pronoun to transition socially; and they may pursue
recognition of their gender identity legally and formally…However it is
important to note that not all transmen pursue a transition. This may be
because they are not medically or financially able to, because they do not have
the support of those around them, or because they choose to express themselves
in a different way.”
In other words, if
someone presents as a transman but has had no surgery or the law for the
purposes of parentage presumptions treat that person as a man or a woman? If the birth parent is not a woman, then what
is the status of their partner? I don’t
know the answer to that either.
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[22]. As
soon as he has consented, whether or not he wants to have a child, then the
partner will be presumed, as an irrebuttable 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.”[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[25], 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:[26]
“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)[27]. 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.[28]
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[29]. 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[30].
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.[31] 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.[32]
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[33] 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.[34]
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.
“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[36].
Her Honour stated:[37]
“One
overarching consideration is that since 2010 Mr Marston and Mr Blake have acted
as parents to these children. They have
fulfilled that role for over two years without input from any other person who
might be seen as a parent… the Act does not specifically define a father or a
parent of the child to be adopted the Interpretation Act does provide a
definition, albeit not an exhaustive definition. The examples that are given do not encompass
Mr Marston. In circumstances where
provisions enlarge rather than restrict here it can’t be said that the
provisions operate to exclude a person as a parent if his or circumstances do
not coincide with those identified in this section. To
suggest that Mr Marston is anything other than a parent or a father within its
ordinary meaning is to turn a blind eye to the reality of ‘family’ in present
day society. It is also turning a blind
eye to the reality of the situation presently before the Court. The objective facts surrounding the birth and
the manner in which various agencies have treated those circumstances couple
with the fact of the genetic father acting in that role since the birth of the
twins points to the use of an expanded definition of parent. To adopt any other interpretation would serve
no purpose in addressing any public policy issues if, indeed, any exist. It would serve no purpose in enhancing the
future welfare and best interests of these children… there is no valid reason
to disadvantage children of surrogacy arrangements.”(emphasis
added)
Mason
& Mason [2013] FamCa
424
A gay couple, Mr A
and Mr B Mason undertook surrogacy in India, resulting in the birth of
twins. Mr A Mason entered into a
surrogacy arrangement in India.
The issue in
question was whether either of them were the parents. There was no reference to Re Blake.
“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[40]:
“It follows, that without the
benefit of argument, a cautious approach to the issue is necessary. However,
it is my preliminary view that for the purposes of the Act the 2008 amendments,
events and intentions by Parliament that the parentage of children born as a
result of artificial conception procedures or under surrogacy arrangements will
be determined by reference to those provisions and not the general parentage
provisions. This interpretation
achieves, on a state by state (and territory) basis, a uniform system for the determination
of parentage. [34]. The effect of this is that unless an order is
made in favour of the applicant
pursuant to the surrogacy Act, the provisions of the Act do not permit this Court
to make a declaration of parentage in his favour. Thus, on reflection, I’m inclined to respectfully
agree with Watts J in Dudley & Anor and Chedi [2011] … where… his Honour determined
that ultimately state law will govern the determination of parentage [if
children born under surrogacy arrangements] and that state law will be
recognised by federal law. [35] This is
only to the extent that the laws of a state or territory are prescribed laws
for that provision. [36] Although there
is evidence which may tend to indicate that this was a commercial rather than
altruistic surrogacy arrangement, the evidence is not so clear that a finding
in relation to the nature of the agreement needs to be made. If that is an issue, it is one more
appropriately dealt with by the Supreme Court should an application for a parentage
order or adoption be made.” (emphasis added)
In other words it
would appear that if you are going overseas for surrogacy then, according to
that analysis you are not the parents.
The surrogate and her partner are.
Green-Wilson &
Bishop [2014] FamCa1031
Mr X Green-Wilson
and Mr Y Green-Wilson were a gay couple who undertook surrogacy in India. They lived in New South Wales but moved to
Victoria so they could undertake surrogacy overseas. A child Y Green-Wilson was born as the result
of a commercial surrogacy arrangement.
Mr X Green-Wilson provided his sperm.
The egg was supplied by an anonymous donor in the Ukraine. Johns J held that although Mr X Green-Wilson
was the biological father[42]:
“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…”
“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.”
“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[45]:
“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.”
Her 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”.
“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.
The approach in
Green-Wilson and Bishop was as approved by the Full Court decision in Bernieres and Dhopal (below).
Groth
& Banks [2013] FamCA 430
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[47]:
“(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 Civ 584, [2014] 1 WLR 1288:
“We
assume that Parliament in the case of legislation… would have intended a
sensible… result.”
I would suggest
that, for couples where a transman has given birth following the reasoning of Groth & Banks both of them would be
parents under the Family Law Act.
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) FLC 92-716 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”[48]. 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[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)…”
“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”[52], and
in particular[53]:
“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[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 “non-traditional”.
I am loath to use terms such as “non-traditional”
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.”
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.
Bernieres and
Dhopal [2017] FamCAFC 180
Mr and Mrs
Bernieres were pretty upset with the outcome before Berman J, so they
appealed. The matter was heard by Bryant
CJ, Strickland and Ryan JJ.
Mr and Mrs
Bernieres argued that section 60HB did not apply to exclude them as parents of
the child because that section only applies where there is an order of a State
or Territory transferring parentage to the intended parents. They then argued that because section 60HB
did not apply, it is necessary to look at section 60H, but that did not provide
a definition of who is a parent in these circumstances and thus declarations
could be made under section 69VA if the threshold question as to whether the
proceedings involved a matter in which parentage is an issue, and whether there
is evidence that places the parentage of a child in doubt are satisfied.
Their Honours
stated:[57]
“The
issue that must be considered is whether it is in fact open to apply to section
69VA here, and that would depend on whether section 60HB covers the field in
relation to surrogacy arrangements, and where 60H sits on the statutory scheme.”
Their Honours
noted the history of the current section 60H(1) – added in 2008 and at the same
time the addition of section 60HB. Their
Honours agreed with the interpretation of Thackeray CJ in Farnell and Chambua that:
“Sections
60H and 60HB, at least to the extent that they expressly determine the status
of children coming within their ambit, would be rendered meaningless if they
were not interpreted to displace the presumptions in Division 12 [of the
Act]. It should also be noted that
sections 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which
is entitled “Interpretation – How this Act applies to certain children”. I conclude that while the rules of maternity and
paternity in sections 60H and 60HB are not expressed as non-rebuttable
presumptions, in effect they are, and they therefore trump the rebuttable
Division 12 presumption.”
Their Honours also
agreed with the preliminary view of Ryan J in Mason that:
“The 2008 amendments evince an intention 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.
The effect of this is that unless an order
is made in favour of the applicant pursuant to the Surrogacy Act (in New South
Wales), the provisions of the [Family Law Act] do not permit this Court to make
a declaration of parentage in his favour.”
Their Honours went
on to say:[58]
“Significantly this interpretation
does not leave it open to find that where, as in Victoria, the relevant state
legislation does not apply to the particular circumstance of the case, that
Lacuna can be filled by recourse to section 69VA.”
In doing so their
Honours disapproved of the approach taken in Green, Wilson and Bishop when:[59]
“In
our view it is not possible to discard the plain meaning of legislation where
public policy considerations may not be seen to be in the best interests of the
children affected.”
Their Honours
stated:[60]
“As
was explained in a helpful article by Mary Keyes and Richard Chisholm entitled
‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian
Journal of Family Law 105, 112:
Section 60H deals with the status of
children born as a result of fertility procedures. It was not designed for surrogacy situations,
but it can affect them, because fertility procedures are often used in
commercial surrogacy. Most of the
subsections of section 60H incorporate reference to the state and Territory
legislation relevant to determining parental status. Together, these provisions form a national
scheme (although there are some inconsistencies between the federal and state
and territory provisions), the effect of which is to recognise the birth mother
and her consenting spousal partner as the parents of a child born as a result
of a fertility procedure irrespective of their biological connection to the
child. The scheme also denies parental
status to gamete donors in such cases, although as we will see there are
different views about whether it does so in all situations.
Although, as the authors comment in
that article, “fertility procedures are often used in commercial surrogacy”,
and that is demonstrated by the second limb of the definition of “artificial
conception procedure”, such that theoretically section 60H could apply to a
surrogacy arrangement, at close consideration of the section reveals otherwise.
On its plain meaning, section 60H(1)
is applied to a surrogacy arrangement (including the arrangement here), it results
in the birth mother and her husband or partner being the parents, and the child
not being the child of any person who provided genetic material. Thus, neither of the commissioning parties
can be the parents of the child under this subsection, and it is clearly
designed to cover conventional artificial conception arrangements with the
birth mother and her partner are to be the parents of the child.
For completeness, we note that
unlike section 60H(1) section 60(2) and (3) do not expressly exclude any donor
of genetic material from recognition as a parent. As it was pointed out in the article by Mary
Keyes and Richard Chisholm (at page 113), judicial opinion is divided as to
whether those subsections impliedly exclude such a donor. However, because we have not heard argument
in relation to this matter, we are not able to express any informed view about
the same.”
Their Honours
stated:[61]
“Thus,
it is plain that section 60HB now specifically addresses the position of
children born under surrogacy arrangements, leaving section 60H to address the
status of children born by means of conventional artificial conception
procedures. Further, the plain intention
of section 60HB is delivered to each of the States and Territories to regulate
the status of children born under surrogacy arrangements, and for that to be
recognised for the purposes of the Act.
In other words, section 60HB covers that field, leaving, as we say,
section 60H to address conventional artificial conception procedures.
In conclusion then, section 69VA is
not available here because section 60HB covers the field, and section 60H does
not apply.
The unfortunate result of that conclusion
is that the parentage of the child here is in doubt. There is no order made under the relevant
State legislation (and nor could there be) as explained Green, Wilson &
Bishop).
There is no question that the father
is the child’s biological father, but that does not translate into him being a
parent for the purposes of the Act.
Furthermore, the mother is not even the biological mother, and thus is
even less likely to be the “legal parent”.”
In other words, Mr
and Mrs Bernieres’ child did:
1.
Did not have parents under the Family Law Act;
2.
Did not have parents under the Status of Children Act.
There are only two
obvious conclusions to that:
(i)
Either the child has no parents (which
cannot be right as a matter of public
policy, a matter not addressed by the Full Court); or
(ii)
Mr and Mrs Dhopal, the surrogate and her
husband are the parents, people who:
(a) contracted
not to be the parents;
(b) have
never engaged in parenting of a child;
(c) never
intended to be the parents;
(d) have no
genetic relationship with the child.
Crisp & Clarence
[2015] FamCA 964
This was a case before
Berman J 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 Chambua [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. Thackeray CJ found:
·
As it turns out, the surrogate, Ms Chambua,
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 Chambua 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[62]
|
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.
“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[64]:
“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[65]:
“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.[66]”
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.[67]
Regrettably, Reiby & Meadowbank has been
revisited in Reiby & Meadowbank (No.
2) [2018] FCCA 454. Five years after
the first litigation the sperm donor sought to increase time between the child
and himself. The respondents, who were
self-represented opposed that on the basis of Rice and Ausplund. They were
successful.
Lamb & Shaw [2017] FamCA 769
This was a
surrogacy arrangement in North Queensland which went dreadfully wrong. The surrogate was the third cousin of the
intended mother. The intended mother and
intended father were the genetic parents.
The matter ended up in the Family Court because the surrogate did not
relinquish the child. An issue at trial
was whether the intended father was a parent.
This case is specific to the Status
of Children Act 1978 (Qld) which has slightly different drafting on point
to that of the status of children legislation elsewhere in Australia except
that for the Northern Territory (where for all practical purposes surrogacy
does not exist).
No parentage order
was made. Tree J noted that under
section 17 of the Surrogacy Act 2010
(Qld):
“To
remove any doubt, it is declared that, unless and until a parentage order is
made under Chapter 3 transferring the parentage of a child born as a result of
a surrogacy arrangement, the parentage presumptions under the Status of
Children Act 1978 apply to the child.”
His Honour stated:[68]
“There
are three noteworthy points in relation to this. The first is that section 23(4) does not
utilise the device of an irrebuttable presumption if the sperm donor is not the
father of the child, as that Act does in relation to the woman who produced the
ovum (see sections 23(2)(b) and (3)). No
explanation for the different terminology is apparent in the Act, nor does the
explanatory memorandum relating to the bill enlighten this issue. Because section 17 of the Surrogacy Act only
refers to the presumptions established for the Status of Children Act, it is
arguable that section 23(4) is not encompassed within section 17, however it
seems that the intention of section 17 was not to affect the continued
operation and effect of the Status of Children Act and hence I do not accept
that only presumptions per se continue to operate.
The second is that section 23 of the
Status of Children Act was enacted prior to surrogacy being statutorily
recognised and regulated in Queensland, and hence, unsurprisingly, seems to
work from the assumption that the child resulting from the pregnancy was
intended to be retained by the birth mother.
The third is that section 30 of the
Status of Children Act, which deals with the resolution of conflicting
presumptions, would not, at least on a plain reading of its wording, operate to
ameliorate the lack of rights and liabilities on the part of the sperm donor,
because section 30 only deals with presumptions and as I have observed, section
23(4) is not cast in that fashion.
Hence, arguably, even if, for instance, the sperm donor were registered
on the child’s birth certificate as a parent (and hence under section 25
presumed to be the child’s parent) on one view, section 23(4) would nonetheless
operate to deprive the donor/parent/father of any rights, notwithstanding
parenthood.
On balance I construe section 23(4)
as implicitly recognising that the sperm donor is the father of the child,
however despite that status, he has no rights or liabilities in relation to the
child. Nonetheless, it follows that
under State law in Queensland, the man who donated the sperm in order to
fertilise the donated ovum, is the father of any relevant child to a woman
implanted with the resultant embryo.
The position in relation to the
donor of the ovum (and hence the biological mother in this case) is more clear
cut. Section 23(2)(b) creates the
presumption for all purposes, that the donor of the ovum is “not to be the
mother of any child born as a result of the pregnancy”. That presumption is irrebuttable: see section
23(3). Rather, it is to be irrebuttably
presumed that the child’s mother is the woman into whose womb the fertilised
donor ovum was implanted: section 23(2)(a).
In summary therefore:
(a) The biological parents of a child born to
a surrogacy arrangement are the parents whose sperm and ovum combined to
produce the gamete;
(b) However those persons are not, for the
purposes of the Family Law Act, the parents of the child, unless the State
legislation, either directly or by order made under it, effects such as a
status;
(c) Here, section 23(4) of the Status of the
Children Act operates such that the donor of sperm used to fertilise the donor
ovum implanted into another woman’s womb, remains the father of the resultant
child, has no rights or liabilities relating to it; and further
(d) By section 23(2) of the Status of
Children Act, there is an irrebuttable presumption that the ovum donor is not
the mother of the child, but the recipient is.”
His Honour in
following Bernieres and Dhopal
concluded that under the Family Law Act
the biological mother was not a parent of the child but that rather the effect
of the Status of Children Act is that
the birth mother is irrebuttably presumed, for all purposes, to be the mother
of the child unless a parentage order were made.
His Honour then
said:[69]
“The
position of the biological father, at least in Queensland, is a little less
clear. The State legislation does not
deprive him of fatherhood per se, but rather strips that fatherhood of any
rights or liabilities, unless he were to marry the birth mother. On the other hand, Bernieres and Dhopal and
indeed Mason and Mason as well (albeit in the context of Victoria and New South
Wales respectively) expressly held that the sperm donor father was not a parent
for the purposes of the Family Law Act, although neither of the States from
which those cases sprang had any equivalent to section 23(4) of the Status of
Children Act.
Although with some hesitation, I am
nonetheless persuaded that in Queensland, the combined effect of section 17 of
the Surrogacy Act and section 23(4) of the Status of Children Act, means that
the father is a parent of the child, and that, consistent with Bernieres and
Dhopal, the Family Law Act will recognise that status.”
The surrogate in Lamb & Shaw did not like that
outcome and appealed. The matter came
before the Full Court earlier this year.
The basis of appeal was that his Honour had erred as to this issue. The Full Court found that there was a factual
matter that had not been decided. It
appeared that the surrogate had a de facto partner at some stage. What was unclear was whether that couple were
in a de facto relationship as at the date of implantation.
In Lamb & Shaw [2018] FamCAFC 42, their
Honours stated:[70]
“Importantly,
each of the relevant subsections of section 19 and 23 provide for irrebuttable
presumptions of law if the respective preconditions for the application of the
same are met. Establishment of the
relevant relationship is fundamental to the application of the respective
irrebuttable presumptions of law. Conversely,
a finding as to the relevant presumption cannot be made unless and until there
is a finding, or agreement, as to the relevant applicable relationship (or
absence of relationship) on the part of the birth mother.”
Because it was
uncertain as to whether the birth mother was in a de facto relationship at the
time of implantation, the matter was remitted for that matter to be decided,
preferably to be again before Tree J.
Their Honours stated:[71]
“We
feel bound to record that the issues confronting the legal practitioners were
not without complexity and all the more so because at the time that material
and submissions were prepared and the hearing before his Honour conducted, no
decision of the Full Court had addressed those issues and no first instance
decision had addressed the Queensland legislation which applied in this case.
Yet, the net result of those
circumstances is that his Honour was not provided with the evidence or
submissions directing his Honour’s attention to the relevant questions
requiring an answer as a precursor to addressing the applicable
presumptions. As all three counsel
conceded before us, the relevant preconditions were either not addressed at all
by them before the primary judge or, if alluded to, it was in a different and
with respect irrelevant, context.”
Just
because you’re on the birth certificate does not make you a parent
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[73].
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)....
31.
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 irrebuttable
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[74]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 for 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 three
cases, Re Halvard [2016][75], Re Grosvenor [2017][76] and Sigley and Sigley [2018][77],
Forrest J has 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.”
In Sigley
and Sigley the intended parents were Australian citizens, and originally
from Victoria. They had been residing in
the US for some years and met there.
They soon married. The first
issue that Forrest J considered was whether the order was an overseas child order. His Honour said that the question was best
determined by asking the further question: “However
expressed, does it have the effect of determining the person or persons with
whom a child who is under 18 is to live or as to which person or persons are to
have custody of a child who is under 18?”
The order made it absolutely clear that it applies to the children, that
is the children that were produced by fertilisation of an egg from Ms Sigley
and sperm from Mr Sigley that were carried by the gestational carrier. The
order outlined that the children were in the custody, care and control of the
intended parents, being the applicants.
The order goes on to note the Court’s finding that the children born to
the gestational carrier are the children of the intended parents. Ultimately the Court declared, ordered and
decreed that the applicants were the parents.
The order noted the Court’s finding that this order was in the best
interests of the children. Even though
they resided in the US, Mr and Mrs Sigley expressed an intention to return to
Australia permanently, their Australian citizenship, years of being ordinarily
resident in Victoria prior to relocating to the US, the residence of members of
their family in Australia, their temporary work visas in the US and enrolment
of their children in a Melbourne school for the commencement of kindergarten
gave Forrest J reasonable cause to believe them when they said that they
intended to return to Australia in the future.
As a matter of discretion his Honour was satisfied that the particular
meaning to be attributed to proceeding to in those circumstances must be one of
coming to or travelling to Australia, whether that be for a visit or to live
here and whether that person be currently on their way here or simply paying to
come here sometime soon. Hence, his
Honour was satisfied that Mr and Mrs Sigley and their daughters were at some
point in the future considered to be proceeding to Australia.
In referring to his decisions in Re Halvard and Re Grosvenor (although not by name) his Honour stated:[78]
“I
am, as I considered I was in the earlier decision, clearly required to give
consideration to the public policy context within which my discretion is being
exercised. That context 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 Sigley reside in the USA and not one of those jurisdictions. Whilst they currently intend to return to
live in Australia at some time in the future, it is not in one of the three
jurisdictions just mentioned, but rather the State of Victoria. Nevertheless, they have entered into a
commercial surrogacy agreement and they seek the registration in this
Australian Court of the American court order that gives them the parenting
rights over their child. If they were
“ordinarily resident” in Queensland, New South Wales or the ACT, they would
have, prima facie, committed a criminal offence. However, as the applicants’ solicitor points
out in his submissions, Victoria allows intended parents to enter into
commercial surrogacy arrangements overseas and has not sought to criminalise
such behaviour. Entry by the applicants
into the “commercial” surrogacy agreement was lawful in the USA, particularly
in State C where it was done and the Australian Government has not determined
to criminalise entry by Australian citizens or residents into commercial
surrogacy agreements overseas as, arguably, it could do.
Having given the matter my
consideration, I am satisfied for all of the same reasons as I set out in my
earlier decision…that the commercial nature of the surrogacy agreement alone in
this particular case should not determine the exercise of discretion against
the applicants. Different from that case
though, in this case there are two children who were brought into life through
the surrogacy arrangements and both of those children are the biological
children of both of the applicants. Their gestational “mother” was their carrier
who assisted their biological parents bring them into the world. The two children are both Australian citizens
now as well, with legitimate expectations that the legal nature of their parent/child
relationship with both of their loving parents is appropriately recognised in
this country of theirs.”
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.
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 Father’s Day and at Christmas, including after
the women had separated. Ms Fabian
accepted that they celebrated Father’s 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 day care 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[80]:
“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.
Professional
Indemnity Scary Stuff
One of the most
significant decisions in family law last year.
Piccolo and
Piccolo [2017] FCWA 167
Mr and Mrs Piccolo
met in 2006. They married in 2010. After their attempts to start a family were
unsuccessful, they sought to proceed by way of surrogacy in Canada. A number of embryos were created using the
husband’s sperm and eggs from a Canadian donor.
A child was born through the surrogacy arrangement in 2012. The remaining two embryos remained
cryopreserved in Canada.
The wife commenced
proceedings for property settlement. She
did not specify the final relief sought.
The husband responded with detailed proposals regarding parenting
orders, no particularised relief as to financial matters, but seeking orders
for the remaining embryos to be maintained in storage for its use in the
future.
Consent orders
were made as to property settlement in 2016.
The parties were not able to resolve their disagreement as to the
appropriate parenting orders to be made and the future of the remaining embryos.
Funnily enough, in
the whole case there doesn’t seem to be any discussion about whether the
presumption for equal shared parental responsibility should apply or not apply
depending on whether the child was a child of the party. Following the decision in Bernieres and Dhopal, on the face of it
(subject to what impact the Canadian Court order as to surrogacy might have)
the child would not be the child of the parties because they had not complied
with Western Australian law for surrogacy which amongst other things required
them to undertake IVF in a Western Australian clinic.
O’Brien J held
that both parties were parents of the child for the purposes of the Family Law Act. His Honour cited his section 6 of the Artificial Conception Act 1985 (WA), which
provides:
“(1) Where a married woman undergoes, with the
consent of her husband, an artificial fertilisation procedure in consequence of
which she becomes pregnant, then for the purposes of the law of the State, the
husband –
(a)
shall
be conclusively presumed to have caused the pregnancy; and
(b)
is the
father of any child born as a result of the pregnancy.
(2) In every case in which it is necessary
to determine for the purposes of this section where the husband consented to
his wife undergoing artificial fertilisation procedure, that consent shall be
presumed, but the presumption is rebuttable.”
On the face of it,
with respect, section 6 does not apply because the wife was not pregnant. A surrogate carried the while. Therefore on the face of it neither of the
parties were parents of the child and therefore the equal shared parental
responsibility presumption under section 61DA should not have applied.
Each of the
parties was, with respect to his Honour, if Bernieres
and Dhopal applied in Western Australia, and again subject to the
consideration of the legal processes in Canada as to parentage, and how they
might be recognised in Western Australia, not a parent under the Family Law Act, which means that they
had to fall within section 65C(c) of the Act:
“Any
other person concerned with the care, welfare or development of the child”.
Although it is
unclear from the judgment, it is likely that Mr and Mrs Piccolo obtained an
order in Canada that they were the parents for surrogacy. In the various cases aside from the US
registration cases, the surrogacy that occurred overseas was based on contract,
not order. In Canada the process of
obtaining parentage is through order, albeit in two provinces currently,
British Columbia and Ontario, a declaration may be obtained without an order of
the Court.
The definition of
who is a parent in section 4:
“When
used in Part VII in relation to a child who has been adopted, means an adoptive
parent of the child.”
The definition of “child” in Part VII, includes an
adoptive child and a stillborn child.
Does it include a child of a person identified by an order made in a
foreign court?
Furthermore, it is
likely that Mr and Mrs Piccolo in engaging surrogacy in Canada had entered into
a “surrogacy arrangement that is for
reward” under section 6 of the Surrogacy
Act 2008 (WA). It may have been, as Thackeray
CJ noted in Farnell & Chambua
that in doing so they committed an offence in Western Australia. This issue was not dealt with by his Honour.
His Honour stated:[81]
“The
husband seeks that ownership and control of the embryos be passed to him, as he
intends to make use of them in the foreseeable future in the hope of having a
further child or children. He expresses
what he regards as his moral obligation of preserving and making use of the
embryos, based on his belief that each of them already represents a life. He proposes either to proceed with the
transfer of the embryos to Ms P [his new partner, also a relative of his wife],
or to a surrogate in Canada. Ms P is supportive
of his plans.
The wife opposes the husband’s
application and seeks that the two remaining embryos be permitted to
succumb. She argues that the sole
purpose of the creation of the embryos was for the joint use of the parties to
have children together, and that as she has no desire to have further children
with her husband, that purpose is at an end.
She raises no other objection to the husband’s proposal.”
Both parties
referred to a previous decision in G
& G [2007] FCWA 80 in which the Court held that it did not have
jurisdiction to deal with the matter.
His Honour noted that there were significant factual differences. In the earlier case:
1. The embryos were created using the
genetic material of both parties.
2. The request form signed by the parties
for the prior preservation and storage of their embryos included an express
provision, at their choice, that in the event of separation the embryos were to
be discarded.
3. The embryos were created and stored in
Western Australian and accordingly were unarguably subject to the relevant
legislation in Western Australia.
In the present
case, the embryos were created using genetic material from the husband and from
a donor. The wife had no genetic
connection. The parties executed
documents in relation to both the creation of the embryos and the surrogacy
arrangement:
1. The parties agreed that the embryo
should be jointly owned by them.
2. They agreed that the agreement with the
fertility centre was to be “governed by
and construed in accordance with the laws of the Province of [place A]”.
3. They recorded their agreement as to the
disposition of the cryopreserved embryos in the case of partnership breakdown
or death in the following terms:
“If our relationship terminates, we acknowledge that there may be
dispute over the ownership of the embryos.
If this occurs, we agreed to inform [the fertility clinic] in writing
(within 3 months) that there has been a change in our relationship, and that we
will provide the necessary legal documentation to [the clinic] indicating who
will assume sole ownership of the embryos.
Both Parties’ signatures will be required on this document.
In the event of the
death of one of us, we hereby give authority to the surviving partner to assume
ownership of the stored embryos.
In the event of both of
our deaths, we hereby give authority for [the clinic] to dispose of our embryos
in an ethical fashion.”
Copies of the
relevant legislation in Canada were tendered.
It was noted that
the parties were divorced and accordingly they were no longer spouses.
Accordingly, under
the relevant Canadian law:
1. Prior to the separation of the parties,
they were jointly the donors as defined, and their joint written consent to the
use of the cryopreserved embryos was required; but
2. Since separation, the husband was the
sole donor for that purpose and only his consent was required for the embryos
to be used.
The wife was
adamant that the embryos not be used.
His Honour noted that it was not suggested by the wife that she would be
at risk of facing any form of legal obligation to a child born of the
cryopreserved embryos. It was
accordingly unnecessary to speculate as to the parentage under Western Australian
law of any child born of the cryopreserved embryos to a surrogate in Canada or
elsewhere, or the impact, if any, on that issue of a distinction between such
arrangement being altruistic or commercial.
Should one or both of the cryopreserved embryos be carried to term by Ms
P, she would be the mother of that child for the purposes of Western Australian
law under the Artificial Conception Act
1985 (WA). Accordingly, as the wife
had advanced no cogent reason as to why the cryopreserved embryos should be
permitted to succumb, nor as to why the husband should not be permitted to
preserve and eventually use them and with the agreement executed by the parties
standing in sharp distinction to the agreement in G & G that in the event of separation the embryos owned by them
were to be discarded, relief was granted to the husband to be able to use the
embryos.
The orders were:
(1) The wife forthwith do all acts and
things and sign all documents necessary to transfer to the husband any right or
interest she may have in the cryopreserved embryos held in storage with the
[fertility centre] in Canada and to notify the said fertility centre that with
effect from the date of these orders the husband shall be the sole owner of the
said embryos.
(2) With effect from the date of these
orders, the husband is to be solely responsible for all costs associated with
the said cryopreserved embryos including but not limited to the costs
associated with the storage, transport, renewal, use or disposal.
His Honour did not
make an order under section 106, but clearly set the ground for doing so if the
wife did not comply.
It is absolutely
imperative to put on your checklist for every client who comes through the door
seeking a property settlement to find out whether there are any embryos and, if
so, what conditions apply relating to their storage. If that is not checked and, contrary to your
client’s wishes, for example, those embryos are allowed to succumb, your client
may be looking to you to make good the loss.
Conclusion
The law
currently recognises only two parents.
Advances in the UK (which no doubt over time will be replicated here) to
allow mitochondrial 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
15 May 2018
Connect with me on
the web:
Australian
Surrogacy
and Adoption
Blog
http://surrogacyandadoption.blogspot.com
Twitter
www.twitter.com/stephenpagelaw
[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] Rosie Charter, Jane M. Usher, Janette Perz & Kerry Robinson
(2018): The transgender parent: Experiences and constructions of pregnancy and
parenthood for transgender men in Australia, International Journal of
Transgenderism, DOI: 10.1080/15532739.2017.1399496, viewable at https://doi.org/10.1080/15532739.2017.1399496.
[4] Such as the Assisted
Reproductive Treatment Act 2008 (Vic.)
[5] Such as the Assisted
Reproductive Technology Act 2007 (NSW)
[6] [34].
[7] [17].
[8] [7]-[8].
[9] [16].
[10] [13].
[11] I have for
the sake of convenience used the Queensland Act. Similar legislation is in
place in all States and both Territories.
[12] E.g, In re marriage of
Buzzanca (1998) 61 Cal. App. 4th 1412
[14] [2016] FCWA 17
[15] At [70]
[16] See also and as to 6GT:
Fisher –Oakley and Kittur [2014]FamCA
123
[17] 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.
[18] LWV & Anor v LMH [2012] QChC 026-conception is the act of
pregnancy, not fertilisation of the embryo.
[19] See the lengthy discussion on this in Farnell and Chambua [2016] FCWA 17.
[20] Keaton and Aldridge [2009] FMCAfam 92
[21] See Ryan and Fraser [2014] FamCA 763 and Keaton and Aldridge [2009] FamCAFC 229
[22] 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)
[23] At [17]
[24] At [23]
[25] Of the US states,
Missouri, New Mexico and South Dakota are not prescribed.
[26] At [33]
[27] 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 Chambua [2016] FCWA 17.
[28] 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.
[29] At [49]
[30] Which are the various
State and ACT surrogacy legislation.
[31] At [61]
[32] At [68]
[33] At [100]
[34] At [12]
[35] At [31]
[36] As also seen in Ellison and Karnchanit, for example.
[37] At [46, 50, 51, 52]
[38] [2016] FCWA 17.
[39] At [15]
[41] AB and CD and CT [2015]
EWHC 12 (fam)
[42] At [21] – [22]
[43] At [25]
[44] At [27]
[45] At [29]
[46] At [43] – [44]
[48] At [24]
[49] At [30] – [32], [37] –
[38]
[50] At [52-57]
[51] At [42]
[52] At [46]
[53] At [47]
[54] At [51], [52]
[55] At [63-88]
[56] At [91-92]
[57] At [40]
[58] At [53]
[59] At [54]
[60] At [56] – [59]
[61] At [62] – [65]
[62] For much of this I am thankful to Associated Press for summarising
this issue across various US jurisdictions in June 2017.
[63] At [96] – [99]
[64] At [145]
[65] At [150]
[66] [51] – [57].
[67] 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.
[68] At [65] – [70]
[69] At [73] – [74]
[70] At [21]
[71] At [34] – [35]
[72] [2012] FamCA 602, [70].
[74] Where there has been a
finding by the relevant court
[75] [2016] FamCA 1051
[76] [2017] FamCA 366
[77] [2018] FamCA 3
[78] At [32] – [33]
[80] At [172] – [174]
[81] At [133] and [134]
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