Will the real parents please stand up?

Almost every day, I have to advise clients about whether they are or they are not parents under the Family Law Act. Sometimes this is because they have undertaken surrogacy, or because they have had IVF. It was always so simple before the rise and rise of IVF, and the rise of surrogacy!

Many clients think that they are the parents of a child under the Family Law Act, when they are not. Some think that they are not parents under the Family Law Act when they are. According to different judges some people may be parents under the Family Law Act, but the same category of people according to other judges are not parents under the Family Law Act.

Confused? You’re not alone.

Now it is thoroughly confusing about who is and who isn’t a parent when they have had IVF and surrogacy. Some things still remain simple: if there has been IVF and they’re a couple (but there’s no surrogacy), then genetics or not they’re the parents. If a surrogacy order has been made under State or ACT legislation, then they’re also the parents for all purposes under Australian law.

However, that’s where the easy bits stop. Many clients are naturally concerned about whether or not they are considered to be parents because of legal issues, such as:

• possible effects on citizenship or passports
• whether or not the child inherits
• parenting presumptions under the Family Law Act when couples split up (including issues to do with the abduction of children under the Hague Child Abduction Convention)

Please excuse the technical talk, but here is a potted guide to some recent views by Family Court judges about who is and who is not a parent:

• 2011- those who go overseas for surrogacy are probably not parents,  because the State and Territory laws say that the woman who gave birth is the parent, and her partner (male or female) is the other parent, and these laws, although designed for donor cases, might apply to surrogacy. Also they may not be parents when they come from places which make it illegal to go overseas for commercial surrogacy,(such as Qld, NSW and the ACT) because the law should not be encouraging illegal acts. With one of the couples where the judge questioned whether the parties were parents, the man was found to be a parent by another judge some months before( they had had two cases running to court concerning children born from surrogacy).
• 2012- a man who is a sperm donor in an overseas surrogacy arrangement is a parent under the Family Law Act, and therefore, the State law is overridden (which provided he was not a parent).
• 2013- the “reality” of parenting and the inclusive definition of Western Australia’s Adoption Act about who is a parent means that both of a gay couple who went to India for surrogacy are parents.
• 2013- a man living in South Africa and recognised for surrogacy as a parent there is a parent here.
• 2013- on a tentative basis, the Family Law Act and State and Territory laws form a scheme, so that who is and is not a parent is determined (generally) by State and Territory laws, which means the birth mother and her partner are the parents, and  the intended parents, aren’t, and that the same judge’s conclusions to the contrary in 2012 were probably wrong.
• 2013- a known sperm donor to a single woman is a parent under the Family Law Act because he isn’t excluded (as might have been the case if the woman were in a de facto relationship or marriage) as a parent, and he is biologically and intended to be the parent. The categories of who is a parent are open and can be decided in each case. The Family Law Act therefore overrides State law which provided that only the woman was a parent.
• 2014- an intended father under an Indian surrogacy arrangement is the parent under the Family Law Act, and the 2013 tentative decision while applying in New South Wales (and by implication Queensland and the ACT) does not apply in Victoria (and by implication Tasmania  and the NT, and possibly SA and WA) because in Victoria it is legal to go overseas for commercial surrogacy, but it is illegal in NSW.
• 2015-  a married couple asked the Family Court to be declared to be the parents of a child. They had gone to India for surrogacy. The judge refused to make the parentage declaration because, he said, he did not have the power to, but in any case the man (who was the genetic father) was the father but the woman (when they had an egg donor) was not. His Honour said that the State Act did not apply, because it was hardly relevant to the matter- when the child was born overseas.
• 2016- in the Baby Gammy case, the judge said that the intended parents were not parents because the parenting presumption for a couple  under the Family Law Act did not apply to surrogacy, but the State Act meant that the surrogate was a parent (and therefore so was her husband). His Honour was of the opinion that the 2013 Western Australian case was wrongly decided, and that intention was never the test of who was or wasn’t a parent under the Family Law Act. Curiously, the test under the Family Law Act about a couple undergoing IVF was essentially the same as that under the State Act. His Honour took the view that the law that applied as to who the parents of the child were was the law of Australia, not the law of Thailand, where the child was born.

The sooner we either have the Full Court of the Family Court of Australia determine, definitively, who is or is not a parent and whether the Family Law Act or State and Territory legislation prevails, or the sooner we have the Commonwealth Parliament make laws to determine this issue (as was recommended by the Family Law Council), the better.

Our children have, according to the International Convention on the Rights of the Child a right to an identity. Children are being conceived and born and placed in families where all understand that the people caring for the children are the parents- but our laws (or at least the interpretation of those laws) has meant that those families are unclear as to whether the law recognises them as families. More importantly, children are being denied their identities.  The sooner the law is cleared up, the better.

The cases are also illustrations as to why the sooner the Hague Conference on Private International Law (of which Australia is a member country) is keen to have a convention not just on international surrogacy, but on all private international rules concerning children. The working group when it met at The Hague earlier this year was of the view that the most important issue was to make sure that the status of children moving between countries is certain, i.e., who are their parents, what is their fundamental identity as human beings. The sooner the Hague has a convention covering these issues, and helps parents (and more importantly their children) have certainty, the better.