Family Court decides international surrogacy case

Thursday, August 02, 2012

Justice Ryan of the Family Court has handed down a decision in the test case concerning international surrogacy, concerning a husband, Mr Ellison, and wife, Ms Solano, who brought twins home from Thailand, after engaging in commercial surrogacy there. The surrogate, who had relinquished the children, was paid $7350.

Justice Ryan has highlighted the need for intended parents to obtain good, experienced legal and migration advice before the intended parents undertake international commercial surrogacy. Her Honour said:

There are many and varied paths to parenthood. Where the path involves an international surrogacy arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.

The case illustrates the potential legal minefield facing intended parents who undertake surrogacy overseas, and how cases can turn on seemingly minor information that can make a significant difference in the outcome.

The couple were from Queensland, where like NSW and the ACT it is an offence to engage in international commercial surrogacy.

The children were conceived from sperm of Mr Ellison, and an egg from an anonymous egg donor; carried by a Thai surrogate, who in turn was living with a man.

Mr Ellison and the surrogate were shown on the Thai birth certificate as the parents of the child.

Her Honour made parenting orders in favour of Mr Ellison and Ms Solano.

Two of the key features of the case, called Ellison and Karnchanit, were:

unusually for one of these cases, Justice Ryan appointed an independent children’s lawyer, and also obtained the intervention of the Human Rights Commission.
a lack of evidence from the intended parents, so that initially at least there was no evidence of the nature of the surrogacy arrangement, nor knowledge that the surrogate was in a relationship. It had been assumed that the surrogate was single. As it turns out, the surrogate had not been living with the man at the time of the child being conceived, a significant point.

Her Honour stated:

(W)hen the hearing started there was a paucity of evidence presented by the applicants in support of their application. For example, the Court did not have certified copies of the children’s original birth certificates. No evidence was adduced from the clinic in relation to their conception or the hospital in relation to their birth. The asserted agreement with the birth mother was not in evidence and neither she nor the children’s biological mother was informed about this hearing. Although the Court requested that the applicants adduce expert evidence in relation to the law in Thailand, this was not forthcoming. In short, the evidence was so poor it was difficult to see how the applicants’ unchallenged evidence provided an evidentiary foundation for the orders they sought.

Key guidelines

Following submissions by the independent children’s lawyer and the Human Rights Commission, Justice Ryan laid out guidelines as to how future international surrogacy cases are to be run:

An Independent Children’s Lawyer is appointed to represent the child’s interests.
Affidavit evidence of the applicant(s) and the birth mother comprising:

their personal circumstances, in particular the circumstances at the time the procedure took place;
their circumstances leading up to the surrogacy agreement and of the procedure itself;

3.the circumstances after the birth of the child and subsequent arrangements for the care of the child.
4.Independent evidence regarding the identification of the child including:

the surrogacy contract/agreement entered into between the persons seeking the parenting orders and the clinic and/or surrogate mother;
a certified copy of the child’s birth certificate, and, if not in English, a translation accompanied by an affidavit of the person making the translation verifying that it is a correct translation and setting out the translator’s full name, address and qualifications;
parentage testing in accordance with the Family Law Regulations to ascertain whether that the child is the biological child of the person/s seeking the parenting orders;
evidence of Australian citizenship of the child if citizenship has been granted.

5. Independent evidence with respect to the surrogate birth mother. This may be obtained by a family consultant or an independent lawyer, including:

confirmation that legal advice and counselling were provided to the surrogate mother prior to entering into the surrogacy arrangement;
confirmation that the surrogacy arrangement was entered into before the child was conceived;

confirmation that the surrogacy arrangement was made with the informed consent of the surrogate mother;

evidence after the birth of the child of the surrogate mother’s views about the orders sought and what relationship, if any, she proposes with the child;
if the child has been granted a visa to enter Australia, evidence of participation by the surrogate mother in an interview with immigration officials prior to the grant of the visa, and the views expressed by her during this interview.

6. The preparation of a Family Report which addresses:

the nature of the child’s relationship with the persons seeking parenting orders;
the effect on the child of changing their circumstances;

an assessment of the persons seeking the parenting orders capacity and commitment to the long-term welfare of the child;

the persons seeking the parenting orders’ capacity to promote the child’s connection to their country of birth’s culture including but not limited to their birth mother;
advice in relation to issues which may arise concerning the child’s identity and how those issues are best managed;
the views of the birth mother, in particular her consent to the proposed parenting orders, and other matters with respect to the birth mother referred to above.

7. Other evidence including:

evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to surrogacy arrangements;
evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to the rights of the birth mother, and if applicable, of her husband or de facto partner.

Comment on the Guidelines

The comprehensive guidelines will mean, in practice that intended parents will if at all possible avoid going to the Family Court to obtain orders, because, aside from the risk of being reported to authorities if they have come from Queensland, NSW or the ACT (and engaged in commercial surrogacy overseas, because in those jurisdictions to do is an offence), although her Honour did not do so, the approach taken by her Honour will be expensive and difficult.

In reality, intended parents may be more inclined to avoid Thailand and go, instead, to India or the US. It is very rare for Australian intended parents to seek Family Court orders when having undertaken surrogacy in India or the US.

The requirement for the DNA testing to comply with the Family Law Regulations will impose a burden on intended parents who may have to be tested twice.

The requirement for the family report writer or independent children’s lawyer to obtain evidence about the surrogate will necessarily mean that the possibly substantial costs of that process will have to be met by the intended parents.

As this is a single judge decision, the guidelines are not binding on other judges, but are likely to be adopted in practice, and should be adhered to if there is a need to bring an application of this kind to court.

Who is a parent?

The case also illustrates the differences of:

being an intended parent, as both Mr Ellison and Ms Solano were;
being a biological parent, as Mr Ellison and the anonymous egg donor were;
being the legal parent.

Didn’t DNA fix it?

A DNA test has been undertaken, to comply with the requirements of the Department of Immigration and Citizenship, which showed a 99.99999996% probability that Mr Ellison is the children’s biological father.

The problem was that the report did not comply with the Family Law Regulations, which meant that at first blush it was inadmissible. An order by her Honour for a second, admissible, report was not complied with.

Ultimately her Honour allowed the report to be admitted.

Wasn’t it enough that Mr Ellison was shown as the father on the Thai birth certificate?

In a word: no.

A Thai lawyer addressed whether pursuant to Thai law, absent an order, Mr Ellison had parental authority. The effect of the expert’s evidence is that there are no surrogacy specific laws in Thailand. Surrogacy issues thus, are governed by the Civil Commercial Code. According to the Code, a child born of an unmarried woman is deemed to be her legitimate child unless otherwise provided by law. The effect of the Code is that the birth mother has sole legal custody of the children.

However, another provision of the Code provides that “a child born of parents who are not married to each other is legitimised by the subsequent marriage of the parents, or by registration made on application by the father, or by a judgment of the Court”. Thus, Mr Ellison is entitled to apply for registration and/or petition a Thai court “for legitimisation of his children”. An application for registration requires both the mother and children’s consent. Where the child is too young to consent (under the age of 7 years) a father must obtain the Court’s consent on the child’s behalf. It is explained by the expert, that in this case “since the children are too young to give consent, the legitimisation must be effected by judgment of the Family Court [of Thailand]”.

The effect of a successful application by Mr Ellison in Thailand for legitimisation of the children would be to grant him parental power. His parental rights would be shared equally with the birth mother in relation to which they would jointly have the right to:

determine the child’s place of residence;

punish the child in a reasonable manner for disciplinary purposes;
require the child to do such work as may be reasonable to his or her ability and condition in life; and
demand the return of the child from any person who unlawfully detains the child.

Provision is made in the Thai CCC for removal of parental power, either in part or its entirety which is the mechanism by which Mr Ellison could extinguish the birth mother’s parental power so that under Thai law, he alone, had parental power in relation to the children. An application of this type would have limited prospects of success because, according to the expert, “[Thai] courts do not like to deprive parents of their parental power and will only do so when presented with clear facts of serious misconduct”. The evidence does not establish that a surrogate mother who relinquishes her child to the man, whose sperm fertilised the embryo, would by virtue of relinquishment be deprived of her parental power. [Hence why the application was made in Australia, no doubt.]

Because Mr Ellison was not a parent under Thai law…

He did not have the legal ability to authorise the taking of a DNA sample from the children. This would usually be fatal to being able to allow the DNA tests to be in evidence before the court.

Luckily for Mr Ellison and Ms Solano, the test results were admissible

Thus it is necessary to determine whether the first DNA reports might nonetheless be admissible under the Act and Evidence Act. In this regard it was fortunate for the applicants that these proceedings were conducted in accordance with Division 12A of the Act and that evidentiary rules, which would have made admission of aspects of the evidence on this topic problematic, did not apply (s 69ZT of the Act). In Re C (No 1) (1991) 15 Fam LR 350, Fogarty J said that compliance with the Regulations is mandatory and there is no capacity to admit a non compliant report into evidence. Mullane J in McK v O (2001) FLC 93 ruled inadmissible a DNA certificate where a parentage testing order was not made.

Sections 69W and 69ZB do no more than provide a mechanism which, following the making of a DNA parentage testing order, renders admissible a compliant DNA certificate which would otherwise be inadmissible. The sections are permissive and do not exclude the admission of other non-ordered forms of DNA evidence provided that material complies with the evidentiary requirements for admission. Clearly, when a parentage testing order has not been made more than mere production of the DNA certificate will be required so as to admit this DNA evidence.

Did it make a difference that the children were born outside Australia?

Section 60H of the Family Law Act deals with who is a “parent” under that Act. Section 60HB deals with the recognition of children born from surrogacy arrangements.

Both the Human Rights Commission and Mr Ellison and Ms Solano submitted to the court that those sections didn’t apply because the children were born outside Australia. Was that right? Justice Ryan did not agree. The Human Rights Commission referred to the Australian Citizenship Act 2007 (Cth), in particular, s 8 which relates to children born as a result of artificial conception procedures or surrogate arrangements. Section 8 of the Australian Citizenship Act 2007 (Cth) is set out below:

(1) This section applies if a child is:

(a) a child of a person under section 60H or 60HB of the Family Law Act 1975; and

(b) either:

(i) a child of the person’s spouse or de facto partner under that section; or

(ii) a biological child of the person’s spouse or de facto partner.

(2) The child is taken for the purposes of this Act:

(a) to be the child of the person and the spouse or de facto partner; and

(b) not to be the child of anyone else.

Her Honour said:

The submission that s 8 of the Australian Citizenship Act 2007 (Cth) essentially picks up s 60H and s 60HB of the Act is accepted. See also H v Minister for Immigration and Citizenship & Anor; Minister for Immigration and Citizenship v McMullen [2010] FCAFC 119; (2010) 272 ALR 605. The AHRC then referred to the interpretation of the application of s 8 of the Australian Citizenship Act by the Executive in relation to which they tendered the Department of Immigration & Citizenship Policy Advisory Manual (No 3). Reference was made to three separate instructions contained therein but, as they have the same flavour, discussion of one will suffice. The current instructions, which are dated 1 January 2012, provide a description of the background for the legislative provisions concerning children born as a result of artificial conception procedures or surrogacy arrangements (Part 2 of the Instructions). Under the heading “legislative background” the Instructions state:

Section 8 of the Citizenship Act determines who can be considered a (parent) and consequently also a responsible (parent) of a child born through artificial conception procedures in Australia or overseas or a child born through a surrogacy arrangement in Australia. Section 8 is linked to the Family Law Act 1975 (FLA), specifically s 60H (about children born through artificial conception procedures) and s 60HB (about children born through a surrogacy arrangement). Section 8 does not cover surrogacy arrangements occurring overseas.

It is clear that these instructions differentiate between children born through artificial conception procedures without the use of a surrogate and those born through a surrogacy arrangement and that, for the purposes of s 8 of the Citizenship Act, there is a geographical limit on the latter scenario. This geographical limitation is said to arise as a consequence of ss 69ZE and 69ZG of the Act. If this is correct it must follow that Part VII orders of all types may only be made in relation to children present in the Australian States and Territories mentioned in those sections. Such an outcome would be inconsistent with s 69E. It would also be inconsistent, for example, with the referral of powers and with the investiture of powers to the Court reliant upon the Constitutional external affairs powers (s 51(xxix)) and the territories power (s 122). So that it is clear, s 69ZE and 69ZG reflect the terms of the references of power by the States and Territories to the Commonwealth, they do not establish other geographical limits to the application of Part VII.

The answer to the issue about the application of geographical limits to s 60HB but not to s 60H (both of which are set out later in these reasons) is found in the sections themselves. By its terms, s 60H(1)(b) applies to more situations than merely those referred to in s 60H(1)(b)(ii) namely under a prescribed law of the Commonwealth or of a State or Territory. Relevantly, by s 60H(1)(b)(i), s 60H(1) also applies where “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 procedures”. There are no words of geographic limitation therein. On the other hand, s 60 HB only applies “If a court has made an order under a prescribed law of a State or Territory” in relation to which various State Surrogacy Acts are prescribed. The effect of this is that, depending on the relevant State or Territory, where in the case of an altruistic surrogacy a state parentage order has been made s 60HB would apply. So that it is clear, State surrogacy legislation has not been prescribed for the purposes of s 60H(1)(b)(ii).

Comment: What her Honour has illustrated is that the Department of Immigration and Citizenship, which administers the ability of those born outside Australia to an Australian parent, has got the law wrong, as was also the case in H v Minister for Immigration, which I have blogged here.

Did section 60H apply?

Her Honour found that it did not. She disagreed with the views of another Family Court judge, and followed the approach of two other judges who were of the view that (an earlier version of) section 60H, which concerned artificial conception, did not exclusively that who was a parent, but took an inclusive approach- it added people to the potential pool of parents. Just because they were not in the added pool did not mean that people were not parents.

It appeared critical to her Honour that if the surrogate were in a de facto relationship or marriage at the time of conception, then her partner or husband would have been the father. Luckily for Mr Ellison and Ms Solano, the surrogate at the time of conception was single. The outcome may have been different if she were not.

By the skin of his teeth: s.23 of Queensland’s Status of Children Act

The Family Law Act and the Family Law Regulations provide that section 23 of the Status of Children Act (Qld) is a prescribed law.

Her Honour said that this meant:

Thus, for the purposes of the Act, there is an irrebuttable presumption that the children are the children of the birth mother (s 23(1) – (3) Status of Children Act). Section 23 of the Status of Children Act does not recognise a person in the position of Mr Ellison as a parent or a person with any rights or liabilities in relation to the children (s 23(4)). However s 60H(2) only concerns prescribed laws with respect to who is presumed to be a child of a woman. Section 60H(3) concerns prescribed laws with respect to who is presumed to be a child of a man. Section 23 of the Status of Children Act is not, however, a prescribed law for the purposes of s 60H(3). Indeed there are no laws prescribed in the Regulations for the purposes of that section. Thus, although Mr Ellison cannot rely on s 23 of the Status of Children Act or any other law to support his case to be recognised as a parent under s 60H(3), the operation of s 23 of the Status of Children Act or s 60H(2) or (3) of the Act does not have the effect of excluding him from being the children’s parent.

Does section s.60HB apply?

This is the section of the Family Law Act that allows for recognition of parentage orders. Her Honour noted that the relevant law in Queensland was the Surrogacy Act, which did not allow parentage orders to be made for commercial surrogacy.

Her Honour noted that Justice Watts had previously stated:

… By enacting s 60HB…, the Federal Government resolved any issue as to whether or not the transfer in the 1980s by the States of powers relating to children created any issue as to whether or not laws about parentage in relation to surrogate children should be made at Federal or State level. Section 60HB … provides that State law will govern the determination of parentage and that State law will be recognised by Federal law.

Her Honour disagreed, saying that in her view s.60HB was not so wide, but merely allowed for the recognition of parentage orders made under State surrogacy laws. Because no such order had been made, therefore s.60HB did not apply.

Wasn’t Mr Ellison the legal parent due to parentage presumptions?

In short: no. The Thai birth certificate was not recognised for this purpose, nor had another court order been made, nor had Mr Ellison lodged formal documents in Australia acknowledging paternity.

But wasn’t Mr Ellison the legal parent?

Yes.

The Human Rights Commission told the court that Mr Ellison should be declared to be the child’s father:

It would formalise the legal relationship between the biological father and the children. The effect of a parenting order would obviously only last until the children turn 18. The Commission submits that in cases of this type if such a finding is open on the evidence then it should be made because it would have important implications for the rights of children…

But hadn’t what Mr Ellison and Ms Solano done was illegal?

Well, yes, but the best interests of the child, in the view of Justice Ryan was a more important factor. Her Honour specifically disagreed with the approach by Justice Watts, which I have blogged here,

setting five reasons why he declined to make a finding or declaration of parentage in that matter; namely:

The applicable State law made what the first applicant did illegal;
There was at that time no provision in State law that would allow the recognition of any relationship between the children and the first applicant;
Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;
The first applicant may seek a remedy through adoption legislation; and
The [parenting] orders sought could be made without recognising the first applicant as the father of the children.

The Human Rights Commission submitted that although it was open to his Honour to adopt the course he did, in the opinion of the AHRC it was not consistent with the children’s interests or the Convention on the Rights of the Child. The AHRC submitted that the first three reasons given by his Honour raise public policy issues. Without a doubt a matter such as this raises public policy issues, namely the potential for a declaration of parentage to potentially subvert (in part) at least the spirit of law in Queensland in relation to commercial surrogacy. However, the AHRC is demonstrably correct in its submission that “the court is faced with having children in front of it and needs to make orders that are in the best interests of those children, and at that stage it’s probably too late to ask whether – or to inquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them” .

Her Honour noted that there was doubt as to whether the children could have been adopted, but in any case, “Lest it be overlooked, irrespective of how State law views the applicant’s actions, the children have done nothing wrong. “

Her Honour stated:

The fifth reason referred to [by Justice Watts] was that the orders that the parenting orders sought by the applicants could be made without declaring or finding Mr Ellison is the children’s father. On behalf of the AHRC is was submitted that:

It’s an important principle in the Convention on the Rights of the Child that children be protected against discrimination on the basis of the status of their parents, legal guardians and family members. While that isn’t a free-standing right we say that it informs the way in which the best interest principle can be applied, and if Mr [Ellison] is not recognised as being the parent of the children it has potential to impact on other rights… (Transcript, 26 March 2012, p 25)

And:

Important rights would accrue to the children under Australian law, and as recognised in the CRC, if Mr [Ellison] is recognised as being their parent. These rights include rights relating to citizenship, migration, medical treatment, intestacy and child support. The Commission submits 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. (Summary of Argument, Australian Human Rights Commission, p 3)

As has already been mentioned, the children have been granted Australian citizenship by descent. Thus, as was conceded by the AHRC, some of the rights identified above are now accorded to the children, including citizenship and healthcare. Nonetheless the AHRC maintains that there would still be some additional benefit to the children from a declaration of parentage and/or a finding that Mr Ellison is a parent. I agree. As has been mentioned earlier, a declaration of parentage has a wider reach than parenting orders. Relevantly, such a declaration survives the children’s minority. In the most obvious manner, it would recognise the reality of the children’s lives and where Mr Ellison stands in relation to their biological identity.

For the reasons discussed above, in the children’s interests, in relation to Mr Ellison a declaration of parentage will be made in relation to Mr Ellison.

Ah yes, but is Mr Ellison a parent?

Well, it may not be necessarily so. The Family Law Act applies to parenting issues. It does not apply to inheritance. This is dealt with under State laws, in this case Queensland’s laws. As her Honour noted, section 23 of the Status of Children Act did not apply.

Another section of the Status of Children Act is section 19E. By virtue of that section, Mr Ellison would not be a parent of the children, which may impact on them for inheritance purposes. It is clear that from the factual scenario that only the surrogate, would be the parent under Queensland law. Her Honour noted that the anonymous Thai donor might one day be recognised under the Family Law Act as a “parent”, but under section 18 of the Status of Children Act, the Thai surrogate would be the only parent.

Section 19E provides:

(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—

(a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or

(b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by a man other than the first-mentioned woman’s husband.

(2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant—

(a) the woman is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and

(b) the other woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.

(3) The woman’s de facto partner is presumed, for all purposes, to be a parent of the child.

(4) Also, the man who produced the semen has no rights or liabilities relating to any child born as a result of a pregnancy for which the semen has been used. (emphasis added)

Section 109 of the Commonwealth Constitution provides:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Whether there is an inconsistency is a moot point. It may be that Mr Ellison could be recognised for certain limited purposes under the Family Law Act as a “parent” but not under State law as a “parent” and there may not be an inconsistency at law. This aspect was not addressed by her Honour.

And that money paid to the surrogate?

$7350 is the lowest I have heard a commercial surrogate to be paid. By comparison the figures I have been made aware of by clients is in the order of $9000-12000 in India, and $20,000 to $30,000 in the USA.

And just a reminder?

This case illustrates the potential minefield and potential huge legal costs and heartache of undertaking international surrogacy. The area is still a legal mess.

Good legal and migration advice before embarking on the journey is vital. Making sure that properly drawn wills are prepared before the child’s birth, and further wills are prepared after the birth, specifically naming the child, and covering the possibility that as a matter of law the child may not be that of the parent, are also vital.

Finally, a disclosure

I was contacted by one of the parties in the matter to seek a Thai lawyer to be an expert. I obtained assistance from overseas colleagues as to appropriate experts, and sent on the names.

I also provided, at the request of one of the parties, a paper I had presented which included dealing at length as to various surrogacy cases about this issue of “parent”.

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