Family Court decides international surrogacy case
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.
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.
- 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.
- 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.
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.
- 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.
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.
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  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).
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.
… 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.
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…
- 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 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)
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”.