Family Court for the first time registers US surrogacy order following commercial surrogacy arrangement

On Friday, the Family Court of Australia registered a US surrogacy order, for the first time when there had been a commercial surrogacy arrangement. This is only the second time that the Court has registered a US surrogacy order.

The effect of registration is that the parents through surrogacy who are recognised as parents at law in the United States are also recognised as parents at law in Australia. Registration removes any doubt about the legal relationship between parent and child- clarifying and transforming it.

A similar example of registration of an order is a gambler from Sydney who did not pay for his gambling debts at a Las Vegas casino. The casino could sue and obtain judgment against him in a court in Clark County, Nevada. That order could then be registered with the Supreme Court of NSW- and enforced there  against the gambler.

In the previous case, decided in December, Justice Forrest of the Family Court ordered the registration of a US surrogacy order in circumstances where he said that if it had been a commercial surrogacy arrangement he might not have allowed registration.

In the case decided Friday, the Australian couple lived in the US. They underwent surrogacy in the US. Their child lived with them. Their intention was to return home to Australia with their child. Justice Forrest took a different view to the previous case. He said that while every case must be determined on its own facts, this was the first time that what was seen in Australian eyes as a commercial surrogacy arrangement was able to be registered:

“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.

Having considered the matter further, particularly having regard to:

• The unique circumstances of this couple and their inability to biologically parent and carry their own baby;
• The well-regulated nature of the surrogacy arrangements entered into between the applicants and the surrogate, notwithstanding its commerciality;
• The judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the women who carried the baby for the applicants;
• The acceptance by the Australian Government of that US jurisdiction for the purposes of ‘overseas child orders’ made in Courts of that jurisdiction, 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;
• 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.”

I will publish an anonymised version of the judgment when it is available on the web.

My firm acted for the parents.