Family Court: South African man is a parent in surrogacy case

Family Court: South African man is a parent in surrogacy case

Since the invention of Austlii, it can be very hard to keep abreast of all the recent family law cases. I am thankful to Anthony Brien of Gay Dads NSW for alerting me to this case.

In Carlton and Bissett, Mr Bissett was  both a South African and Israeli citizen. He pursued an altruistic surrogacy in South Africa, where it is legal. A surrogacy arrangement was signed and a South African judge then made an order which meant that when the children were born that Mr Bissett was the sole parent of the children, the surrogate relinquishing her rights.

Following the order being made, medical treatment started and the children were then conceived.

During the course of the pregnancy, Mr Carlton, an Australian resident but originally from South Africa, happened to be visiting South Africa, when he met Mr Bissett. They fell in love and became an item.

Justice Ryan held that the question of whether Mr Bissett was a parent was:

Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.

Her Honour then said that under South African law Mr Bissett was the parent.

After examining the labyrinth under the Family Law Act  as to whether Mr Bissett was a parent, her Honour made a declaration of parentage in favour of Mr Bissett:

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 s 60H [donation to a couple] and s 60HB[ State based parentage orders] , 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. (emphasis added)

It will be interesting to see how expatriate Australians may be able to take advantage of what her Honour said.

Registration of overseas orders

It is possible to register with the Family Court overseas custody orders made in specified jurisdictions so that they have the same force and effect as if they had been made under the Family Law Act.

Her Honour rejected the possibility of registration because South Africa was not a prescribed overseas jurisdiction. What she did not do was to reject the possibility of registration on the basis that the Family Court could not make a surrogacy order i.e. the view that the only orders that could be registered were like for like. Her Honour was silent on this point.

I mention this because in the past Family Court registrars have rejected overseas surrogacy orders from prescribed jurisdictions- as I wrote about in my initial submissions to the Family Law Council– because they were not like for like- as the Family Court could not make a surrogacy order, therefore it could not register an overseas surrogacy order.

In light of her Honur’s silence on the point, it may now be possible to register those overseas orders, such as from California.

Let’s see.

Request an Appointment
Fill in the form below to find out if you have a claim.
Request an Appointment - Stephen Page
Things to Read, Watch & Listen

WA surrogacy law: same-sex couples win landmark case

For far too long, Western Australia singled out gay couples, single men, and many others in the LGBTQIA+ community for unequal treatment under its surrogacy law. That discrimination has now been struck down in a landmark case, and it is a significant step forward for fairness, family formation, and legal common sense. The case was… Read More »WA surrogacy law: same-sex couples win landmark case

International Surrogacy Insights: Join Me at the Growing Families Conference

International surrogacy can open extraordinary possibilities for intended parents, but it also comes with legal complexity that should never be underestimated. The rules are different from country to country, sometimes from state to state within the same country, and what looks straightforward at the beginning can become very complicated once parentage, citizenship, travel and documentation… Read More »International Surrogacy Insights: Join Me at the Growing Families Conference

30 Years a Specialist & 21 Years Together: The Page Provan Story

Some anniversaries arrive with fanfare. Others sneak up quietly and then suddenly feel enormous. At the end of June and the beginning of July 2026, two milestones sit side by side. One marks 30 years as an accredited family law specialist. The other marks 21 years working alongside Bruce Provan. Together, they say something important… Read More »30 Years a Specialist & 21 Years Together: The Page Provan Story

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board