Monday, November 11, 2019
On Wednesday my husband Mitchell and I formally became the parents of our baby daughter Elizabeth, who was born through a Queensland domestic surrogacy arrangement. We went before the Childrens Court of Queensland.
Many family lawyers, to my surprise, are not aware that surrogacy proceedings are brought in State Courts, not Federal Courts. Throughout Australia (with the exception of the Northern Territory which has no laws) surrogacy parentage orders can only be made with the consent of all parties, most notably that of the surrogate.
Of all the almost 1600 surrogacy journeys that I have advised about, none was more stressful in going to court than my own! I should make clear that I didn’t give advice on my own journey. That was given to Mitch and me by my associate Karen Gough, who has handled surrogacy matters over many years.
The court case had a tricky element to it. The question that was raised was who should be shown on the birth certificate as the parent. Was it our surrogate alone (as commonly happens in Queensland with single surrogates)? Was it my husband Mitch and our surrogate? Or was it instead both Mitch and me (and not the surrogate)?
On the face of the Queensland Surrogacy Act, it would appear that the only parent who should be named on the birth certificate was our surrogate.
However, a case decided in North Queensland found that an intended genetic father under a surrogacy arrangement in Queensland was a parent under the Queensland Status of Children Act, albeit, using the language of the Act, one with “no rights or responsibilities”. The judge in that case reasoned that the man in question must be a parent, albeit one with no rights or responsibilities – as opposed to the other view which had been expressed in the case that he was not a parent as a matter of law.
If that judgment was correct, then the person who should have been on the birth certificate was Mitch as well as our surrogate.
I formed the view that the judge in North Queensland had got the matter wrong. His reasoning was quite powerful. The problem with the reasoning was:
· It is clear that the Queensland Parliament has intended, going back as far as 1988, that sperm donors are not parents. They have done this for both single women and for lesbian couples.
· The Surrogacy Act, Status of Children Act and the Births, Deaths and Marriages Registration Acttook a consistent approach and that is that there should not be more than two parents under Queensland legislation and then when dealing with a female same sex couple, a man who has no rights or liabilities is clearly in that context seen not to be a parent.
· The definition of birth parent in the Surrogacy Act specifically excludes an intended parent.
· The documents that have to be filed to the court made plain in effect that the birth parent and intended parent are different people.
Taken as a whole, it was clear that the person, at least under Queensland law, who had to be named on the birth certificate as a parent was our surrogate alone.
The recent High Court case of Masson v. Parsons which said that who was a parent under the Family Law Act is someone seen in the ordinarily wider contemporary view of society as being a parent, would on the face of it mean that both Mitch and I were the parents on the Queensland birth certificate. The High Court made plain that if the Family Law Act and the Status of Children Act were in conflict, the latter had to give way to the former.
It is clear to me, however, that because the Family Law Act under section 60HB specifically recognises State and Territory surrogacy orders, that the Family Law Actfor that purpose must also recognise State and Territory parentage presumptions.
The effect of all that was that they came inevitably to the conclusion that the only person who should be on the birth certificate before the court order was made was our surrogate.
I had spent a lot of time thinking about this issue. I wondered whether the judge in North Queensland had got it right. As I said, his reasoning was quite powerful. Karen told me (at 8:30am on the week before court) that I would be tinkering at this all day. I said that that was nonsense, or something similar, and said that I would be finished by 10:30am. She was right and I was wrong! I spent the whole day until 4:00pm except 20 minutes for lunch just working through this issue of who was a parent. Having solved many difficult issues for clients over the years, test cases are always interesting – except when they are your own!
It meant a lot to me to represent Mitch and me in court. I ran it past him, past Karen, past my law partner Bruce Provan, past our surrogate and her lawyer Kate Cherry, I even looked at the ethical rules on point and even contacted the Queensland Law Society. There was no ethical reason I couldn’t act.
On the morning, I was a bundle of stress. I had the usual stress of going to court and not knowing what the outcome will be (hoping for the best but planning for the worst) but in addition that it was my matter and my husband’s matter concerning our daughter.
Judge Dearden told us that contrary to many young children who come before the court, surrogacy matters were a joy and delight. He said that I was a widely regarded expert in the field of surrogacy and that the documents were prepared meticulously as usual for me. When he said that, I turned around to Karen (who was sitting behind me) and looked at her. I wanted to acknowledge her involvement in the preparation of these documents. Karen had spent many hours getting the matter ready on our behalf.
His Honour said that he agreed with my submissions that Mitchell was not a parent. He gave us congratulations and made the parentage order, by which Mitchell and I finally were recognised as Elizabeth’s parents for all purposes under Australian law.
What a relief!
Afterwards we took photos of this momentous occasion and then Mitchell, our surrogate and I went down the road and had a couple of glasses of bubbles.
Of the innumerable cases I have run in over 30 years of practice, this was by far the most joyous. Nothing has been as sweet as this.