Who Is a Parent Then – Is Three a Crowd?

Stephen Page's Paper presented to the Legal Services Commission, Adelaide on 19 November, 2021.

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Who Is a Parent Then – Is Three a Crowd?

Introduction: Getting pregnant

Welcome to the wonderful world of making babies!

There are only four ways to get pregnant:

  • The old fashioned way- by heterosexual vaginal intercourse;
  • By artificial insemination- when sperm is injected into the uterus by use of some device, such as a catheter, a syringe or a turkey baster;
  • By implantation of an embryo created somewhere else through IVF;
  • By implantation of an egg and sperm in the fallopian tubes, where the egg is fertilized, a process called gamete intrafallopian transfer or GIFT.

Such is the jargon that comes with the territory; decoding of the jargon at this point might be helpful:

ART is the process of getting pregnant with the help of doctors. It is commonly called assisted reproductive treatment, but can also be called artificial reproductive treatment or artificial reproductive technology. It can cover artificial insemination, IVF and other techniques.

Blastocyst is a developed embryo, typically 5 days old. It remains microscopic.

Conception is the act of creation of a person. It could be the fertilisation of the egg, but has been held to be at the time of pregnancy, i.e., with ART after the implantation of the embryo. Conception is a controversial term, with the result that there is no international consensus as to what it means[1].

Embryo is a fertilised egg.

Implantation is the act of placing an embryo (which is microscopic) via a very fine catheter into the uterus of a woman.

ICSI is intra-cytoplasmic sperm injection-where a catheter or tube is used to place one sperm into an unfertilised egg. It is typically used in cases of male infertility, surrogacy or when frozen eggs have been thawed.

IVF or in vitro fertilisation is the act of having an egg fertilised by a sperm outside the body, typically in a petri dish, hence in glass or in vitro.

Oocyte (pronounced oh-a site) is a human egg.

Ryan J stated in Ellison & Karnchanit [2012] FamCA 602:

“Spread across different divisions in Part VII there are a number of provisions that deal with parentage, presumptions and declarations of parentage.  Those in Division 1 operate to irrebuttably deem the child for the purposes of the Act, in the circumstances there identified, the child of designated people.  Those in division 12  create rebuttable presumptions for the purpose of the Act.  Notably by s69U it is acknowledged that two or more presumptions under that subdivision may apply, in which case (excluding s69(1)).  It is for the Court to determine which presumption should prevail. Then in division 12  subdivision B, the Court is empowered to issue a declaration of parentage that is conclusive for the purposes of all laws of the Commonwealth.  In essence there is a scheme which operates so that, for the purposes of the Act or Federal law, children may variously be   deemed, presumed or declared the child of a person.”[2]

G v H (1994)

A good starting point in discussing the issue of who is a parent is G v. H (1994) HCA 48. H sought that G, her former de facto partner, undertake a DNA parentage test, to determine if he were the father of her child. H refused, on the basis that G was a prostitute.

Deane, Dawson & Gaudon JJ stated at [17] as to the parenting presumptions:

“The presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and a responsibility unless and until proved to the contrary is forthcoming.”

Their Honours stated:

“While a determination of parentage for the purposes of Family Law Act proceedings is   obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense.”

The High Court held that an adverse inference could be drawn against G for his refusal to submit to parentage testing therefore it could be inferred that he was the father.

Brennan and McHugh JJ stated at [7]-[8]:

“When the question of paternity arises and the evidence discloses that one of two or men must be the father but it is uncertain which of those men is the father, a slight preponderance of evidence tending to show that a particular man is the father may be sufficient to establish paternity if that man fails without reasonable excuse to comply with the parentage testing order.  That is because, first, paternity is an issue that, as between two or more men, is inherently difficult to prove without proper parentage testing, so that a slight preponderance of evidence may be all that can be offered in proof and, secondly, the testing procedures now available have been demonstrated to be so accurate that the results will almost inevitably conclude the issue.

At [8]:

“We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a means of a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of a greater significance to the child in establishing his or her life time identity but, when a court is deciding whether a party on whom rest the burden of proving an issue on the balance of probability says discharge that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.

In order that justice be done so far as the nature of the subject permits, the burden of proof of paternity in proceedings for the maintenance of a child born to an unmarried mother must be discharged when the party on whom it rests adduces the evidence available to her or him and that evidence tilts the balance of probability in favour of the paternity alleged and the punitive father, having the sole capacity to provide conclusive evidence by submitting to a parentage testing order, fails or refuses to do so.” (emphasis added)

Not only did H use condoms but also spermicide and a diaphragm when with clients.

Deane, Dawson & Gaudron JJ held at [16]:

“Paternity is a serious matter, both for the father and for the child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father.  After all, paternity can be determined easily and, for practical purposes, conclusively.  And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures that will provide proof one way or the other, the child’s rights to maintenance and support should none the less dependent on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrong doing.”

Their Honours did some numbers about statistics, in particular G’s combination of 3 contraceptive methods, at [13]:

“If on a given occasion, there were one chance in ten of any one of the measures failing (in the sense of not offering complete protection against the possibility of conception) and the reasons for the failure of any one measure were unrelated to the others, there would only be one chance in a thousand of all three failing at the same time.  Then on that statistical basis, if one assumes that H had intercourse with 250 clients during the period in which conception could have occurred (a figure towards the upper end of the range postulated by the trial judge, there would only be less than one chance in four that all three contraceptive methods would fail on at least one occasion.)  (If the probability of the combined contraceptive methods not failing on any given occasion is assumed to be 999 chances in 1000, or .999, then the probability of their failing at least once on 250 independent occasions is 1-(.999), or about .22.) whereas the evidence indicated that she had actually had unprotected sex with H on a number of occasions during the relevant period.  Of course, that, says nothing about the statistical probability of conception either during unprotected voluntary intercourse with G or in the event of such a failure of contraceptive methods during intercourse with a client.  Moreover, there is a difference between statistical and legal probability.”

These presumptions are rebuttable:  section 24(5) Status of Children Act 1978 (Qld)[3], section 69U Family Law Act.

Who is the mother?

The mother is always certain: Mater semper certa est

Since the time of Emperor Justinian, in the 7th Century, a fundamental principle of our law has been that the woman who gives birth is the mother. This remains true for both naturally conceived children, and those conceived through assisted reproductive treatment, such as artificial insemination.

While in the US courts have considered that there have been three potential bases for who is a parent, namely:

  • Who is genetically a parent
  • Who intended to be a parent
  • Who gave birth;

the approach in Australia so far as the mother is concerned is clear- to determine who is the parent is based on the principle that the mother is the woman who gave birth. There have been some exceptions to this, but in general this principle remains true.

Where there has been a fertilisation procedure, or as described under the Family Law Act, an artificial conception procedure[4], the woman who gave birth remains the mother of the child. This presumption is shown clearly in s.10C(1) Family Relationships Act 1975 (SA):

“(1)         A woman who gives birth to a child is, for the purposes of the law of the State, the mother of the child (whether the child was conceived by the fertilisation of an ovum taken from that woman or another woman).”

I am going to pause at this point. All-State and Territory parentage presumptions should be qualified against the test in Masson v Parsons [2019] HCA 21, referred to below.

The egg donor is not the mother, but if a spouse or partner of the mother is a co-parent: s.10C(2), (3). The sperm donor is not the father if not the spouse or partner of the mother: s.10C(4).

If the woman has a fertilisation procedure or is in a qualifying relationship, and the procedure is with the consent of the spouse or partner, then the man will be the father, or if the spouse or partner is not a man, a co-parent: s.10C(3).  If the male spouse or partner dies but had consented to use, he will still be a dad: s.10C(5) Similarly the woman who gave birth will be presumed to be the mother under section 60H(2) Family Law Act.

Who is the father?

If the man had sexual intercourse with the mother; that resulted in the conception of the child, he will be the father.

If ever there were any doubt, G v. H makes that plain. No matter the intent of the parties, or their relationship status, genetics triumph. Well, that’s what I always thought.

Currently there are websites where intended mums and intended sperm donors match up. On at least one of those sites, the sperm donor says if he is “AI” for artificial insemination or “NI” for natural insemination- or both.

There have been several overseas cases dealing with natural conception:

  • MRR v JM 2017 ONSC 2655- a Canadian case in which they conceived a child through sex, but had orally agreed beforehand that he would not be a parent, which was confirmed in writing 9 months after the child was born. However, the mother soon brought an application for child support, saying that their intentions had changed. She said that the man had treated the child as his own, and therefore she should not be denied child support. Although there was a presumption that he was the parent, the court found that based on his unchanged pre-conception intention that he was not to be a parent, that therefore he was not a parent.
  • R v S 2018 (5) SA 308 (KZD)- a South African case where a child was conceived naturally. The man, R, sought full parental responsibilities and rights:

“Prior to the birth of their son, the parties had been romantically involved and had even cohabited for some time until their relationship ended. In 2014, the respondent approached the applicant asking him to “impregnate her through natural insemination”, although no obligations would be imposed on him. The respondent averred that she merely wanted her child to know his biological origins.

During her pregnancy, the applicant however attended prenatal doctor’s visits and scans with the respondent, contributed towards the costs of some of these visits as well as lying-in expenses for the respondent. He further
attended antenatal classes with the respondent and was registered as the father on the minor’s birth certificate. Thereafter, he had contact with the child on terms decided by the respondent. He attended paediatrician check-
ups with the respondent. He even took E to visit his paternal grandmother. In addition, he offered to pay maintenance. At some point, however, the respondent decided to limit the amount of interaction between the applicant and E. This resulted in his requesting that a parenting plan be concluded to formalise the arrangement between them. In response to this request, the respondent alleged that “the appropriate” agreement between the parties amounted to a “known donor agreement” and as such he was not entitled to parental responsibilities and rights that would permit him to conclude a parenting plan with the respondent. She averred that while such agreements were novel in South Africa and were not expressly recognised by law, the law should be developed in recognition of her constitutional rights to dignity and sexual preference and her choice of single motherhood as a
chosen family structure. The court found that given the level of involvement by R, he qualified forparental responsibilities and rights as he was not merely a gamete donor.”[5]

What if there has been an artificial conception procedure?

Is the husband or de facto partner of the birth mother a parent?

The answer is, ordinarily, yes.

Where there is an artificial conception procedure the man may be presumed to be the father, by  way of rebuttable presumptions, as follows:

Presumption Section of Family Relationships Act Section of Family Law Act
Marriage 8(1) 69P
Birth Registration 7(b) 69R
Court finding 7(c) 60S
Acknowledgments 7(b) 69T
Cohabitation 8(1) 69T

 

There are subtle differences between the two Acts. For example, section 69T refers to a period of 44 weeks for gestation, whereas section 8 refers to 10 months.

There is a limitation with birth records under s.69R as they must be only birth certificates “under a law of the Commonwealth, a State or a prescribed overseas jurisdiction”.  As was noted by Ryan J in Ellison & Karnchanit [2012] FamCA 602[6], there has been no overseas jurisdiction prescribed for the purposes of section 69R[7]. Section 7(b) is wider: “he has acknowledged in proceedings for registration of the birth of the child (either in this State or in some other place) that he is the father of the child”.

Thus in Ellison, which involved a child born in Thailand to a Queensland couple, the Thai birth certificate was not persuasive about who was a parent.

Similarly in Bernieres and Dhopal [2017] FamCAFC 180, a Victorian husband and wife who underwent surrogacy in India were found not to be the parents, aside from consideration of Masson v Parsons that this decision is now incorrect- if the couple has been from South Australia, the man at least would have been identified as the father. The child had an Indian birth certificate- in which the Australian couple were named as the parents.

Those who undertake surrogacy overseas often believe that by virtue of the overseas birth certificate that they are the parents of the child. The answer as seen in Ellison and Karnchanit is that an overseas birth certificate may not be evidence of parentage here.

By comparison with the Family Relationships Act, other State legislation closely reflects the Family Law Act on this point, for example the provisions of the Status of Children Act 1978 (Qld).

Section 60H and related State provisions

Section 60H of the Family Law Act provides:

“Children born as a result of artificial conception procedures

(1)  If:

(a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and

(b)  either:

(i)  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 procedure; or

(ii)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

(c) the child is the child of the woman and of the other intended parent; and

(d) if a person other than the woman and the other intended parent provided genetic material–the child is not the child of that person.

(2)  If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

(3)  If:

(a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b)  under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

(5)  For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities that the person did not consent.

(6)  In this section:

“this Act” includes:

(a)  the standard Rules of Court; and

(b)  the related Federal Circuit Court Rules.”

The term “artificial conception procedure” is defined as in section 4 as including:

  • “ Artificial insemination; and
  • The implantation of an embryo in the body of a woman.”

What is clear is that Parliament did not intend that the creation of an embryo was an artificial conception procedure but it is the act of enabling a pregnancy to commence i.e. the conception of a child that is the critical element.  This is consistent with the decision by Judge Clare SC in LWV v LMH [2012]QChC 26[8], in which her Honour found that conception did not occur at the time of the creation of an embryo but occurred at the time of pregnancy i.e. at or about the time of implantation of an embryo.

It is essential to be careful with dealing with case law concerning section 60H as the current section was largely rewritten in 2008. This is also a warning that when reading sections dealing with this topic, it is sometimes necessary to delve into the legislative history of the section. It is sometimes surprising what you find.

Although the current section came about due to lobbying particularly by the New South Wales Government to ensure the recognition of children born to lesbian couples, what is clear from the first element in subsection (1) (a) is that the birth mother must be married to or a de facto partner of another person. This is gender-neutral. The relevant time for the de facto relationship is at the date of the artificial conception procedure, not the birth[9].

The first requirement of the section is that a woman has given birth. Increasingly we are seeing transmen giving birth. How they are treated for the purposes of this section and other parenting presumptions remains unclear. In Coonan v Registrar of Births, Deaths and Marriages [2020] QCAT 434 the applicant transman was unsuccessful in being found to be a parent or father after having given birth, but having his name recorded as a mother. The case turned on the Queensland legislative provisions. Only the Parentage Act 2004 (ACT) is gender-neutral.

The spouse or partner is called “ the other intended parent”. The Full Court[10] in Clarence & Crisp has said that this is a “drafting device”. However, in light of Masson, one cannot now be so sure. One could well imagine that a person who has consented but did not intend to be a parent may be found not to be a parent. See Seto and Poon [2021] FamCA 288 discussed at the end of this paper for just such a case.

Paragraph 60H (1)(b) has alternate limbs. The first is that the birth mother, the other intended parent and the donor consented to the use of the material in an artificial conception procedure.  This would ordinarily able to be proved by consent forms that are required by any IVF clinic.  This would apply in respect of any egg donor, sperm donor or embryo donor[11].

However, with home insemination, such as the use of either syringe or turkey baster, there may not be obvious documentary evidence of consent.

The alternative limb is that there is a prescribed law by which the child is the child of the woman and of the other intended parent. The prescribed laws are set out in Regulation 12C of the Family Law Act Regulations 1984.

STATE LAW Sections
NSW Status of Children Act 1996 The whole
VIC Status of Children Act 1974

 

10A, 10B, 10C, 10D, 10E, 13 and 14
QLD Status of Children Act 1978 17, 18, 19, 19C, 19D, 19E
WA Artificial Conception Act 1995 The whole
SA Family Relationships Act 1975

 

10C and 10E
TAS Status of Children Act 1974 Part III
ACT Parentage Act 2004, 11
NT Status of Children Act 1978 5A, 5B, 5C, 5D, 5DA, 5E and 5F

Beware to check the sections and that they are the correct ones. The sections concerning South Australia, for example, have changed following changes to the Family Relationships Act.

It should not be assumed that the laws from State to State are the same. There are differences. In Clarence and Crisp [2016][12], for example, the child was conceived in Queensland but born in South Australia. The trial judge, Berman J, dealt with both states’ laws, as both seemed to apply[13].

It should also not be assumed that the State and Territory laws match s.60H(1). An example are the provisions of the Status of Children Act 1978 (Qld) which concern a fertilisation procedure by a woman with her female partner’s consent. The laws were written before the 2017 change to the Marriage Act. They do not include women who are married to each other. The non-birth mother in a marriage in Queensland must rely on s.60H(1), and cannot rely on the Status of Children Act 1978 (Qld) to establish parentage.

The second is that several sections of the Queensland Act refer to: “ 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.” This is dealt with in a discussion about Lamb and Shaw[14], below.

The effect of section 60H is therefore that the child is the child of the woman and of the other intended parent but not of the donor.

Despite s.60H appearing to apply to surrogacy arrangements, the Full Court has held[15] that it does not- Parliament’s intention is that it is to apply only to: “conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.”

Where a lesbian couple set out to have a child together, including registering with sperm donation sites on the web, but the birth mother had sex with others and said that the pregnancy arose naturally, it was held that s.60H did not apply[16].

“She wants a baby, he doesn’t: too bad”

In a number of recent cases, I have had female clients who have wanted to have children. They have wanted to have a child, but their male de facto partners have not. Their partners typically already have children, have been through the Family Court process, and are paying child support. While they are happy for their partner to have a child (to satisfy their partner’s yearnings) they do not want the child as their own.

This is where things get tricky. If the parties reside in a de facto relationship, and the woman goes to a bar or more likely these days finds a man via a social media app like Tinder and gets pregnant, her partner will be presumed to be the father- but the presumption can be rebutted easily via a DNA test.

If however, she decides that she will go through ART, then ART cannot proceed without her partner having had counselling and consenting in writing to the procedure[17]. As soon as he has consented, whether or not he wants to have a child, then the partner will be presumed to be the parent.

The choice for the desperate woman is then to:

°      Give up

°      Get pregnant by usual means from someone else

°      Split up, and then pursue ART as a single woman. However, this too has its risks.

Section 60H(1) and the related State provisions become problematic when there are potentially multiple parents. Two examples suffice:

  • A husband and wife form a relationship with another woman- a throuple. The “other” woman is the one who is to become pregnant and give birth. Is she in a de facto relationship with either of the others? Due to the general limit of two parents on a birth certificate[18], the women decide (with the man’s agreement) that they will be the parents on the birth certificate. While it may be the case as per Masson that all three parents might be recognised[19], the reality is that no one wants to engage in a test case. The man might not be shown to be a parent, but would nevertheless have all the financial responsibilities of parenthood, because he consented to treatment[20]. The clinic must provide treatment because to do otherwise would be a breach of s.22 Sex Discrimination Act 1984 (Cth), namely to discriminate in the provision of a service based on marital status.
  • A lesbian couple and a gay couple decide to have a baby together. The women would be recognised under s.60H(1). The man who supplied his sperm would not be a parent by virtue of s.60H(1) and related State provisions. It is anomalous that the other man might be a parent by virtue of intention, following Masson.

Section 60H(2)

Section 60H(2) has a different test, namely that if the child was born to a woman after the carrying out of an artificial conception procedure and under the prescribed law of the Commonwealth, State or Territory, the child is a child of the woman then whether or not the child is biologically a child of the woman, the child is her child for the purposes of the Family Law Act.  Similarly if the woman gives birth following an artificial conception procedure and under a prescribed law of the Commonwealth or of the State or Territory the child is the child of a man, then whether or not the child is biologically his the child is his child for the purposes of the Family Law Act.

The laws are prescribed under reg. 12CA:

State Law Section
NSW Status of Children Act 1996 14
Vic Status of Children Act 1974 15,16
Qld Status of Children Act 1978 23
WA Artificial Conception Act 1985 The whole
SA Family Relationships Act 1975 10C
Tas Status of Children Act 1974 Part III
ACT Parentage Act 2004 11(2) and (3)
NT Status of Children Act 1978 5B, 5C, 5E

 Again, the table has changed as State laws have evolved. Take care in checking. The table also used to refer to s.10B of the Family Relationships Act, now repealed.

Section 60H(3)

Under s.60H(3) a man may be presumed to be the father, but only under a prescribed law. There are no prescribed laws for the purposes of section 60H(3)(b).

Can a person be a parent under the Family Law Act when there has been an artificial conception procedure but they are not the birth mother or birth mother’s partner under section 60H?

Yes. Prior to the decision of the High Court in Masson v Parsons, there were different answers.

First the easy one, comity:

Carlton & Bissett [2013] FamCA 143

Mr Bissett was a resident and citizen of South Africa when he undertook surrogacy there.  Under South African law Mr Bissett obtained a pre-approval order from a South African court, the effect of which was that when the children were born he was deemed to be the father.

Subsequently, Mr Bissett fell in love with Mr Carlton and Mr Bissett and the twins moved to Sydney.

Mr Bissett sought that he be recognised as the parent.  There were three arguments.  The first argument was to seek to have the South African order registered with the Family Court as an overseas child order under section 70G of the Family Law Act.  Ryan J held the definitions of “parent” and “child” under sections 60F to 60HB:

“have no application to Mr Bissett.  Simply put, whether he is the children’s parent needs to be determined in the first instance by the application of the laws where he was ordinarily resident and the child was domiciled (or origin) at the time of their birth; namely South Africa.”[21]

Her Honour found that the order met the definition of “overseas child orders”[22].  Hopefully this puts paid to the proposition raised by at least one Registrar in the past that the court could not register an overseas surrogacy order because it was only able to register “like for like” orders.  Basically the argument went that if the Family Court of Australia could not make a surrogacy order then it could not register an overseas surrogacy order under section 70G.  Clearly the form of the South African order in which it was a pre-approval for surrogacy is not the type of order that the Family Court of Australia could ever make, but nevertheless according to her Honour met the definition.

However, the order was unable to be registered because South Africa was not a prescribed overseas jurisdiction. This is contained in schedule 1A of the Regulations.  Most American jurisdictions are listed there, for example Alabama and Wyoming[23], but be careful because many jurisdictions that we ordinarily think ought to be included there are not.  While New Jersey, New Zealand and Papua New Guinea are included, no Canadian province, nor England or Wales are. No European jurisdiction is included.

The second argument in Carlton & Bissett was to rely on section 69S of the Act whereby a court of a reciprocating jurisdiction had found that Mr Bissett was a parent.  This section required that the reciprocating jurisdiction was either within the meaning of section 110 of the Act or a jurisdiction mentioned in schedules 4 or 4A to the Regulations.  Schedule 4 is for those countries defined under the “Hague Child Maintenance Convention” and schedule 4A is where Australia has entered into an “international child support agreement”, for example with Finland.

South Africa was not a country within either of these schedules.  Section 110 covers jurisdictions with restricted reciprocity, meaning a country or part of a country outside Australia declared by the Regulations to be a jurisdiction with restricted reciprocity for the purposes of this section.  The jurisdictions set out in schedule 2 to the Regulations are the reciprocating jurisdictions for the purposes of section 110.  Here we have jurisdictions as far removed as Austria and Zimbabwe and now, at least, South Africa.

Her Honour held in effect that because the limited nature of section 110 relating to international maintenance orders then section 69S simply did not have application and must fail.

However for comity purposes her Honour found:[24]

“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 section 60H and section 60HB, 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.”

What is unclear is whether an order made overseas has the effect under the comity principle that it ought to be recognised in Australia. Recent case law from Europe would seem to indicate that this is the approach to be taken, notwithstanding domestic law in the relevant countries banning surrogacy. European parents have travelled to the US for surrogacy; notwithstanding that surrogacy is illegal or not recognised back home. Courts in Spain, Germany and France have adopted the comity principle and for the benefit of the child, have recognised the US order.

Going overseas for surrogacy

 When Australians undertake surrogacy overseas, as they commonly do, they:

  • Undertake surrogacy in a country where reliance is upon contract (as has occurred in the past, for example in India); or
  • Rely primarily on the making of an order in the best interests of a child as, for example, in the United States.

When Australians undertake surrogacy overseas they do so either lawfully (as is clearly the case for those, for example, from Victoria, Tasmania or the Northern Territory) or they do so unlawfully (as is clearly the case for those undertaking commercial surrogacy if they are from Queensland, New South Wales or the ACT all of which jurisdictions have laws of extra-territorial application)[25].  In four cases decided in 2011, concerning New South Wales and Queensland couples undertaking surrogacy in Thailand, Watts J questioned whether the intended parents were parents because of the parenting presumptions under the relevant Status of Children Act and of concern that what was done was illegal.[26]

In Ellison & Karnchanit [2012] FamCA 602 Mr Ellison and his wife Ms Solano undertook surrogacy in Thailand.  Mr Ellison and Ms Solano came from Queensland.  The first aspect of the case is that the DNA evidence was inadmissible.

Her Honour noted that she was not bound by the Thai birth certificate stating that Me Ellison was the father even though genetically he was the father.

Ryan J held that section 60H applies even with children born overseas whereas section 60HB (which deals with surrogacy orders made under prescribed law of a State or Territory) only covers orders made in the relevant State or Territory[27].  At the time of Ellison & Karnchanit there were no laws prescribed for the purpose of section 60HB, but they are now prescribed under Regulation 12CAA[28].

Ryan J formed the view that section 60H(1) is not intended to be an exhaustive definition and thus does not operate to exclude a person as a parent if his or her circumstances do not coincide with those identified in the section.[29]  Her Honour found that section 60HB does no more than say that if a relevant order is made by a State Court, then for the purpose of the Family Law Act it will apply.[30]

Relying upon the International Convention on the Rights of the Child, her Honour accepted submissions of the Australian Human Rights Commission 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[31] and then found it was in the best interests of the children that an order be made.

Blake & Anor [2013] FCWA1

Mr Blake and Mr Marston were the intended parents. They went to India. Mr Blake applied for step-parent adoption of the children on the basis that Mr Marston was the father of the children.  The critical issue was whether Mr Marston could be considered a parent. The children were born as the result of surrogacy in India following a contract being entered into between Mr Marston and a surrogate and her husband.  Crisford J found that the contract was binding under Indian law and that the surrogate and her husband relinquished all their rights to any children born of the surrogacy procedure. There was no evidence about whether the surrogacy laws were commercial or otherwise.

The children were granted Australian citizenship,  following DNA tests showing that Mr Marston was the genetic parent.  At the time of the judgment Mr Blake, Mr Marston and the children were living overseas.

Contrary to Ellison & Karnchani,t her Honour noted that the court was dealing with different legislation and a different factual matrix which included a legal opinion about the validity of the arrangement in India.[32]

Her Honour noted that parent was not defined under the Adoption Act 1994 (WA), but that there was a definition of parent under the Interpretation Act 1984 (WA), being an inclusive definition, including:

  • A parent who is a parent within the meaning of the Artificial Conception Act 1985
  • Be a person who is an adoptive parent under the Adoption Act 1994
  • A person who is a parent in a relationship of parent and child that arises because of a parentage order under the Surrogacy Act 2008.

The Artificial Conception Act is the Western Australian version of the Status of Children Act and the effect of that would appear that the surrogate and her husband were the parents and that Mr Marston, as the sperm donor, shall be conclusively presumed not to have caused the pregnancy and is not the father of any child.

As her Honour noted, the Artificial Conception Act was intended to apply to “an artificial fertilisation procedure carried out before or after the commencement of this Act either within or outside Western Australia” and as such would appear to apply to the procedure carried out in India.  Marston would therefore not be included in the definition of a parent provided in the Interpretation Act.

However as her Honour noted, that definition was not exhaustive.  Her Honour stated:[33]

“In the Court’s view, there is scope to enlarge the definition and determine what other people might be considered a ‘parent’ or a ‘father’ within its ordinary meaning. Unless the        court so determines, a person in Mr Marston’s position would not be considered a birth    parent for the purpose of the Act.”

Her Honour then considered the various parenting presumptions under the Family Law Act. None of them applied. The Indian lawyer noted that the surrogate has no rights over the children as she has relinquished all her parental rights in the agreement. Counsel for the State Department submitted that the court was able to take into account any declaration of parentage made by Mr Marston under a law of the Commonwealth the law of Australian State or Territory including documents provided to the Department of Immigration for the purpose of obtaining Certificates of Citizenship.  However, the documents signed by Mr Marston in support of the Certificate of Citizenship were not provided. Her Honour noted that there wasn’t strict compliance with the Family Law Regulations as to the DNA testing as the containers of bodily samples had not been appropriately labelled[34].

Her Honour stated:[35]

“One overarching consideration is that since 2010 Mr Marston and Mr Blake have acted as parents to these children.  They have fulfilled that role for over two years without input from any other person who might be seen as a parent… the Act does not specifically define a father or a parent of the child to be adopted the Interpretation Act does provide a definition, albeit not an exhaustive definition.  The examples that are given do not encompass Mr Marston.  In circumstances where provisions enlarge rather than restrict here it can’t be said that the provisions operate to exclude a person as a parent if his or circumstances do not coincide with those identified in this section.  To suggest that Mr Marston is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of ‘family’ in present day society.  It is also turning a blind eye to the reality of the situation presently before the Court.  The objective facts surrounding the birth and the manner in which various agencies have treated those circumstances couple with the fact of the genetic father acting in that role since the birth of the twins points to the use of an expanded definition of parent.  To adopt any other interpretation would serve no purpose in addressing any public policy issues if, indeed, any exist.  It would serve no purpose in enhancing the future welfare and best interests of these children… there is no valid reason to disadvantage children of surrogacy arrangements.”(emphasis added)

Mason & Mason [2013] FamCa 424

A gay couple, Mr A and Mr B Mason undertook surrogacy in India, resulting in the birth of twins. Mr A Mason entered into a surrogacy arrangement in India.

The issue in question was whether either of them were the parents. There was no reference to Re Blake.

Ryan J held[36]:

“Spread across different divisions in Part VII there are a number of provisions to do with parentage, presumptions and declarations of parentage.  Those in Division 1 Subdivision (D) operate to irrebuttably deem a child for the purposes of the Act, in the circumstances there identified, the child of designated people.  Those in Division 12 subdivision D create rebuttable presumptions for the purpose of the Act.  Notably by s69U it is acknowledged that two or more presumptions under that subdivision may apply, in which case (excluding s69S(1)) it is for the Court to determine which presumption should prevail.  Then in Division 12 Subdivision E, the Court is empowered to issue a declaration of parentage that is conclusive for the purposes of all laws of the Commonwealth.  In essence there is a scheme which operates so that, for the purpose of the Act or Federal law, children may variously be deemed, presumed or declared the child of a person the effect of section 12 of the Status of Children Act 1986 (NSW)… is that declaration of parentage made under the Act will be recognised by the State.”

Her Honour considered sections 60H and 60HB.  Her Honour took a contrary view to that in Ellison & Karnchanit, stating that there was a scheme of who is a parent under the Status of Children legislation and the Family Law Act.  Her Honour stated[37]:

“It follows, that without the benefit of argument, a cautious approach to the issue is necessary.  However, it is my preliminary view that for the purposes of the Act the 2008 amendments, events and intentions by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.  [34]  The effect of this is that unless an order is made in favour of the applicant pursuant to the surrogacy Act, the provisions of the Act do not permit this Court to make a declaration of parentage in his favour.  Thus, on reflection, I’m inclined to respectfully agree with Watts J in Dudley & Anor and Chedi [2011] … where…his Honour determined that ultimately state law will govern the determination of parentage   [if children born under surrogacy arrangements] and that state law will be recognised by    federal law.[35]  This is only to the extent that the laws of a state or territory are prescribed laws for that provision.  [36] Although there is evidence which may tend to indicate that this was a commercial rather than altruistic surrogacy arrangement, the evidence is not so clear that a finding in relation to the nature of the agreement needs to be made.  If that is an issue, it is one more appropriately dealt with by the Supreme Court should an application      for a parentage order or adoption be made.” (emphasis added)

In other words, it would appear that if you are going overseas for surrogacy then, according to that analysis you are not the parents.  The surrogate and her partner are.

Green-Wilson & Bishop [2014] FamCa1031

Mr X Green-Wilson and Mr Y Green-Wilson were a gay couple who undertook surrogacy in India.  They lived in New South Wales but moved to Victoria so they could undertake surrogacy overseas.  A child Y Green-Wilson was born as the result of a commercial surrogacy arrangement. Mr X Green-Wilson provided his sperm.  The egg was supplied by an anonymous donor in Ukraine.  Johns J held that although Mr X Green-Wilson was the biological father[38]:

“That fact alone does not mean that he is a parent pursuant to the provisions of the Family Law Act.  The Act provides no definition of ‘parent’, save as respect to adopted children. Clearly, that definition is not applicable in this case.  The status of persons in the position of     the applicants (as well as other non-traditional families) has long vexed this court…”

Her Honour stated at[39]:

“Whilst the provisions of s60H of the Act have been amended since the observations made by Guest J in Re Patrick [2002] and Brown J in Re Mark[2003] so as to clarify the status of parties undergoing artificial conception procedures, including same-sex couples undergoing   such procedures, they do not clarify the position of people such as the applicants who have undertaken artificial conception procedures in the context of a commercial surrogacy arrangement in another jurisdiction, in this case, India.”

In referring to section 60H(1) her Honour said[40]:

“Hence, while Mr X Green-Wilson provided his genetic material to enable the artificial   conception procedure to occur, with the express intent that he and his partner, Mr Z Green-Wilson parent any child born of that procedure, pursuant to the provisions of s60H(1)(d), the child the product of that procedure is not deemed to be a child of Mr X Green-Wilson.”

It was submitted that section 60H did not extend extra-territorially and therefore did not apply to the surrogate or her husband who were resident in India and undertook the artificial conception procedures there.

The applicants relied upon section 69ZE, which deals with the extension of the operation of Part VII of the Act to the States and Territories of Australia.  Relying on that provision, it was submitted that the language in 60ZE confines the operation of Part VII to the States and Territories of Australia and therefore did not apply to India.

Walls J rejected that position and found that section 69ZE did not place limitations on the operation of Part VII[41]:

“If one were to adopt that position, all orders made under Part VII could only be made with respect to children present in the states or territories of Australia referred to in s69ZE.  That approach is clearly inconsistent with provisions of s69E of the Act which enlivens the jurisdiction of the Act with respect to a child who is an Australian citizen or is ordinarily resident in Australia on the day proceedings are commenced.  It is not necessary for a child      who is an Australian citizen or ordinarily resident in Australia to be present in Australia on     the day Part VII proceedings are commenced.”

Her Honour noted also that Mr X Green-Wilson be named as the father on the child’s birth certificate did not fall within the presumption under section 69R of the Act because India was not a prescribed overseas jurisdiction as no overseas jurisdictions were in fact prescribed.

Her Honour noted section 60HB of the Act dealing with children born under surrogacy arrangements and prescribed laws.  She noted that the prescribed law in Victoria was section 22 of the Status of Children Act 1974 (Vic) and that a requirement of that section and of section 20 of that Act was that conception must have occurred as a result of a procedure carried in Victoria with the assistance of a registered ART provider after patient review panel approval.  Therefore an international commercial surrogacy arrangement as was entered into would not invoke the provisions of section 22 of the Status of Children Act and accordingly section 60HB would not apply.

The question raised by the applicants was in circumstances where neither State nor Commonwealth legislation makes provision for the determination of parentage in commercial surrogacy arrangements and where the registration of Mr X Green-Wilson on the child’s Indian birth certificate is not determinative, who are the child’s parents?  Her Honour considered the decision in Mason & Mason and in particular the intention of having a uniform system for the “determination of parentage”.

Walls J held[42]:

“That may be so in States or Territories where there is legislation specific to the issue of determination of parentage in respect of such surrogacy arrangements.  However, it does not resolve the issue of what is to occur for children born in States that do not have the benefit of such provisions.

In circumstances where the State legislation is silent with respect to the determination of parentage of children born of commercial surrogacy procedures (which are not prohibited in Victoria), I am satisfied that it is appropriate to make a declaration with respect to a           child born of such procedures who is now living in Victoria.   To do otherwise would be to elevate public policy considerations (as to eh efficacy or otherwise of commercial surrogacy arrangements) above consideration to the welfare of children born of such arrangements.     In my view, the interests of the child must outweigh such public policy considerations.”

Her Honour then took into account the best interests of the child and determined that it was appropriate and in the child’s best interests that she makes a declaration confirming that Mr X Green-Wilson is a parent of the child.

Groth & Banks [2013] FamCa430

Mr Groth and Ms Banks were in a relationship.  They split up.  They had a property settlement.  Some years later Ms Banks told Mr Groth that she wanted to be a mother and wanted his sperm.  He agreed to be a sperm donor. Mr Groth had previously lent Ms Banks a considerable sum to enable her to buy out a relative’s interest in a house she inherited. Mr Groth had cancer. At the time of his diagnosis, he caused sperm to be stored with a clinic.

They went to a clinic and, along the lines of Verner & Vine [2005] FamCa763, they told the clinic that they were a couple. They weren’t.  Mr Groth signed a form required under Victorian law stating that he wasn’t a parent, but was a donor.

The child was conceived and born.

Mr Groth had no involvement with the child until one day his partner observed messages on his mobile phone.  He then made application to the Family Court seeking declaration that he was a parent. Ms Banks submitted, not surprisingly, that Mr Groth could not be a parent because under the Status of Children Act (Vic) she was the woman who gave birth, she was the only parent and his role was merely that of donor.

Mr Groth’s argument was ingenious:

  • He was undoubtedly the child’s biological progenitor
  • The word parent is not exhaustively defined in the Family Law Act
  • By use of its language Part VII of the Family Law Act envisages that there are two parents, that is, the biological progenitors of the child unless they are otherwise displaced by express provisions in the Family Law Act
  • Section 60H does not apply where the mother was not married or in a de facto relationship
  • The Status of Children Act does not apply because section 79 of the Judiciary Act 1983 (Cth) does not bring it into operation and alternatively section 109 of the Constitution provides that the Commonwealth law prevails in the event of inconsistency between the Commonwealth and State laws.

Cronin J accepted this argument.  He declined to rule on the issue of intention namely as to the form required under the State law, saying that it was irrelevant given section 109 of the Commonwealth Constitution.  His Honour stated[43]:

“(The applicant’s) argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life.  Concerns of public policy, such as those raised by Guest J in Re Patrick…             that unknown sperm donors could be considered ‘parents’ under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.

Thus, the interpretation of ‘parent’ in the Act allows each case to be determined on its particular facts.

The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act.  The whole Commonwealth statutory concept is outlined in Part   VII of the Act is one in which biology is the determining factor unless specifically excluded by law …

Part VII of the Act contains multiple references to the parents of the child as ‘either’ or    ‘both’.  These can be found at s.60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2), 65C(a), 66B(2), 66F(1) and 69C(2).  The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the     Act.

The applicant fits that presumption in the Act of who is a parent.  He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child.  On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child.  If one turns to the sections         of the Act that displace biological progenitors as parents, little changes.”

We then come to s.29(2) of the Child Support (Assessment) Act 1989 (Cth) and in particular that someone is a parent because a federal court, or a court of a State or Territory or a court of a prescribed overseas jurisdiction has found expressly or by implication that someone is a parent.

Bateman & Kavan [2014] FCCA 2521

A declaration was sought that Mr Kavan was a liable parent for the purposes of the Child Support (Assessment) Act 1989.  He originally sought dismissal of the application on the basis that he was not in a de facto relationship with the applicant at the time of artificial insemination and was therefore not a deemed parent within section 60H.  Both the Child Support Registrar and the Human Rights Commission intervened.  It was found by consent Mr Kavan was determined to be the father.  The Human Rights Commission submitted:

“Following amendments to s29 of the CSA Act introduced by the Same-Sex Relationships (Equal Treatment and Commonwealth Laws – General Law Reform) Act 2008 (Cth)…, there is an ambiguity in the CSA Act about how the child support Registrar… is to determine whether a person is a parent of a child born because of the carrying out of an artificial conception procedure.

In particular, since 1 July 2009, whether or not a person is a parent under section 60H of the Family Law Act (Cth)(dealing with children as a result of artificial conception procedures) is one of a number of factors that the Registrar must evaluate in determining whether he or she is satisfied that a person is a parent of a child.

The amendments introduced by the Reform Act mean that older cases such as B v J (1996) Flc92-716 and W v G (1996)(20 FamLR 49) which looked only at the definition of ‘parent’ in s5 of the CSA Act can be distinguished.  On one view, the new structure of s29 in the older cases about s5 give rise to ambiguity about how to determine whether a person is a ‘parent’ for the purposes of the CSA Act.

The ambiguity in the CSA Act can be resolved by adopting and an interpretation of ‘parent’ in the CSA Act that is consistent with Australia’s international law obligations under the convention on the rights of the child.

The commission submits that such an interpretation would involve the registrar taking the following steps when determining whether the person is a parent of a child born as the result of artificial conception procedures.  First, to the extent that s60H of the Family Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would make a determination consistent with the requirements of that section.  This would be consistent with an object of the definition of ‘parent’ in s.5 that the answers given by an application of s60H are to be binding.  Secondly, to the extent that s.60H of the Family Law  Act does not apply (i.e. to the extent that s60H says nothing about whether a particular person is a parent) the Registrar would consider whether any of the other criteria in s29(2)of the CSA Act apply.

This interpretation would allow consistency in the definition of ‘parent’ between the CSA Act and the Family Law Act.  As a result, it is more likely to promote a child’s right under      Article 27(4) of the CRC to recover maintenance from his or her parents.”

Section 29(2) of the Child Support (Assessment) Act 1989 provides:

(2)  The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:

(a)  that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or

(b)  that the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or

(c)  that, whether before or after the commencement of this Act, a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction has:

(i)  found expressly that the person is a parent of the child; or

(ii)  made a finding that it could not have made unless the person was a parent of the child;

and the finding has not been altered, set aside or reversed; or

(d)  that, whether before or after the commencement of this Act, the person has, under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that the person is a parent of the child, and the instrument has not been annulled or otherwise set aside; or

(e)  that the child has been adopted by the person; or

(f)  that a person is a man and the child was born to a woman within 44 weeks after a purported marriage to which the man and the woman were parties was annulled; or

(g)  that a person is a man who was a party to a marriage to a woman and:

(i)  the parties to the marriage separated; and

(ii)  after the parties to the marriage separated, they resumed cohabitation on one occasion; and

(iii)  within 3 months after the resumption of cohabitation, they again separated and afterwards lived separately and apart; and

(iv)  the child was born to the woman within 44 weeks after the period of cohabitation but after the dissolution of the marriage; or

(h)  that the person is a man and:

(i)  the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and

(ii)  no marriage between the man and the woman subsisted during any part of the period of cohabitation; or

(i)  that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975 .

The Human Rights Commission went on to submit:

The definition of ‘parent’ in the CSA Act, particularly as it relates to children born as a    result of artificial conception procedures, relies on the operation of the Family Law Act.  As a result, in order to understand the definition of ‘parent’ for the purposes of the CSA Act, it is first necessary to examine who can be a parent for the purposes of the Family Law Act.”

The Human Rights Commission relied on Groth & Banks, and other cases to say section 60H is not an exhaustive statement of whether a person is a parent of a child born as the result of an artificial conception procedure.  In particular section 60H does not deal at all with the man who provided his sperm where a child is born to a single woman as the result of an artificial conception procedure[44].  The Commission stated:

“If a woman who is not married and not in a de facto relationship has a child as a result of an artificial conception procedure, then section 60H of the Family Law Act does not assist in determining the status of the man who provided his sperm for use in the procedure.  In order to assess the status of the man in these cases, it is necessary to return to the ordinary meaning or parent discussed in Tobin & Tobin, and consider whether he has ‘begotten’ with a child.  Several cases have noted that a man can be a parent of a child born as the result of an artificial conception procedure even if section 60H of the Family Law Act does not apply.  Importantly these decisions suggest that a ‘mere’; sperm donor, and particularly an anonymous sperm donor, would not be a parent for the purposes of the Family Law Act. There are good public policy reasons for this including consistency with the general expectations arising out of State and Territory regimes dealing with sperm donation.

A common element in these decisions is that a relevant factor in assessing whether someone has ‘begotten’ a child as a result of an artificial conception procedure is an intention to become a parent… these cases indicate that the definition of parent for the purposes of the Family Law Act in cases of children born as a result of artificial conception procedures of the Family Law Act in cases of children born as a result of artificial conception procedures is wider than the class of people covered by section H.

The importance of intention in cases involving artificial conception procedures is reinforced by considering the position of the other intended parent under section 60H(1) of the Family Law Act.  The partner of the woman who gives birth to a child as a result of an artificial conception procedure is referred to in the legislation as the ‘other intended parent’.  That person will only be considered to be a parent if he or she consented to the    carrying out of the procedure[45].”

The Commission submitted[46]:

“There have been amendments to the CSA Act since the decisions in B v J and W v G.  In particular, the Reform Act inserted section 29(2)(i) into the CSA Act with effect from 1 July    2009.  The effect of this change was that a person’s status as a [parent under section 60H of the Family Law Act was included as one of the things that the Registrar needed to consider in weighing up whether he or she identified that the applicant was apparent.  This can be seen from the operation of section 29(3): if two or more paragraphs of section 29(2) are relevant to a particular application those paragraphs, or some of them, conflict with each other, then the paragraph that appears to the Registrar to be the more or less likely to be the correct presumption prevails.

This amendment seems to create an ambiguity between section 29 and section 5.  Section 29 suggests that a person’s status under section 60H of the Family Law Act can be weighed against other criteria to determine whether the person is a ‘parent’ for child support purposes.  The interpretation is given to section 5 in B v J and W v G suggests that a person’s status (or non-status) under section 60H is determinative of whether a person is a parent for child support purposes.

The Commission submits that this ambiguity could be resolved by an interpretation that involves the Registrar taking the following steps when determining whether the person is a parent of a child born as a result of artificial conception procedures.  First, to the extent that s.60H of the Family Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would make a determination, consistent with the requirements of those sections.  This would be consistent with an object of the definition of ‘parent’ in section 5 that the answer is given by an application of section 60H are to be binding. Secondly, to the extent that section 60H of the Family Law Act does not apply (i.e. to the extent that section 60H says nothing about whether a particular person is a parent) the          Registrar would consider whether any of the other criteria in section 29(2) applies.

Such an interpretation would allow consistency in the definition of ‘parent’ between the   CSA Act and the Family Law Act.

Section 7 of the CSA Act provides that, once the contrary intention appears, especially when it’s used in the CSA Act and Part VII of the Family Law Act, have the same respective meanings as in part VII of the Family Law Act.  This tends to support an interpretation of section 29 of the CSA Act that would permit a person who is a parent for the purposes of the Family Law Act to also be a parent for the purposes of the CSA Act (provided at least one of the criteria in section 29(2) of the CSA Act is satisfied).

For the reasons set out in the following section, the interpretation described in paragraph… bove would also be more likely to promote a child’s right under Article 27(4) of the CRC to recover maintenance from his or her parents.”

The applicant submitted that the definition of parent under section 5 of the Child Support (Assessment) Act 1989:

“It is not exhaustive in that it applies only in certain situations.  Clearly, this definition of ‘parent’ is not a closed class or the vast majority of parents would be excluded from liability.  It relates only to bringing in adopted children, children born via artificial conception and children born from a surrogacy arrangement, in circumstances where a child’s adoptive, non-biological AI or non-surrogate parent might otherwise be excluded from liability.

The definition of ‘parent’ does not include a natural parent or a parent who has acknowledged being a parent by signing the birth certificate.  That is the case, with [X]’s father who has signed his birth certificate.  Therefore the definition is inclusory rather than exclusory.  It is not an exhaustive list of who may be a liable parent.  Without a doubt, the definition is intended to include ‘intended parents’ who accept the responsibility of parenthood but might otherwise not be liable rather than to exclude a parent who is without a doubt a natural parent and would in all other circumstances be a liable parent.  This section does not include the word ‘only’ nor ‘and no other person’ which one would expect if only those persons could be a ‘parent’ for the purposes of the Assessment Act.  The plain meaning of the definition is to bring in persons not to exclude them… it is the finding of     Justice Fogarty in B v J… which it is submitted is in error: ‘…it is the use in s.5 of the Assessment Act of the term ‘Means’ which confines an artificial conception procedure ‘parent’ to a parent under section 60H of the Family Law Act.  The effect of that provision, as I have said, is that where a child is born as a result of an artificial conception procedure,       for the purposes of the child support legislation, only s.60H parents are parents of the children’.

However, Justice Fogarty goes on to say:

‘However, there is no corresponding provision in the Family Law Act which would exclude the biological parent from otherwise being regarded as a parent.  That is to say that it is not clear that the provisions of section 60H do not enlarge, rather than restrict, the categories of persons who are regarded as the child’s parents.’

However, he again falls into error in saying:

‘In the case of the Assessment Act, it is the word ‘means’ which makes it clear that the provision is exhaustive.  Prima facie, section 60H is not exclusive, and so there would need to be a specific provision to exclude people that otherwise would be parents.’

Justice Fogarty falls into error because the section 5 definition is not exhaustive of the categories of ways in which a person may be a parent for the purpose of the Assessment Act.

B v J can be distinguished from the present case in that it involved a same-sex couple, both of whom were available to support the child.  B v J and W v G are at odds with cases where biological fathers sought to spend time with children.  Kemble & Ebner [2008] FamCA579… and Groth & Banks [2013] FamCA430… How can it be said as a matter of public policy children have a right to know the biological parent but at the same time, those same children do not have the right to be maintained by that parent?  The net result is that   Applicants for time succeed whereas applicants for financial support fail?”

The Child Support Registrar submitted that section 5 of the Child Support (Assessment) Act provided an exhaustive definition of the meaning of “parent” with respect to the children it describes for the purposes of the Assessment Act.  The Registrar noted that the mother’s primary contention was that she and the father were in a de facto relationship such that the father was a “parent” of the child within the meaning of section 5 because he would be a parent of the child under section 60H.  The Registrar noted that if the Court didn’t accept that they were in a de facto relationship then the mother argued in the alternative that because the respondent’s name was entered as the father of the child on the birth certificate in New South Wales then the presumption in section 69R of the Family Law Act applied and ought not to be overridden.  The Registrar took the view that B & J was correctly decided and stated that section 69R of the Family Law Act did not apply to the Assessment Act, was not consistent with the orthodox principles of statutory construction nor the explanatory memorandum to the Family Law Amendment Bill 1987, which became the Act which inserted section 69R, and in any event section, 69R was merely a presumption and not conclusive.

The Registrar further said:

“Finally, even if this were not the case and the general presumptions section 69R of the FL          Act was properly considered to be in conflict with the definition of ‘parent’ then section 5 of   the Assessment Act (and not just directed towards the matters relevant to that presumption      in the FL Act), there cannot prevail over the specific definition of ‘parent’ in the Assessment      Act: generalia specialibus non derogant (where there is a conflict between general and          specific provisions, the specific provisions prevail)…”

Harman J held[47]:

“To the extent that it is submitted the provisions of the Family Law Act are irrelevant to a determination of parentage for the purpose of the Child Support (Assessment) Act I reject the submission.”

His Honour held that section 29 of the Assessment Act “clearly takes the issue beyond the presumption of parentage under the Family Law Act”[48], and in particular[49]:

“I am conscious that section 29(2)(d) would elevate the registration of birth in the father’s inclusion upon the child’s birth certificate as ‘father’ beyond a mere presumption under the Family Law Act.”

His Honour rejected the Registrar’s submissions and adopted the submissions of the Australian Human Rights Commission in totality[50].

His Honour went on to say[51]

  1. The Australian Human Rights Commission argues, and I accept, that provides nothing more than a regime by which parties to a de facto relationship, at the time that a child is conceived by artificial conception, are both deemed to be parents of a child. The “deemed” parentage is, to some extent, a legal fiction.
  2. The reference to such a deeming provision as a “legal fiction” is not intended in any way to be offensive to the partner in such relationships who is not a donor of genetic material. The provision is intended for cogent, sound and appropriate public policy reasons to acknowledge both partners as “parents” when neither is “obviously” a parent as neither is a biological or adoptive parent.
  3. This legislative recognition of a “deemed” parent potentially sits somewhat uncomfortably with a focus upon adoptive or biological parentage. But it is a law enacted by Parliament and thus creates a category of parent that is legally recognised though not “traditionally” so.
  4. The means of young [X]’s conception might be described as “nontraditional”. I am loath to use terms such as “nontraditional” in reference to a means of conception or a relationship particularly when the use of such language in other contexts has led to most disastrous and unfortunate consequences, such as the reference in some legislation, thankfully not Australian, to “traditional” relationships and the persecution of those who do not fall within some normative and undefined concept of what is “traditional”. There is nothing to be gained from using such terminology.
  5. There is a simple scientific reality in this case. Mr Kavan provided the genetic material (sperm ) which fertilised Ms Bateman’s genetic material (egg) and thus led to the eventual birth of this child.
  6. It is a simple reality that in this day and age children can be and are conceived in a variety of ways starting with but not limited to heterosexual vaginal intercourse. It is not the act of intercourse, however, which leads to conception or “begetting”. Intercourse can occur without conception (through use of birth control or contraception) or infertility. Heterosexual vaginal intercourse is simply one of many mechanical means of or catalysts to the act of conception.
  7. Medical science has moved well beyond such methods of conception. Children have, for well over 35 years, been born as a consequence of artificial conception procedures. More recently conception and child birth via surrogacy has become more common.
  8. Having the means to do something and the advisability of doing it, as Oppenheimer realised after atomic bombs were dropped on Japan, are entirely different propositions. The advisability of and a consideration of the consequences of that which can be are separate and distinct from the capacity to do.
  9. I do not propose to engage in the controversy regarding the latter of the above two methods of conception (surrogacy). Clearly, they are matters that require and indeed cry out for some public discourse to appropriately balance those matters within a social and legal context rather than simply to stand by idly wringing one’s hands saying “what is to be done?” or to assume that because once can procure children by surrogacy, including commercial surrogacy, that this makes it desirable or acceptable to do so.
  10. The “traditional” method of conception, heterosexual vaginal intercourse, as the sole definition of parentage is perhaps as relevant in 2014 as the “traditional” model of relationship is to defining human interaction (noting that whenever the term “traditional relationship” is used it would appear to be left deliberately undefined to allow its use as an instrument of persecution and oppression on a case by case basis).
  11. Change happens over time and the law needs to be conscious of and responsive to change. As was opined by Oliver Wendell Holmes in “The Path of the Law”:
    • “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it as laid down have vanished long since, and the rule simply persists upon blind imitation of the past”
  12. To illustrate change one might examine the bases of jurisdiction in parenting disputes. Absent the referral of powers by States in 1987 the basis of this Court’s jurisdiction would be confined to the constitutional heads of power of “marriage” and “matrimonial causes”. This limited basis of jurisdiction reflects that which was relevant at the time of the drafting of the Constitution in 1900 when the only legally recognised and only socially approved form of relationship was a marriage between a man and a woman and children born within wedlock. Thus, until relatively recent times (1987), children born “outside of wedlock” (such as a child born to parties to a de facto relationship) were treated differently and treated differently from State to State.
  13. Since 1900 society has moved a great deal forward. There are now a variety of different relationships, all of which are equally valid and as diverse and different.
  14. Relationships should be the last and ultimate domain of the private. Each relationship is authentic and genuine to the people within it and anything that comes from without is judgment.
  15. Relationships ought not to be categorised as abnormal. In that regard and not entirely flippantly Derek Jarman had commented: “heterosexuality isn’t normal it’s just common”
  1. To take the view that there is or should be a traditional or normative relationship or prescribing a particular model of family which is preferred as acceptable socially or otherwise is a manifestation of hierarchy and privilege. It is also offensive to all who do not fall within that norm. That includes not only those who are gender diverse but those who are culturally diverse. There are many formulations of family and many understandings of who is a parent extending well and truly beyond the cultural confines of Anglo normative thinking.
  2. Different relationships are simply different. Children are born to single parents, increasingly so (and I am not ignorant of the volumes written addressing the disadvantages that can arise for parents and children within those structures though they can be addressed readily especially those which are financial). Children are born to same sex couples through artificial conception procedures. Children are born into a variety of families and conceived by a variety of means.
  3. The one thing that is common to every conception is the fertilisation of an egg by a spermno matter how the two may have met.
  4. These are not matters, by and large, which need be dealt with by these Reasons as the parties have agreed. These issues do, however, speak to the rights-based approach which I am urged by the Australian Human Rights Commission to adopt. In this case I accept that such an approach has some real force and application.
  5. The Australian Human Rights Commission submits that section 60Hof the Family Law Act, providing, as it does, for the recognition of a nonbiological parent as a parent, steps outside of that which is discussed in a body of case law regarding the “begetting” of children as a fundamental element of parentage. An erudite discussion of case law relating to same is contained within the Australian Human Rights Commission’s submissions.
  6. I am satisfied, as is submitted by the Australian Human Rights Commission, that the changes brought to the child support legislation by section 29 are such that this earlier body of case law can be distinguished.
  7. To the extent that the definitions relied upon in the earlier applicable legislation were far more limited they are no longer relevant to the circumstances of this family and this child.
  8. Ultimately, I am satisfied that to ignore the simple scientific reality of this child’s conception would be an injustice. It is the role of courts to ensure justice.
  9. To distinguish between a child, the conception of whom is clear and undisputed (even though there are many other disputes regarding the relationship between the parents), and another child whose conception is equally clear and undisputed purely on the basis that, in one case, the genetic material of the two parents was introduced by vaginal intercourse and, in another, the genetic material of the two parents was differently introduced is unjust and would make, in the words of George Chapman, “an ass of the law”.
  10. To treat a child born as the agreed product of the genetic material of two known and consenting individuals differently to another child, purely as the penis of one did not enter the vagina of the other, even though both are born in circumstances of equal certainty as to the donators of genetic material, the child’s“begetters”would be, I am satisfied, inherently unjust.
  11. The simple reality that this young lad has been conceived from one parent’s sperm and the other’s egg, without vaginal intercourse as the mechanical means of conception, should be irrelevant. He is born of two known individuals who acknowledge that fact. The child has a right to know that and a right to be financially supported by both in accordance with the means of those individuals and in accordance with law.”

His Honour went on to say[52]:

  1. “There is an abundant body of research in the modern world relating to children who are removed from family, children who have been adopted and children born as a consequence of artificial conception procedures, particularly those born from procedures with anonymous donors. That research alerts the community, of which the Court is a part, to the great distress that can be caused for children by and as a consequence of being deprived of that right to have knowledge of these matters.
  2. There should be no distinction between this child and any other child whose donator of genetic material is clearly known and based upon a distinction drawn purely on the means by which fertilisation of a human egg occurred. The child has a right to know his parentage and, as is indicated by the submissions of the Australian Human Rights Commission and those of the mother, a right to receive financial support from his parents.”

Farnell & Chanbua [2016] FCWA 17

This is the Baby Gammy case. Thackray CJ found that Mr and Mrs Farnell were not the parents although they had undertaken surrogacy from Western Australia in Thailand. His Honour specifically rejected making intention part of the process of determining parentage[53]:

“In my view, the law in this area is already sufficiently fraught for it to be highly undesirable to introduce the contestable element of “intention”. One need only look at the time and money expended on this litigation to see how difficult it can be to establish intention.”

His Honour found that there was a “coherent national legal framework”  between the Family Law Act and the State and Territory Status of Children Acts[54].

Bernieres and Dhopal [2017] FamCAFC 180

A similar approach was taken in Bernieres. Mr and Mrs Bernieres had travelled from Victoria to do surrogacy in India. They entered a contract of surrogacy with a surrogate and her husband. A child was conceived and born, using an embryo comprised of Mr Bernieres’ sperm and an egg from a  donor. When the child was born, it was born Stateless. It then acquired Australian citizenship through the parentage of the Bernieres.

Since 2010, the test for parentage for citizenship is who is seen in the wider view of Australian society to be a parent[55]. Biology is not needed. This approach for family law was specifically rejected in Farnell, which was described as “anomalous”[56].

On return to Melbourne, the Bernieres applied for three things:

  1. That the child lives with them. This was granted.
  2. That they have parental responsibility. This was granted.
  3. That they have a declaration that they are the parents. Berman J refused this[57].

His Honour took the view that there was a scheme between the Family Law Act, that the only possibility for recognition of Mr and Mrs Bernieres as the parents was under s.60HB. They could not be recognised under that section because in order to obtain a substitute parentage order in Victoria required the assisted reproductive treatment in Victoria, whereas it had occurred in India. It was not the Court’s role to fix the gap.

The Bernieres appealed. The appeal was dismissed. The Full Court’s view was that there was a scheme between the Family Law Act and the Victorian Status of Children Act. The Bernieres were not recognised under the Family Law Act, were not recognised under the Status of Children Act, and were therefore not the child’s parents.

The Full Court did not consider the International Convention on the Rights of the Child, which sets out the need for decisions makers to take into account the best interests of the child (Art. 1) and the child’s right to an identity (Art. 8).

The logical conclusion of the Full Court’s view is either that:

  • The child has no parents. This could not be right as a matter of public policy.
  • The child’s parents are the Indian couple, people:
    • who did not intend to be parents
    • who contracted not to be the parents
    • have no genetic connection with the child
    • are not (and have never) caring for the child,
    • are not recognised under Indian law as the parents (which is why the child was born Stateless in India), and
    • most importantly from the child’s perspective are not recognised as the parents.

In light of Masson v Parsons, the approach taken in Bernieres cannot now be the law. It is clear that:

  1. Mr and Mrs Bernieres intended to be the parents.
  2. Both had their names ascribed as the child’s parents on the birth certificate because they intended to parent.
  3. Mr Bernieres was the genetic father.
  4. Mr and Mrs Bernieres have parented the child from birth.
  5. Their parentage was recognised under an administrative process for citizenship that is at its essence the same as now applies under the Family Law Act.

Following the approach in Masson below, Mr and Mrs Bernieres would be the parents.

The registration cases

There were a series of cases[58] between 2016 and 2018 before Forrest J and Carew J in Brisbane seeking to register overseas child orders when a US court had made a surrogacy order. The effect of registration would avoid the effect of Bernieres, as parents recognised by order in the United States would, by virtue of registration, be recognised as the parents in Australia. Forrest J made the registration orders. Carew J did not. Both judges were concerned about whether or not the surrogacy arrangements were commercial surrogacy arrangements.

In light of Masson, it would appear that registration is not required. The process of undertaking surrogacy in the US, for example, typically there will be this document trail:

  1. Retention of a surrogacy agency by the intended parents – seeking that the agency match them with a surrogate.
  2. If egg donation is involved (as it commonly is), an agreement with an egg donor whereby the intended parents will be the parents of any child born.
  3. An agreement with a surrogate, whereby the intended parents will be the parents of the child born, and the surrogate will not be.
  4. Pleadings for court to the same effect.
  5. A court order or orders by which the intended parents are named as the parents, and any parentage rights in favour of the surrogate and her spouse or partner are terminated.
  6. A birth certificate identifying the intended parents as the parents.
  7. The application for citizenship[59].

Masson v Parsons [2019] HCA 21

Robert Masson was a gay man who wanted to be a parent. His good friend of many years Susan Parsons was happy to oblige. On two occasions Robert supplied Susan with a quantity of sperm at her house. The second time worked. Susan had a romantic relationship with Margaret. They subsequently married. On the second occasion, Margaret helped Susan get pregnant.

Following the birth of a girl, Robert and Susan were named on the birth certificate as the parents. This was necessarily by consent. The child then called him Daddy for the next 10 years. In the meantime, Susan and Margaret married. They had a second child, also carried by Susan, but this time the sperm came from a clinic recruited sperm donor.

Robert found out that Susan and Margaret intended to relocate with the children to New Zealand. He applied to stop them. The critical issue at trial was whether he was a parent.

Susan and Margaret argued that they were a couple under s.60H- and therefore Robert was not a parent. Cleary J[60] rejected this.

They then argued that there was a scheme between the Family Law Act and the State Status of Children Acts- and as a result Robert was not a parent. Again this was rejected. Cleary J found that as a matter of fact, Robert was a parent due to:

  • Biology
  • Intention

Susan and Margaret appealed as to the finding that Robert was a parent. Their appeal was successful[61]. Thackray J rejected that intention was an element of parentage[62], noting that the Full Court had always rejected intention as an element. His Honour found that, as he had done in Farnell, that there was a coherent national framework between the Family Law Act and the State Acts[63]. Given that national framework, the Court found that Mr Masson was not a parent, as he was not specifically identified under the Family Law Act, and was not  a parent under the NSW Status of Children Act. Genetics, intention and parenting the child were irrelevant.

Mr Masson obtained leave to appeal to the High Court. The court unanimously upheld the appeal. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ delivered a joint judgment. Edelman J agreed with the outcome, but focused on a constitutional point.

Their Honours found:

  • Who is a parent is a question of fact.
  • A parent is someone seen in the wider view of Australian society to be a parent.
  • Where there is conflict between the Family Law Act and the State or Territory Act, the former prevails. There is no scheme.
  • There might be recognition under the Family Law Act for more than two parents to be recognised.
  • Mr Masson was a parent, not because he was a sperm donor, but because:
    1. He supplied his sperm on the express or implied understanding that he was to be a parent.
    2. He consented to being named as a parent on the birth certificate as he intended to parent.
    3. He then engaged in parenting the child.

The plurality stated:

At [26]:

Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning….Section 60B(1) perhaps suggests that a child cannot have more than two parents within the meaning of the Family Law Act. But whether or not that is so, s 60B(1) is not inconsistent with a conception of parent which, in the absence of contrary statutory provision, accords to ordinary acceptation

At [29]:

In In re G (Children), Baroness Hale of Richmond observed in relation to comparable English legislation that, according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.

At [44]:

Div[ision] 1 of P[ar]t VII of the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning. In some respects, most notably in s 60H, the Family Law Act may be seen as expanding the conception of “parent” beyond ordinary acceptation by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures. Additionally, under s 60G, a person may qualify as a parent of a child born of an artificial conception procedure by reason of the person’s adoption of the child under the law of a State or Territory. But ss 60H and 60G are not exhaustive of the classes of persons who may qualify as parents of children born of artificial conception procedures. It remains that, apart from those specific provisions, the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”. And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.

At [45]:

It is also necessary to appreciate, as is explained later in these reasons, that the evident purpose of s 60H and more generally of Div[ision] 1 of P[ar]t VII of the Family Law Act is that the range of persons who may qualify as a parent of a child born of an artificial conception procedure should be no more restricted than is provided for in Div[ision] 1 of P[ar]t VII. Consequently, although ss 60G and 60H are not exhaustive of the persons who may qualify as parents of children born of artificial conception procedures, if a person does qualify as a child’s parent either under s 60G by reason of adoption, or according to s 60H, or according to ordinary acceptation of the word “parent”, it is beside the point that a State or Territory provision like s 14(2) of the Status of Children Act otherwise provides. Section 79(1) of the Judiciary Act does not operate to insert provisions of State law into a Commonwealth legislative scheme which is “complete upon its face” or where, upon their proper construction, the provisions of the Commonwealth scheme can “be seen to have left no room” for the operation of State provision. And, as is apparent from its text, context and history, Div[ision] 1 of P[ar]t VII of the Family Law Act leaves no room for the operation of contrary State or Territory provisions. In effect, it contains an implicit negative proposition that nothing other than what it provides with respect to parentage is to be the subject of legislation.

At [47]:

During the 1980s, that [status of children] legislation was expanded to deal with the consequences of advances in the field of artificial conception, initially in terms confined to the status of children born to married women who conceived by assisted conception, but later so as to encompass children born to lesbian couples and single women. As Victoria submitted, there is no doubt that it was one of the purposes of those enactments to ensure that a husband who consented to the artificial insemination of his wife with semen obtained from another man would irrebuttably be presumed to be the father of the child and that the legal links between the donor of the sperm used in the artificial conception procedure and the child thus conceived be dissolved. It is, however, plain from the referral of powers by the relevant States to the Commonwealth that the object of the exercise was to facilitate the creation of a uniformly applicable Commonwealth scheme, and plain from the form of Div[ision] 1 of P[ar]t VII, and particularly from the current forms of ss 60G and 60H, that Div[ision] 1 of P[ar]t VII is designedly selective as to the State and Territory provisions relating to parentage that the Commonwealth permits to apply. Sections 60H(2) and 60H(3) in particular create an obviously intended capacity for the Commonwealth from time to time to add or to choose not to add, or to exclude, those of the State and Territory legislative provisions determinative of the parentage of a biological father of a child born as a result of an artificial conception procedure that apply under the Family Law Act.

At [48]:

The evident purpose of Div[ision] 1 of P[ar]t VII of the Family Law Act is that the Commonwealth is to have sole control of the provisions that will be determinative of parentage under the Act.

At [53]-[55]:

  1. Finally, counsel for the first and second respondents and counsel for Victoria contended that … this Court should hold that the ordinary, accepted English meaning of “parent” excludes a “sperm donor”.
  1. Those submissions must also be rejected. As has been explained, the ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.
  2. It is unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”. In the circumstances of this case, no reason has been shown to doubt the primary judge’s conclusion that the appellant is a parent of his daughter.

Complications in Qld (and the NT)

In Lamb and Shaw[64], decided before Masson, Tree J was faced with a failed surrogacy arrangement involving a single surrogate. His Honour considered the particular provisions of the Status of Children Act 1978 (Qld) that provide that the man who provided the sperm unless married to the mother has “no rights or liabilities in relation to the child”. Tree J found that this meant that the man, by being the genetic father, was a parent, albeit one who has no rights or responsibilities.

His Honour noted that the Status of Children Act 1978 (Qld) and Surrogacy Act 2010 (Qld) were separate laws, and that his determination should be under the former, rather than the latter. He rejected the submission of the surrogate that the meaning of the provision was that the man was not the father.

The same language appears in the Status of Children Act 1978 (NT).

Regrettably, it appears that his Honour did not know of the following:

  • A communique of Attorneys-General made plain that sperm donors were not to be parents by having no rights or liabilities to the child. The Queensland and NT Acts take up this specific language.
  • The second reading speeches of the various Attorneys in Queensland make plain that the sperm donor is not to be a parent under Queensland law.
  • While it appears that the Status of Children Act 1978 (Qld) and the Surrogacy Act 2010 (Qld) are different beasts, they are entwined. The latter amended the former in various respects, including the section in question, but also added provisions so that female same sex partners are recognised as the parents (but that the man who produced the sperm in those cases had “no rights or liabilities in relation to the child”) and amended the Births, Deaths and Marriages Act 2003 (Qld) so that there is a maximum of two parents on the birth certificate in Queensland.

It seems crystal clear in Queensland that the sperm donor is not a parent for the operation of State presumptions. That was made clear in RBK & MMJ [2019] QChC 42[65], where Richards DCJ rejected Tree J’s approach, albeit after Masson was decided:

“[14] It follows from this that the interpretation of the Surrogacy Act by Tree J was unnecessary given that the Family Law Act provides a complete answer to the issue of who is a parent for the purposes of that jurisdiction.

[15] Tree J’s interpretation of the Status of Children Act and the Surrogacy Act in my view cannot be correct if it means that a sperm donor who wishes to be an intended parent is instead a birth parent because of the different terms used in s 21 of the Act. This is because the reference to the man who produced the semen having no rights or liabilities in respect of a child to be born as a result of pregnancy is also used in s 19C(2) in a situation where there has been artificial insemination and the female bearing the child has a female de facto partner or a female registered partner.

[16] If it is correct that a child who is born as a result of donor semen by a man intending to become the full-time parent of the child with his male partner becomes for the purposes of the Act a birth parent; then, on that basis, there will be different meanings assigned to the same phrase in ss 19C and 21 of the Act. This is because of the interplay between those sections and s 10A of the Births, Deaths and Marriages Registration Act which allows for only two people to be registered as parents in the birth certificate. In the case of s 19C of the Act that would be the mother of the child and her female partner.

[17] The better view then is that it cannot be that a semen donor in a case such as this is a birth parent within the meaning of the Surrogacy Act. The interpretation that fits both the Status of Children Act and the Births, Deaths and Marriages Registration Act is that a birth parent by definition is a person other than an intended parent. This means that once a person has entered into a surrogacy agreement as an intended parent they are excluded by the definition in s 8(3) of the Surrogacy Act from being a birth parent. This does not take away from the fact that they are a biological parent but accords with the provision that they have no rights or liabilities as a result of the donation of the sperm.”

Who is a parent for State surrogacy or adoption proceedings?

In seeking a parentage order in State or ACT proceedings, it is clear that the parentage presumption is that of the State or ACT, not the Family Law Act. The Family Law Act recognises such orders under s.60HB, and in doing so must recognise the State or ACT processes that lead to the making of the orders. As the Full Court said in Bernieres[66]:

“(T)he plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act.”

But what if the surrogacy arrangement breaks down? As RBK and MMJ makes plain, the parenting presumptions that then apply are under the Family Law Act[67]. What is not known is whether someone who intends to be a parent, and would therefore meet that element of being a parent under the Masson test would be a parent under the Family Law Act, when the understanding at all times was to obtain an order under State or Territory laws, and that order has not been obtained.

If the intended parent is then recognised as a parent, it might mean that the whole of State and Territory regulation (recognised in effect under s.60HB), other than as to criminal offences, is put to one side. In Johnson v Calvert (1993) 5 Cal. 4th 87, a decision of the Supreme Court of California the intended parents were recognised as the natural parents of the child under a failed surrogacy agreement because the intention was for them to be the parents, not for the woman who was receiving their embryo, to be a parent.

In Buzzanca v Buzzanca (1998) 61 Cal. App. 4th 1412, the California Court of Appeal took the same approach, based on intention, so that the intended parents were held to be the parents of  a child born through surrogacy, although they had no genetic connection with the child.

Similarly with adoption proceedings, State presumptions apply, as there has never been a referral of power to the Commonwealth by the States.

All very good – but can a child have three parents?

The law in Australia, subject to a test case arising after Masson, recognises only two parents.  In some foreign jurisdictions, recognising the complexity of children conceived through donors, courts or legislature has recognised that a child can have three parents.  The typical scenario would be a gay sperm donor providing sperm to a lesbian couple enabling the conception of a child.

Packer & Irwin [2013] FCCA 658

A non-biological mother of two children sought various parenting orders, including extra time with the children. The biological mother (for whom I acted) had conceived the children following sperm from a known donor.  The three parties had executed a sperm donor agreement.

The children had a distant relationship, at best with the non-biological mother.  By contrast the relationship with the sperm donor who, in the opinion of the family report writer was to all intents and purposes the father, even though no one called him that, was solid.  He was very much involved in the children’s lives.

L Turner J stated, under “additional issues”[68]:

“Much was made of Mr Jeffrey lack of legal status as the father of the children.  I find that as a person actively involved in the care, welfare and development of the children pursuant that it is appropriate for Mr Jeffrey to be part of the Court proceedings.  Further, it was suggested that Mr Jeffrey may be trying to displace Ms Packer as the parent.  I agree with     the comment of the report writer in cross-examination ‘that’s just silly’ and that ‘children       can have three parents!”

Reiby & Meadowbank [2013] FCCA 2040

In January 2010 Mr Reiby had been a friend of Ms Meadowbank, sent her a text message:

“Hey does anyone want to be a surrogate for me or have a baby with me?”

The text message was not sent to anyone else.

Somehow out of this text message and subsequent discussions, Mr Reiby thought that he was going to be the father of a child and Ms Meadowbank and her partner thought they were going to be the parents of the child and Mr Reiby merely a sperm donor.

Not surprisingly this train wreck reached court.  The child was two.  This case is an illustration of two things:

  1. The latest illustration of differences between the parties as to their respective roles;
  2. The complete disregarding of the sperm donor agreement.

Mr Reiby in going to trial considered that it was appropriate for an equal time arrangement to be entered into such that the two year old would spend week about between his care and that of the respondents.  He altered his position at trial proposing 9/5 fortnight in their favour, with equal shared parental responsibility between the three adults.  The respondents proposed that they have between them equal shared parental responsibility and that he have some vague day time contact.

The respondents were successful.

The case is a classic example of why parties ought to have fertility counselling before entering into such an arrangement as well as being just the latest demonstration about the dangers of using a known donor and when things go wrong, they go badly wrong.

Small J noted that the donor was not a parent, by virtue of section 60H but was “clearly” a person concerned with the care, welfare and development of the child and noted the Full Court decision in Donnell & Dovey [2010] FamCAFC 15, which made it clear that not only might children’s best interests be served by them spending time or even living with people who are not parents under the Act but those relationships may be of more importance to a child than his/her relationship with his/her legally defined parents.  It was submitted on behalf of Mr Reiby that the amendments to section 60H[69]:

“To exclude the donor of genetic material as a ‘parent’ were never intended to override the principles discussed in the two cases referred to above or to exclude a known and involved father (sic) from parenting a child.  Very clear legislative intent would be required to do that.”

Her Honour in noting Groth & Banks noted that the child was born while the mother was the de facto partner of another person, that section 60H applies and[70]:

“Therefore any argument that I should consider this case as affording an opportunity to   expand the category of ‘parent’ must fail.”

Her Honour placed no weight on the sperm donor agreement:

“The concepts of ‘intention’ or of ‘intent’ are in my view, better suited to the jurisdictions of general, civil and criminal law than to family law parenting matters.  In the words of the Respondents’ counsel’s written submissions: ‘the submissions are not a contract dispute’. The Family Law Act 1975… makes clear that any rights contained in Part VII of the Act belong to the child and not to the parents or any other party (s.60B).  Thus it is not possible for parents and any other person or persons to make contractually binding agreements about a child’s care unless those agreements are contained in a Minute of Proposed    Consent Orders which is then made an order of the Court.  Further, s60CA makes clear that in making any particular parenting order, the court must regard the best interests of the child as its paramount consideration.  I can find no mention of the ‘intention’ or the child’s parents (or other parties) as a consideration anywhere in Part VII of the Act other than s.60H(1)(a)…  For these reasons I do not place any weight on any agreements, the parties might or might not have reached about X’s care before the institution of these proceedings. She has statutory rights under the Act and there simply cannot be contracted away by her parents and/or any third party.  …regardless of whether the parties agree to certain matters    before the institution of these proceedings, that alleged agreement, and/or the intention    behind it, is not a matter that should influence the court’s decision in this parenting case. The parents are not in agreement now, and that is the starting point for the court’s    consideration.[71]

Her Honour ordered that the Respondents have sole parental responsibility for the child and the child live with the donor to have daytime contact on a weekly basis gradually increasing over time.  Once the child commenced school it would be once a weekend per month during school term from 10am Saturday to 5pm Sunday, each Wednesday from afterschool until after dinner, by telephone every other Saturday and two weeks a year in school holidays as well as other special occasions.

Of course, this was decided pre-Masson. Masson makes plain that sperm donor agreements should be entered into and should be in writing. I have noticed in my practice a particular increase in sperm donor agreements in 2020 and 2021. I had thought it was to do with the effect of Masson. It appears mainly due to a shortage of sperm donors through IVF clinics, caused by Covid, resulting in intended mothers speaking to friends to become sperm donors.

What of the anonymous sperm donor?

Case law has said consistently that an anonymous sperm donor is not a parent:

  • Groth & Banks [2013] FamCA 430 at [12]
  • Baker & Landon [2010] FMCAfam 280 at [43]-[46]
  • Tinashe [2021] FamCA 41.

Removal of the sperm donor as a parent on the birth certificate

AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC100

A lesbian couple were in a relationship – AA and AC.  AC was the birth mother.  BB was a known sperm donor.  AB and AC separated.  BB was registered for many years as the child’s father.

The issue before the court was whether the non-biological mother, AA should be registered under Births, Deaths and Marriages Registration Act 1995 (NSW) as a parent of the child and therefore BB as the father should be removed from the Register.  AA and AC placed an advertisement in a gay newspaper seeking a donor, view to being “uncle” figure to child.  No financial obligation.  At the same time BB placed an advertisement in a lesbian newspaper “sperm donour(sic) professional male mid-forties would like to meet lesbian lady to view of producing a child.”

BB donated sperm.  The sperm was inserted into AC by syringe.  After 3 or 4 attempts, AC became pregnant.  BB visited the child the day after the child’s birth and was invited to visit whenever he chose.  He contributed close to $10,000 towards midwifery consultations.  After the child’s birth he paid $150 per week for her maintenance for some years.  The child’s birth was registered in August 2001.  AC was registered as the mother.  The section for father was left blank.  At that time there was no legislative provision in New South Wales permitting registration of more than one female as a child’s parent.  The mother stated in evidence:

“I left the spot for ‘father’ blank.  It was not possible to list a second female parent in NSW at that time.  If it had been possible, I would have listed [AA] as [AB’s] other parent.”

Within months of the birth BB’s relationship with AA and AC had ceased to be amicable.  In 2002 BB applied to the Family Court for contact orders.  Contact orders were made in 2003.

In 2002 BB’s name was placed on the birth register as AB’s father.  Both AC and BB signed a statutory declaration giving BB’s name, address and occupation, date of birth in the section called father’s particulars.

The non-biological mother stated in evidence:

“As [BB] was the sperm donor and AB was conceived through assisted conception, my understanding at the time that [AC] and [BB] arranged to include [BB’s] name on the birth certificate was that it was intended as a purely symbolic gesture without any legal effect.”

In 2006 there was a relationship breakdown between AA and AC, resulting in the child in a week about basis between the two women.  In 2007 there were further orders in the Family Court sharing parental responsibility between AA and AC and allowing for an increase of time between AB and BB.

In 2008 the law of New South Wales was changed to allow the recognition of the non-biological mother on the birth certificate.  The legislation was retrospective.

AA sought to have her name registered as the second parent.  The Registrar refused without BB’s consent or a court order.

BB not surprisingly refused the request:

“In addition to me being [AB’s] biological donor, I take offence at this description as far as I am concerned I am and always will be [her] father…”

Counsel for AA noted that BB was presumed to be a parent because he had executed an instrument acknowledging his paternity and he was entered on the Register of Births, Deaths and Marriages as the father.  However the presumption that AA was the other parent was irebuttable and must prevail over the rebuttable presumptions.  Once AA was presumed to be the parent on which she had rights on the Births, Deaths and Marriages Registration Act.  Judge Walmsley SC accepted the arguments of AA and distinguished a Canadian decision which concerned an application of a declaration of parentage for three parents based on the parens patriae jurisdiction which enabled the sperm donor father in obtaining the declaration the child had three parents, on the basis that the jurisdiction being exercised in the District Court was not the parens patriae  jurisdiction.

AA v Registrar of Births, Deaths and Marriages and BB was followed in similar facts in Dent & Reece [2012] FMCAfam 1303.

In Lu v Registrar of Births, Deaths and Marriages (2) [2013]NSWDC123 P Taylor SC DCJ followed AA v Registrar of Births, Deaths and Marriages and BB stating:

“I do not think a finding of the father is a biological father of the child is relevantly finding that the father ‘is the child’s parent’ and adopted child, is at law, parents that commonly would not include the biological father, for example. In my view, the creation of an operative presumption on section 12 of the Status of Children Act[72]requires a judicial determination that a person is the legal father, or the legal parent, not merely the biological parent.”

His Honour therefore found that the non-biological mother or mother should have her name added to the child’s birth registration.

A & B v C [2014] QSC111

This was a similar case to the New South Wales case.  Ann Lyons J followed AA v Registrar of Births, Deaths and Marriages and BB  holding:

“A Registrar of Births, Deaths and Marriages is, as has been discussed in the NSW decisions, a register of statistical and evidential Information mainly for the purposes of succession law.  It is not a register of genetic material.”

That the Supreme Court had parens patriae jurisdiction, but the sperm donor was self-represented.  He did not appear to raise the issue of whether or not the court should exercise its parens partiae jurisdiction.

One has to wonder about how these decisions would now be decided post-Masson.

Use of donor agreements

I was once of the view that donor agreements were a waste of time. As Reiby & Meadowbank demonstrates, they may in large part be ignored by the court.

I am of the view, however, that if you have clients who against your advice are insistent on having a known donor, then to avoid a train wreck such as Reiby & Meadowbank they ought to take three steps:

  1. There should be extensive, meaningful discussions between them about their respective roles. There shouldn’t be 3 or more shades of grey.
  2. They should have comprehensive counselling with a fertility counsellor, typically a psychologist who is a member of the Australia New Zealand Infertility Counsellors Association (ANZICA).  There are some fertility counsellors in private practice and others associated with IVF Clinics.
  3. There should be a written sperm or other donor agreement in place.

As Reiby & Meadowbank makes plain, a sperm donor agreement may not be legally binding.  However, it can contain strong moral arguments which may have an impact in reducing conflict between the parties, simply because it is in writing and each of the parties has signed up.

It is therefore essential that any sperm or other donor agreement is properly drafted and not merely one downloaded from the web.  Parties need to have put thought into the process.  Part of my thinking has come about from two surrogacy cases in which I have been involved.

Surrogacy Case A

I acted for the intended parents, a gay couple.  The biological father had been friends for 14 years with the surrogate.  It was a traditional surrogacy, which means that the surrogate was also the mother.  The surrogate was single.

One embryo was implanted.  The embryo divided, resulting in the conception of identical twins.  The pregnancy was difficult and child birth worse.  Following the births, the surrogate (and mother) considered that she may want to have the children living with her (along the lines of Re Evelyn [1998] FamCA 55.  My clients contacted me late at night because it seemed that whatever they were discussing with their friend the surrogate didn’t seem to be working.  At their request I sent them a copy of the signed surrogacy arrangement.

The surrogate was particularly unhappy to see, at her hospital bed, a copy of the signed surrogacy arrangement, with the finger pointed “you signed there”.  The shock value had its impact, however, and with some delicate negotiations it was agreed that the children would be in the care of the intended parents and not the surrogate.

Subsequently a parentage order was made amicably.

Surrogacy Case B

The intended parents and surrogate entered into a surrogacy arrangement in Victoria.  Written surrogacy arrangements are not required in Victoria.  The parties attended counselling and obtained legal advice.  They obtained approval from the patient review panel.  Treatment commenced and a child was conceived and born.

Subsequently there was a falling out between the intended parents and the surrogate.

I became involved at the time of filing proceedings.  It was hard to see what the parties had agreed to when there was not a written surrogacy arrangement.

The court ordered that the parties attend counselling.  One of the issues addressed in counselling was that the surrogate and the intended parents had different expectations arising from the surrogacy arrangement.  It was clear that part of the reason they had different expectations was because that those expectations had not been reduced to writing in a surrogacy arrangement.  It was clear that if they had done so much of the trouble between the parties might have been avoided.

Care, Welfare and Development

Sperm donors may well be someone concerned with the care , welfare and development of a child and therefore have standing to obtain orders under the Act.  Probably the best illustration of that was Halifax & Fabian.

Halifax & Fabian & Others [2009]FMCAfam 972

Ms Halifax and Ms Fabian were a lesbian couple.  They each decided to have children.  Ms Halifax’s child was conceived from a known donor, a family friend Mr Dalton.  The child, X, was aged 7.  Ms Fabian’s child, Y, was conceived from an anonymous donor accessed through an IVF clinic.  There was no genetic relationship between the two children, but they were treated as sisters.

After they separated Ms Fabian wanted to move interstate from Brisbane to Sydney with her child.  That intention was opposed by Ms Halifax and by Mr Dalton and his partner Mr Ballard.  The preliminary question determined by Judge Purdon-Sully was whether Mr Dalton and Mr Ballard had standing to seek any parenting orders with respect to X, Ms Fabian’s child.  There was after all no genetic link by Mr Dalton to that child.  Similarly there was no genetic link by Mr Ballard to X.

Ms Halifax argued that discretely or even cumulatively, occasional dinners in the city, attendance at X’s first birthday party, attendance at an ultrasound procedure, a subjective desire to care for a child and being a designated RSVP contact on an invitation, do not create parental rights and legal standing.  However in the circumstances of the case the evidence pointed to something more than this, something more than supportive friends helping each other out without intending to create any other parenting rights, resulting in the necessary degree or strength of the nexus or concern between each of Mr Dalton and Mr Ballard and the care, welfare and development of X, such that they had the necessary standing.

The evidence of Mr Dalton and Mr Ballard was:

  • They were involved in the parenting of both children. They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end.
  • Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline and all four adults agreeing to remain living in South -East Queensland.
  • They accepted Ms Fabian’s invitation to attend her 12 week pregnancy scan.
  • They visited the hospital the day of X’s birth and daily thereafter and cared for Y until X was brought home.
  • They were introduced as “daddy” to the friends and family of both women. It appeared to be conceded that X referred to her mother and Ms Halifax as “mummy” and “mamma” and to Mr Dalton as “daddy”, Mr Ballard by either his first name and possibly “daddy (and his first name).  The family report writer observed that the children used these names with the four adults during her interviews notwithstanding that those interviews occurred some months after separation.
  • The children developed a close attachment to each other and to them. The family report writer observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with both men.  Ms Fabian acknowledged to the family report writer that the men loved X, that X was comfortable with them and that they had a bond with her and she’d spend time her, her complaint being that they should not be permitted to assume a parental-decision making role.
  • They spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time. Whilst Ms Fabian’s refusal to agree to overnight time caused some angst and created problems, on their evidence, with Y’s arrangements, on one occasion Ms Fabian did agree to this to enable X to spend time with Mr Ballard’s mother who was visiting H.
  • They exchanged gifts with the children on birthdays, special occasions, on Fathers Day and at Christmas, including after the women had separated. Ms Fabian accepted that they celebrated Fathers Day with the men, albeit her evidence was that Ms Halifax usually initiated the purchase of gifts for the men and that on a shopping trip with the children at Christmas she helped the children purchase gifts for the men and that she purchased Easter Eggs the following year as a gift from the children for the men.
  • They socialised, attended activities, celebrated special occasions and had holidays together.
  • They attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.
  • They established a separate bedroom for the children with a bed that converted to two single beds to accommodate any overnight stays and did so with the knowledge and without objection from either of the women.
  • X had a photo of the men in her bedroom.
  • They were listed by Ms Halifax as emergency contacts in two years at X’s daycare centre.
  • Ms Fabian consulted Mr Dalton about some medical issues to do with X given his medical background.

The matter was ultimately litigated in the Family Court as Halifax & Fabian [2010] FamCA 1212 but proceedings with the men by that stage had settled.

Cronin J noted a paper by psychologist Catherine Boland at the National Family Law Conference (2010)  “Outside the nuclear family – children’s outcomes and experiences in same sex families”:

“In many lesbian families there is a conscious avoidance of language that makes distinctions around biology.  Unfortunately in research that looks specifically at the role of the co-mother, the child’s attachment to her and the strengths and challenges of this role, is still in its infancy…very little research specifically examines the experiences where women in a lesbian couple each have a pregnancy or multiple pregnancies and yet this seems to be an emerging variable of importance and certainly seems to be a typical pattern of family formation.”

It might be noted in Halifax & Fabian that Mr Dalton was named on Y’s birth certificate but that no father was recorded on X’s birth certificate.  Ms Fabian did not seek to be named on the birth certificate of Y (which would have resulted in the removal of Mr Dalton) but an issue in the case was whether Ms Halifax should be recorded on the birth certificate of X.  Cronin J stated[73]:

“Ms Halifax wants to be on the birth certificate of X.  When Ms Halifax was questioned    about why it should be done, she simply said it was because it was she was the parent of X. Ms Fabian refuses the option now open under State Law.  Ms Fabian was cross-examined about her position.  She pointed at the fact that she could not be on Y’s birth certificate and did not see what the point was all about.  Her view of the law is not entirely correct because an application could be made at the Supreme Court for an alteration of the birth certificate   in respect of Y.  This however, is another example of Ms Fabian separating out what was once a family unit.

Ms Halifax’s submission was that her addition to the birth certificate of X was a ‘proper recognition’ of the relationship between she and X.  All that is to do with practical assistance for the determination of ‘legal rights’ involving X.  Counsel for Ms Halifax   described Ms Fabian’s position as one in which it was ‘unfair’ to Ms Halifax because the     same position could not apply in respect of Y.  In my view, two points need to be made. First, Ms Fabian’s evidence was that she saw no need for the addition rather than it being   unfair.  I accept that.  Secondly, the issue must still be determined on what is in the best interests of X.  No such demonstration was made on the evidence.

Accordingly, I fail to see what benefit these children would have at this time in their lives where there is a psychological separation occurring by Ms Fabian from Y and an attempt at distancing X from Ms Halifax.  It is not therefore in the best interests of these children for that birth certificate entry to be made.”

Griffin and Laidley [2021] FCCA 1515

Ms Laidley became pregnant from a sperm donation from her friend Mr Griffin. The issue was whether he was a parent. He said he was. She denied it. She submitted that he was not a parent because:

(i) They were friends.

(ii) The applicant told the respondent that he was doing it to help a friend out.

(iii) The applicant told a mutual friend that he was a donor helping out a friend.

(iv) The only reason the applicant attended two ultrasounds was because the respondent’s other support persons were not available.

(v) The respondent informed the midwife that her only support were family and close friends as this was a sperm donor situation.

(vi) The respondent attended the parenting course alone with the applicant telling the respondent that he was glad she wasn’t the only one there on her own.

(vii) The applicant informed the respondent that he only wanted visits every now and then and babysit.

(viii) The respondent has never entered into any discussions with the applicant regarding co-parenting or equal shared care for the child.

(ix) The applicant misrepresented himself as the respondent’s partner at the hospital.

(x) Mediation was not pursued as it was deemed inappropriate due to subregulation 25(2).

(xi) The applicant has not had contact with the child since birth and has not contributed to maintenance or parenting.

(xii) The evidence of the respondent should be preferred to that of the applicant.

(xiii) The respondent denied the proposal put forward by the applicant for shared care as evidenced by her text message.

(xiv) The facts of the current matter are vastly different to those in Masson v Parsons and it is the facts that determine the issue of whether a person is a “parent’ of a child.

(xv) The facts do not support the argument that the applicant is a parent for the purposes of the Family Law Act.
(xvi) There is no evidence on behalf of the applicant that there were any discussions as to the applicant being involved in the child’s life as a parent.

L Turner J was critical of both parties as to the lack of evidence:

“The respondent could have, but did not provide the following:

(a) A copy of the birth certificate.

(b) The full history of the text messages between the parties regarding the child.

(c) An affidavit by the “mutual friend” who heard the comment made by the applicant that he was the sperm donor only.

(d) An affidavit by her support persons as to their being unable to attend her ultrasounds that the applicant subsequently attended.

(e) An affidavit by the maternal grandmother and other family members as to their involvement and observations of the situation.

(f) Subpoena material from the midwife as to the purported conversations the respondent had with the midwife as to the applicant being a sperm donor only.

(g) Subpoena material from the ultrasounds and other medical practitioners.

The applicant has also been remiss in supplying any independent evidence that supports facts disputed by the respondent.

  1. Given these limitations I am unable to make any findings as to disputed facts including:

(a) The applicant making his donation of sperm contingent upon the applicant being involved in the parenting of the child.

(b) The applicant telling others that the applicant was the sperm donor only.

(c) The respondent telling others that the applicant was the sperm donor only.

(d) The applicant attending a meeting with the midwife.

  1. I therefore must look to the undisputed facts in determining whether the applicant is to be considered as a parent to X.
  2. I find having considered the undisputed facts and circumstances of this matter together with the evidence before me that the applicant is a “parent” to the child based on the following:

(a) The applicant always held and continues to hold the expectation that he will be involved with the child.

(b) The respondent informed the applicant of her pregnancy.

(c) The parties jointly informed others that the respondent was pregnant and the applicant was the biological father.

(d) The parties attended ultrasounds together and shared in the news that the child was a boy.

(e) The respondent initially kept the applicant informed as to the progress of her pregnancy.

(f) The parties discussed in exchanged banter the naming of the child.

(g) The respondent acknowledged the agreed name of “X” (although it was not subsequently used by the respondent) and told the applicant that she wanted part of the applicant’s name in the child’s name.

(h) The respondent, after the discussions as to the naming of the child in an email to the applicant on 9 February 2020 wrote “so I’m really thinking about not doing a baby shower, but just a small lunch on a Sunday with both our families from here to meet. And we can throw a big Christmas party for X to meet everyone. He will be 6 months then 🙂 sounds good?” indicating the expectation that the applicant and his family would be actively involved with the child well after the birth of the child.

(i) The respondent openly discussed with the applicant his level of involvement with the child with the applicant confirming that he wanted visits and the opportunity to babysit. This is proof that the parties intended for the applicant to remain actively involved with the child.

(j) The respondent attended the hospital with flowers and chocolates to celebrate the birth of the child.

  1. I find that the facts support a finding that it was the intention of the applicant as the biological father to be involved to some level in the parenting of the child after the child’s birth and that this expectation was initially fed into and supported by the respondent.
  2. It was only once the boundaries were pushed by the applicant in what is now acknowledged by the applicant as being a somewhat misconceived view of future time with the child, that the applicant changed the goal posts by:

(a) Not engaging with the applicant.

(b) Moving away without providing the applicant with her new address.

(c) Not keeping the applicant informed as to the pregnancy.

(d) Not allowing the applicant at the birth of the child.

(e) Not allowing the applicant to visit the child in hospital.

(f) Refusing the applicant any time or communication with the child.

  1. Nonetheless the applicant continued with his intent to be part of the child’s life by commencing parenting proceedings.
  2. I find that the applicant cannot be penalised for the unilateral actions of the respondent in cutting the applicant out of the child’s life.
  3. In conclusion I find that the applicant is a “parent” and has the right to bring parenting proceedings regarding X pursuant to section 65C.

Seto & Poon [2021] FamCA 288

Twins, W and Z were born in 2020. Their biological parents were Mr Seto and Ms Poon. Their conception came about through an informal surrogacy arrangement negotiated primarily by Mr Seto’s wife, Ms Yue and Ms Poon. Ms Poon agreed to be a surrogate, in exchange for assistance to become an Australian resident. Ms Poon’s husband was Ms Zhu.

The surrogacy arrangement may have been initially altruistic, but strong commercial elements became apparent before the births.

The solicitor for Ms Poon and Mr Zhu when notified by the Court as to a potential referral to police and the Legal Services Commission of NSW “suddenly left her employment with F Solicitors and took with her the respondents’ file. Ms D gave no notice to her employers of her intended departure or of her intention to remove the respondents’ file.”

There were several attempts at conception over four months. Some of them were by artificial insemination. It appears that four occasions involved sexual intercourse between Mr Seto and Ms Poon.

Mr Seto and Ms Poon went to the IVF clinic together and represented themselves as a couple. Ms Zhu did not attend and did not consent to treatment.

A written agreement in Cantonese drafted by Ms Poon was then entered into, whereby Ms Poon would be paid $50,000 towards her immigration application and half of her costs over $100,000 plus a $7,500 deposit plus $4,500 towards her tuition fees.

After the babies were born, they remained in the care of Ms Poon, who now demanded extraordinary sums. The letter from the solicitor cited the Surrogacy Act 2010 (NSW) (which makes it an offence to enter into a commercial surrogacy arrangement) and went on to say:

“The costs and expenses in relation to the surrogacy incurred by our client, but which is yet paid by you, that our client is entitled to claim from you, under Section 7 of the Act, in appliance to the dispute between you and our client, as per following: –

1. Our client proposes to have her expenses of nutrition fees in an estimated amount of $100,000 to be reimbursed and such fee incurred from pre-conception till the expected date in the future that she could be fully recovered from the caesarean birth delivery.

2. Our client proposes to have the anticipated cosmetic / medical expenses in an estimated range of $40,000 to $50,000 to be reimbursed and such expenses will be aiming to recover our client’s physically disgraceful changes.

3. Our client proposes to have her anticipated legal expenses in an estimated amount of $50,000 to be reimbursed, including but not limited to legal advice, current non-litigious stage of the subjected surrogacy matter and any potential litigious stage of the disputes as well as the parentage rights transfers in future.

4. Our client proposes to have her anticipated costs for maternity matron in an estimated amount $24,000 to be reimbursed from which the maternity matron started to take care of the twins from 5 January 2021, who was employed for at least two months.

5. Our client proposes to have her anticipated reimbursement from the loss of earnings of her husband and herself, in an estimated range $120,000 to $150,000.

Total proposed reimbursements: $334,000 – $374,000

Our client instructs that you and your husband have proceeded the payments in various occasions as to the partial reimbursements from the above, as follows:

1. You and your husband paid $20,000 to our client in October 2020;

2. You and your husband paid $30,000 to our client in November 2020;

3. You and your husband paid $30,000 to our client in January 2021.

Total paid amount: $80,000

In light of the above, the outstanding amount is between $254,000 and $294,000 that, as per our client’s instruction, she is entitled to claim from you under the Act. Our client would like to provide you with some leniency that our client proposes to have $290,000 to settle the matter as to save any further unnecessary inconvenience and potential costs between the parties.

We are instructed to receive the outstanding payments in sum of $290,000 to our firm’s trust account on behalf of our client within 7 days from the date of this letter, due by 4 pm on 22 January 2021. The trust account details are as follows:…”

I note that the jaw dropping costs in the letter are greater than Australians would incur with even the most expensive surrogacy agency in the world, based in the US. From experience, the costs of Australians undertaking surrogacy in the US varies between about $145,000 all up (including legals, travel, surrogacy agency, surrogate and IVF) and $300,000.

Stevenson J stated:

“49. It seems to me that there are two reasons why s 60H(1) is not applicable in the present circumstances. Firstly, Mr Zhu at no stage was “the other intended parent” of the children. Secondly, if he consented to the artificial insemination procedure he did so only for the purpose of personal financial gain and not because he “intended” to be a parent of the children. It seems to me that the provisions of s 60H(1) could only apply to the successful artificial conception procedure conducted by the IVF clinic and not to the previous actions of the applicants and Ms Poon which failed to result in a pregnancy.

  • In my view, the following considerations support a conclusion that Mr Zhu was never “the other intended parent” of the children:
    • Ms Poon and Mr Seto presented themselves to the IVF clinic as a couple who wished to become parents
    • Ms Yue presented herself to the IVF clinic as a supportive friend of Ms Poon
    • there was no evidence in the records of the IVF clinic which suggested any involvement whatsoever by Mr Zhu or that their staff were even aware of his existence at any stage
    • in cross-examination by counsel for the ICL Mr Seto said that Mr Zhu never attended the IVF clinic
    • Mr Zhu executed no documents in relation to the IVF procedure
    • the arrangement between all four parties was that the children would be placed in the permanent care of the applicants very shortly after their birth, upon payment of money and provision of assistance to the respondents in obtaining permanent Australian residence
    • hospital records demonstrated that Ms Poon declined to breastfeed the babies and was prescribed lactation suppression medication
    • the evidence of both applicants was to the effect that Mr Zhu threatened to sell the babies overseas, if the applicants failed to meet the financial demands of himself and Ms Poon
    • following the birth of the children, the respondents attempted to extract additional funds from the applicants before they would hand over the children
    • the names of the children were chosen by Mr Seto in accordance with traditions followed within his family.
  • On the balance of probabilities, I am satisfied and I find that none of the four interested parties ever held the intention that Mr Zhu would be a parent of the children. I am satisfied and I find that all four interested parties held a common view that Mr Seto was the intended parent of the children.
  • It seems to me that the evidence that Mr Zhu consented to the IVF procedure was inferential at its highest. He had no involvement whatsoever with the IVF clinic which carried out the artificial conception procedure.
  • It seems to me that, even if Mr Zhu consented to the IVF procedure, he did not do so as “the other intended parent” but as a party to an agreement which would bring financial gain to him personally and/or enable him to remain in Australia. I am satisfied that any consent which he may have given to the IVF procedure, in these circumstances, does not trigger the operation of s 60H(1).
  • Accordingly, I conclude that s 60H(1) does not operate to constitute Mr Zhu a legal parent of the children. The issue of whether Mr Seto is their legal parent falls to be determined by reference to the principles enunciated by the High Court of Australia in Masson v Parsons.
  • In my view, Mr Seto qualifies as a “parent” of the children consistently with these principles. I have regard to the following factors in reaching the conclusion that Mr Seto is their “parent” within the ordinary Australian meaning of that term:
  • he is their biological father
  • all four interested parties intended that he fulfil the role of parent to the children
  • he provided financial support to the children from the time of their birth
  • he spent as much time with the children and participated in their lives to the maximum extent permitted by the respondents from the time of their births
  • currently he fulfils the role of full-time parent of the children and assumes all of the associated responsibilities and duties
  • the children have lived in the full-time care of Mr Seto and his wife Ms Yue since 5 March 2021.”

Not surprisingly, the orders included that the children live with Mr Seto and Ms Yue, that he was declared to be a parent, and that they have no time with Ms Poon or Mr Zhu. The matter, again not surprisingly, was referred to authorities.

[1] See Zegers-Hochschild et al, The International Glossary on Infertility and Fertility Care, 2017; Fertility and Sterility, Vol. 108, No. 3, September 2017. http://dx.doi.org/10.1016/j.fertnstert.2017.06.005 .
[2] At [34].
[3] I have for the sake of convenience used the South Australian Act. Similar legislation is in place in all States and both Territories. However, there are currently issues with the Queensland and NT Acts, referred to below.
[4] Defined in s.4
[5] A very useful summary by C van Niekirk, “When is a donor a daddy? Informal agreements with known sperm donors: lessons from abroad”, Obiter (2021), p,71.
[6] At [70]
[7] See also and as to 6GT: Fisher –Oakley and Kittur [2014]FamCA 123
[8] By way of disclosure, I appeared for the surrogate.
[9] Keaton and Aldridge [2009] FMCAfam 92; affirmed on appeal Aldridge & Keaton [2009] FamCAFC 220.
[10] Clarence & Crisp [2016] FamCAFC 157 at [38].
[11] See Ryan and Fraser [2014] FamCA 763 and Keaton and Aldridge [2009] FamCAFC 229
[12] [2016] FamCAFC 157.
[13] Crisp & Clarence [2015] FamCA 964 at [48]-[58], not a subject of appeal. By way of disclosure I acted for Ms Clarence.
[14] Lamb and Shaw [2017] FamCA 769; Lamb and Shaw [2018] FamCa 629.
[15] Bernieres & Dhopal [2017] FamCAFC 180 at [58].
[16] Aldred & Warburg [2020] FCCA 2524.
[17] As required under licensing requirements, such as the National Health and Medical Research Council, Ethical Guidelines on the Use of ART in Clinical Practice and Research (2017)
[18] And in the case of Queensland, specifically limited to two: s.10A(1)(c) Births, Deaths and Marriages Registration Act 2003 (Qld).
[19] Masson at [26].
[20] W v G [1996] NSWSC 43.
[21] At [17]
[22] At [23]
[23] Of the US states, Missouri, New Mexico and South Dakota are not prescribed.
[24] At [33]
[25] People in WA and SA, although not subject to explicit extra-territorial laws, may still be committing offences because of the Criminal Law Consolidation Act 1935 (SA) and the Criminal Code (WA).  Laws just passed in SA require those undertaking surrogacy overseas to obtain the permission of the SA Attorney-General.
[26] Dudley & Anor & Chedi [2011] FamCA 502; Findlay and Anor & Punyawong [2011] FamCA 503; Hubert & Anor and Juntasa [2011] FamCA 504 and Johnson and Anor & Chompunut [2011]FamCA505. Curiously Mr Dudley although Watts J declined to find that he was a parent, had been held for the purposes of the legislation by Stevenson J to be a parent in the earlier case of Dennis and Anor & Pradchaphet [2011]FamCA123.
[27] At [49]
[28] Which are the various State and ACT surrogacy legislation.
[29] At [61]
[30] At [68]
[31] At [100]
[32] At [12]
[33] At [31]
[34] As also seen in Ellison and Karnchanit, for example.
[35] At [46, 50, 51, 52]
[36] At [15]
[37] At [33] – [36]
[38] At [21] – [22]
[39] At [25]
[40] At [27]
[41] At [29]
[42] At {43} – [44]
[43] At [12] – [16]
[44] At [24]
[45] At [30] – [32], [37] – [38]
[46] At [52-57]
[47] At [42]
[48] At [46]
[49] At [47]
[50] At [51], [52]
[51] At [63-88]
[52] At [91-92]
[53] At [384].
[54] At [301].
[55] H v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393.
[56] Discussed at [349]-[352].
[57] Bernieres & Dhopal [2015] FamCA 736.
[58] Re Halvard [2016] FamCA 1051; Re Grosvenor [2017] FamCA 366; Sigley & Sigley [2018] FamCA 3; Rose [2018] FamCA 978 ; Allan & Peters [2018] FamCA 1063. I am on the record in all of these aside from Re Halvard.
[59] And see Pelmore & Mickels [2020] FCCA 3308.
[60] Masson & Parsons [2017] FamCA 789.
[61] Parsons & Masson [2018] FamCAFC 115.
[62] At [53].
[63] At [32].
[64] Lamb & Shaw [2017] FamCA 769; Lamb & Shaw [2018] FamCA 629.
[65] I appeared for the intended parents.
[66] At [62].
[67] See also Seto & Poon [2021] FamCA 288, discussed at the end of the paper.
[68] At [96] – [99].
[69] At [145]
[70] At [150]
[71] At [51] – [57]
[72] Where there has been a finding by the relevant court
[73] At [172] – [174]

Things to Read, Watch & Listen

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