Who is a parent under Australian law
Thursday, May 30, 2019
Yesterday I presented to the Legalwise seminar in Sydney on legal issues and the LGBTI community about who is a parent in family law. Quite simply, some people who think that they are the parents of a child are not as a matter of law, and others who think they are not the parents are the parents.
Here is my paper:
Legal issues and the LGBTI Community
Legalwise
29 May 2019
SYDNEY
WHO’S YA DADDY?
By Stephen Page[1]
“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.
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.
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.”[2]
A common feature of family law has been that society is changing before our eyes. Family law has struggled to keep up. Nowhere is this more true than in the realm of in vitro fertilisation and assisted reproductive treatment. Currently we are witnessing in Australia transgender men becoming pregnant and giving birth. As recent research stated:[3]
“A transgender man is a person who identifies as male, but whose sex may have been designated female at birth. As such, transgender (trans) men are commonly born with a reproductive anatomy that allows them to become pregnant and give birth…with the recent cultural shifts in community and legal attitudes around the trans community, the openness of transmen desiring parenthood and becoming parents through gestational pregnancy may be more a reality now than ever before.”
Introduction: Getting pregnant
Welcome to the wonderful world of making babies!
There are only three 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.
Such is the jargon that comes with the territory, a 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[4], but can also be called artificial reproductive treatment or artificial reproductive technology[5]. It can cover artificial insemination, IVF and other techniques. Confusingly, the Family Law Act 1975 refers to artificial conception procedure, but the Status of Children Act 1996 (NSW) refers to fertilisation procedure.
Blastocyst is a developed embryo, typically 5 days old. An embryo can be seen by the human eye, although it is smaller than the ball on a ball point pen.
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.
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 intracytoplasmic sperm injection-where a catheter or tube is used to place one sperm into an unfertilised egg. The tail of the sperm is cut off before the head (which contains the DNA) is placed into the egg. It is typically used when the man has low fertility.
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.
Who is a parent?
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.”[6]
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.
“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.
“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.
“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.
“Paternity is a serious matter, both for father and for 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 which will provide proof one way or the other, the child’s rights to maintenance and support should none the less depend 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[10]:
“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)[11], section 69U Family Law Act.
Who is the mother?
The mother is always certain: Mater semper certa est
Since the time of the 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.
US courts have considered that there have been three potential bases for who is a parent, namely:
· Who is genetically 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[13], the woman who gave birth remains the mother of the child. What is clear when there has been an artificial insemination of a woman who is married to a man that it is assumed that the woman who gave birth is the mother: see sections 14(1)(b) Status of Children Act 1996 (NSW).
Where a donor ovum is used then that married woman shall be presumed to be the mother and the woman who produced the ovum shall be presumed, not to be the mother of any child born as the result of the pregnancy, which presumption is irrebuttable: section 14 (3), (4) Status of Children Act. Similarly the woman who gave birth will be presumed to be the mother under section 60H Family Law Act.
If the woman had a female wife or partner and donor semen has been used, then the woman who gave birth is the mother: section 14(1A)(b) Status of Children Act 1996 (NSW). Where a donor ovum has been used then she is the mother and the donor is not: section 14(3),(5) Status of Children Act. The wife or female partner however is a parent: s.14(1A)(a), 14(3). Similarly in those last two examples the woman who gave birth is the parent: section 60H Family Law Act. The presumption as to the husband, female wife or female partner’s consent is rebuttable: s.14(5), (5A).
When is the woman who gave birth not the mother?
The woman who gave birth is the mother in all circumstances except when her role as a parent is removed from her:
· An adoption order; or
· A surrogacy order of some kind.
Even if the woman might be considered overseas to be the parent or not the parent, consideration has to be given to what Australian or the relevant State law might determine about whether or not she is the parent: cf. Farnell and Chambua[14] [the Baby Gammy case].
A woman who did not give birth to but intends to be a parent is not automatically a parent. She can only be a parent if:
· There is an adoption order in her favour; or
· There is a surrogacy order in her favour; or
· By operation of law, e.g., s.60H of the Family Law Act 1975, or a situation akin to that in Masson and Parsons, depending on the view of the High Court. (see below).
Transmen becoming pregnant. Is a transman a mother?
Charter et al. undertook research of 25 transmen. They say:
“The participants in our study chose to pursue pregnancy for a variety of reasons. Some participants had cisgender female partners whose fertility was affected by medical issues as Sam (32) describes:
(My partner’s) endometriosis was really severe…when we started talking about a family I just knew it wasn’t going to be possible for her (to get pregnant) so I decided that I’d do it. It wasn’t an altogether happy decision but I knew it was the right one for us and I feel, actually, very grateful that I could do that for us.
For other participants, being able to have a child that was biologically related to them was positioned as important and valuable: “It just seemed like a huge privilege to be able to have a child that shared by DNA” (Justin, 30). Equally, Bill (31) commented:
We’d had some close friends who had really struggled with not being genetically related to their kids…it really made an impression on me and (my partner)…so we decided we’d take turns having a baby.
The researchers then say:
“As 18 of the 25 participants in this study were partnered cisgender women at the time of conceiving children, they would not be able to conceive their children without accessing some form of external support, such as pursuing formal or informal assisted fertility, including the acquisition and insemination of donor sperm, and, in some cases, in vitro fertilisation… Whilst transpeople are protected legally in Australia from discrimination by [healthcare providers]…these protections are not necessarily borne out in their actual experiences. No participant in this study who attempted to access a fertility clinic was actually granted treatment. This type of rejection and discrimination is reported to be pervasive in the trans community, and has a very significant impact on mental health and wellbeing…As such, like many in the broader LGBTQI community, transmen turn to informal networks and methods, indicated in the above accounts of using known donors and at home insemination, to assist them in achieving their goal to conceive.”
The obvious question to pose is that if a transman gives birth through the use of assisted reproductive treatment, whether at home or through IVF, is the transman the mother or a parent at law?
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. Hmakes that plain. No matter the intent of the parties, or their relationship status, genetics triumph.
Occasionally I am told of the intention for a man to be a known sperm donor by having sex with a woman. A recent call was from a man where a lesbian couple suggested this course of conduct. No matter the intentions, if the man had sex with the woman, resulting in the conception and birth of the child, he is a parent.
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 Status of Children Act | Section of Family Law Act |
| Marriage | 9 | 69P |
| Birth Registration | 11 | 69R |
| Court finding | 12 | 69S |
| Acknowledgments | 13 | 69T |
| Cohabitation | 10 | 69Q |
There is a limitation with birth records 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[15], there has been no overseas jurisdiction prescribed for the purposes of section 69R[16].
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 is not proof of parentage, and may not be evidence of parentage either.
If there is any doubt that there is a scheme between the Family Law Act and the various State and Territory Status of Children Acts as to parenting presumptions, one only need to compare, for example, the mirror wording of section 25 Status of Children Act 1978(Qld) and section 69R Family Law Act. However, whether there is such a scheme is now a matter of contention in the case of Masson v Parsons.
Will the male partner be a parent when there has been an artificial conception procedure?
Subject to the comments about Masson v Parsons, below, and subject to the rebuttable presumptions, a husband or male partner will only be a parent to a child where his wife or de facto partner gives birth and he falls fair and square within section 60H of the Family Law Actand the related provisions of the State or Territory legislation. I will cover this in a discussion of section 60H below.
When will a female wife or de facto partner be considered to be a parent?
If a woman were living in a lesbian relationship at the time of conception[17] i.e. the commencement of the pregnancy, after implantation[18] then either:
A. If the birth mother conceived the child naturally, then the female partner is not a parent; or
B. If the birth mother conceived the child through an artificial conception procedure then the female partner will, subject to the discussion about Masson v Parsons below, only be a parent if she falls fair and square within section 60H of the Family Law Act and/or the related State provisions.
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:
(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:
The term “artificial conception procedure” is defined as in section 4 as including:
(a) “ Artificial insemination; and
(b) 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 & Anor v LMH [2012] QChC 026, 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 an 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 amendments in 2008[19].
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[20].
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[21].
However with a 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 |
| Victoria | 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 | 10A, 10B, 10C, 10D and 10E |
| Tasmania | Status of Children Act 1974 | Part III |
| ACT | Parentage Act 2004, | 11 |
| NT | Status of Children Act | 5A, 5B, 5C, 5D, 5DA, 5E and 5F |
Beware to check the sections and that they are the correct ones. Do not assume that the interstate provisions are exactly the same- there are some differences, State to State. The Family Relationships Act 1975 (SA), has now no section 10D or 10E. The Family Relationships Actallows de facto partners to elect, by regulation, with the result that the woman and her partner are the parents and that the partner conclusively presumed to have and caused the pregnancy.
In NSW the husband of the birth mother is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure: s.14 (1A),(4) Status of Children Act.
“In this section:
(a) a reference to a woman who is married to a man includes a reference to a woman who is the de facto partner of a man, and
(i) is, in a case where the person is the de facto partner of a person of the opposite sex, a reference to that other person, and
(ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.”
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.
If a transman has given birth through the use of assisted reproductive treatment, i.e. an artificial conception procedure, whether at home or through an IVF clinic, is a transman a woman for the purposes of section 60H? If the transman is considered to be female due to the ability to carry a child, then the transman, who identifies as female nevertheless would be considered to be a parent under section 60H(1) and their partner would be considered to be a parent under the same provision.
However, if a transman were considered to be male much along the lines of Re Kevin and Jennifer (Validity of Marriage of Transsexual) [2001] FamCA 1074,then the transman is not a woman for the purposes of section 60A and that presumption does not apply. You may recall that Kevin in Kevin and Jenniferhad fully transitioned, not only identifying as being male but also having undertaken surgery etc.
| Facts of Re Kevin The husband was identified as a girl at birth and named Kimberley (not the real name). His genitalia and gonads were female, and he continues to have female (xx) chromosomes. For as long as he could remember he perceived himself to be male. Despite pressure to dress and behave as a girl, he wore boys’ clothes whenever he could, refused to play with girls’ toys, and had many attributes of a boy, and saw himself as a boy, while growing up. He described his adolescence, and the feminisation of his body, as a “time of pain and dread”. He was harassed at school because of his male attitude and appearance. During his adolescence and early adult years he kept most of his thoughts to himself and felt extremely alienated from people. In 1994 he generally presented as a male, wearing trousers and shirts to work. In mid-1995 he saw and article about sex reassignment treatment, and he had feelings of relief and excitement upon learning of other people like him, and of how they had discovered the medical means to express their true sex as men. He embarked in 1995 with hormone treatment. In 1997 he had breast reduction surgery. In September 1998 he had a total hysterectomy with bilateral oophorectomy. As a result he was no longer able to reproduce or engage in sex as a woman. The parties met in 1996. Kevin told Jennifer of his predicament. She perceived him as a man and supported his desire to bring his body into harmony with his mind. They agreed to marry. In 1997 Kevin changed his name from Kimberley to Kevin. In September 1997 the couple applied successfully to an IVF programme. Jennifer became pregnant by an anonymous sperm donor. The team concluded that Kevin should be considered male biologically and culturally and that the parties should be considered a heterosexual couple within fertility consequent to absent sperm production. In 1998 Jennifer changed her family name to Kevin’s. Kevin obtained a new birth certificate showing his sex was male. In 1999 Jennifer gave birth to a son. Whilst pregnant they married. At the date of marriage in the words of Chisholm J, “Kevin’s male secondary sexual characteristics were such that he would have been subject to ridicule if he had attempted to appear in public dressed as a woman; he could not have entered a woman’s toilet; and he was eligible to receive an Australian passport showing his changed name and stating his sex as male. He has been treated as a man for a variety of legal and social purposes, including his employer, Medicare, the Tax Office and other public authorities, banks, and clubs. Evidence from numerous family, friends and work colleagues testified to his acceptance as a man and to the acceptance of him as a husband and father”. His Honour held: “Unless the context requires a different interpretation, the words “man” and “woman” and used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men or women in accordance with their sexual reassignment.” An appeal by the Commonwealth to the Full Court was unsuccessful. |
If Chisholm J’s view were adopted in respect of section 60H and used in that example Kevin was the one giving birth, then the presumption under section 60H would not apply. Unlike Re Kevin, Charter et al. in their research paper say this:
“Transitioning is a process, rather than a single event, and can take a variety of forms. A transman may transition physically by using hormonal or surgical treatment; they may change their appearance, their name, and their gender pronoun to transition socially; and they may pursue recognition of their gender identity legally and formally…However it is important to note that not all transmen pursue a transition. This may be because they are not medically or financially able to, because they do not have the support of those around them, or because they choose to express themselves in a different way.”
In other words, if someone presents as a transman but has had no surgery does the law for the purposes of parentage presumptions treat that person as a man or a woman? If the birth parent is not a woman, then what is the status of their partner? One can see the differences between s.60H(1) and s.14 (especially (6)) of the Status of Children Act. The matter is yet to be tested.
Although s.60H would appear to relate to surrogacy, the intention of Parliament according to the Full Court is that s.60H only related to standard ART and not surrogacy: Bernieres and Dhopal [2017] FamCAFC 180 at [55]-[58]:
- As was explained in an helpful article by Mary Keyes and Richard Chisholm entitled ‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105, 112:
Section 60H deals with the status of children born as a result of fertility procedures. It was not designed for surrogacy situations, but it can affect them, because fertility procedures are often used in commercial surrogacy. Most of the sub-sections of s 60H incorporate reference to the state and Territory legislation relevant to determining parental status. Together, these provisions form a national scheme (although there are some inconsistencies between the federal and state and territory provisions), the effect of which is to recognise the birth mother and her consenting spouse or partner as the parents of a child born as a result of a fertility procedure irrespective of their biological connection to the child. The scheme also denies parental status to gamete donors in such cases, although as we will see there are different views about whether it does so in all situations.
- Although, as the authors comment in that article, “fertility procedures are often used in commercial surrogacy”, and that is demonstrated by the second limb of the definition of “artificial conception procedure”, such that theoretically s 60H could apply to a surrogacy arrangement, a close consideration of the section reveals otherwise.
- On its plain meaning, if s 60H(1) is applied to a surrogacy arrangement (including the arrangement here), it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material. Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.”
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[23]. As soon as he has consented, whether or not he wants to have a child, then the partner will be presumed, as an irrebuttable presumption, 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, as seen in Groth and Banks, this too has its risks.
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 | 14 | |
| Vic | 15,16 | |
| Qld | 23 | |
| WA | The whole | |
| SA | 10B, 10C | |
| Tas | Part III | |
| ACT | 11(2) and (3) | |
| NT | Status of Children Act 1978 | 5B, 5C, 5E |
The court in Bernieres and Dhopal said at [59]:
“For completeness, we note that unlike s 60H(1), ss 60H(2) and (3) do not expressly exclude any donor of genetic material from recognition as a parent. As was pointed out in the article by Mary Keyes and Richard Chisholm (at page 113), judicial opinion is divided as to whether those sub-sections impliedly exclude such a donor. However, because we have not heard argument in relation to this matter, we are not able to express any informed view about the same.”
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, but the circumstances are particular. They arise in three types of case:
· Recognition of surrogacy orders.
· Recognition of adoption orders.
· Other
Recognition of State and ACT parentage orders
There is a scheme of the recognition of parentage orders made in State and Territory courts. S.60HB was enacted at the same time as the amendments to s.60H(1). It seems that when the matter came before the Senate Committee, that while lesbian couples would receive recognition of parentage under s.60H(1), gay couples would not- so a means was devised to enable that recognition. In essence if a State or ACT (as there is no NT Surrogacy Act) court makes a parentage order transferring parentage from the birth mother (and her partner) then the intended parents are recognised as parents under the Family Law Act: s.60HB; reg.12CAA Family Law Regulations 1984 (Cth).
Section 60HB provides recognition whether the intended parents were single or a couple.
Once the parentage order is made, one might think that by virtue of s.109 and s.122 (the full faith and credit clause) of the Constitution, and s.185 of the Evidence Act 1995 (Cth) that it would be considered as a final outcome. Regrettably it is not. While one might be a parent for all purposes under the law, if a parentage order has been made outside Victoria, but the child has been born in Victoria, Victorian law dictates that the birth register there cannot be altered without first obtaining a registration order from the Supreme or County Courts[24].
Either under s.60H, or when the parentage order is made, if the intended parents are Australian citizens, then the child is automatically an Australian citizen: s.8 Australian Citizenship Act 2007(Cth). However, s.8 only applies if there are two intended parents, not one:
(b) either:
Recognition of adoption orders
This area is truly a mess. Australia is a party to the 1993 Hague Intercountry Adoption Convention. The Convention is part of our domestic law by virtue of s.111C of the Family Law Act 1975 (Cth) and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth). The Convention is also given effect to under the Adoption Act 2000(NSW) and related State and Territory laws.
Australia has also signed a number of bilateral agreements as to adoption. At a Commonwealth level, these are recognised under s.111C of the Act and under the Family Law (Bilateral Arrangements-Intercountry Adoption) Regulations 1998 (Cth).
It is now common for Australians to undertake surrogacy in the United States. It is common in some US jurisdictions for parent one (the genetic father) to be recognised by a court order as the father, and parent two (the mother or the father’s husband or male partner) to be recognised as a parent by virtue of a second parent adoption.
It is unclear whether parent one would be recognised as a parent under Australian law (see Bernieres and Dhopal and discussion of Massons and Parson below). It is clear that under New South Wales law that parent two would not be recognised as a parent, but would be recognised under the Family Law Act as a parent.
Why parent two is not recognised under NSW law as a parent
The Adoption Act 2000 (NSW) allows for the recognition of overseas adoptions, but only if, under s.105 they:
· Are made under the Hague Convention, for example in a Hague Convention country: s.106-108;
· Are made in a bilateral country: s.113; or
· The intended parents went overseas for at least a year to pursue the adoption there, whichever country it might be: s.116.
The United States is a convention country. However, the scheme of the Adoption Act and the Hague Regulations is that because Australia does not recognise the US as a convention country, therefore it is not a convention country [25]. This means that parent two is not recognised under NSW law as a parent.
S.61C of the Family Law Act provides that subject to a court order, each of the parents of a child have parental responsibility for the child. The definition of parent, child and adopted in s.4 of the Act make plain that the parent of a child who has been adopted, when the adoption has occurred “under the law of any place (whether in or out of Australia) relating to the adoption of children” is a parent for the purposes of the Family Law Act. Therefore, irrespective of the Adoption Act, parent two would be a parent for the purposes of NSW law.
Other cases looking at whether someone is a parent
There have been a series of disparate cases, usually involving surrogacy.
The cases seem to turn on:
(a) Whether there is a national scheme;
(b) Local legislation and approaches;
(c) Biology and intent;
(d) Comity.
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.”[26]
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[28], 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.
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:[29]
“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:
(a) Undertake surrogacy in a country where reliance is upon contract (as has occurred in the past, for example in India); or
(b) Rely primarily on the making of a court order whether or not legislation or practice requires it to be made in the best interests of a child as, for example, in the United States; or
(c) Become parents through a non-judicial process by operation of law, such as Ontario, British Columbia, Illinois, the Ukraine and Russia.
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)[30]. 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.[31]
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.
Ryan J noted that she was not bound by the Thai birth certificate stating that Mr 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[32]. 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[33].
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.[34] 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.[35]
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[36] and then found it was in the best interests of the children that an order be made.
Blake & Anor [2013] FCWA 1
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 & Karnchanit, 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.[37]
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) A parent who is a parent within the meaning of the Artificial Conception Act 1985
(b) Be a person who is an adoptive parent under the Adoption Act 1994
(c) 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 Actwas 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:[38]
“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[39].
Her Honour stated:[40]
“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.
“Spread across different divisions in Part VII there are a number 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 little 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 she had taken a year before 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[43]:
“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] FamCA 1031
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 the Ukraine. Johns J held that although Mr X Green-Wilson was the biological father[45]:
“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…”
“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.”
“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[48]:
“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 Actand 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”.
“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 the efficacy or otherwise of commercial surrogacy arrangements) above a 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 make a declaration confirming that Mr X Green-Wilson is a parent of the child.
The approach in Green-Wilson and Bishop was disapproved by the Full Court decision in Parsons and Masson (below).
Groth & Banks [2013] FamCA 430
This decision was delivered four days apart from Mason and Mason– and with a contrary outcome.
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.
They went to a clinic and, along the lines of Verner & Vine [2005] FamCA 763[50], 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[51]:
“(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 the 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.”
The approach in Groth and Banks was overruled by the Full Court in Parsons and Masson, below.
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 parentfor 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) FLC 92-716 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 an 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 the 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 the 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”[52]. 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 the 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[53].”
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 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 … above 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 in 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, is 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 suceed 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 parentof 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)…”
“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”[56], and in particular[57]:
“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[58].
63. 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.
64. 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.
65. 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.
66. The means of young [X]’s conception might be described as “non-traditional”. I am loath to use terms such as “non-traditional” 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.
67. 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.
68. 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.
69. 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.
70. 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.
71. 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.
72. 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).
73. 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”:
o “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”
74. 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.
75. 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.
76. 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.
77. 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”
78. 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.
79. 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.
80. The one thing that is common to every conception is the fertilisation of an egg by a sperm no matter how the two may have met.
81. 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.
82. The Australian Human Rights Commission submits that section 60H of 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.
83. 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.
84. 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.
85. 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.
86. 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”.
87. 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.
88. 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.”
91. “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.
92. 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.”
Bernieres & Dhopal [2015] FamCA 736
Mr and Ms Bernieres undertook commercial surrogacy overseas. They lived in Victoria. It was lawful for them to do so. Mr Bernieres was the genetic father. An egg donor was the genetic mother. Mr and Ms Bernieres sought from Berman J a declaration of parentage and parenting orders. The surrogate and her husband did not file a response.
His Honour held that, following the 2012 amendments, a declaration under s.69VA was not a parentage order. His Honour found that that the Status of Children Act 1974 (Vic.) was not of assistance because this was an overseas commercial surrogacy, not a domestic one. S.60HB, which allows the recognition of parents under State or Territory surrogacy orders, did not apply.
His Honour noted that, unlike the situation in Mason and Mason, Victoria did not prohibit overseas commercial surrogacy, and then stated that the Status of Children Actwas silent “with respect to the determination of parentage of children born of commercial surrogacy procedures”.
His Honour held that he did not have the power to make the declaration under the section:
“Section 69VA was enacted by the Family Law Amendment Bill 1999 to enable the court to make a declaration of parentage for the purposes of all laws of the Commonwealth, however, I do not consider that s 69VA is the stand alone power but rather requires “parentage” of a child to be in issue in proceedings in respect to another matter.
The construct of subdivision E in respect of parentage evidence appears sequential and provides with some clarity the necessary steps to resolve the parentage of a child. The first requirement is that the parent of a child must be in question and if the court considers that it is in the best interests of the child (as at least one of the relevant considerations) then the order that is made is that a parentage testing procedure be carried out. Section 69W(5) does not seek to effect or limit the generality of s 69V. I accept that the focus is to ensure that the court has a wide discretion in relation to the types of orders that can be made in order to determine the parentage of a child in issue. The reference to “receiving evidence” in s 69VA is directed to determining the biological connection and therefore the parentage of a child.
Section 69VA is not a stand-alone power but requires parentage of a child to be in issue in proceedings in respect to another matter. The power is limited by the fact that the court can only make a declaration if it finds that a person is a biological progenitor. In McK & K v O [2001] FamCA 990; (2001) FLC 93-089 Mullane J noted in relation to the evidence of parentage:
[s69VA is not a free standing power. It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue.
The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage. Section 69VA is the only express power to make a parentage declaration. There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.
Use of the power by the Family Court is limited to situations where the application is incidental to the determination of another matter within Commonwealth power. This can created difficulties for the applicants in circumstances where a parent may be seeking a declaration of parentage for the purposes of obtaining a passport for a child that is not “incidental to the determination of any other matter within the legislative powers of the Commonwealth” before the court.”
His Honour also said that the court did not have an inherent power to make the declaration. He also said that there was not “an issue” in the proceedings as to parentage. Although his Honour accepted that Mr Bernieres was a parent, he did not accept that Ms Bernieres was a parent under the Status of Children Act, and that it was not his role to correct any legislative vacuum.
Bernieres and Dhopal [2017] FamCAFC 180
Mr and Mrs Bernieres were pretty upset with the outcome before Berman J, so they appealed. The matter was heard by Bryant CJ, Strickland and Ryan JJ.
Mr and Mrs Bernieres argued that section 60HB did not apply to exclude them as parents of the child because that section only applies where there is an order of a State or Territory transferring parentage to the intended parents. They then argued that because section 60HB did not apply, it is necessary to look at section 60H, but that did not provide a definition of who is a parent in these circumstances and thus declarations could be made under section 69VA if the threshold question as to whether the proceedings involved a matter in which parentage is an issue, and whether there is evidence that places the parentage of a child in doubt are satisfied.
Their Honours stated:[61]
“The issue that must be considered is whether it is in fact open to apply to section 69VA here, and that would depend on whether section 60HB covers the field in relation to surrogacy arrangements, and where 60H sits on the statutory scheme.”
Their Honours noted the history of the current section 60H(1) – added in 2008 and at the same time the addition of section 60HB. Their Honours agreed with the interpretation of Thackeray CJ in Farnell and Chambua that:
“Sections 60H and 60HB, at least to the extent that they expressly determine the status of children coming within their ambit, would be rendered meaningless if they were not interpreted to displace the presumptions in Division 12 [of the Act]. It should also be noted that sections 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which is entitled “Interpretation – How this Act applies to certain children”. I conclude that while the rules of maternity and paternity in sections 60H and 60HB are not expressed as non-rebuttable presumptions, in effect they are, and they therefore trump the rebuttable Division 12 presumption.”
Their Honours also agreed with the preliminary view of Ryan J in Mason that:
“The 2008 amendments evince an intention 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.
The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act (in New South Wales), the provisions of the [Family Law Act] do not permit this Court to make a declaration of parentage in his favour.”
Their Honours went on to say:[62]
“Significantly this interpretation does not leave it open to find that where, as in Victoria, the relevant state legislation does not apply to the particular circumstance of the case, that Lacuna can be filled by recourse to section 69VA.”
In doing so their Honours disapproved of the approach taken in Green, Wilson and Bishop when:[63]
“In our view it is not possible to discard the plain meaning of legislation where public policy considerations may not be seen to be in the best interests of the children affected.”
Their Honours stated:[64]
“Thus, it is plain that section 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving section 60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of section 60HB is delivered 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. In other words, section 60HB covers that field, leaving, as we say, section 60H to address conventional artificial conception procedures.
In conclusion then, section 69VA is not available here because section 60HB covers the field, and section 60H does not apply.
The unfortunate result of that conclusion is that the parentage of the child here is in doubt. There is no order made under the relevant State legislation (and nor could there be) as explained Green- Wilson & Bishop.
There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Furthermore, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.”
In other words, Mr and Mrs Bernieres’ child:
1. Did not have parents under the Family Law Act;
2. Did not have parents under the Status of Children Act.
There are only two obvious conclusions to that:
(i) Either the child has no parents (which cannot be right as a matter of public policy, a matter not addressed by the Full Court); or
(ii) Mr and Mrs Dhopal, the surrogate and her husband are the parents, people who:
(a) contracted not to be the parents;
(b) have never engaged in parenting of a child;
(c) never intended to be the parents;
(d) have no genetic relationship with the child.
Crisp & Clarence [2015] FamCA 964
This was a case before Berman J of a lesbian couple who wanted to make babies. Ultimately the birth mother became pregnant from an embryo that was donated to her by the genetic mother, where the gametes were those of the genetic mother and an anonymous sperm donor.
A prime issue at trial was whether the genetic mother was a parent. Before the transfer took place, the genetic mother moved out. The parties represented to the clinic that they were a couple. The transfer occurred in Queensland, but the birth occurred in South Australia, necessitating a consideration of the Status of Children Act 1978 (Qld) and the Family Relationships Act 1975 (SA).
Berman J found that the parties had not separated, and therefore s.60H and the relevant provisions of the State legislation applied. He did not need to consider the position as to whether the genetic mother was a parent if s.60H had not applied.
The case is a good illustration of how not to plan a pregnancy. The birth mother was of the view throughout that the role of the genetic mother was that of a donor only. The genetic mother throughout was that she was a parent. The evidence between the parties was in conflict about whether their relationship had broken down at the relevant time.
I acted for the birth mother, who appealed. The Full Court in Clarence and Crisp [2016] FamCA 157 dismissed the appeal, upholding the reasoning of the trial judge. The appeal decision is one that ought to be considered in any de facto case, the Full Court setting out various criteria, including that the test in property and parenting matters as to whether or not there is a de facto relationship is the same.
Farnell and Chanbua [2016] FCWA 17
This is the commonly called Baby Gammy saga. It is an enormous judgment. Much of what you thought about the Baby Gammy saga was wrong. Thackeray CJ found:
· As it turns out, the surrogate, Ms Chambua, put her age up illegally.
· Mr and Mrs Farnell were advised, after learning that Gammy in utero had Down’s syndrome, to go to China to have an abortion, as apparently doctors there will do anything for money. They did not do so. They wanted Gammy.
· Ms Chambua fell in love with the idea of having a boy, and wanted to keep Gammy.
· Mr and Mrs Farnell wanted to take Gammy, as well as Pipah, out of Thailand, but couldn’t. At the time, riots and shootings (ahead of the coup) were occurring in Bangkok- and they were told to get out for their safety.
· Mr and Mrs Farnell came home and told everyone that Gammy had died. [His Honour criticised them for doing so, but having seen many couples struggle with infertility, their reaction- to me- appears entirely understandable.]
· Mr and Mrs Farnell did not try and rip off the trust fund set up for Gammy.
· Pipah should remain in the care of Mr and Mrs Farnell, Mr Farnell being low risk for future sexual abuse of her.
· It was in the best interests of the children that a publication order was made.
In the about 200 page judgment, there is lots to read about risk, commercial surrogacy, and whether offences might have been committed.
His Honour noted that there was a plethora of relevant statutory provisions concerning the matter. His Honour found that s.60H did not apply, because it was not intended to apply to surrogacy. His Honour went through a series of statutory interpretation presumptions, and the history of enactment of s.60H and s.60HB. Similarly, s.60F (as to who was a child of the marriage) did not apply, and therefore he had to have recourse to WA law (as WA did not refer). His Honour was critical of the decision in Blake but adopted an earlier decision of Crisford J in W and C in finding that Mr Farnell was not a parent- and that intention was irrelevant. There was no reference to Groth and Banks in the judgment.
His Honour stated, in a passage that would appear to be directly at odds with the approach in Groth and Banks, at [381]-[384]:
“It was said that in Blake,the sperm donor intended to be the “social father”, whereas in W and C the intention was different. In my view, any interpretation which makes the paternity of a child dependent upon the intention of the donor of the sperm would be a recipe for disaster. As W and C itself demonstrates, arrangements involving artificial fertilisation procedures come in a variety of forms. Some sperm donors intend to have no involvement in the life of the child; others intend to live with the child full-time; and others intend to have an ongoing relationship with the child, falling short of living with the child full-time. If the intention of the sperm donor was to be determinative, the question would arise, at what point on the spectrum does the father’s intended involvement in the life of the child change his status from sperm donor to father?
382 If intention was to be determinative of paternity, what would happen where the intentions of the sperm donor and the birth mother differ? For example, in AA v Registrar of Births, Deaths & Marriages and BB(2011) 13 DCLR (NSW) 51, a lesbian couple advertised in the Sydney Star Observer for a sperm donor who would become an “uncle” figure to the child they ultimately had. However, the male who donated his genetic material after the women responded to his advertisement in Lesbians on the Loose offering to be a “father”, wanted his own mother to know he had a child.
383 What would be the position in the present case if Mr Farnell really had decided he did not want Gammy because he had Down syndrome? Would he then have become the father of Pipah but not of Gammy? And what would be the position if a birth mother refused to hand over a child in places where altruistic surrogacy arrangements are not enforceable – does the sperm donor still become the “parent” given his intention to be the “social father”?
384 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.” (emphasis added)
His Honour was also critical of the Australian Human Rights Commission in seeking to have a consistent definition of who was a parentunder the Family Law Act and the Australian Citizenship Act– at [385]-[389]:
“385 The second submission of the Human Rights Commission that I do not accept stated that:
144. … To ensure consistency across Commonwealth legislation it is appropriate to adopt a meaning of parent that is consistent, to ensure greater protection of Pipah’s rights to know who her parents are and to have her status as a child of [Mr Farnell] appropriately reflected.
145. This is particularly the case where there has been a finding by [the] Commonwealth that [Mr Farnell] is a parent and the vesting, through Citizenship, of a significant set of rights and obligations on Pipah … under Australian law…
386 It was submitted that the desired consistency would be achieved by adopting the approach that was applied in determining that Mr Farnell was a parent of Pipah for the purposes of the Citizenship Act. This submission should be rejected for two reasons.
387 First, the question of whether Mr Farnell was Pipah’s “parent” for the purposes of federal law was relevant only to the preliminary question of whether she is a “child of a marriage”. As I have found Pipah is not a “child of a marriage”, the answer to the question of whether Mr Farnell is Pipah’s “parent” is relevant only in working out how various provisions of the State Act are to be applied. In those circumstances, I consider that consistency should be achieved by interpreting the various laws of Western Australia in a harmonious way, rather than attempting to achieve consistency with a law of the Commonwealth.
388 Secondly, the Full Court of the Federal Court in H v Minister for Immigration at [39] and [40] expressly rejected the proposition that the provisions of the federal Act should inform the interpretation of the Citizenship Act, and held that the two statutes “do not in truth deal with the same subject matter”. If there is no need for laws of the Commonwealth to be interpreted consistently, there is even less need for state law on the same subject to be interpreted consistently with federal law.
389 Thirdly, if the Citizenship Act has been correctly applied in permitting the Farnells to obtain citizenship for Pipah, then I consider it is that Act which sits completely outside what otherwise seems to be a coherent national legal framework aimed at discouraging Australian citizens from participating in commercial surrogacy arrangements overseas.”
His Honour then traced the legislative history of the Artificial Conception Act and the Surrogacy Act 2008 (WA), and found that it was WA Parliament’s intention that the presumptions in the Artificial Conception Act applied to child born as a result of a surrogacy arrangement.
His Honour also found that the presumption that may have arose under WA law that the execution by Mr Farnell of an instrument acknowledging paternity (which was the citizenship application for Pipah) meant that he was a parent – was rebutted by the operation of the Artificial Conception Act.
Masson and Parsons [2017] FamCA 789
Mr Robert Masson wanted to become a father. He agreed with an old friend, Susan Parsons, that he would supply a quantity of sperm in order for her to become pregnant. He did so. A child was born. Susan subsequently married Margaret Parsons.
The relationship between the parties broke down. A question that arose at trial was whether Mr Masson was a parent. Not surprisingly, he relied on the Groth and Banks argument to say that he was- based on biology, intention and parenting. Also not surprisingly, the Parsons argued that he was not. They argued that Margaret was the second parent- a contention rejected by Cleary J.
Her Honour agreed with the approach in Groth and Banks and found as a matter of fact that Mr Masson was a parent on the basis that:
· Margaret was not a parent;
· Mr Masson intended to be a parent;
· Mr Masson was biologically a parent;
· Mr Masson had engaged in parenting.
Parsons and Masson[2018] FamCAFC 115
Helen and Margaret successfully appealed to the Full Court about whether Mr Masson was a parent. Thackray J held at [51]-[53]:
“[51]As I pointed out in Farnell there has been a serious divergence of judicial opinion in this area. The problem arises from the fact that the federal Act does not make express provision for the status of allchildren born as a result of an artificial conception procedure or surrogacy arrangement.
[52] The primary judge noted this divergence of opinion, but she did so by reference only to what has been said by other trial judges. This, in itself, points to there being no authoritative ruling at appellate level that might prevent us from allowing the appeal on the basis of the merit in Ground 1.
[53] Whatever may have been said by trial judges, it has always been accepted by this Court that the intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act. So much should be clear from the distinction the Act draws between a “parent” and a “step-parent” – a distinction which would apply even to a male who had lived with and treated a child as a member of his family from the time of birth.”
His Honour stated at [21]:
“The line of authority followed by the primary judge effectively postulates that the relevant law is to be found in the federal Act. The appellants submit, in effect, that this is a constitutional heresy given there is a State law with obvious application to the circumstances. I agree, since this was a case heard in federal jurisdiction and it was mandatory for s 79 of the Judiciary Act to be applied.”
His Honour stated at [31]-[34]:
“31. The mere fact that s 60H provides for laws to be prescribed for certain purposes does not create inconsistency between the federal Act and laws like the State Act. Inconsistency could only arise if the State law provided that:
(a) a married or de facto couple who satisfied the terms of s 60H(1)(a) and (b)(i) must be treated as notbeing the parents of a child born as a result of an artificial conception procedure; or
(b) that the person who provided the genetic material but was not the “other intended parent” must be regarded as being a parent of the child (and that law had not been prescribed as a law to which s 60H(2) or s 60H(3) applied).
- There are no State laws so providing, and hence no inconsistency in what I have previously described as “a coherent national legal framework” (Farnell & Anor and Chanbua [2016] FCWA 17; (2016) FLC 93-700 (“Farnell”) at [301]).
- In particular, there is no State law providing for a man to be treated as being the father of a child born as a result of an artificial conception procedure who would not be treated as such by s 60H(1) or s 60HB. This makes unsurprising the failure to prescribe any law for the purposes of s 60H(3) and is not a matter from which any conclusion can be drawn: B v J [1996] FamCA 124; (1996) FLC 92-716 at 83,617 (“B v J”).
- I consider it clear that a law such as s 14 of the State Act, which determines whether a man can be regarded as the father of a child, must be applied where that question arises in federal jurisdiction. Since the presumption in s 14 is irrebuttable, and as the respondent was not married to the first appellant, or in a de facto relationship with her, it follows that the respondent is presumed not to be the father of B, and therefore ought not to have been treated as being her parent for the purposes of the federal Act.
His Honour went on to say at [43]-[47]:
“43.First, while as a matter of ordinary English usage the word “parent” will be satisfied by identifying the male whose gametes were used for a child to be conceived, biology alone is not determinative in deciding who is a “parent” for the purposes of the federal Act, since a biological connection is not required. This can be seen from the provisions dealing with adoption, surrogacy and artificial conception procedures involving consenting partners.
44.Secondly, there is nothing in the federal Act to suggest that the expectation of a man that he will “parent” a child born using his genetic material is relevant in determining whether he is a “parent” for the purposes of that Act. The only thing that comes close is the use of the words “intended parent” in s 60H(1), but that subsection concerns spouses or de facto partners, and it is not suggested the respondent was ever married to or a de facto partner of the first appellant.
45.Thirdly, there is nothing in the federal Act to suggest that the state of knowledge of the putative father about the nature of the mother’s relationship with another person is of any relevance to his status in relation to the child. If the child is born to a woman who is married to, or in a de facto relationship with, another person, and the provisions of s 60H(1) are otherwise satisfied, then regardless of his state of knowledge, the male who provided the genetic material is not the father of the child, since the child is deemed not to be his.
46.The respondent seeks to support the primary judge’s finding by arguing that s 60H should be understood as not limiting, but rather enlarging the category of persons who are entitled to the status of “parent”. The logical extension of this argument is that a child could have more than two “parents”, which would lead to awkward consequences in applying the federal Act. The appellants refute any suggestion that the Act admits of children having more than two parents. They point out that provisions such as ss 60B and 60CC are framed on the clear assumption that a child can have only two parents. This is said to follow from the use of the word “both” when referring to “parents”.
47. The appellant’s interpretation should be accepted. It is consistent not only with all dictionary definitions of “both” but also with those sections of the federal Act where reference is made to “both parties to the marriage”. Marriage is the union of two people, as provided for in s 5 of the Marriage Act 1961 (Cth).”
Thackray J then stated what he called a final word about this point:
“83. Fogarty J pointed out in B v J that the Standing Committee of Commonwealth and State Attorneys-General repeatedly determined in the 1980s that there should be uniform laws dealing with the status of children born as a result of artificial insemination. It was agreed throughout the Commonwealth that a sperm donor would have no rights or liabilities arising from the use of their semen and that any child born as a result of artificial insemination would have no rights or liabilities in respect of the sperm donor.
84. I consider it would be a curious result if the Commonwealth was found to be out of step with the laws of all States on this issue, which would be the result of adopting the approach advanced by the respondent. I respectfully instead agree with the appellants’ senior counsel that adoption of his “entirely satisfying federal approach” leads to a “thoroughly satisfying and coherent system of law”.”
Masson v Parsons (2019) HCA
Mr Masson’s appeal to the High Court was heard just before Easter. The independent children’s lawyer and the Commonwealth supported his argument that he was a parent. The State of Victoria and the Parsons did not. Despite my having read the extensive written submissions of the parties and spent several hours reading the transcript of the hearing, the views of the High Court judges were not clear to me. The Commonwealth urged that the Family Law Act should prevail over State legislation, but that each case should be decided on its own merit. Victoria argued that there was a national scheme (and that therefore Mr Masson misses out) and that the scheme should remain in place. It also argued that to ditch that scheme could lead to different outcomes under the Family Law Act and the Child Support (Assessment) Act.
We wait and see.
All very good – but can a child have three parents?
You may think this an odd question, but in limited circumstances it has been allowed in the US and Canada, typically when there has been artificial reproduction treatment:
| Jurisdiction[65] | Approach |
| Alaska | In recent years there have been third-parent adoptions. |
| British Columbia | Changes to their Family Law Act allowed for three parents. The first such child, born to a lesbian couple and a biological father, had all three named on her birth certificate in 2014. |
| California | Since 2013, the law has allowed a court to declare more than two parents for child support and custody. The law was prompted by a child ending up in foster care when the lesbian parents were troubled, but the biological father lost custody as he was unable to be declared the father. |
| Delaware | Courts have recognised three legal parents in some families. In one, a man married a woman pregnant with another man’s child. The child called both men dad. The husband was included as a de facto parent. |
| Florida | In 2013 a judge ordered that three parents be named on a child’s birth certificate. They were a lesbian couple and the biological father. The women initially envisioned him having a non-parental role. He felt hurt when they asked him to sign away his rights during the pregnancy. He was to have weekly contact with the child, but parental responsibility remained with the mothers. |
| Maine | In 2016, a statute passed which reflected the pre-existing practice of the courts in allowing a third de facto parent, and set out criteria needed before making the declaration. |
| Maryland | I understand that judges there have recognised third parents. |
| New Jersey | In 2009 a woman, a man who had been her best friend since college and his husband had a child together. They were proud of their three parent arrangement. Things went downhill when she proposed to move to California. A judge prevented the relocation and gave custody to all three, finding that the husband was a psychological (but not legal) parent. |
| New York | A three-part intimate relationship among a husband, his wife and a female neighbour Long Island eventually led to the state’s first known “tri-custody” ruling, in March 2017. The three decided together to have and raise a child, whom the neighbour bore. The women later split off as a couple, and the husband and wife divorced. Although the ex-wife lived with the biological mother and boy, she wanted the legal protection of shared custody. A judge granted it, citing the best interest of “a well-adjusted 10-year-old boy who loves his father and his two mothers.” There is apparently a tri-custody case pending in New York, involving a mother and a gay couple. |
| North Dakota | A court ruled in 2010 on the case of a man who’d raised a boy as his son for six years, before learning that another man had fathered him. With both biological parents also in the boy’s life, the court found the man was an additional, psychological parent. He was granted rights including contact and invitations to special school events. But only the mother was given parental responsibility. The court said that the child should not be shuttled among “three different homes with three different ‘parents’ each week.” |
| Oregon | Oregon judges have been inconsistent. Some judges have approved three parent adoptions- when the three adults in an intimate relationship embarked on having a child together- but other judges have declined to do so. |
| Pennsylvania | A court decided in a 2007 that a man who fathered children for a lesbian couple had to contribute to child support after the couple broke up. He had agreed to be a sperm donor and then became involved in the two children’s lives, encouraging them to call him “Papa” and paying thousands of dollars toward their care. The court said he had shown an intention “to demonstrate parental involvement far beyond the merely biological” and ordered that he be factored as an “indispensable party” in child support, though it didn’t expressly declare him a parent. By the time of the ruling, he had died — and left his estate to the children. |
| Washington State | Courts have recognised third parents, such as a man who was told he had fathered his girlfriend’s baby. He served as the child’s primary parent after the mother left him, before her former boyfriend was shown to be the biological father and embraced paternity. A court found in 2013 that the first man was “a father to this child,” with contact rights and child support obligations. |
The law in Australia recognises only two parents.
In Australia we have consistently found, particularly in light of section 60H that these men are not parents. I want to explore two cases:
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.
“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 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[67]:
“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[68]:
“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.[69]”
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.[70]
Regrettably, Reiby & Meadowbank has been revisited in Reiby & Meadowbank (No. 2) [2018] FCCA 454. Five years after the first litigation the sperm donor sought to increase time between the child and himself. The respondents, who were self-represented opposed that on the basis of Rice and Ausplund. They were successful.
Lamb & Shaw [2017] FamCA 769
This was a surrogacy arrangement in North Queensland which went dreadfully wrong. The surrogate was the third cousin of the intended mother. The intended mother and intended father were the genetic parents. The matter ended up in the Family Court because the surrogate did not relinquish the child. An issue at trial was whether the intended father was a parent. This case is specific to the Status of Children Act 1978 (Qld) which has slightly different drafting on point to that of the status of children legislation elsewhere in Australia except that for the Northern Territory (where for all practical purposes surrogacy does not exist).
No parentage order was made. Tree J noted that under section 17 of the Surrogacy Act 2010(Qld):
“To remove any doubt, it is declared that, unless and until a parentage order is made under Chapter 3 transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 apply to the child.”
His Honour stated:[71]
“There are three noteworthy points in relation to this. The first is that section 23(4) does not utilise the device of an irrebuttable presumption if the sperm donor is not the father of the child, as that Act does in relation to the woman who produced the ovum (see sections 23(2)(b) and (3)). No explanation for the different terminology is apparent in the Act, nor does the explanatory memorandum relating to the bill enlighten this issue. Because section 17 of the Surrogacy Act only refers to the presumptions established for the Status of Children Act, it is arguable that section 23(4) is not encompassed within section 17, however it seems that the intention of section 17 was not to affect the continued operation and effect of the Status of Children Act and hence I do not accept that only presumptions per se continue to operate.
The second is that section 23 of the Status of Children Act was enacted prior to surrogacy being statutorily recognised and regulated in Queensland, and hence, unsurprisingly, seems to work from the assumption that the child resulting from the pregnancy was intended to be retained by the birth mother.
The third is that section 30 of the Status of Children Act, which deals with the resolution of conflicting presumptions, would not, at least on a plain reading of its wording, operate to ameliorate the lack of rights and liabilities on the part of the sperm donor, because section 30 only deals with presumptions and as I have observed, section 23(4) is not cast in that fashion. Hence, arguably, even if, for instance, the sperm donor were registered on the child’s birth certificate as a parent (and hence under section 25 presumed to be the child’s parent) on one view, section 23(4) would nonetheless operate to deprive the donor/parent/father of any rights, notwithstanding parenthood.
On balance I construe section 23(4) as implicitly recognising that the sperm donor is the father of the child, however despite that status, he has no rights or liabilities in relation to the child. Nonetheless, it follows that under State law in Queensland, the man who donated the sperm in order to fertilise the donated ovum, is the father of any relevant child to a woman implanted with the resultant embryo.
The position in relation to the donor of the ovum (and hence the biological mother in this case) is more clear cut. Section 23(2)(b) creates the presumption for all purposes, that the donor of the ovum is “not to be the mother of any child born as a result of the pregnancy”. That presumption is irrebuttable: see section 23(3). Rather, it is to be irrebuttably presumed that the child’s mother is the woman into whose womb the fertilised donor ovum was implanted: section 23(2)(a).
In summary therefore:
(a) The biological parents of a child born to a surrogacy arrangement are the parents whose sperm and ovum combined to produce the gamete;
(b) However those persons are not, for the purposes of the Family Law Act, the parents of the child, unless the State legislation, either directly or by order made under it, effects such as a status;
(c) Here, section 23(4) of the Status of the Children Act operates such that the donor of sperm used to fertilise the donor ovum implanted into another woman’s womb, remains the father of the resultant child, has no rights or liabilities relating to it; and further
(d) By section 23(2) of the Status of Children Act, there is an irrebuttable presumption that the ovum donor is not the mother of the child, but the recipient is.”
His Honour in following Bernieres and Dhopalconcluded that under the Family Law Actthe biological mother was not a parent of the child but that rather the effect of the Status of Children Act is that the birth mother is irrebuttably presumed, for all purposes, to be the mother of the child unless a parentage order were made.
His Honour then said:[72]
“The position of the biological father, at least in Queensland, is a little less clear. The State legislation does not deprive him of fatherhood per se, but rather strips that fatherhood of any rights or liabilities, unless he were to marry the birth mother. On the other hand, Bernieres and Dhopal and indeed Mason and Mason as well (albeit in the context of Victoria and New South Wales respectively) expressly held that the sperm donor father was not a parent for the purposes of the Family Law Act, although neither of the States from which those cases sprang had any equivalent to section 23(4) of the Status of Children Act.
Although with some hesitation, I am nonetheless persuaded that in Queensland, the combined effect of section 17 of the Surrogacy Act and section 23(4) of the Status of Children Act, means that the father is a parent of the child, and that, consistent with Bernieres and Dhopal, the Family Law Act will recognise that status.”
The surrogate in Lamb & Shaw did not like that outcome and appealed. The matter came before the Full Court last year. The basis of appeal was that his Honour had erred as to this issue. The Full Court found that there was a factual matter that had not been decided. It appeared that the surrogate had a de facto partner at some stage. What was unclear was whether that couple were in a de facto relationship as at the date of implantation.
In Lamb & Shaw [2018] FamCAFC 42, their Honours stated:[73]
“Importantly, each of the relevant subsections of section 19 and 23 provide for irrebuttable presumptions of law if the respective preconditions for the application of the same are met. Establishment of the relevant relationship is fundamental to the application of the respective irrebuttable presumptions of law. Conversely, a finding as to the relevant presumption cannot be made unless and until there is a finding, or agreement, as to the relevant applicable relationship (or absence of relationship) on the part of the birth mother.”
Because it was uncertain as to whether the birth mother was in a de facto relationship at the time of implantation, the matter was remitted for that matter to be decided, preferably to be again before Tree J.
Their Honours stated:[74]
“We feel bound to record that the issues confronting the legal practitioners were not without complexity and all the more so because at the time that material and submissions were prepared and the hearing before his Honour conducted, no decision of the Full Court had addressed those issues and no first instance decision had addressed the Queensland legislation which applied in this case.
Yet, the net result of those circumstances is that his Honour was not provided with the evidence or submissions directing his Honour’s attention to the relevant questions requiring an answer as a precursor to addressing the applicable presumptions. As all three counsel conceded before us, the relevant preconditions were either not addressed at all by them before the primary judge or, if alluded to, it was in a different and with respect irrelevant, context.”
The matter came back before Tree J last year, when the surrogate conceded that she was single at the time of conception[75]. I do not know if the matter is to be appealed again. If the conclusions of Tree J are correct, then the conclusion about related provisions in the Status of Children Act 1978 (Qld) concerning same sex mothers is that the sperm donor must also be a parent, and therefore the child has three parents, which seems inconsistent with the statutory scheme[76].
Just because you’re on the birth certificate does not make you a parent
In a number of NSW cases, an intended parent has been named as the father before the making of the parentage order. In each case the intended father should not have been named as a parent. I note that it is offence to provide false or misleading information to the Registrar of Births, Deaths and Marriages about who is a parent[78].
In S v B; O v D [2014] the intended fathers under two surrogacy arrangements were named as the fathers on the birth certificates before parentage orders were made under the Surrogacy Act 2010 (NSW). White J stated:
“25. A difficulty in both cases was that the husband of the birth/surrogate mother was not prepared to complete a birth registration statement that named him as the father of the child, notwithstanding that until a parentage order were made under the Surrogacy Act (or an adoption order made if that were required), he was irrebuttably presumed to be the child’s father.
26. The solicitor for the plaintiffs advised that she provided legal advice to the parties that the birth mother (that is, the surrogate mother) should be recorded on the birth certificate as the child’s mother and that the intended father should be named on the birth certificate as the child’s father. She advised that in both cases the husband of the birth mother did not wish to be named on the birth certificate as the child’s father. She stated:
“As the husband of the surrogate mother did not wish to be recorded on the birth certificate, as there was the intention by the plaintiffs to apply for a parentage order with the consent of the defendants and as there was no penalty for registering the second plaintiff as father, or no specific exclusion not to be registered, the advice given by me was for the second plaintiff to be recorded on the birth certificate as father. (In each case the second plaintiff was the intended father.)“
27. The solicitor for the plaintiffs submitted that it was in the best interests of each child from the outset that the intending fathers be registered as the children’s fathers. Having their name on the birth certificate as father assisted in the process of having the child’s name on the Medicare card of the intending father soon after the birth of the child. The children lived with their intended parents very soon after birth. If there had been any post-birth complications for which a father’s consent to medical treatment might have been required, having the intended father’s name on the birth certificate could have avoided complications.
28. In one of the cases the solicitor advised that following the birth of the child the surrogate mother and her partner separated and remain separated and the partner of the surrogate mother initially refused to sign a consent to the application for the parentage order, although it was always the intention and agreement of the parties that the intending father would become the father of the child and the partner of the surrogate mother would never act as the father of the child.
29. Hence, recording the intending father as the child’s father on the birth certificate reflected the physical realities of the situation.
30. The pre-condition in s 38 to the making of a parentage order is not met. Despite that pre-condition not having been met, the parentage order can be made if I am satisfied that exceptional circumstances justify the making of the order (Surrogacy Act, s 18).…
31. I am satisfied in the present case that there are exceptional circumstances that justify ignoring the non-satisfaction of the pre-condition in s 38. I think it must be unusual and out of the ordinary for parties to be advised by a solicitor that they need not comply with the requirements of the law. That is what the solicitor’s advice amounted to in this case. No doubt the advice was well-meaning, but it was wrong.
33. The solicitor said that it was intended that the plaintiffs (the intended parents) would apply for a parentage order with the defendants’ (the surrogate mother and her husband) consent. But the application initially made was only for the transfer of the mother’s parentage. If that had been the only order made the child would be without a father. The incorrect details on the birth certificate would not withstand scrutiny if the child’s parentage were in issue. I infer that the reason that the intended fathers in the present case did not initially seek a parentage order for the transfer of the parentage of the children from the partners of the surrogate/birth mothers to them was that they considered that having been recorded on the birth certificate as the children’s fathers, they would have that status and nothing more would need to be done. Whilst their registration as the children’s fathers gave rise to a presumption that they had that status, the presumption could readily be rebutted with potentially irreversible consequences, for example, if one of the intended fathers died and the question was whether his estate should pass to his child on intestacy.”
Under the principle that there are only two lawful parents, there have been several cases when the biological father’s name has been removed from the birth certificate. A birth certificate is after all not proof, but merely evidence of parentage.
AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100
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 the 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, with a view to being an “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 irrebuttable 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 Dent & Reece [2012] FMCAfam 1303- a case where the birth mother, Ms Rees, unsuccessfully opposed her former partner, Ms Dent being added to the birth certificate following the law change in 2008. The court evidently believed it had relevant jurisdiction.
In LU v Registrar of Births, Deaths and Marriages (No 2) [2013] NSWDC 123, a female couple sought to have a child. They enlisted the help of a known sperm donor. It worked- and the mother gave birth. The father was registered on the birth certificate with the consent of the mother. Five months after birth, the mother and her partner separated. The partner sought successfully to have her name entered on the birth certificate and the father’s removed. 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 a 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[79]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 mother’s partner should have her name added to the child’s birth registration.
A & B v C [2014] QSC 111
Ann Lyons J followed AA v Registrar of Births, Deaths and Marriages and BB in holding:
“A Register 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.”
Her Honour noted an Oregon case in which a sperm donor was named as the third parent, based on the parens patriae jurisdiction. The parens patriae argument was not run before her Honour. Her Honour noted that the jurisdiction she was exercising was not the parens patriae jurisdiction.
Registration of US surrogacy orders
In three cases, Re Halvard [2016][80], Re Grosvenor [2017][81] and Sigley and Sigley [2018][82], Forrest J has registered US surrogacy orders under s.70G of the Family Law Act.
In Re Halvard, the intended parents (who resided in the US) obtained a pre-birth order in Tennessee – when the surrogate was about 31 weeks pregnant – which said that when the child was born they were the parents. The parents were therefore the de jure parents in the US. Whether they were the parents in Australia was doubtful. They had sought to register the US order with a registrar, who despite having a requirement under seg.23 to shall register, declined to do so. His Honour’s obligation under reg.23 was to mayregister. The child was an Australian citizen.
Forrest J registered the US order. He did so on these bases:
· A pre-birth order, being of the same nature as a post-birth parentage order made in Queensland or NSW, was an overseas child order. In this he was consistent with the approach of Ryan J in Carlton and Bissett [2013].
· The order was still current- as required by reg. 23.
· The order was made in a prescribed overseas jurisdiction- as required by reg.23 and as set out in schedule 1A to the Regulations.
· The parties and child, although living in the US, would in due course be proceeding to Australia- required by reg. 23.
· As a matter of discretion, he should register because it was an altruistic arrangement.
Forrest J stated:
“32. In his written submissions for the applicants when addressing discretionary considerations, the applicants’ solicitor refers to public policy considerations surrounding surrogacy arrangements. He refers to the fact that the Australian States of New South Wales and Queensland as well as the Australian Capital Territory have expressly criminalised the entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those States or in the ACT and he points out that as the applicants are not ordinarily resident in one of those places the prohibition does not apply to them. It appears thereby, that the solicitor’s submission is that, consequently, the discretion should not be exercised against the registration of the Tennessee Court’s Order.
33. With all due respect, I do not quite understand the submission, as I do not understand the surrogacy agreement that the applicants entered into to have been a commercial one. The Queensland Surrogacy Act 2010 defines a commercial surrogacy arrangement as one in which a person receives a payment, reward or other material benefit or advantage other than the reimbursement of the birth mother’s reasonable surrogacy costs. The New South Wales’ legislation defines commercial surrogacy in very similar terms, also permitting payment to the birth mother for reimbursement of her reasonable surrogacy costs.
34. The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided.
35. Whilst an overseas child order that came into existence as a consequence of a commercial surrogacy agreement might have difficulty attracting a favourable exercise of the discretion to register it in this Court for public policy reasons, I do not consider that applies in this matter.”
The effect of registration was that the parents became the de jure parents in Australia as well as the US, which while important to them was transformative in the life of their child.
Re Grosvenor involved an ACT couple who were posted to the US, and while there they underwent surrogacy. A pre-birth order was made, in North Carolina, naming them as parents. The child had obtained Australian citizenship. The family remained in the US but expected to return to Australia.
Forrest J registered the order even though there had been a commercial surrogacy arrangement and it was pre-birth order:
“31. Given that the applicants and their solicitor tell the Court that the child in this case was brought into the world with the assistance of an arrangement regulated by a commercial surrogacy agreement, I am clearly required to more deeply consider that proposition expressed by me only six months ago. The public policy context within which this consideration is set includes the fact that in Queensland, New South Wales and the Australian Capital Territory entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of course, I have already observed that Mr and Ms Grosvenor reside in the USA and not one of those jurisdictions. Nevertheless, they have entered into a commercial surrogacy agreement and they seek the registration of the Court order that gives them the parenting rights over their child in this Court.
32. Having considered the matter further, particularly having regard to:
o the unique circumstances of this couple and their inability to biologically parent and carry their own baby;
o the well-regulated nature of the surrogacy arrangements entered into between the applicants and the surrogate, notwithstanding its commerciality;
o the judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the woman who carried the baby for the applicants;
o the acceptance by the Australian Government of that US jurisdiction as a prescribed jurisdiction for the purposes of the registration of ‘overseas child orders’ made in Courts of that jurisdiction, thereby, I am satisfied, signifying the Australian Government’s satisfaction with the standard of the judicial processes that would have occurred in the making of the order; and
o the fact that the arrangements entered into, regardless of their nature, brought into the world a child who is the biological child of at least one of the applicants, the legal child of both of them, who is being loved and raised as their child, who as an Australian citizen, like her parents, will be coming back to live in Australia in the near future, and who has every right to expect that the legal nature of her relationship with both of her parents is appropriately recognised in this country of hers;
I am satisfied that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicants.
33. As I also said in my previous decision in December last year, another matter to consider is the fact that the overseas parenting order sought to be registered was made two weeks before the child was actually born whereas under the legislation governing surrogacy in the Australian Capital Territory, parentage orders that regulate the parent-child relationships created through the surrogacy agreement that may be obtained from the Supreme Court of that Territory may only be applied for a minimum number of weeks after the subject child is born.
34. The Explanatory Notes published in the Australian Capital Territory when the surrogacy legislation was before Parliament casts no light on anything that might make the difference I have identified of some relevance in this matter. As I understand matters, parentage orders, as they are described in the Australian States’ legislation, are of the same effect as the Order of the North Carolina Court under consideration in that they transfer parentage from the carrier to the parent so that legal parental rights are created and are registrable with the government maintained registries of births, deaths and marriages in the respective jurisdictions. That they can only be made after birth in this country whilst they are clearly able to be made in North Carolina (and South Africa) prior to the birth of the subject child is of little apparent consequence and is not, in my judgment, good reason for refusing to register the North Carolina Court’s Orders in this Court.”
In Sigley and Sigley the intended parents were Australian citizens, and originally from Victoria. They had been residing in the US for some years and met there. They soon married. The first issue that Forrest J considered was whether the order was an overseas child order. His Honour said that the question was best determined by asking the further question: “However expressed, does it have the effect of determining the person or persons with whom a child who is under 18 is to live or as to which person or persons are to have custody of a child who is under 18?” The order made it absolutely clear that it applies to the children, that is the children that were produced by fertilisation of an egg from Ms Sigley and sperm from Mr Sigley that were carried by the gestational carrier. The order outlined that the children were in the custody, care and control of the intended parents, being the applicants. The order goes on to note the Court’s finding that the children born to the gestational carrier are the children of the intended parents. Ultimately the Court declared, ordered and decreed that the applicants were the parents. The order noted the Court’s finding that this order was in the best interests of the children. Even though they resided in the US, Mr and Mrs Sigley expressed an intention to return to Australia permanently, their Australian citizenship, years of being ordinarily resident in Victoria prior to relocating to the US, the residence of members of their family in Australia, their temporary work visas in the US and enrolment of their children in a Melbourne school for the commencement of kindergarten gave Forrest J reasonable cause to believe them when they said that they intended to return to Australia in the future. As a matter of discretion his Honour was satisfied that the particular meaning to be attributed to proceeding to in those circumstances must be one of coming to or travelling to Australia, whether that be for a visit or to live here and whether that person be currently on their way here or simply paying to come here sometime soon. Hence, his Honour was satisfied that Mr and Mrs Sigley and their daughters were at some point in the future considered to be proceeding to Australia.
In referring to his decisions in Re Halvardand Re Grosvenor (although not by name) his Honour stated:[83]
“I am, as I considered I was in the earlier decision, clearly required to give consideration to the public policy context within which my discretion is being exercised. That context includes the fact that in Queensland, New South Wales and the Australian Capital Territory entry into “commercial” surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of course, I have already observed that Mr and Ms Sigley reside in the USA and not one of those jurisdictions. Whilst they currently intend to return to live in Australia at some time in the future, it is not in one of the three jurisdictions just mentioned, but rather the State of Victoria. Nevertheless, they have entered into a commercial surrogacy agreement and they seek the registration in this Australian Court of the American court order that gives them the parenting rights over their child. If they were “ordinarily resident” in Queensland, New South Wales or the ACT, they would have, prima facie, committed a criminal offence. However, as the applicants’ solicitor points out in his submissions, Victoria allows intended parents to enter into commercial surrogacy arrangements overseas and has not sought to criminalise such behaviour. Entry by the applicants into the “commercial” surrogacy agreement was lawful in the USA, particularly in State C where it was done and the Australian Government has not determined to criminalise entry by Australian citizens or residents into commercial surrogacy agreements overseas as, arguably, it could do.
Having given the matter my consideration, I am satisfied for all of the same reasons as I set out in my earlier decision…that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicants. Different from that case though, in this case there are two children who were brought into life through the surrogacy arrangements and both of those children are the biological children of both of the applicants. Their gestational “mother” was their carrier who assisted their biological parents bring them into the world. The two children are both Australian citizens now as well, with legitimate expectations that the legal nature of their parent/child relationship with both of their loving parents is appropriately recognised in this country of theirs.”
In two subsequent cases, Rose [2018] FamCA 978 and Allan and Peters [2018] FamCA 1063, Carew J refused to register US surrogacy orders- the prime reason being that to do so would be to give curial approval to commercial surrogacy.
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 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 and signed sperm or other donor agreement in place.
As Reiby & Meadowbank makes plain, a sperm donor agreement is not 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 might also clarify intention – if that it is to be part of the law about whether someone is a parent.
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.
Mutual donation
The practice that has become more and more common in recent years occurs with lesbian couples. One may offer her eggs to a partner. This may be so that they can have a child together.
The presumption of the clients that I have seen who have undergone this practice is that they know that they are both the parents as a matter of law of the child. If they are using a known sperm donor they may have considered that the donor is not a parent but have failed to consider whether the donor is a person who is concerned with the care, welfare and development of the child and who therefore has standing to make application before the court.
One of the features that I have seen is that the birth mother (irrespective of genetics) may consider herself to be the mother and the donor or partner is not the mother. The non-birth mother will consider herself just as much mother of the child.
An example of this conflict (although not where there was any gifting of eggs) was in Lusito & Lusito [2011] FMCAfam 55 which involved a primary school age boy called X. It was a fight between the biological and non-biological mother. I was the independent children’s lawyer. The first feature of the case was that Purdon-Sully J wanted evidence to demonstrate that the father had been served or if he was not capable of being served some letter from the clinic about his anonymity. This was after receiving evidence from both parties that the child was conceived from an anonymous sperm donor.
Evidence was obtained from the IVF clinic that there was an anonymous sperm donor and the letter was tendered.
During the course of the case, the law changed in Queensland to allow the non-biological mother to be registered on the birth certificate as a parent. Not surprisingly she wished to be registered as a parent. The biological mother was opposed to the non-biological mother being registered, her evidence at trial was that their son, who was soon to reach high school might be discriminated against at school and in prospective employment if his birth certificate showed that he had two women as the mother and parent. The biological mother was also concerned that the child had the ability at the age of 18 to be able to locate his father if he so wished and to have the option to have his father named on the birth certificate as his father.
The non-biological mother did not press the issue as she did not ultimately seek an order that she be named on the birth certificate as a parent but stated in cross-examination that she merely wanted to have an on-going relationship with her son.
Care, Welfare and Development
The law only recognises two parents. However as we have commonly seen 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 Father’s Day and at Christmas, including after the women had separated. Ms Fabian accepted that they celebrated Father’s 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 day care 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 Kathryn 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, are 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[85]:
“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.”
A further example of difficulties involving a lesbian couple each of whom has a child was Connors & Taylor [2012] FamCA 207. In that case Watts J found that each of the women was a parent of each of the children. Each of the children had the same known sperm donor, who was named on their birth certificates as the father.
Professional Indemnity Scary Stuff
Piccolo and Piccolo [2017] FCWA 167
Mr and Mrs Piccolo met in 2006. They married in 2010. After their attempts to start a family were unsuccessful, they sought to proceed by way of surrogacy in Canada. A number of embryos were created using the husband’s sperm and eggs from a Canadian donor. A child was born through the surrogacy arrangement in 2012. The remaining two embryos remained cryopreserved in Canada.
The wife commenced proceedings for property settlement. She did not specify the final relief sought. The husband responded with detailed proposals regarding parenting orders, no particularised relief as to financial matters, but seeking orders for the remaining embryos to be maintained in storage for its use in the future.
Consent orders were made as to property settlement in 2016. The parties were not able to resolve their disagreement as to the appropriate parenting orders to be made and the future of the remaining embryos.
Funnily enough, in the whole case there doesn’t seem to be any discussion about whether the presumption for equal shared parental responsibility should apply or not apply depending on whether the child was a child of the party. Following the decision in Bernieres and Dhopal, on the face of it (subject to what impact the Canadian Court order as to surrogacy might have) the child would not be the child of the parties because they had not complied with Western Australian law for surrogacy which amongst other things required them to undertake IVF in a Western Australian clinic.
O’Brien J held that both parties were parents of the child for the purposes of the Family Law Act. His Honour cited his section 6 of the Artificial Conception Act 1985 (WA), which provides:
“(1) Where a married woman undergoes, with the consent of her husband, an artificial fertilisation procedure in consequence of which she becomes pregnant, then for the purposes of the law of the State, the husband –
(a) shall be conclusively presumed to have caused the pregnancy; and
(b) is the father of any child born as a result of the pregnancy.
(2) In every case in which it is necessary to determine for the purposes of this section where the husband consented to his wife undergoing artificial fertilisation procedure, that consent shall be presumed, but the presumption is rebuttable.”
On the face of it, with respect, section 6 does not apply because the wife was not pregnant. A surrogate carried the while. Therefore on the face of it neither of the parties were parents of the child and therefore the equal shared parental responsibility presumption under section 61DA should not have applied.
Each of the parties was, with respect to his Honour, if Bernieres and Dhopal applied in Western Australia, and again subject to the consideration of the legal processes in Canada as to parentage, and how they might be recognised in Western Australia, not a parent under the Family Law Act, which means that they had to fall within section 65C(c) of the Act:
“Any other person concerned with the care, welfare or development of the child”.
Although it is unclear from the judgment, it is likely that Mr and Mrs Piccolo obtained an order in Canada that they were the parents for surrogacy. In the various cases aside from the US registration cases, the surrogacy that occurred overseas was based on contract, not order. In Canada the process of obtaining parentage is through order, albeit in two provinces currently, British Columbia and Ontario, a declaration may be obtained without an order of the Court.
The definition of who is a parent in section 4:
“When used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.”
The definition of “child” in Part VII, includes an adoptive child and a stillborn child. Does it include a child of a person identified by an order made in a foreign court?
Furthermore, it is likely that Mr and Mrs Piccolo in engaging surrogacy in Canada had entered into a “surrogacy arrangement that is for reward” under section 6 of the Surrogacy Act 2008 (WA). It may have been, as Thackeray CJ noted in Farnell & Chambua that in doing so they committed an offence in Western Australia. This issue was not dealt with by his Honour.
His Honour stated:[86]
“The husband seeks that ownership and control of the embryos be passed to him, as he intends to make use of them in the foreseeable future in the hope of having a further child or children. He expresses what he regards as his moral obligation of preserving and making use of the embryos, based on his belief that each of them already represents a life. He proposes either to proceed with the transfer of the embryos to Ms P [his new partner, also a relative of his wife], or to a surrogate in Canada. Ms P is supportive of his plans.
The wife opposes the husband’s application and seeks that the two remaining embryos be permitted to succumb. She argues that the sole purpose of the creation of the embryos was for the joint use of the parties to have children together, and that as she has no desire to have further children with her husband, that purpose is at an end. She raises no other objection to the husband’s proposal.”
Both parties referred to a previous decision in G & G [2007] FCWA 80 in which the Court held that it did not have jurisdiction to deal with the matter. His Honour noted that there were significant factual differences. In the earlier case:
1. The embryos were created using the genetic material of both parties.
2. The request form signed by the parties for the prior preservation and storage of their embryos included an express provision, at their choice, that in the event of separation the embryos were to be discarded.
3. The embryos were created and stored in Western Australian and accordingly were unarguably subject to the relevant legislation in Western Australia.
In the present case, the embryos were created using genetic material from the husband and from a donor. The wife had no genetic connection. The parties executed documents in relation to both the creation of the embryos and the surrogacy arrangement:
1. The parties agreed that the embryo should be jointly owned by them.
2. They agreed that the agreement with the fertility centre was to be “governed by and construed in accordance with the laws of the Province of [place A]”.
3. They recorded their agreement as to the disposition of the cryopreserved embryos in the case of partnership breakdown or death in the following terms:
“If our relationship terminates, we acknowledge that there may be dispute over the ownership of the embryos. If this occurs, we agreed to inform [the fertility clinic] in writing (within 3 months) that there has been a change in our relationship, and that we will provide the necessary legal documentation to [the clinic] indicating who will assume sole ownership of the embryos. Both Parties’ signatures will be required on this document.
In the event of the death of one of us, we hereby give authority to the surviving partner to assume ownership of the stored embryos.
In the event of both of our deaths, we hereby give authority for [the clinic] to dispose of our embryos in an ethical fashion.”
Copies of the relevant legislation in Canada were tendered.
It was noted that the parties were divorced and accordingly they were no longer spouses.
Accordingly, under the relevant Canadian law:
1. Prior to the separation of the parties, they were jointly the donors as defined, and their joint written consent to the use of the cryopreserved embryos was required; but
2. Since separation, the husband was the sole donor for that purpose and only his consent was required for the embryos to be used.
The wife was adamant that the embryos not be used. His Honour noted that it was not suggested by the wife that she would be at risk of facing any form of legal obligation to a child born of the cryopreserved embryos. It was accordingly unnecessary to speculate as to the parentage under Western Australian law of any child born of the cryopreserved embryos to a surrogate in Canada or elsewhere, or the impact, if any, on that issue of a distinction between such arrangement being altruistic or commercial. Should one or both of the cryopreserved embryos be carried to term by Ms P, she would be the mother of that child for the purposes of Western Australian law under the Artificial Conception Act 1985(WA). Accordingly, as the wife had advanced no cogent reason as to why the cryopreserved embryos should be permitted to succumb, nor as to why the husband should not be permitted to preserve and eventually use them and with the agreement executed by the parties standing in sharp distinction to the agreement in G & G that in the event of separation the embryos owned by them were to be discarded, relief was granted to the husband to be able to use the embryos.
The orders were:
(1) The wife forthwith do all acts and things and sign all documents necessary to transfer to the husband any right or interest she may have in the cryopreserved embryos held in storage with the [fertility centre] in Canada and to notify the said fertility centre that with effect from the date of these orders the husband shall be the sole owner of the said embryos.
(2) With effect from the date of these orders, the husband is to be solely responsible for all costs associated with the said cryopreserved embryos including but not limited to the costs associated with the storage, transport, renewal, use or disposal.
It is absolutely imperative to put on your checklist for every client who comes through the door seeking a property settlement to find out whether there are any embryos and, if so, what conditions apply relating to their storage. If that is not checked and, contrary to your client’s wishes, for example, those embryos are allowed to succumb, your client may be looking to you to make good the loss.
Conclusion
The law currently recognises only two parents. Advances in the UK (which no doubt over time will be replicated here) to allow mitochondrial DNA to be inserted into the DNA of an embryo such that an embryo has 3 genetic parents is unlikely to change who is a parent as a matter of law but no doubt will make the life of the child and his or her identity even that more complex. It will be interesting to see if courts do recognise three parents or continue to take the current approach which is that there are two parents only and that someone in a position of a known donor is not a parent but may be someone concerned with the care, welfare and development of a child and despite any agreement between the parties and may be removed from the birth certificate as a parent.
Who is a parent under surrogacy arrangements, especially international and non-compliant surrogacy arrangements, continues to be an evolving area. Watch this space!
Stephen Page
Page Provan
24 May 2019
[1] Stephen Page is a partner of Page Provan, family and fertility lawyers, Brisbane. He was admitted in 1987 and has been an accredited family law specialist since 1996. He is an international representative on the Artificial Reproductive Technologies Committee of the American Bar Association, a Fellow of the International Academy of Family Lawyers and of the Academy of Adoption and Assisted Reproduction Attorneys. He is the author of the Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au
[2] Bateman and Kavan [2014] FCCA 252, [68]-[70] per Harman J
[3]Rosie Charter, Jane M. Usher, Janette Perz & Kerry Robinson (2018): The transgender parent: Experiences and constructions of pregnancy and parenthood for transgender men in Australia, International Journal of Transgenderism, DOI: 10.1080/15532739.2017.1399496, viewable at https://doi.org/10.1080/15532739.2017.1399496.
[4]Such as the Assisted Reproductive Treatment Act 2008 (Vic.)
[5]Such as the Assisted Reproductive Technology Act 2007 (NSW)
[6] [34].
[7][17].
[8][7]-[8].
[9][16].
[10][13].
[11] I have for the sake of convenience used the NSW Act. Similar legislation is in place in all States and both Territories. There can be differences between the various Status of Children Acts.
[12]E.g, In re marriage of Buzzanca(1998) 61 Cal. App. 4th 1412
[13] Defined in s.4
[14][2016] FCWA 17
[15] At [70]
[16] See also and as to s.69T: Fisher –Oakley and Kittur [2014] FamCA 123
[17] They need to be living together at the date of the procedure: Keaton and Aldridge [2009] FMCAfam 92, upheld on appeal: Aldridge and Keaton [2009] FamCAFC 229. As an example, see Ryan & Fraser[2014] FamCA 763.
[18] LWV & Anor v LMH [2012] QChC 026-conception is the act of pregnancy, not fertilisation of the embryo.
[19]See the lengthy discussion on this in Farnell and Chambua [2016] FCWA 17.
[20] Keaton and Aldridge [2009] FMCAfam 92
[21] See Ryan and Fraser [2014] FamCA 763 and Keaton and Aldridge [2009] FamCAFC 229
[22] S.14(6)
[23] As required under State law or licensing requirements, such as the National Health and Medical Research Council, Ethical Guidelines on the Use of ART in Clinical Practice and Research (2007).
[24] S.29A and following sections, Status of Children Act 1974 (Vic).
[25] This seems to be because the Convention because part of US domestic law in 2008, but the named countries in the Hague regulations have not been updated since 2006.
[26] At [17]
[27] At [23]
[28] Of the US states, Missouri, New Mexico and South Dakota are not prescribed.
[29] At [33]
[30] People in WA and SA, although not subject to explicit extra-territorial laws, may still be committing offences because of the Family Relationships Act 1975 (SA), and the Criminal Law Consolidation Act 1935 (SA); or the Surrogacy Act 2008 (WA) and s.12 Criminal Code (WA), as was made plain in Farnell and Chambua [2016] FCWA 17.
[31] 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] FamCA 505. 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] FamCA 123.
[32] At [49]
[33] Which are the various State and ACT surrogacy legislation.
[34] At [61]
[35] At [68]
[36] At [100]
[37] At [12]
[38] At [31]
[39] As also seen in Ellison and Karnchanit, for example.
[40] At [46, 50, 51, 52]
[41][2016] FCWA 17.
[42] At [15]
[43] At [33] – [36]
[44] AB and CD and CT [2015] EWHC 12 (fam)
[45] At [21] – [22]
[46] At [25]
[47] At [27]
[48] At [29]
[49] At [43] – [44]
[50] Two women lived under the one roof and went to an IVF clinic claiming that they were a lesbian couple. One of the women at trial claimed that this was true. The other said that they had not lived in a lesbian relationship but they had lied to the clinic, in order to access ART.
[51] At [12] – [16]
[52] At [24]
[53] At [30] – [32], [37] – [38]
[54] At [52-57]
[55] At [42]
[56] At [46]
[57] At [47]
[58] At [51], [52]
[59] At [63-88]
[60] At [91-92]
[61]At [40]
[62]At [53]
[63]At [54]
[64]At [62] – [65]
[65]For much of this I am thankful to Associated Press for summarising this issue across various US jurisdictions in June 2017.
[66] At [96] – [99]
[67] At [145]
[68] At [150]
[69] [51] – [57].
[70] Two further similar examples, though interim, are Purcell and Nelson[2015] FCCA 274 and Budd and Horne[2015] FCCA 1576. In both cases Scarlett J noted the animosity between the parties and therefore the need for caution.
[71]At [65] – [70]
[72]At [73] – [74]
[73]At [21]
[74]At [34] – [35]
[76] See ss 19D(2); 19E(4); 23 Status of Children Act 1978 (Qld), s.10(1)(c) Births, Deaths and Marriages Registration Act 2003 (Qld).
[77][2012] FamCA 602, [70].
[78] Births, Deaths and Marriages Registration Act 2003 (Qld), s.50.
[79] Where there has been a finding by the relevant court
[80][2016] FamCA 1051
[81][2017] FamCA 366
[82][2018] FamCA 3
[83]At [32] – [33]
[84] One such case was Crisp and Clarence; Clarence and Crisp– referred to above.
[85] At [172] – [174]
[86]At [133] and [134]
