Monday, July 17, 2017

Who is a parent is determined by the law, not necessarily genetics


On Friday I had the privilege of presenting to the annual Queensland Law Society/Family Law Practitioners Association of Queensland Family Law Residential. In my paper, I note that who is a parent is determined by the law, not by genetics. Someone who is genetically a parent may not be the parent at law. Someone who has no genetic relationship with the child might be the parent at law for all purposes. The law in this area is complex at times.

Here is my paper:




QUEENSLAND LAW SOCIETY/FAMILY LAW PRACTITIONERS ASSOCIATION OF QUEENSLAND

FAMILY LAW RESIDENTIAL



14 July 2017
GOLD COAST






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]

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[3], but can also be called artificial reproductive treatment or artificial reproductive technology[4]. 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 1978 (Qld) 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.



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.”[5]

G v H (1994)
A good starting point in discussing the issue of who is a parent is G v. H (1994) HCA 48. H sought that G, her former de facto partner, undertake a DNA parentage test, to determine if he were the father of her child. H refused, on the basis that G was a prostitute.
Deane, Dawson & Gaudon JJ stated[6] as to the parenting presumptions:
            “The presumptions operate in the interests of the child and provide the basis for the            imposition of parental duties and a responsibility unless and until proved to the contrary is           forthcoming.”
Their Honours stated:
            “While a determination of parentage for the purposes of Family Law Act proceedings is     obviously a serious matter for both the child and the putative parent, such a determination         cannot properly be regarded as a declaration of paternity in the traditional sense.”
The High Court held that an adverse inference could be drawn against G for his refusal to submit to parentage testing therefore it could be inferred that he was the father.

Brennan and McHugh JJ stated[7]:
            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.
Deane, Dawson & Gaudron JJ held[8]:
            “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[9]:
            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)[10], 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 intended to be a parent[11]
·         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[12], 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 that it is assumed that the woman who gave birth is the mother: see sections 17,18 Status of Children Act 1978 (Qld).
Where a donor ovum is used then the married woman shall be presumed for all purposes to have become pregnant as a result of the fertilisation of an ovum produced by her, into the mother of any child born as a result of the pregnancy and the woman who produced the ovum from which the embryo used in the procedure was derived shall be presumed, for all purposes, not to be the mother of any child born as the result of the pregnancy, which presumption is irebuttable: section 19 (2), (3) 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 partner and donor semen has been used, then the woman who gave birth is the mother: section 19D Status of Children Act 1978 (Qld).  Where a donor ovum has been used then she is the mother and the donor is not: section 19E(2) Status of Children Act 1978 (Qld).  Similarly in those last two examples the woman who gave birth is the parent: section 60H Family Law Act. Note that the parenting presumptions where there is a female de facto partner are irebuttable presumptions: section 19F, although the presumption about the de facto partner’s consent is a rebuttable presumption with a reverse onus: s.19G Status of Children Act.

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 Chanbua[13] [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 Groth and Banks (see below).

Who is the father?

If the man had sexual intercourse with the mother; that resulted in the conception of the child, he will be the father.
If ever there were any doubt, G v. H makes that plain. No matter the intent of the parties, or their relationship status, genetics triumph.
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
24
69P
Birth Registration
25
69R
Court finding
26
60S
Acknowledgments
27
69T
Cohabitation
28
69T

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[14], there has been no overseas jurisdiction prescribed for the purposes of section 69R[15].

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.

Will the male partner be a parent when there has been an artificial conception procedure?
Subject to the comments about Groth & Banks, 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 Act and the related provisions of the State or Territory legislation.  I will cover this in a discussion of section 60H below.

When will a female de facto partner be considered to be a parent?
If a woman were living in a lesbian relationship at the time of conception[16] i.e. the commencement of the pregnancy, after implantation[17] 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 Groth & Banks 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                                                               State or Territory, the child is a child of the woman and of the other                                  intended parent;
                                    then, whether or not the child is biologically a child of the woman                                        and of the other intended parent, for the purposes of this Act:
                     (c)  the child is the child of the woman and of the other intended parent; and
                     (d)  if a person other than the woman and the other intended parent provided             genetic material--the child is not the child of that person.
             (2)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial               conception procedure; and
                     (b)  under a prescribed law of the Commonwealth or of a State or Territory,                           the child is a child of the woman;
                        then, whether or not the child is biologically a child of the woman,                                       the child is her child for the purposes of this Act.
             (3)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial               conception procedure; and
                     (b)  under a prescribed law of the Commonwealth or of a State or Territory,                           the child is a child of a man;
                        then, whether or not the child is biologically a child of the man, the child is             his child for the purposes of this Act.
             (5)  For the purposes of subsection (1), a person is to be presumed to have                          consented to an artificial conception procedure being carried out unless it is                        proved, on the balance of probabilities that the person did not consent.
             (6)  In this section:
"this Act" includes:
                     (a)  the standard Rules of Court; and
                     (b)  the related Federal Circuit Court Rules.”

The term “artificial conception procedure” is defined as in section 4 as including:
(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[18].

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[19].

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[20].

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
VIC
Status of Children Act 1974

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

10A, 10B, 10C, 10D and 10E
TAS
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 Act allows 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 Queensland if the birth mother was married and there was artificial insemination either by sperm produced by a man other than a husband or a mixture including sperm produced by a husband, then a husband, by way of irebuttable presumption shall be presumed for all purposes to have caused the pregnancy and to be the father and the other man will not be: s.17 Status of Children Act.

The same applies where there is an implantation procedure and donor semen is used: s.18 Status of Children Act. 

Where an embryo is implanted in a woman then whoever produced the semen the husband is presumed, by way of an irebuttable presumption, to be the father and the birth mother is presumed to be the mother and the egg donor is not, also an irebuttable presumption: s.19 Status of Children Act. Husband includes male de facto partner: s.15.

Where the woman has a female de facto partner then the female de facto partner is presumed for all purposes to be a parent and the man who produced the semen has no rights or liabilities relating to the child: s.19C Status of Children Act.

Similarly if there has been an implantation procedure the man is not a parent if the man is someone other than the birth mother’s husband and the woman’s female de facto partner is presumed for all purposes to be a parent: s.19D Status of Children Act.

There may be a problem if the birth  mother in a lesbian relationship has not divorced her husband.

Where there has been a donor then the birth mother is presumed for all purposes to be the mother, her female partner to be a parent and the egg donor for all purposes is presumed not to be the mother.  The man who produced the semen similarly has no rights or liabilities to any child born as a result of a pregnancy for which the semen has been used: 19E Status of Children Act.

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.


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[21]. As soon as he has consented, whether or not he wants to have a child, then the partner will be presumed, as an irebuttable 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

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?

Depending on who you listen to, the answer is yes.

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.[22] 

Her Honour found that the order met the definition of “overseas child order[23]. 

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[24], 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:[25]

            “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 an order 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 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)[26].  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.[27]

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

Her Honour noted that she was not bound by the Thai birth certificate stating that 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[28].  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[29].

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.[30]  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.[31]

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[32] and then found it was in the best interests of the children that an order be made.



Blake & Anor [2013] FCWA1

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

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

Contrary to Ellison & 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.[33]

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

However as her Honour noted, that definition was not exhaustive.  Her Honour stated:[34]
           
            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[35]. 

Her Honour stated:[36]

              “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)

The approach taken by her Honour was criticised in Farnell and Chanbua[37].

Mason & Mason [2013] FamCa 424

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

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

Ryan J held[38]:

            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 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[39]:

            “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.

Subsequently, the Masons returned to England and obtained a parentage order there[40].

Green-Wilson & Bishop [2014] FamCa1031

Mr X Green-Wilson and Mr Y Green-Wilson were a gay couple who undertook surrogacy in India.  They lived in New South Wales but moved to Victoria so they could undertake surrogacy overseas.  A child Y Green-Wilson was born as the result of a commercial surrogacy arrangement.  Mr X Green-Wilson provided his sperm.  The egg was supplied by an anonymous donor in the Ukraine.  Johns J held that although Mr X Green-Wilson was the biological father[41]:

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

Her Honour stated at[42]:

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

In referring to section 60H(1) her Honour said[43]:

            “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 whom 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[44]:

            “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.”        

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

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

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

Walls J held[45]:

            “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.

Groth & Banks [2013] FamCa430

This is a case that has thrown IVF clinics into a spin.

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] FamCa763, they told the clinic that they were a couple.  They weren’t.  Mr Groth signed a form required under Victorian law stating that he wasn’t a parent, but was a donor.

The child was conceived and born.

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

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

Cronin J accepted this argument.  He declined to rule on the issue of intention namely as to the form required under the State law, saying that it was irrelevant given section 109 of the Commonwealth Constitution.  His Honour stated[46]:

            “(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.”

Discussion as to Groth & Banks

It might be seen that the impact of Groth & Banks immediately applies to single women who are relying on sperm donors.

If the test is that of biology and section 60H does not apply, does that mean a single woman who is relying on an egg donor and a sperm donor is not the mother but that a known egg donor could be the mother?  Is it a case of we need to rely on intent?

If a single woman similarly relies on a known embryo donors – are they the parents and she is not?

Was Ryan J correct in Mason & Mason in saying that there is a statutory scheme between the Status of Children legislation and the Family Law Act?  There are numerous references in each piece of legislation either directly or by inference to the other, for example in Status of Children Legislation there is a reference to prescribed overseas jurisdictions – but there is no prescribed overseas jurisdiction under the Status of Children Legislation.  The prescription is only under the Family Law Regulations which in turn rely on the Family Law Act.

But the real question is – is this what Parliament intended?  Did Parliament intend someone like Mr Groth to be a parent?  In my view the answer is simple and it is no.  When the amendments were made to the Family Law Act to amend section 60H, Parliament simultaneously amended the Child Support (Assessment) Act.  The bills ran parallel, and as Hansard reveals changes to the Child Support (Assessment) Act were suggested after the relevant Senate committee had considered the ability to recognise lesbian couples (which resulted in the amendment to section 60H).  Section 5 of the Child Support (Assessment) Act was amended in those 1998 amendments and provides in respect of the definition of “parent”:

            “(a)     When used in relation to a child who has been adopted - - means an adoptive parent                       of the child; and
            (b)        When used in relation to a child born because of the carrying out of an artificial                              conception procedure - - means a parent who is a parent of a child under section                            60H of the Family Law Act; and
            (c)        When used in relation to a child born because of a surrogacy arrangement - -                                  includes a person who is a parent of the child under section 60HB of the Family Law                      Act 1975.”

In other words if Cronin J is correct and Mr Groth is a parent under the Family Law Act could he have his cake and eat it too?  Namely he is not a parent under section 60H of the Family Law Act and therefore has all the benefits that come from parental responsibility but has no obligation to pay child support because he is not a parent under section 60H of the Family Law Act.  Surely that is not what Parliament intended.  Surely Parliament intended a consistent definition in both statutes as stated in Newbold & Others v Coal Authority [2013]EWCA Civ584, [2014]1 wlr 1288:
           
            “We assume that Parliament in the case of legislation… would have intended a sensible… result.”
We then come to s.29(2) of the Child Support (Assessment) Act 1989 (Cth) and in particular that someone is a parent because a federal court, or a court of a State or Territory or a court of a prescribed overseas jurisdiction has found expressly or by implication that someone is a parent.

Bateman & Kavan [2014] FCCA 2521

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

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

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

            The amendments introduced by the Reform Act mean that older cases such as B v J (1996)             Flc92-716 and W v G (1996)(20 FamLR 49) which looked only at the definition of ‘parent’            in s5 of the CSA Act can be distinguished.  On one view, the new structure of s29 in the   older cases about s5 give rise to 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[47].  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[48].”

           
The Commission submitted[49]:

            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 parent of the child under section 60H.  The Registrar noted that if the Court didn’t accept that they were in a de facto relationship then the mother argued in the alternative that because the respondent’s name was entered as the father of the child on the birth certificate in New South Wales then the presumption in section 69R of the Family Law Act applied and ought not to be overridden.  The Registrar took the view that B & J was correctly decided and stated that section 69R of the Family Law Act did not apply to the Assessment Act, was not consistent with the orthodox principles of statutory construction nor the explanatory memorandum to the Family Law Amendment Bill 1987, which became the Act which inserted section 69R, and in any event section 69R was merely a presumption and not conclusive.

The Registrar further said:

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

Harman J held[50]:

            “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 Actclearly takes the issue beyond the presumption of parentage under the Family Law Act[51], and in particular[52]:

            “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[53].

His Honour went on to say[54]:

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 “nontraditional”. I am loath to use terms such as “nontraditional” in reference to a means of conception or a relationship particularly when the use of such language in other contexts has led to most disastrous and unfortunate consequences, such as the reference in some legislation, thankfully not Australian, to “traditional” relationships and the persecution of those who do not fall within some normative and undefined concept of what is “traditional”. There is nothing to be gained from using such terminology.
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.”

His Honour went on to say[55]:

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 and Anor & Dhopal and Anor [2015] FamCA 736

Mr and Ms Bernieres undertook commercial surrogacy overseas. 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 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 Act was 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.

The matter has been appealed. The Full Court heard the appeal in October 2016, but judgment on the appeal has not been delivered.

Crisp & Clarence [2015] FamCA 964

This is the third case before Berman J where the issue of whether the approach in Mason and Mason or that of Groth and Banks was correct.

As he did in both the previous cases, his Honour did not indicate a preference.

This was a case 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. Thackray CJ found:
·         As it turns out, the surrogate, Ms Chanbua, 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 Chanbua 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 parent under 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.

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[56]
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.

Turner J stated, under “additional issues[57]:

            “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[58]:

            “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[59]:

            “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.[60]

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.[61]

Just because you’re on the birth certificate does not make you a parent

Ryan J made this plain in Ellison and Karnchanit [2012][62] FamCA 602.

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[63].

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)....
32.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 irebuttable and must prevail over the rebuttable presumptions.  Once AA was presumed to be the parent on which she had rights on the Births, Deaths and Marriages Registration Act.  Judge Walmsley SC accepted the arguments of AA and distinguished a Canadian decision which concerned an application of a declaration of parentage for three parents based on the parens patriae jurisdiction which enabled the sperm donor father in obtaining the declaration the child had three parents, on the basis that the jurisdiction being exercised in the District Court was not the parens patriae  jurisdiction.

AA v Registrar of Births, Deaths and Marriages and BB was followed in 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[64]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 foSAr 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 two cases, Re Halvard [2016][65] and Re Grosvenor [2017][66], Forrest J has for the first time 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 may register. 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.”

Use of donor agreements

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

I am of the view, however, that if you have clients who against your advice are insistent on having a known donor, then to avoid a train wreck such as Reiby & Meadowbank they ought to take three steps:
1.      There should be extensive, meaningful discussions between them about their respective roles.  There shouldn’t be 3 or more shades of grey.
2.      They should have comprehensive counselling with a fertility counsellor, typically a psychologist who is a member of the Australia New Zealand Infertility Counsellors Association  (ANZICA).  There are some fertility counsellors in private practice and others associated with IVF Clinics.
3.      There should be a 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 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.
Swapping Eggs

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.

At least in Queensland, this does not constitute surrogacy[67].

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 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 Fathers Day and at Christmas, including after the women had separated.  Ms Fabian accepted that they celebrated Fathers Day with the men, albeit her evidence was that Ms Halifax usually initiated the purchase of gifts for the men and that on a shopping trip with the children at Christmas she helped the children purchase gifts for the men and that she purchased Easter Eggs the following year as a gift from the children for the men.
·         They socialised, attended activities, celebrated special occasions and had holidays together.

·         They attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.

·         They established a separate bedroom for the children with a bed that converted to two single beds to accommodate any overnight stays and did so with the knowledge and without objection from either of the women.

·         X had a photo of the men in her bedroom.

·         They were listed by Ms Halifax as emergency contacts in two years at X’s daycare centre.

·         Ms Fabian consulted Mr Dalton about some medical issues to do with X given his medical background.

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

Cronin J noted a paper by psychologist 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[68]:

            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.



Conclusion

The law currently recognises only two parents.  Advances in the UK (which no doubt over time will be replicated here) to allow mitrochrondial 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
27 June 2017


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[1] Stephen Page is a partner of Harrington Family 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 Matrimonial Lawyers and the first international fellow of the American Academy of Assisted Reproductive Treatment Attorneys (AAARTA).  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] Such as the Assisted Reproductive Treatment Act 2008 (Vic.)

[4] Such as the Assisted Reproductive Technology Act 2007 (NSW)
[5] [34].
[6] [17].
[7] [7]-[8].
[8] [16].
[9] [13].
[10] I have for the sake of convenience used the Queensland Act. Similar legislation is in place in all States and both Territories.
[11] E.g, In re marriage of Buzzanca (1998) 61 Cal. App. 4th 1412
[12] Defined in s.4
[13] [2016] FCWA 17
[14] At [70]
[15] See also and as to 6GT: Fisher –Oakley and Kittur [2014]FamCA 123
[16] 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.
[17] LWV & Anor v LMH [2012] QChC 026-conception is the act of pregnancy, not fertilisation of the embryo.
[18] See the lengthy discussion on this in Farnell and Chanbua [2016] FCWA 17.
[19] Keaton and Aldridge [2009] FMCAfam 92
[20] See Ryan and Fraser [2014] FamCA 763 and Keaton and Aldridge [2009] FamCAFC 229
[21] As required under licensing requirements, such as the National Health and Medical Research Council, Ethical Guidelines on the Use of ART in Clinical Practice and Research (2007)
[22] At [17]
[23] At [23]
[24] Of the US states, Missouri, New Mexico and South Dakota are not prescribed.
[25] At [33]
[26] 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 Chanbua [2016] FCWA 17.
[27] 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.
[28] At [49]
[29] Which are the various State and ACT surrogacy legislation.
[30] At [61]
[31] At [68]
[32] At [100]
[33] At [12]
[34] At [31]
[35] As also seen in Ellison and Karnchanit, for example.
[36] At [46, 50, 51, 52]
[37] [2016] FCWA 17.
[38] At [15]
[39] At [33] – [36]
[40] AB and CD and CT [2015] EWHC 12 (fam)
[41] At [21] – [22]
[42] At [25]
[43] At [27]
[44] At [29]
[45] At {43} – [44]
[46] At [12] – [16]
[47] At [24]
[48] At [30] – [32], [37] – [38]
[49] At [52-57]
[50] At [42]
[51] At [46]
[52] At [47]
[53] At [51], [52]
[54] At [63-88]
[55] At [91-92]
[56] For much of this I am thankful to Associated Press for summarising this issue across various US jurisdictions in June 2017.
[57] At [96] – [99]
[58] At [145]
[59] At [150]
[60] [51] – [57].
[61] 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.
[62] [2012] FamCA 602, [70].
[63] Births, Deaths and Marriages Registration Act 2003 (Qld), s.50.
[64] Where there has been a finding by the relevant court
[65] [2016] FamCA 1051
[66] [2017] FamCA 366
[67] One such case was Crisp and Clarence; Clarence and Crisp- referred to above.
[68] At [172] – [174]

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