Adair and Anor and Bachchan

[2017] FCWA 78

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: ADAIR & ANOR and BACHCHAN [2017] FCWA 78

CORAM: DUNCANSON J

HEARD: 23 MAY 2017

DELIVERED : 22 JUNE 2017

FILE NO/S: PTW 7325 of 2016

BETWEEN: MR ADAIR

First Applicant

AND

MR BONFILS
Second Applicant

AND

MS BACHCHAN
Respondent

Catchwords:

SURROGACY - Where the first applicant and the respondent have engaged in an international surrogacy arrangement - Where the applicants seek an order for parental responsibility and a live with order for twin children born in India - Where the children are Australian citizens by descent - Where the first applicant is terminally ill - Where the orders sought are in the best interests of the children - Undefended proceedings

Legislation:

Artificial Conception Act 1985 (WA)
Family Court Act 1997 (WA) s 66C, s 88, s 185
Family Law Act 1975 (Cth) s 60CC

Category: Reportable

Representation:

Counsel:

First Applicant : Mr M Kavanagh

Second Applicant : Ms J Tam

Respondent: No Appearance

Solicitors:

First Applicant : Kavanagh Lawyers

Second Applicant : Hearty & Tam Family Lawyers

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Ellison and Another v Karnchanit (2012) 48 Fam LR 33

Farnell & Anor and Chanbua (2016) FLC 93-700

Valentine & Lacerra and Anor (2013) FLC 93-539

Yamada & Cain [2013] FamCAFC 64

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1[In] 2013 twin children [Child A] and [Child B] (“the children”) were born in New Delhi, India. This is an application filed 30 November 2016 by [Mr Adair], the first applicant and his friend, [Mr Bonfils], the second applicant.

2The respondent in the application [Ms Bachchan] is the birth mother of the children. The birth mother has not filed a response to the application and has not participated in the proceedings.

3The children were born as a result of an international commercial surrogacy arrangement between the first applicant and the birth mother. The children entered Australia about three weeks after their births. They live with the applicants.

4The applicants seek orders as set out in the first applicant’s minute of final orders filed 28 April 2017 as follows (as in original):

1[CHILD A] and [CHILD B] both born [in] 2013 (“the Children”) live with the First Applicant and the Second Applicant.

2The First Applicant and the Second Applicant have Equal Shared Parental Responsibility for [CHILD A] and [CHILD B] both born [in] 2013 to the exclusion of all others, including but not limited to [MS BACHCHAN].

3For the avoidance of all doubt Order 2 above expressly removes all and any parental responsibility for the Children from all persons other than the First Applicant and the Second Applicant.

4In the event of the death of the First Applicant or the Second Applicant the Children live with the surviving First Party or Second Party and the surviving party have sole parental responsibility for the Children to the exclusion of all others.

5Pursuant to s 92 (2)(b) the requirement that all parties attend a Family Consultant be dispensed with.

5At the hearing I made the orders below. These are my reasons.

BACKGROUND

6The first applicant is 41 years of age. He is a homemaker. The second applicant is aged 57 years. He is an [accountant].

7The applicants commenced a de facto relationship in 1996. They ended their de facto relationship in early 2002, however they remained close friends.

8In 2009 the applicants decided to be housemates, but to live their own lives in terms of their relationships.

9In 2011 the first applicant decided to have a child by surrogacy. The second applicant agreed to co-parent with him and was fully involved in the surrogacy process.

10[In] August 2012 the first applicant entered into a surrogacy arrangement with the birth mother via [the Clinic] in New Delhi, India. At the time the birth mother was 21 years of age and single (divorced). The agreement was documented by a Gestational Surrogacy Agreement, and Terms and Conditions of Surrogacy to which I refer below. The children were conceived with sperm from the first applicant and an egg from an anonymous donor.

11The children were born prematurely. Both applicants were in India for the birth and spent three weeks there before bringing the children to Perth.

12The children were issued with birth certificates by the Government of the National Capital Territory of Delhi [in] 2013. The first applicant is named as the father. The name of the mother is “NIL”.

13The children obtained citizenship by descent from the first applicant and became Australian citizens [in] 2013.

14Prior to the children obtaining Australian citizenship DNA testing was carried out by [Company A]. In terms of the parentage testing procedure report, the probability that the first applicant is the genetic father of the children exceeds 99.99%.

15The children obtained Australian passports issued [in] 2013.

16The children are now four years of age. They live with and are cared for by both applicants.

THE SURROGACY

Opinion of Mr Patel, Advocate, New Delhi

17The first applicant obtained an opinion [in] January 2013 from [Mr Patel], Advocate in New Delhi, as to the validity of the Gestational Surrogacy Agreement (“the Agreement”). Mr Patel opines that the parties to the Agreement, namely the first applicant (referred to as the “Intended Father”) and the birth mother (referred to as the “Surrogate Mother”) were legally competent to enter into the contract and thus the obligations under the Agreement are legally enforceable and binding upon them.

18Mr Patel states the Agreement makes it explicitly clear that the surrogate mother shall have no enforceable right of any nature after giving birth to the child under the Agreement whereas the intended father shall have the sole and exclusive legal title of fatherhood of the twin newborn children. Mr Patel further states the first applicant is recorded as the father of the children on their birth certificates and thus the first applicant is the natural and permanent guardian. He is entitled to permanent custody of the children as per the Surrogacy Agreement and to bring up the children without any interference.

19Mr Patel states that the Declaration of Intent dated 31 May 2012 executed by the surrogate mother makes it clear she shall have no right of any nature on the twin children. He further states the No Objection, a document dated 21 January 2013 signed by the surrogate mother and witnessed records that she received all of the financial consideration and the intended father may take the children to his home country.

The Agreement

20The Agreement refers to negotiations between the parties as to the medical process and their understanding and agreement that the surrogate mother shall give birth for the intended father and that she will only “lend her uterus for carrying the Pregnancy and giving birth of the Child out of humanitarian grounds”. The Agreement provides that the surrogate mother shall make no claim over the child or in respect of the child, who shall contractually and genetically belong to the intended father.

21The Agreement states the surrogate mother will cooperate in any proceedings which may be required for legal custody of the child by the intended father. She will never assert any right over the child, nor claim custody of the child in any manner whatsoever, nor make any attempt to form any parental relationship with the child. The intended father assumes all responsibility for the child.

22The Agreement provides that the intended father has a legal obligation to accept the child that the surrogate mother delivers and that he enters into the Agreement with the knowledge that the laws of his country may not accept surrogacy.

23The Agreement records that the intended father is aware that the Union Government of India is opposed to the grant of a passport and/or citizenship to the child.

24In the Agreement the parties jointly covenant and warrant that each is mentally fit and enters into the agreement of their own free will and volition without being induced or influenced or coerced in any manner whatsoever by the other.

25The Execution clause of the Agreement provides as follows:

Each party acknowledges that he/she has fully read/understood the Agreement (has been read over, explained to and understood by Surrogate Mother in vernacular also), is relying on the representations set forth in this Agreement, and is executing this Agreement freely and voluntarily. The Agreement has been signed by the Intended Father at Australia and by surrogate at New Delhi, India.

26The Endorsement of the Agreement by the Clinic states that it has personally explained to the intended father and the surrogate mother the details and implications of their signing of the consent/approval form and made sure to “the extent humanly possible” that they understand these details and implications.

The Terms and Conditions of Surrogacy

27The Terms and Conditions of Surrogacy document records that the parties are fully informed and aware of the risk involved in the procedure. The “total compensation” to be paid by the intended father for the services of the surrogate is:

In consideration of the services of the Surrogate the Intended Father has agreed to a total compensation of Rs. 2,25,000 (Rupees Two Lakhs Twenty Five Thousand Only) payable to the Surrogate in case of normal birth and/or Rs. 2,60,000/-(Rupees Two Lakhs Sixty Thousand Only) in case of cesarean birth in its entirety in the following manner: …

28As at the time of the Agreement these amounts were equivalent to approximately $3,858 and $4,458 respectively.

29Of the “total compensation”, Rs 10,000 (approximately $171) was payable to the birth mother at the time of the embryo transfer.

30After a pregnancy test and heart beat scan, if the scan showed a heartbeat the intended father was to pay the surrogate mother from the total compensation Rs 10,000 (monthly maintenance) every month for the pregnancy, and the balance was payable at the time of birth and successful handing over of the child to the intended father. The monthly maintenance was to cover all genuine expenses associated with the pregnancy. In addition the intended father was to pay all medical expenses and costs of medication.

31As with previous documents the parties acknowledge that they have read and understood the Agreement and that both execute the Agreement freely and voluntarily.

SERVICE UPON THE BIRTH MOTHER

32On 28 December 2016 I ordered that the applicants cause the birth mother to be served with their initiating application and affidavit in support filed 30 November 2016, together with a copy of the order of that date.

33The said order provided that in the event the birth mother opposes the orders sought, or seeks orders, she shall file a response and affidavit of evidence on which she relies within 28 days of service of the documents.

34Service was effected upon the birth mother on 1 February 2017 at New Delhi. The server satisfied herself as to the identity of the birth mother from a photograph with which she was provided. The server was a “Graduate” conversant in English and Hindi and served the documents upon the birth mother which she had translated. The server deposed:

[Ms Bachchan] after understanding the contents and implications of the above said documents has expressed her no objection to the orders sought by the Applicants.

35No response has been filed by the birth mother.

THE APPLICANTS AND THEIR EVIDENCE

36The first applicant is the primary carer of the children.

37The first applicant has been diagnosed with [a terminal illness]. His [specialist] reported on 4 May 2017:

… It is difficult to determine [Mr Adair]’s prognosis at this stage but we continue to support and monitor [Mr Adair] and encouraging [sic] him to make plans for the future of himself and his family.

38The first applicant explained there is no cure for his [terminal illness]. His medical practitioners are applying a “life extension approach” to it.

39The first applicant wishes to ensure that the children are cared for and loved by someone, as he had hoped to do. The second applicant is that person. The children have a close and loving relationship with both applicants.

40The second applicant ceased work for a period of time and was fully involved in parenting and caring for the children. He returned to work in 2016 and currently works full-time.

41The second applicant is in good health and is financially secure.

42The first applicant is the children’s primary carer. The children see the second applicant as their father. The children call the first applicant “dad” and the second applicant “[a pet name]”. The first applicant said the second applicant has resources, love and understanding. The second applicant said he treats the children as his own and loves and adores them.

43Both applicants were moved to tears during the hearing when the first applicant described his illness and the likelihood he would not be there for the children as they grow up. The first applicant said that if he were to pass away and the children were removed from Mr Bonfils “they would be losing both parents”.

44Both applicants impressed me as sincere and decent people who are committed to the two children for whom they care deeply.

45The applicants take seriously their responsibility to provide for the children now and in the future and have given careful thought and planning to what may confront them in the future.

46I am satisfied that these children, brought from India when only three weeks old, will continue to be loved and nurtured by the applicants or either of them.

THE LEGAL PRINCIPLES

47The first applicant and the birth mother entered into the Agreement. The documents suggest she gave informed consent. The birth mother has not participated in these proceedings. A financial consideration was made to the birth mother, said to be for her maintenance and medical treatment during pregnancy.

48The Agreement provides that the birth mother will have no involvement with the children whatsoever and her position in that respect was confirmed when she was served with the documents.

49The court must nevertheless take a cautious approach. The court’s concerns include the potential for exploitation of vulnerable women and children in poorer countries. In Farnell & Anor and Chanbua (2016) FLC 93-700 at [255] Thackray CJ stated that there is a need for law reform in relation to cases of overseas commercial surrogacy:

Since then, there has been a dramatic increase in the number of people finding the “solution for [their] various reproductive challenges” in commercial surrogacy arrangements utilising the services of poor women in a cluster of developing economies. There are major public policy issues associated with this development. Indeed, the circumstances surrounding the present case have apparently been influential in the banning of international commercial surrogacy in Thailand, which was until then one of the major destinations for those who wanted to buy a baby.

50I am mindful of the best practice principles as determined by Ryan J in Ellison and AnothervKarnchanit (2012) 48 Fam LR 33.

51I am satisfied upon the unchallenged evidence of the applicants that they are devoted carers of these children and I am also satisfied that they have given truthful evidence regarding the circumstances of the children’s birth. Having so satisfied myself, I do not consider it necessary to request the appointment of an Independent Children’s Lawyer to represent the children’s interests. I have had an opportunity to make my own assessment of the applicants and to consider their parenting capacities and commitments to the long-term welfare of the children. Having done so, I do not consider it necessary, in the circumstances of this case, to require the preparation of a family report.

52This is not a decision taken in haste because of the first applicant’s condition and the unusual circumstances of this case.

53The reality is that the children were separated from the surrogate mother at birth and brought to Australia from India when three weeks old. Their primary carers seek orders which provide for their welfare both now and in the long-term.

54I have approached this matter on the basis that the best interests of the children is the paramount consideration.

55These proceedings fall to be determined pursuant to Part 5 of the Family Court Act 1997 (WA) (“the Act”). Neither the first applicant nor the birth mother was married at the time of the surrogacy procedure.

56The birth mother is the mother of the children and she is their parent.

57The first applicant deposes he is not the legal father of the children and he does not ask me to make a declaration that he is a parent of the children.

58The first applicant is not a parent of the children as he is expressly excluded by the provisions of the Artificial Conception Act 1985 (WA). The second applicant is not a parent of the children.

59The first and second applicants have standing to bring these proceedings for a parenting order in relation to the children as they are persons concerned with their care, welfare or development. Sections 88 and 185 of the Act are therefore applicable.

60In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. Section 66C sets out how a court determines what is in a child’s best interests. I must consider the primary and additional considerations.

61These considerations distinguish between parents and non-parents. Many considerations refer only to parents and cannot be taken to apply to the applicants.

62Notwithstanding the distinction between a parent and a non-parent raised by s 66C, in dealing with equivalent provisions contained in s 60CC(3) of the Family Law Act 1975 (Cth) the Full Court in Valentine & Lacerra and Anor (2013) FLC 93-539 at 87,108 took the approach that all such factors ought to be taken into account in relevant proceedings.

63To that end, the Full Court noted in Yamada & Cain [2013] FamCAFC 64 at [27] (original emphasis):

The broad inquiry as to best interests contemplated by s 60CC… recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

64The approach to be taken here is as set out in Valentine & Lacerra and Anor (Supra). I therefore intend to refer to the considerations as if they apply to the applicants.

65The children have a meaningful relationship with the applicants and it is to their benefit that it continues. They are not at risk of harm in their care.

66The children have a close and loving relationship with both applicants. They visit the first applicants’ parents and siblings regularly. The second applicant intends to ensure that the children maintain their relationship with the paternal family after the first applicant’s death. The children have no relationship with the birth mother.

67Both applicants have taken the opportunity to participate in decision making about major long-term issues relating to the children. Currently the children attend kindergarten at [Primary School C] where they are making good progress. They attend two days one week and three days in the alternate week. The applicants purchased a property at [Suburb D] and are building a five bedroom home which they expect to be completed at the end of this year when they will occupy it. The home falls within the catchment area of [Senior High School E], a school which the applicants propose the children will attend for their secondary education.

68Both applicants have the capacity to provide for the needs of the children. The second applicant deposes that the children are healthy and have met all of their developmental milestones. Their immunisations are current and they consult with their family doctor regularly.

69Both applicants have demonstrated a responsible attitude towards the children and the responsibilities of parenthood. They have made arrangements for the care and financial support of the children after the death of the first applicant. The first applicant has updated his Will and appointed the second applicant as the guardian of the children. The first applicant has also made financial provision for the children.

70As to the children’s background, the first applicant said, when describing the children, that both have Indian traits. They know their mother is Indian. The applicants have multicultural friends and mix with other parents who have surrogate children. They will maintain the children’s Indian heritage. The first applicant acknowledged the children may wish to find their biological mother in the future.

CONCLUSION

71I am satisfied that the orders sought by the applicants are in the best interests of the children.

72I have considered the terms of the Surrogacy Agreement and notwithstanding concerning issues which can arise from such agreements, in the circumstances of this case I am satisfied that the orders sought are in the best interests of the children.

73The children have been in the care of the first and second applicants since their births. They are loved and cared for by the first and second applicants who make sound and reliable provision for their futures. In those circumstances I made the following orders:

1[CHILD A] and [CHILD B] both born [in] 2013 (“the children”) live with the First Applicant, [MR ADAIR] and the Second Applicant, [MR BONFILS].

2The First Applicant and the Second Applicant have equal shared parental responsibility for the children.

3The First Applicant cause the Respondent, [MS BACHCHAN] to be served with a copy of the orders made today and the written reasons when published.

4The application be otherwise dismissed.

I certify that the preceding [73] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate