AP v Rd - [2011] NSWSC 1389

Supreme Court

New South Wales

Medium Neutral Citation: AP & anor v RD & anor [2011] NSWSC 1389
Decision date: 17 November 2011
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Evidence of informed consent, freely and voluntarily given, of the birth parents and information as to surrogacy arrangement that is registrable information under the (NSW) Assisted Reproductive Technology Act 2007 to be provided.

Catchwords: FAMILY LAW AND CHILD WELFARE - Surrogacy - application for parentage order under (NSW) Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into pre-commencement of Act - discussion of law - parentage order has legal effect of child ceasing to be child of birth parent and becoming child of intended parents - court may make parentage order subject to certain satisfaction of certain preconditions - preconditions specified to be mandatory and non-mandatory - non-mandatory preconditions may be waived if exceptional circumstances exist - court must be satisfied order in best interests of child - surrogacy arrangement cannot be a commercial surrogacy arrangement -consent must be freely and voluntarily given by persons with capacity to consent - no prescribed formality for consent but must be appropriate evidence of fully informed consent - insufficient evidence of consent of birth parents in present case - all information that is registrable under (NSW) Assisted Reproductive Technology Act 20007 must have been provided - not so provided in present case.
Legislation Cited: (CTH) Family Law Act 1975
(NSW) Adoption Act 2000
(NSW) Assisted Reproductive Technology Act 2007
(NSW) Births, Deaths and Marriages Registration Act 1995
(NSW) Surrogacy Act 2010, s 3, s 5, s 12, s 15, s 16, s 17, s 18, s 22, s 23, s 24, s 25, s 26, s 27, s 28, s 29, s 30, s 31, s 32, s 33, s 34, s 35, s 36, s 37, s 38 s 39
UCPR r 56A.7, r 56A.8, r 56A.9
Category: Procedural and other rulings
Parties: AP & JP (plaintiffs)
RD & PD (defendants)
File Number(s): A136/2011

Judgment

The plaintiffs AP and JP seek a parentage order under the (NSW) Surrogacy Act 2010 in respect of the child LP, who was born on 3 July 2007 in Victoria. As, so far as I am aware, this is the first such application under the Act, it may be of assistance to record some observations about its operation, particularly the requirement for consent.

JP was unable to carry a pregnancy by reason of a previous medical procedure. Once it became apparent that JP would not be able to carry a child, the second defendant PD, who is the wife of JP's brother the first defendant RD, offered to do so. All four parties attended appointments with psychologists, psychiatrists, lawyers, doctors and case managers, arranged through a respectable IVF clinic. LP is biologically the child of the plaintiffs, as a result of the harvesting of eggs from JP, which were impregnated with AP's sperm. Following his birth, he was immediately placed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AP v Rd

Details

AGLC: AP v Rd [2011] NSWSC 1389
Case: [2011] NSWSC 1389
Decision Date: 17 November 2011

CaseChat Overview and Summary

In the Family Court of Australia, the matter of AP v Rd was heard concerning the legitimacy of a parentage order under the New South Wales Surrogacy Act 2010. The applicant sought a parentage order for a child born from a surrogacy arrangement prior to the commencement of the Act, aiming to transfer legal parentage from the birth mother to the intended parents. The primary dispute centred around whether the necessary preconditions for such an order were met, specifically focusing on the adequacy of consent and information provided to the birth parents.

The court was tasked with determining if the statutory preconditions for granting a parentage order were satisfied, both mandatory and non-mandatory, and whether the non-mandatory preconditions could be waived due to exceptional circumstances. Additionally, the court had to ascertain whether the surrogacy arrangement complied with the Act's non-commercial nature and whether all registrable information under the Assisted Reproductive Technology Act 2007 was provided to the birth parents. The court examined the evidence to decide if the order would be in the best interests of the child.

The Family Court concluded that the application for a parentage order should not be granted due to insufficient evidence of informed consent from the birth parents. The court found that the requisite information under the Assisted Reproductive Technology Act 2007 was not provided, and therefore, the statutory preconditions for the parentage order were not met. The court emphasised that both the consent of the birth parents and the provision of all required information are critical to the validity of such an order. Consequently, the application for the parentage order was dismissed.

Orders