APPLICATION OF A and B

[2000] NSWSC 640

CITATION:	APPLICATION OF A and B [2000] NSWSC 640
CURRENT JURISDICTION:	ADOPTIONS
FILE NUMBER(S):	SC 80129/98
HEARING DATE(S):	Private Chambers, written submissions.
JUDGMENT DATE:	7 July 2000
PARTIES :	A and B plaintiffs
JUDGMENT OF:	Bryson J at 1

COUNSEL :	D.M. Coulton for plaintiffs
SOLICITORS:	Vizzone Ruggero & Associates for Plaintiffs Director-General, Department of Community Services, in person, intervened.
CATCHWORDS:	ADOPTION - surrogate parenthood - birth mother was sister of W artificially inseminated with sperm donated by H - application by H & W for adoption was fully supported by birth mother - placement in good circumstnaces and no contention among adults involved - consideration of submissions by DOCS adverse to adoption at this stage - consideration of public interest associated with surrogate parenthood - the paramountcy rule was applied - on the facts the interests of the child required an adoption order.
DECISION:	Adoption order made.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

FRIDAY 7 JULY 2000

Re: 80129 of 1998
Application of A and B

Child: C

JUDGMENT

1 HIS HONOUR: This judgment relates to an application for adoption of a child who was born in a surrogate parenthood arrangement. Adoption applications are heard in private and the Court usually imposes a restriction on publication of decisions and reasons, because it would be adverse to the welfare and interests of the children involved to publish any identifying information. The interests concerned are more than the ordinary privacy interests of all persons involved, as there can be adverse impacts on the emotional well-being of children and on the course of their upbringing if particulars of adoption proceedings are published. The Adoption of Children Act 1965 makes special provisions in s 53, s 64 and s 67 to restrict availability of information about adoption proceedings. The availability of information is carefully regulated by the Adoption Information Act 1990, and except under the procedures for which that Act provides, is restricted. 2 Surrogate parenthood is appropriately a subject of public interest and concern, and I have decided to publish my reasons in this case. In these reasons I have omitted the names of persons concerned but necessarily some other information from which identities could be discovered by investigation have been included. I point out now that publication of the identities of the persons involved, and of any matter reasonably likely to enable any of the persons involved to be identified, is an offence under s 53, which is in these words:

53 Restriction on publication of identity of parties
(1) Subject to this section, a person who publishes, or causes to be published, in a newspaper or periodical, or by means of broadcasting or television, in relation to an application under this Act or under a law of another State or a Territory of the Commonwealth for the adoption of a child or the proceedings on such an application, the name of an applicant, the child, or the father or mother or a guardian of the child, or any matter reasonably likely to enable any of those persons to be identified, is guilty of an offence against this Act.
(2) This section does not apply in relation to the publication of any matter with the authority of the Court to which the application was made.

3   These reasons are published with my authority, but I have not authorised the publication, by anyone, of any other material. I point out that I have not authorised the publication of any identifying material based on inference from facts stated in these reasons, or based on further investigation prompted by those facts. 4   In these proceedings the proposed adopting parents apply for an adoption order relating to a female child who was born on 28 September 1997. The birth followed artificial conception in a surrogacy arrangement. The application is not contentious as among the birth mother and the proposed adopting parents. 5   The proposed adopting father was born in Uruguay on 5 December 1957. With his parents and their family he migrated to Australia about 1973 when he was 16 years of age. The proposed adopting mother was born in Argentina on 14 February 1960. She migrated to Australia with her family when she was 14 years of age. They met soon after arrival here while their families were living in migrant accommodation. They married at Maroubra on 8 December 1979. No children have been born of their marriage. 6   The birth mother is the sister of the proposed adopting mother. She was born in Argentina on 15 August 1969; she is nine and a half years younger than the proposed adopting mother. She was married in 1993 and has a daughter of that marriage who was born in December 1993. She separated from her husband in 1994 and the marriage was dissolved in March 1995. Her daughter of that marriage has always remained in her care, and no orders relating to her care or access have been made. Her former husband has not maintained a paternal relationship with that child or sought contact with her, and he has been out of communication for several years. The birth mother has been known to the proposed adopting father for many years because of a friendship among their families formed soon after immigration when she was about five years of age. After the failure of her marriage she with her first daughter lived in the applicants’ household for some seven months, and they were her chief support during her separation and divorce. 7   The proposed adopting parents throughout their marriage wished to have children of their own, but have been unable to achieve parenthood. In 1996, at a time when the birth mother was a divorced woman, did not have any established de facto relationship and had the care of the daughter of her former marriage, she offered to her elder sister and her brother in law to be a surrogate mother for them. They welcomed this offer, which they saw as enabling them to become parents as they had wished to be for many years. The proposed adopting parents and the birth mother received counselling and advice arranged by Sydney IVF, an infertility clinic. They attended medical, psychiatric and social work assessments relating to their suitability for the procedure, and these assessments were placed before the Ethics Review Committee of the Royal Prince Alfred Hospital, and considered and approved by the Committee before an artificial insemination procedure was carried out in December 1996. The Committee’s consideration and the assessments placed before it were extensive, and included exploration of and assessment of the basis of power in the relationships among the three. On the face of things the birth mother was professing to be acting freely and spontaneously in offering surrogate motherhood; the reality of her freedom and spontaneity were explored, and the Committee appears to have been satisfied that the power relationship was such that the surrogate mother would be able to say “no” to the arrangement or to the relinquishment of the child if that were her wish. 8 This was an appropriate subject for close consideration. Judicial experience shows the reality of the potential for conflict when views and intentions of parties to surrogacy arrangements alter. A striking example of the course which such a conflict may take is given by the facts and the decisions in Re Evelyn (1993) 23 Fam LR 53; and Re Evelyn (No 2) 23 Fam LR 73 (Full Court of the Family Court of Australia). That case related to residence and contact for a child of a surrogacy arrangement, and did not relate to an adoption. The course of that dispute illustrates that conduct may differ very widely from earlier professed intentions, and that the intentions and wishes of adults can relate to subjects other than the paramount issue of the welfare and interests of the infant. There is potential for grave conflict in surrogacy arrangements, and decisions such as those taken by the parties in this case and the Ethics Review Committee require address to potentially adverse outcomes which parties to the arrangements are unlikely to present forcefully for consideration, or even to be in a position to see clearly. It is difficult for people to have clear and complete insight into their own emotional positions, even contemporaneously, and even more difficult for them to foresee what they will feel in situations of profound emotional involvement which have not yet occurred. Decisions such as these, if made with real address and attention to what they involve, can only be made with great trepidation. In the present case events have proceeded in the uncontentious and happy course which all concerned expected would occur. 9 The applicants took part in prenatal appointments and prenatal classes. They took a parental role towards the child from the time of her birth onwards. They were both present throughout the birth mother’s labour, shared the same room at the hospital and participated in all decisions by paediatric staff. All remained at the hospital for five days and were discharged together. The child then went home with the proposed adopting parents and has been in their continuous care since then. The applicants do not plan to extend their family further. 10 There has been no experience of conflict relating to the child, or relating to any other matter. The birth mother did not take care of the child after the birth. She received social support from her mother in her own home for some time. A few months afterwards the birth mother formed a de facto relationship with a new partner, and later went to live with him in another State; they propose to have a further child or children, and at the time of the application the birth of a child of their relationship was expected. 11 No secrecy is being observed towards the child, although as yet she can have little if any understanding of the circumstances of her origin. On her Christening day the birth mother gave her a “time capsule” box with information and memorabilia about her origin, and the intention expressed to the Social Worker was that this information should be shared with the infant at age-appropriate stages starting when she is about four or five years old. 12   There is free contact and communication between the birth mother and the child through telephone communications, which take place frequently, and visits to Sydney which are infrequent. There is also happy communication between the child and her half-sister. Overall relationships are happy and appropriate for two families where the wives are sisters and their daughters are cousins, and the sisters live independent lives. The birth mother’s conduct has been appropriate for an aunt, well known to the child while having a relationship and a family of her own, and living in a distant place. 13   The surrogacy arrangement and its impact on the birth mother and the applicants appear from the evidence put before me to have conformed to an ideal state in which expectations about how emotional relationships would be formed have actually been fulfilled. 14   The application for the Court to make an adoption order after a surrogacy arrangement presents a situation of greater complexity with a different balance of interests to those usually involved. In an adoption a legal status of parenthood which did not exist in nature is created between parents and child. Although adoption has been an institution known to other legal systems since ancient times, it was a 20th Century innovation in the law of New South Wales and in English law from which our law is derived. An adoption application involves the interests of parents as well as of infants, and indirectly involves the interests of others, as the status of other family members is affected by the creation of a legal relationship of parent and child, and there can be impacts on the rights and expectations of other persons, including rights relating to inheritance. The happiness and emotional well-being of adopting and of relinquishing parents are deeply involved in adoptions, and, because adoption orders are usually considered when infants are very young and can have no relevant understanding or wishes or means to express them, the happiness and emotional well-being of the adults involved claim much attention. Important as they are, they are not the most important consideration, and care has to be taken to relegate them to a proper place in the order of importance. 15   Developments in medical techniques and the appearance as a new human experience of surrogate parenthood through artificial conception present situations to deal with which humanity has no long stock of experience. There can as yet be very few people, if there are any, who have reached adulthood in the care of surrogate parents after artificial conception, and there is no stock of human experience based on whole-of-life histories of such people. There is a speculative element in all predictions and opinions about what results may emerge in the emotional lives and happiness of people involved. It could well be that, as with other realms of human experience, the outcomes will be very various and unpredictable, and that people will eventually be found who have been through what appear to be similar and comparable experiences and have had different outcomes. 16   A characteristic which distinguishes surrogate parentage from situations in which adoption has heretofore usually occurred, and bears directly on what is to be perceived as the welfare and interests of the child, is that the child’s existence is the result of an intended chain of events in which adoption was a contemplated step. Adoption came into existence in New South Wales as a legal institution in circumstances where what was contemplated was the conferral of the advantages of parenthood and family membership on infants who did not have those advantages, lacked them, and seemed likely to suffer severely relatively to others because of that lack; on foundlings and infants who had been surrendered for adoption for whom the human relationships and resources which usually sustain the life of a family were not available. In cases like those, the contribution made by an adoption order to the infant’s welfare and interests is evident. In recent decades step-parent adoptions have become common; the infant has been the child of a marriage, but the marriage has been dissolved and the adopting parents are one natural parent and that parent’s new spouse after remarriage. This was a significant adaptation of the institution, as the infant had a place in a family institution but that had proven unsatisfactory, the family institution had been broken and another one was being made. 17   An adoption order as a confirming step in a surrogacy arrangement is also a significant adaptation and a large step away from what were, initially, the usual circumstances of an adoption. The adoption of the child and the conferral on the child of legal relationships with other persons contributes to the child’s welfare and interests in a respect which has been wholly preconcerted and has not befallen the child through adverse circumstances, chance or misadventure. There have been significant changes in what appears, on the surface, to be the same institution; the advantages which the adoption order is proposed to confer on the child reciprocate disadvantages which have been imposed by the deliberate choice and preconcerted action of those who ask the Court to act in the infant’s welfare and interests. Whatever disadvantages for the child are proposed to be cured by the process have been imposed on the child by the process. 18   Sources of unhappiness and emotional burdens which in some cases, by no means in all cases, present themselves to persons who have experienced adoption arise out of their family structures being different to the family structures of most members of the community, in ways perceived to be anomalous and involving missing patterns of relationships which most members of the community have and apparently enjoy, and missing sources of information about personal relationships and history which most people find it impossible to address in a wholly objective way. Where a child is adopted by a relative, existing patterns of relationships are altered and confused. It is one thing to incur, on behalf of an infant with no understanding of the situation, risks of discontents of these kinds while conferring on the infant a place in a family; it is quite another thing deliberately to incur the risks for a person not yet in existence who is to be brought into existence with that potential burden. 19   Terminology relating to surrogacy is not precise, and if ordinary reproductive processes are not used, medical technology and artificial conception can be employed in a number of ways. In the present case the birth mother was inseminated with semen donated by the proposed adopting father, there was no transplantation of embryo or ovum, and the birth mother is the sister of the proposed adopting mother; sisters of the whole blood, with both parents in common. The word “surrogate” and related words are not altogether apt but have become established; the perception seems to be that the birth mother is the surrogate or delegate of the proposed adopting mother, and this perception can be seen as devaluing her role as herself the child’s birth mother. 20 I may not have made a completely clear expression of the source of my strong sense of dissatisfaction with institutionalising surrogate parenthood. Clearly I am not alone in feeling dissatisfaction of this kind. Surrogacy was considered in Ch 11 of LRC 81, the New South Wales Law Reform Commission’s Review of the Adoption of Children Act 1965. In para 11.44 the Commission set out a careful list of circumstances which the Commission recommended should be preconditional for facilitation by an agency concerned with infant welfare or by a Court of adoptions under surrogacy arrangements. Paragraph 11.44 is as follows:

“11.44 In particular, similar to the adoption of unrelated children discussed in Chapter 4, an agency or the Court should facilitate adoptions under surrogacy arrangements (whether the adoption is intrafamily or not) only where all the following circumstances exist

other orders would not make adequate provision for the child and an order for adoption would be in the particular child’s best interests;
the child has an established relationship with the applicants;
the child is aware of his or her genetic relationship with any of the following: the birth parents, the applicants, and any gamete or embryo donors;
the child has access to information about his or her birth parents and birth family;
the child has an understanding, commensurate with his or her age, of the reasons why the adoption might take place;
requirements as to the birth parents and child’s views, wishes and consent as recommended in this Report have been complied with; this includes: that the child be consulted and actively involved in any adoption plans according to his or her level of maturity and understanding; that the birth parents be given early notice of any plans to proceed to an adoption; and that the birth parents be fully informed of the consequences of the adoption for the child and themselves; and
other requirements recommended in this Report have been complied with.”

21   The Commission also considered adoptions by step-parents and relatives; the Commission was of the view that such an adoption is “… often an inappropriate way to promote a child’s best interest and generally should not be encouraged” (para 4.86) and concluded (para 4.88):

“4.88 Adoption by a step-parent or other relative will normally be appropriate only if:
other care orders would not make adequate provision for the child and an order for adoption would be in the particular child’s best interests;
the child has an established relationship of at least five years duration with the step-parent or other relative;
the child has knowledge of and contact with his or her non-custodial birth parent and family;
the child has an understanding, commensurate with his or her age, of the reasons why the adoption might take place;
requirements as to the birth parents’ and child’s views, wishes and consent as recommended in this Report have been complied with; and
other requirements recommended in this Report have been complied with.”

22   The Law Reform Commission was not prepared to make any recommendation for a legislative change which could be seen as promoting surrogacy arrangements. In fact no legislation carrying out the Law Reform Commission’s recommendations has been enacted, and the Commission’s views do not have the force of law. The Commission’s views appear to reflect expert opinion similar to what has been put before me in the report of the delegate of the Director General, and in the report of the social worker Ms Kay Lamport which the Director General obtained for this application. 23   Ms Anita Stuhmcke in her article “Surrogate Motherhood: the legal position in Australia” (1994) 2 Journal of Law and Medicine 116) narrates that “In March 1991 a joint meeting of Australia’s Health and Social Welfare ministers resulted in a unanimous agreement to support uniform legislation to control surrogate motherhood in Australia.” However no uniform legislation has emerged. This article refers to much earlier literature. The ministerial decision referred to was directed against commercial arrangements and contractual enforceability. 24   A strong statement of “The Case for Discouragement of Surrogacy Arrangements” was made by Ms Penne Watson Janu in her article so titled in (1996) Volume 4, Journal of Law and Medicine 72, her principal perspective being the exploitation of women and fragmentation of motherhood, and the subordination of the welfare and interests of the child. 25 In my understanding the main basis of the view that parenthood through surrogacy and surrogacy adoptions should not be encouraged by public policy or the action of governments, and should be controlled and restricted by legislation is that these arrangements impose potential disadvantages on persons who do not and cannot participate in the decisions which bring the potentiality into existence, and in the decisions which follow. The potential disadvantages will not necessarily be incurred; the prospects of happy outcomes and unhappy outcomes may well be much the same for adoptions after surrogate parenthood as for other adoptions, although it would be difficult to establish whether they are. The potential disadvantages usually relate to happiness, feelings, emotions and perceptions of relationships rather than to concrete circumstances or availability of material resources. When these disadvantages are incurred they can be felt very deeply and have severe impact on the happiness of those affected. Many life histories in which adoptions are involved show that the potential disadvantages are not incurred, and in the cases where they are incurred their impact ranges from slight unhappiness to emotional disturbances of great severity. In my understanding, adoption has overall been a very successful institution and has contributed greatly overall to the welfare and interests of infants who have been surrendered for adoption or otherwise through circumstances do not have a place in a family structure. For public policy the question whether potential disadvantages should be imposed on an infant presents itself in a completely new and different way when the situation is created deliberately. 26 The interests of the infant are not the only interests involved. Guiding and controlling the events are the interests of proposed adopting parents, as perceived by them, in achieving their purposes in life and their happiness by having and rearing an infant. The interests of the birth mother are also involved and there is at least potentially deep emotional disturbance for her. Experience demonstrates the fragility of intentions to surrender infants, however firmly they are held and expressed, and emotional resolution does not always accord with intentions which have been firmly held and carried out. The birth mother is a largely submerged figure in surrogacy stories. Even where the events fully accord with her wishes and intention and there is no inappropriate social or familial influence, there is room for her to perceive the events as emotional sacrifice. She is Cinderella trapped in Act 1, and does not go to the Ball. In a broad address to public policy the interests of surrogate mothers would be a prominent consideration. 27 The perception that the influence of commercial or other economic considerations on the intentions and conduct of a surrogate mother is inappropriate must be very widespread, although some literature to which Ms Watson Janu refers shows that it is not universal. Even in an arrangement which is not commercial there is room for inappropriate pressures to influence a surrogate mother’s intentions, particularly where there are familial relationships among the adults involved, as these can give rise to subtle dynamics which may not be articulated or clearly perceived, and also to unsubtle dynamics. 28 No legislation deals with surrogate parenthood or with adoption in relation to surrogate parenthood, and I address the present application in the legal context which exists now and in the factual context of this case. The paramountcy of the welfare and interests of the child in this case altogether overwhelms public policy considerations, not expressed in any legal rule, about whether surrogate parenthood should occur or should be encouraged. In this case it has occurred, and I must address the present facts. 29 This case clearly falls within s 8 of the Adoption of Children Act 1965 (NSW), which prescribes the cases in which the Court’s jurisdiction may be exercised. It does so because the applicants have been domiciled in New South Wales since their immigration, and the infant was born in this State. Section 17 of the Adoption of Children Act 1965 states explicitly the principle of law which the court applies to cases involving the welfare of children: “For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration.” 30   Part 4 “Adoptions under this Act” contains the more important provisions of the Act, to which other provisions are ancillary, and authorises adoption orders. Part 4 prescribes a number of matters which require to be considered on an adoption application. Some of these do not require separate attention. Subsection 18(2) in effect requires that an application be made with the consent of the Director General, with a number of exceptions. One exception is found in para 18(2)(a) - “The applicant is a person, or the applicants are persons, in whose favour a consent referred to in subs.(2) of s.27 has been given.” Subs.27(2) refers to “… a consent expressed to be a consent to the adoption of the child by a relative of the child, or by two persons one of whom is a parent or relative of the child.” “Relative” is defined in s.6 in terms which include an aunt of the child, and the proposed adopting mother as the birth mother’s sister is an aunt of the child. The birth mother has consented to adoption by the applicants in express terms. 31 Some other requirements of the Act have obviously been met; the child is under 18 years of age (subs.18(1)) the proposed adopting parents are married to each other (s.19) and they are over the age of 21 years (s.20). The Director General has made a report in writing to the Court concerning the proposed adoption (s.21(1)(a)). Evidence filed on behalf of the applicants and also the report itself show matters enumerated in para 21(1)(c) which the Court is to consider. It is clear that each of the applicants is of good repute and is a fit and proper person to fulfil the responsibilities of a parent. They are long settled in Australia and well established, they have no criminal convictions and are not adversely known to police and they have produced affidavits of referees who have known them for many years and attest to their being responsible, trustworthy persons with high moral and family values. They are well housed in a family home which they own, where they have lived for over six years. The proposed adopting father has been employed by his present employer for well over 20 years. He has been employed as a librarian assistant and is now an assistant in the audio-visual section. The proposed adopting mother worked in secretarial duties, and was so employed by a bank for 16 years continuously until she left to attend to duties at home. They are of the Roman Catholic faith, they attend church frequently, they were married in a Roman Catholic church and the child has been baptised. 32 The proposed adopting parents brought care and responsibility to bear on the surrogacy arrangements, participating fully and appropriately in obtaining the decision of the Ethics Review Committee and in all attendances relating to the child’s birth. There is no indication in the evidence reports and submissions before me adverse to finding that they are of good repute and that each is a fit and proper person to fulfil the responsibilities of a parent, and I find that they are. In terms of para 21(1)(b), I find that each of them is a suitable person to adopt the infant now in question, having regard to their age, state of health, education, the religious upbringing and convictions of themselves and of the child, the wishes of the birth mother expressed in her instrument of consent, and every relevant consideration to which evidence refers. 33 Section 26 prescribes requirements for consents to adoptions. Having regard to subs.26(3) the consent of the birth mother is required; her consent has been given. Under para (b) consents of fathers of ex-nuptial children are required in some cases, but on no view can the proposed adopting father fall within any of those cases. If for some reason his consent were required, that requirement would be overcome by subs 26(5), because he is one of the applicants for the adoption order. 34 The proposed adopting father’s present legal relationship with the infant in terms of personal status was the subject of careful submissions. There is evidence which, were it not for statutory provisions to which I will refer, would lead to a finding that he is the biological father of the infant, as sperm donated by him was used for the artificial insemination of the birth mother. His name appears in the birth certificate as the child’s father, and this must be based on an acknowledgment by him under s.11 of the Children (Equality of Status) Act 1976. Lawyers representing the applicants and the Director General made submissions relating to the apparent conflict of presumptions relating to fatherhood created by two New South Wales statutes which, at the time of the child’s birth and registration, dealt with that subject. 35 Subsection 11(1) of the Children (Equality of Status) Act 1976 provided to the effect that where a man executed a paternity acknowledgment which is recorded in a Register of Births, “… that man shall, for all purposes, be presumed to be the father of the child.” However s.6 of the Artificial Conception Act 1984 provided in these terms:

“(1) Where a woman becomes pregnant by means of
(a) artificial insemination; or
(b) the procedure of implanting in her womb an ovum
(whether or not produced by her) fertilised outside her body,
any man (not being, in the case of a married woman, her husband) who produced semen used for the artificial insemination or the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy.
(2) The presumption of law that arises by virtue of subsection (1) is irrebuttable.”

36 Subsection 4(3) made s 6 subject to subs 18A(2) of the Children (Equality of Status) Act which by para (d) made the presumption in s 11(1) prevail over the presumption in s 6 of the Artificial Conception Act. 37 Those statutes have been repealed by the Status of Children Act 1996, which was assented to on 29 October 1996 but had not commenced at the times of the child’s birth and registration. That Act commenced on 1 September 1998, before the application for adoption was filed, and by s.37 it repealed the two earlier enactments; savings and transitional provisions in schedule 2 included, in cl.3(1) the following: “(1) A paternity acknowledgment that was executed in accordance with s 11 of the Repealed Status act and in force immediately before the repealed date is taken to be a formal paternity acknowledgment executed under s 19 of this Act.” There is no corresponding savings and transitional provision dealing with the presumption in the Artificial Conception Act 1984. The continuing effect of an acknowledgment under the previous legislation is further provided for by ss 11, 13 and 19 of the Status of Children Act 1996. The effect of these provisions is that presumptions arising from registration are rebuttable. 38 Section 14 of the Status of Children Act 1996 deals with presumptions arising out of use of fertilisation procedures and its provisions include: “(2) if a woman becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.” This presumption is irrebuttable. 39 The Status of Children Act 1996 does not contain any provision establishing expressly that the irrebuttable presumption arises when the fertilisation procedure and the birth occurred before the Act came into effect. A presumption existed under the repealed legislation, but that part of the repealed legislation has not been expressly continued, even for limited purposes. Section 14 relates to presumptions and the proof of facts; it is procedural in character, and in my opinion it applies now when the question of proof of parentage comes before the Court, irrespective of the time at which the underlying facts occurred. 40 Thus I am confronted with rebuttable presumptions that the proposed adopting father is the child’s father arising under s 11 and s 13 of the Status of Children Act 1996, and an irrebuttable presumption that he is not the father arising under subs 14(2); the rebuttable presumptions are rebutted by the irrebuttable presumption and, on the evidence before me, I must conclude and act on the basis that he is not the infant’s father and the infant is not his child; there is no relationship between them. On this view there is no requirement for his consent to the adoption application, but if he were the child’s father and there were such a requirement it would be overcome by subs 23(5) as he is an applicant. 41 The turning point for decision is the question stated in the last words of subs 21(1) of the Adoption of Children Act, that is the question whether “the welfare and interests of the child will be promoted by the adoption,” that being the paramount consideration under s.17. The welfare and interests which fall to be considered relate to the emotional dimensions of life and the happiness of the child at present and in the future. There is nothing adverse to the welfare and interests of the child in relation to the material dimensions of life; the applicants are good people, of good repute, good health, hard working and steady citizens, they have appropriate resources in terms of housing, earnings and earning capacity, and they have a deep commitment to the child’s welfare which they formed before the child’s birth and even before the child’s conception and have always acted on. The birth mother is not an alternative source of all these advantages; even before the child’s conception she had a clear and settled intention that the child should be given to her relatives as their child, she has always acted on this basis and has not wavered from it, and she is committed to a relationship with a man who is not the child’s father, in a family of her own with a child, or (depending on what the future holds) children, to whom she is committed in a way in which she is not committed to the infant. She lives in a distant State, visits Sydney only from time to time, and has never made material resources available for the infant. It is not practicable to contemplate that the arrangements for the applicants to stand in the position of parents to the infant should be wholly set aside, and it has not been suggested that I should make an order which could have that effect. 42 The conditions contemplated by the Law Reform Commission have not all been fulfilled. With respect of the first condition, an order under the Adoption of Children Act dealing with guardianship or an order under the Family Law Act 1975 dealing with parenting would leave the question of adoption unresolved. In the absence of any conflict I do not see any need for control or definition of the interim position by a Court order. I do not see at what stage, other than at a remove of many years to the child’s adolescence, it might be that the child would have any real understanding or effective opportunity for decision which might be brought to bear on adoption. With respect to the second condition the child has an established relationship with the proposed adopting parents, which has extended for the whole of the child’s life but not for five years, and does not replace or substitute for any earlier relationship with the birth mother. The third condition is fulfilled. With respect to the fourth condition it is not possible for the child to have any understanding of any issue relating to the adoption. With respect to the fifth and sixth conditions all other requirements of the Adoption of Children Act have been fulfilled. There has been no breach of that Act which would call for any prosecution or like action. 43 The submission by the Director General dealt with restrictions in the Adoption of Children Act on unauthorised arrangements. Arrangements made between the applicants and the birth mother with a view to adoption are not prohibited by s 51(1) of the Adoption of Children Act because they were made with a view to the adoption of the child to persons one of whom is a relative of the child; see subs (2). 44 The submissions also dealt with s 50 which relates to payments in consideration of adoptions. Subsection 50(1) makes it an offence to make or receive a payment in relation to a proposed adoption, while subs (2) creates exceptions relating to legal expenses or fees authorised by the regulations, and hospital and medical expenses paid with the approval in writing of the Director General or the Court. The applicants have paid legal and medical costs of the birth mother, but have not observed the conditions mentioned in subs (2), so they do not fall within the exceptions. There has been no other payment, and the arrangements do not have any commercial aspect. In my opinion it is likely that there has been a breach of the prohibition against making payments and that there has been an offence, although the offence would be technical in nature, and it is very unlikely that there could ever be a prosecution or that if there were any penalty would be imposed. In any event the question whether there was an offence of that kind is peripheral to the question of the welfare and interests of the infant. 45 The view put on behalf of the Director General was generally that granting an adoption order now is premature. The Director General’s submissions pointed to and acknowledged positive aspects of the application and of an adoption order if made. The applicants would have well-established full legal rights and responsibility, and a new birth certificate would be issued showing them as parents. The birth mother prefers adoption as the outcome. The applicants are capable individuals who provide responsible and sensitive care for the infant, who is being raised with a loving, stimulating and secure family environment where her developmental needs are well met. The quality of the care provided for the infant is not in question. 46 The submission pointed out the incapacity of the infant to understand the question whether there should be an adoption and to make or express any choices. The submission accepted that the applicants are being as open as they can be with a very young child about the complex family arrangements and circumstances of her conception and birth. It was observed that the infant is too young to be consulted about her views regarding her status, too young to understand the skewing of genealogical relationships that will flow from the making of an adoption order and too young to express a view about the loss of her relationship with her mother and half sister and any further children of her mother. She will have her new legal relationship with these people, and her genealogical relationship with them will be permanently altered and severed. 47 It was submitted that the benefits which would flow from an order of adoption are at this stage focused on the applicants, and that there are no benefits that would flow to the child at this stage except as the order of adoption would affect the personal comfort level and security of the applicants. As well as the effect on their feelings, their practical dealings with government and other institutions will be eased if they can produce a full birth certificate. 48 It was submitted that the benefits of an adoption order for the infant are indiscernible at this stage in her life. This submission accepted that whether or not there is an adoption order, the care and love of the applicants for the infant will continue. The submission pointed out that the infant is vulnerable to the caring adults’ wishes to limit the way in which she learns about her background, and that one of the greatest difficulties past participants in adoption have expressed is the negative effects on a child of secrecy. In intrafamily adoptions the skewing of family relationships has also been a particular concern. These concerns are ameliorated if genealogical relationships within a family are acknowledged to the child as the child obtains the capacity to understand them, and not at a deferred stage after some process of maintaining secrecy. The submission pointed out the well-established advantages of having the adoption story before children from a very early age, for example by being recorded in an adoption story book with photographs, to be read and shown to children from a very early time, to be followed by a ready and uninhibited flow of information in accordance with the child’s capacity to receive it from time to time. 49 Nothing in the evidence, including Ms Lamport’s report, leads me to have any concern that the applicants will not be ready to make the infant’s true circumstances open to her. While predictions of the future can never be altogether confident, I see no reason to fear that they will not perform this part of their parenting task well. 50 The Director General’s submission put forward for consideration several alternative orders which the Court may make for the care of the infant. These alternatives include giving guardianship to the Director General and care to the applicants. This course is provided for by s 34 of the Adoption of Children Act, and would keep the child’s circumstances under review by the Department and by the Court. The Department does not support this course. I do not regard it as appropriate because I do not see any ground for reserving further opportunities of supervision over the applicants. 51 The Director General also referred to the option of making an order under s 24 of the Adoption of Children Act granting guardianship to the applicants. The submission contemplates that the Department’s practice in relation to close relative adoptions would be followed for some years, and the question of adoption would come under consideration again at a later stage when the infant had an established relationship of at least five years with the applicants, knowledge of and contact with her birth mother, and an understanding commensurate with her age as to why adoption is taking place. 52 In my opinion the matters supporting the conclusion that there should be an adoption order having regard to the welfare and interests of the child in this case are quite overwhelming. In my view the balance of her interests overwhelmingly favours completing the adoption process over guardianship or parenting orders which would continue the provisionality and potential instability of the present arrangements. I do not see any real advantage in postponing a decision on adoption for several years. When the infant is five or six, and for many years after, she will not be in the position to make any real choice or decision. If the general circumstances favouring adoption were not so highly favourable as the evidence shows they actually are, or if there were any signs of instability or potential conflict among the adults involved, I might have to take a different view. 53 I repeat the statement of Windeyer J in W: Re Adoption (NSWSC 6 July 1998) “It is important to state that in coming to this decision, the Court is not determining whether surrogate births are or are not to be encouraged.” It would be incorrect to interpret this decision as expressing approval or endorsement of surrogate parenthood, or as expressing general readiness to ratify surrogacy arrangements with adoption orders. I share the disquiet which has been expressed elsewhere, including by the Law Reform Commission, about surrogate parenthood, and I share the Commission’s disapproval of commercial arrangements and their view that surrogacy should not be encouraged and that it is appropriate for the legislature to consider regulating it. These general considerations cannot control my task of adjudication on the facts of the instant case and in conformity with the legal rules found in the Adoption of Children Act 1965, including the paramountcy rule. I do not regard surrogate parenthood as an ideal arrangement, but the circumstances of the present case appear to me to be as favourable as are ever likely to be encountered. 54 This decision if rightly understood should not give encouragement to make arrangements for surrogate parenthood or to seek adoption orders. Any other adoption application must be considered according to law, in which the welfare and interests of the child are paramount; welfare and interests of children cannot be generalised, and must be addressed in detail on the facts of each case, and the outcome of earlier cases will provide little guidance. 55 For these reasons I will make an adoption order as asked.
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Last Modified: 09/26/2000