BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2)

In the Family Court of Australia, the case of BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2) was heard, involving an application for parentage orders under the Surrogacy Act 2010 (NSW). The applicants, BB and DD, sought to establish their legal parenthood of a child born to a surrogate, while the respondents contested the validity of the surrogacy arrangement. The dispute centred on whether the surrogacy agreement was entered into before or after the commencement of the Surrogacy Act 2010 (NSW), which has implications for the application's eligibility under the Act.

The primary legal issue before the court was to determine whether the applicants' new evidence demonstrated that a pre-commencement surrogacy arrangement was established in late 2007. Additionally, the court had to consider whether the applicants' delayed application, made more than two years after the commencement of section 16(2) of the Act, could be justified under the term "exceptional circumstances" as per section 16(3) of the Act. The court also had to evaluate the applicants' non-compliance with section 38 of the Act, which requires the parties to obtain legal advice before entering into a surrogacy arrangement.

The court found that the parties had indeed entered into a pre-commencement surrogacy arrangement, as evidenced by their oral agreement and intention to implement it informally. The court held that the characterisation of the surrogacy arrangement depends on the substance of the agreement rather than its form. The court also determined that exceptional circumstances existed, justifying the delayed application, as the parties were unaware of the future existence of parentage orders and the requirements of the Act at the time of the agreement. The applicants did not obtain legal advice and deferred the implementation of the surrogacy arrangement for other reasons. However, the court warned the applicants against future non-compliance with section 38 and granted the parentage orders sought by the applicants.