Blake and Anor

[2013] FCWA 1

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: ADOPTION ACT 1994

LOCATION: PERTH

CITATION: BLAKE & ANOR [2013] FCWA 1

CORAM: CRISFORD J

HEARD: 27 NOVEMBER 2012

DELIVERED : 10 JANUARY 2013

FILE NO/S: [suppressed]

BETWEEN: CHARLES BLAKE

Applicant

AND

DEPARTMENT FOR CHILD PROTECTION
Second Applicant

Catchwords:

ADOPTION - overseas surrogacy arrangement - definition of parent or father

Legislation:

Adoption Act 1994 (WA)
Family Law Act 1975 (Cth)
Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Artificial Conception Act 1985 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: [suppressed]

Second Applicant : [suppressed]

Solicitors:

Applicant: [suppressed]

Second Applicant : Department for Child Protection

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

Ellison & Anor & Karnchanit [2012] FamCA 602

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL

JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1Charles Blake has applied for step-parent adoption of two children, X and Y. He has applied for this adoption on the basis that his de facto partner, James Marston is the father of the children.

2The major issue raised is whether Mr Marston can be considered a parent of the two children for the purposes of the Adoption Act 1994 (WA) (“the Act”). This issue has arisen as a result of the circumstances surrounding the conception and birth of the children.

3The children are twins who were born as a result of a surrogacy procedure which took place at a fertility clinic in Mumbai, India. The procedure was carried out by fertilising eggs from an anonymous egg donor with Mr Marston’s sperm. The fertilised eggs were then implanted in a surrogate, Mrs Sengupta, who gave birth to the twins.

4Mrs Sengupta, her husband and Mr Marston entered into a surrogacy agreement in December 2009 which is binding under Indian law. In accordance with that agreement, Mrs and Mr Sengupta relinquished all their rights to any children born of the surrogacy procedure, and covenanted not to engage in any legal proceedings in relation to their rights or custody of the children. The surrogacy agreement declares that Mr Marston is the ‘intended parent’ of the children. The surrogacy agreement makes no mention of Mr Blake.

5The Court was not provided with any information about the arrangement between Mr Marston and the fertility clinic in Mumbai. The financial arrangements, if any, in relation to this surrogacy were not touched upon.

6Upon their birth in2010 Ms Sengupta gave the children into the care of Mr Marston and Mr Blake, who visited India for that purpose. Mr Marston was named as the father of the children on their Indian birth certificates. No mother is named on the birth certificates.

7Mr Marston then applied for Australian citizenship for both children on the basis of their parentage. He provided DNA samples from the children and himself so that a parentage testing procedure could be performed at a laboratory in Sydney. The test results dated 3 August 2010 confirmed that Mr Marston has a 99.9% chance of being the “genetic parent” of the children.

8The Department of Immigration and Citizenship registered each child as an Australian citizen by descent on 7 August 2010. The children have been with Mr Marston since birth and have a genetic relationship with him. After the decision Mr Marston and Mr Blake returned to Australia with the children. Both children have lived with Mr Marston and Mr Blake since their birth. Mr Marston is an Australian citizen and Mr Blake is a Canadian citizen with permanent residency status in Australia.

9Mr Blake, Mr Marston and the children are currently residing overseas.

Policy issues

10One need look no further than the well crafted judgment of Ryan J in Ellison & Anor & Karnchanit [2012] FamCA 602 to understand the breadth of issues which can arise in matters of this nature. Her Honour was there considering the question of whether presumptions of parentage dealing with artificial conception procedures and children born under surrogacy arrangements apply to children born overseas. That matter fell for determination under the Family Law Act 1975 (Cth).

11Her Honour identified some of the policy issues which faced the Court:

3. Scant evidence was initially provided by the applicants in support of their application. This was designed to mask the fact that the children were born as a consequence of an illegal (in Australia) commercial surrogacy arrangement. While such an arrangement is not illegal in Thailand, the Surrogate Parenthood Act1988 (Qld) in which State the applicants and children live, asserts extraterritorial effect and renders the applicants liable to prosecution and potentially imprisonment for up to three years. Of course, imprisonment of the applicants would see two much loved children (from the children’s perspectives) inexplicably separated from the only people they have known as parents. The potential for long term psychological and emotional harm to the children were such an event come to pass is obvious.

12The Court here is dealing with different legislation and a different factual matrix. The Court here was provided with considerable information about the documented arrangements between Mr Marston and the surrogate parent. A legal opinion about the validity of the arrangement in India was also provided. As in Ellison (supra) the Court is concerned to ensure that the children who live in Australia (or elsewhere) with the applicant and his partner are not exposed to any psychological or emotional harm, especially given that there is no other party interested in taking on a parenting role.

13Ryan J set out some guidelines for best practice principles in matters dealing with surrogacy arrangements. As the intertwining of surrogacy and adoption becomes more commonplace, the guidelines set out in that decision are worth considering. Their application will vary depending on the nature of the case, but it is to be borne in mind, as Ryan J concludes:

140.There are many and varied paths to parenthood. Where the path involves an international surrogacy arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring the parental status is possible once the children are born.

Orders sought

14Mr Blake has applied for the following orders in relation to the proposed adoption:

1a dispensation for the requirement to obtain the birth mother’s consent under s24(2)(g) of Adoption Act 1994 (WA)

2a dispensation for the requirement for an adoption plan under s 73(b) of the Adoption Act 1994 (WA).

15Mr Marston has provided his written consent to the proposed adoption. Mrs Sengupta has not been involved in this application, nor had she any notice of it. Mr Marston and Mr Blake state that they do not have any contact with Mrs Sengupta, hence the application to dispense with certain requirements of the Adoption Act 1994 (WA).

16The Court can of course make parenting orders allocating parental responsibility in respect of a child to a person who is not the parent of that child. In this respect, s 85 of the Family Court Act 1997 (WA) is relevant. An order of this nature would only create a legal relationship until the child is 18. The applicant does not seek such an order.

Discussion

17Before even considering the orders sought by Mr Blake, the Court must determine whether he satisfies the relevant criteria to enable this adoption to take place. The Court needs to firstly deal with whether Mr Blake has any standing as a “step-parent”.

- relevant legislation

18Pursuant to s 4(1) of the Act a step-parent means, in relation to a person, another person who -

(a)is not a birth parent or adoptive parent of the first-mentioned person; and

(b)is married to, or the de facto partner of, the first-mentioned person’s birth parent or adoptive parent;

19Thus, for Mr Blake to fulfil the definition of a ‘step-parent’ for the purposes of a step parent adoption, Mr Marston would have to be defined as either a ‘birth parent’ or ‘adoptive parent’ of the children.

20The Act contains a definition of who is a child’s birth parent:

birth parent means, in relation to a child or adoptee -

(b) the mother of the child or adoptee; and

(b)the father or parent of the child or adoptee under section 6A of the Artificial Conception Act 1985.

21Mother is defined as, in relation to a child or adoptee, the woman who gave birth to the child or adoptee. It is clear that the Indian surrogate mother who gave birth to the twins is considered the birth mother of the children. The meaning of the father or parent of the child is not so straight forward.

22There is no definition of father in the Act or the Interpretation Act 1984 (WA).

23Parent is not defined in the Act. However, it is defined in the Interpretation Act. The definition is inclusive rather than exclusive:

Parent includes the following -

(a)a person who is a parent within the meaning of the Artificial Conception Act 1985;

(b)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.

24Dealing firstly with (a), s 6A of the Artificial Conception Act 1985 (ACA) refers to the female partner of a woman who gives birth and has no application here.

25The rules relating to parentage under the ACA would seem to exclude Mr Marston from being the father. Section 7 states:

(2) Where -

(a) a woman becomes pregnant in consequence of an artificial fertilisation procedure; and

(b) a man (not being the woman's husband) produced sperm used for the purposes of the procedure,

then for the purposes of the law of the State, the man referred to paragraph (b) -

(c) shall be conclusively presumed not to have caused the pregnancy; and

(d) is not the father of any child born as a result of the pregnancy.

26An artificial fertilisation procedure is defined for the purposes of the ACA as any:

(a)artificial insemination procedure; or

(b)in vitro fertilisation procedure.

27An artificial insemination procedure is defined as:

a procedure where human sperm are introduced, by a non-coital method, into the reproductive system of a woman but which is not, and is not an integral part of, an in vitro fertilisation procedure.

28An in vitro fertilisation procedure means a procedure, not being a storage procedure, which -

(a)is consequent upon the removal of a human egg from the body of a woman, and carried out for one or more of the following purposes -

(i) the fertilisation of that egg, within or outside her body;

(ii) the keeping or use of that egg with intent to derive from it a human egg undergoing fertilisation or a human embryo; or

(iii) the keeping or use of that human egg undergoing fertilisation or human embryo so derived;

(b)is directed at the introduction into the body of a woman of -

(i) a human egg;

(ii) a human egg undergoing fertilisation or a human embryo, whether or not fertilisation began outside the body into which it is introduced; or

(c)is a procedure in relation to artificially assisted human conception which is prescribed for the purposes of this definition;

29The procedure by which the children here were conceived would likely and without more fall into the definition of ‘artificial conception procedure’. This is based on an assumption that the procedure followed was likely to have been an in vitro fertilisation procedure.

30As such, under s 7(2) of the ACA, Mr Marston, not being the husband of the surrogate, is not the father. The ACA is intended to apply to “an artificial fertilisation procedure carried out before or after the commencement of this Act either within or outside Western Australia” (s4) and as such would appear to apply to the procedure carried out in India. He would therefore not be included in the definition of ‘parent’ provided in the Interpretation Act.

31However, as already noted, that definition is not exhaustive. 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.

32Turning to (b), as no adoption has taken place, Mr Marston cannot be considered the adoptive parent of the children. There is no parentage order under the Surrogacy Act as required in (c).

- Presumptions of Parentage

33The presumptions of parentage set out in Part 5 Division 11 Subdivision 3 of the Family Court Act 1997 (WA) apply when considering who is a parent or birth parent of a child. If any of the presumptions apply to Mr Marston, he can be considered a parent of the children.

34Those presumptions are:

•s.188. Presumptions of parentage arising from marriage - FLA s. 69P

-This is not applicable. The parties to the proposed step-parent adoption are not married. This presumption would only apply to the husband of the surrogate.

•s.189. Presumption of paternity arising from cohabitation — FLA s. 69Q

-This is not applicable.

•s.190. Presumption of parentage arising from registration of birth - FLA s. 69R

-Mr Marston was registered as the father of both children on the birth certificate which was issued in India. India is not a prescribed overseas jurisdiction for the purpose of this section, so no presumption applies arising from the registration of the children’s birth.

•s.191. Presumptions of parentage arising from findings of courts - FLA s. 69S

-There have been no court findings in relation to the parentage of these children.

•s.192. Presumption of paternity arising from acknowledgments — FLA s. 69T

-This presumption arises if a person has signed an acknowledgement of paternity under a state or commonwealth law. There are no Australian birth certificates.

35In his affidavit in support of the adoption, Mr Blake deposes:

10.A DNA test was required by the Department of Immigration and Citizenship to prove biological parentage before Australian Citizenship by descent was granted to the children. The results of the parentage performed by DNA Labs in Sydney, Australia is attached, and confirms that James Marston is the biological father of both X and Y (copy of DNA Labs parenting testing report attached).

11.In addition to the DNA test, we were required by the Department of Immigration and Citizenship to obtain an independent legal review of the surrogacy contact and submit this with our application for citizenship by descent, which allowed us to obtain passports for the children and bring them back to Australia. For this purpose, Mr Marston engaged Mr Jamal Mehta, an advocate in the High Court of Mumbai to review the contract and provide this opinion, which is dated 2 August 2010 (copy of validity of surrogacy agreements in India).

36Mr Mehta opines that, according to Indian law, Mr Marston is the genetic father of the children based on correspondence from the surrogacy clinic confirming the nature of the procedure performed. Mr Mehta states the children are “genetically linked” to Mr Marston.

37Mr Mehta also states that the surrogate has no rights over the children as she has relinquished all her parental rights in the agreement.

38The Department for Child Protection provided the Court with written submissions dated 29 November 2012. The Department asserts that the Court is able to take into account any declaration of parentage made by Mr Marston under a law of the Commonwealth of Australia or the law of any Australian state or territory. The Department includes in this the documents provided to the Department of Immigration and Citizenship for the purpose of obtaining Certificates of Citizenship by descent for each of the twins and as set out in Mr Blake’s affidavit. The documents signed by Mr Marston in support of the certificates of citizenship were not provided.

- Declaration of Parentage

39The Court might be able, on the admission of appropriate evidence showing Mr Marston’s genetic connection to the children, to declare that Mr Marston is a parent of the children.

40Such a power exists specifically in the Family Law Act 1975 (Cth), s 69VA:

As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

41Interestingly, the reports provided by DNA Labs in Sydney for Mr Marston and the twins each set out that the sample collection procedure for each of the children did not strictly adhere to Regulation 21F(l) of the Family Law Regulations 1984 (Cth). These regulations are adopted by the Family Court Act (regulation 15(2) of the Family Court Regulations 1998 (WA). The containers of bodily samples that were provided had not been appropriately labelled. The person carrying out the parentage testing procedure notes “I do not consider this issue to have affected the testing in any way”. However, the parentage testing report does not meet the full requirements of the Family Court Regulations.

42There is no equivalent to s 69VA in the Family Court Act. The Court does, however, have a general power to make orders relating to the welfare of children. This might include a power to determine who the child’s parents are.

162. Orders relating to welfare of children — FLA s. 67ZC

(1) In addition to the jurisdiction that a court has under this Act in relation to children, a court also has jurisdiction to make orders relating to the welfare of children.

(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Conclusion

43Although the Court is satisfied that Mr Marston has established on the balance of probabilities that he is the biological or genetic father of the twins, it does not automatically follow that the state law recognises either him as a parent or Mr Blake as a step-parent.

44The evidence presented by the applicant establishes a number of facts. I am satisfied that Mr Blake is the de facto partner of Mr Marston, the father or birth parent of the twins. They have been in a committed relationship since 2005.

45There are certified copies of overseas birth certificates showing Mr Marston as the father. The certificates were accepted by the Department of Immigration and Citizenship in assessing the issue of citizenship and the provision of passports.

46One 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.

47In correspondence from the Department for Child Protection to the Court of 1 November 2012 it made comment on Mr Blake’s application to dispense with the birth mother’s consent to the adoption and the preparation of an adoption plan. The senior solicitor of that department said:

…

The Department has instructed me that it is of the view that it is not in the best interests of X and Y to further delay their adoption and the Department wishes to agree with the proposed dispensations without any enquiries being made in India.

…

48How then does all this fit with the legislation?

49There are a number of pathways that can be pursued in order to establish whether or not Mr Marston is a parent or father. Given the applicant seeks orders under the Act I will consider that avenue first.

50As previously canvassed, 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 cannot be said that the provisions operate to exclude a person as a parent if his or her circumstances do not coincide with those identified in the section.

51To 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 coupled 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.

52To 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.

53As the Australian Human Rights Commission submitted in Ellison (supra) “the Court really needs to take children as it finds them”. There is no valid reason to disadvantage children of surrogacy arrangements.

54It follows from this that the applicant has established the conditions necessary to commence proceedings. Having found this to be the case it is helpful to also set out the principles found in the legislation:

3. Principles

(1)The paramount considerations to be taken into account in the administration of this Act are –

(a) the welfare and best interests of a child who is an adoptee or prospective adoptee;

(b) the principle that adoption is a service for a child who is an adoptee or a prospective adoptee; and

(c) the adoption of a child should only occur in circumstances where there is no other appropriate alternative for the child.

55Thus, superimposed on the established facts is the need for this Court to bear in mind the interests of these children. This includes their identity and their long term welfare.

56In the body of the judgment I have canvassed other possibilities to allow for the same result, albeit through a different route. However, I do not intend to further canvass those possibilities as in each one further evidence would be required to further consider those avenues. This application was made under the adoption legislation and I am satisfied that it can be dealt with in that manner.

Orders

57I intend to make the orders sought by Mr Blake. I consider that the content of the surrogacy agreement of December 2009 has the effect of the birth mother relinquishing all her rights. In these circumstances the need for her to consent to an adoption is meaningless in the circumstances of this case. Likewise, an adoption plan is again meaningless given the nature of the children’s conception and the existing agreement between the surrogate mother and Mr Marston. The orders I will make are:

1There be a dispensation for the requirement to obtain the birth mother’s consent under s 24(2)(g) of Adoption Act 1994 (WA).

2There be a dispensation for the requirement for an adoption plan under s 73(b) of the Adoption Act 1994 (WA).

I certify that the preceding [57] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate