CDA v TRA

Case [2024] QChC 12

CHILDRENS COURT OF QUEENSLAND

CITATION:

CDA & Anor v TRA & Anor [2024] QChC 12

PARTIES:

CDA & JMB

(applicants)

v

TRA & NGE

(respondents)

FILE NO:

1991/24

DIVISION:

Civil

PROCEEDING:

Application for a parentage order

ORIGINATING COURT:

Childrens Court of Queensland, Brisbane

DELIVERED ON:

1 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2024

JUDGE:

Farr SC DCJ

ORDER:

1.   The requirement, that the agreement between the parties that natural conception be included as part of the surrogacy arrangement, be in writing and signed, is dispensed with.

2.   Orders as per draft.

CATCHWORDS:

CHILDREN – PARENTAGE: PRESUMPTION, PROOF AND EVIDENCE – SURROGACY – where the applicants (intended parents) entered into a surrogacy agreement where the intended surrogate was not in a relationship at the time – where the agreement provided that the surrogate would accept the implantation of an embryo from the egg and sperm of the intended parents or from a donor egg fertilised by the intended father’s sperm – where numerous attempts consistent with the agreement were unsuccessful – where a second surrogacy agreement was then entered into which expanded the manner in which a pregnancy may occur where the intended surrogate was still not in a relationship at the time – where the surrogate subsequently commenced a de facto relationship – where the surrogate then naturally conceived a child with that partner – where the parties subsequently acted pursuant to the requirements of the amended surrogacy agreement in all respects, including the applicants being present at the birth and having the fulltime responsibility for the care of the child from that time on – where the surrogacy agreement did not include such circumstances -  whether the child was born as a result of a pregnancy that arose under the surrogacy agreement – whether there was a verbal amendment to the arrangement agreed between the parties, prior to conception, such that the child was born as a result of a pregnancy that arose under such an amendment – whether exceptional circumstances exist such that the requirement that the amendment be in writing and signed by the parties ought to be dispensed 

LEGISLATION:

Family Relationships Act 1975 (SA)

Human Rights Act 2019 (Qld)

Penalties and Sentences Act 1992 (Qld)

Status of Children Act 1978 (Qld)

Surrogacy Act 2010 (Qld)

CASES:

Baker v The Queen [2004] HCA 45

R v Tootell; ex parte A-G (Qld) [2012] QCA 273
ADVOCATES:

Mr S Page, solicitor for the applicants

Ms C Hokin, solicitor for the respondents
SOLICITORS:

Page Provan, solicitors for the applicants

Adelta Legal, solicitors for the respondents

Introduction

  1. This is an application for a parentage order under section 21 of the Surrogacy Act 2010 (Qld) (the Act) relating to OTL born on 13 March 2024 at the Women’s and Children’s Hospital in Adelaide, South Australia.  The child’s biological mother is TRA.

  2. The applicants (intended parents) CDA and JMB, had entered into a surrogacy agreement with TRA on 3 December 2021.  They submit that the requirements mandated by ss…

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Details
AGLC
CDA v TRA [2024] QChC 12
Case
[2024] QChC 12
Decision Date

CaseChat Overview and Summary

The applicants, CDA and JMB, sought a parentage order in relation to a child born to the respondent, TRA, who was their intended surrogate. The surrogacy agreement did not provide for natural conception, but TRA became pregnant naturally with her partner. The applicants were present at the birth and have cared for the child since. The primary legal issue was whether the requirement that the surrogacy agreement be in writing and signed should be dispensed with due to exceptional circumstances, as the agreement did not include natural conception. The court had to determine if the statutory requirement could be set aside in the interest of the child's wellbeing and the parties' autonomy.

The court found that while the surrogacy agreement did not initially include natural conception, the parties had discussed this scenario and agreed that any child born from a natural pregnancy would be subject to the surrogacy arrangements. The court noted that the statutory requirements for surrogacy agreements are clear and unambiguous. However, given the unique circumstances where all parties acted in accordance with the surrogacy agreement from the time of conception, the court considered whether it should exercise its discretion to dispense with the requirement that the agreement be in writing and signed. The court found that exceptional circumstances did exist, particularly considering the wellbeing and best interests of the child, and the autonomy of the parties involved.

The court concluded that the requirement for the agreement to be in writing and signed should be dispensed with in this case. The court's decision was based on the exceptional circumstances where all parties had acted in accordance with the surrogacy agreement from the time of conception. The court emphasised that the decision was in the best interests of the child and respected the autonomy of the parties involved. The court ordered that the requirement for the agreement to be in writing and signed be dispensed with and directed that the orders be made as per the draft provided.

Orders

Orders of the court

1. The requirement, that the agreement between the parties that natural conception be included as part of the surrogacy arrangement, be in writing and signed, is dispensed with.

2. Orders as per draft.

Background

Background to the litigation

Unfortunately, this matter is not without its complications.Background CDA (wife) and JMB (husband) married on 7 June 2015. Due to several medical conditions linked to a stroke suffered in 2009, CDA is unable to carry a pregnancy. CDA and JMB first engaged with TRA on 24 September 2019 via the “Australian Surrogacy Community” Facebook Group and they quickly developed a close relationship. Knowing that CDA and JMB wanted to start a family, TRA offered to be their surrogate after their first in-person meeting in November 2019. The original surrogacy agreement was signed by TRA on 29 September 2020 and by CDA and JMB on 8 October 2020. At that time CDA and JMB were 31 and 30 years of age respectively. TRA was 25 years of age and was a single parent to three children. She was not in a relationship. Prior to signing the agreement, all had undertaken counselling and had obtained independent legal advice as required by s 22(2)(e)(ii) and s 22(2)(e)(i)(A) and (B) of the Act. That agreement provided that TRA would accept the implantation of an embryo from the egg and sperm of the intended parents or from a donor egg fertilised by the intended father’s sperm, with the intention that any child born of the pregnancy that followed from this implantation would be ‘relinquished to and treated as the child of the intended parents’.[1][1]Surrogacy agreement of 8 October 2020: Attachment C to Affidavit of CDA filed 19 July 2024. This agreement was made under the Act as the intended parents resided in Queensland.[2] It was also agreed that the parties intended for all procedures by which the embryo or embryos would be transferred to the birth mother would occur at a clinic in Brisbane.[2]As required by s 22(2)(g)(ii) of the Act. Unfortunately, many subsequent attempts consistent with the agreement failed to produce a pregnancy. The intended birth mother then offered to use her own eggs to create an embryo by fertilisation with JMB’s sperm. Due to a series of unfortunate events, that also proved to be unsuccessful. CDA and JMB were then offered three donor embryos from friends. Implantation occurred in respect of two of them. The third was unviable. Once again, these implantations failed to produce a successful pregnancy. The first of these two implantations occurred on 6 December 2021. Three days before that, on 3 December 2021, the parties entered into a second surrogacy agreement.[3] That agreement expanded the manner in which a pregnancy may occur to include an implantation of one of TRA’s own harvested eggs fertilised with the sperm of JMB or of a donor embryo. The other difference between the two agreements was that in the first, all procedures for the transfer of embryos would occur in Brisbane whereas in the second this was varied to ‘such other location as agreed between the parties’. In all other respects the two agreements were identical.[3]Exhibit C to Affidavit of TRA filed 22 July 2024. In somewhat of a contradiction, s 1.2 of the amended agreement defined “child” or “children” to mean:· any child or children from the egg and semen of the intended parents; or· from a donor egg and sperm of JMB; or· from an egg harvested from the birth mother and the sperm of JMB; or· from a donor embryo, carried by the birth mother under this agreement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows, that under the Act, NGE is a “birth parent” and is therefore under no obligation to receive legal advice or counselling. He is required to consent to the making of a parentage order at the time of the hearing, which he has done by way of affidavit which is compliant with the requirements of s 29 of the Act.Conclusion It follows that I am satisfied that all of the statutory preconditions to the making of a parentage order have been met. I have not detailed all of those preconditions in the course of this judgment as it is unnecessary to do so.Orders1. The requirement, that the agreement between the parties that natural conception be included as part of the surrogacy arrangement, be in writing and signed, is dispensed with.2. Orders as per draft.

Ratio Decidendi

Legal Principle Established

It is submitted that dispensation ought be given for such requirement to be in writing and signed, and that such an approach would be for the wellbeing and in the best interests of the child. Mr Page has also submitted that in his assessment of the surrogacy arrangements, the Court is compelled by section 4(f) of the Human Rights Act 2019 (Qld) to adopt an interpretation that upholds the human rights of those concerned, particularly OTL.Consideration Mr Page has argued that the ‘interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation’. He then referred the Court to extrinsic material relating to such statutory interpretation including:·the Report of the Committee for the Investigation into Altruistic Surrogacy;[10]·the explanatory note; and·the second reading speech.[10]Investigation into Altruistic Surrogacy Committee, Parliament Of Queensland, Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland (2008). The report was tabled in the Legislative Assembly on 8 October 2008. This however, is not a matter that requires statutory interpretation. The statutory requirements are clear and unambiguous. One of the main objects of the Act is to provide for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement.[11] One of the guiding principles of the Act, pursuant to s 6(2)(b) is that the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of –(i)how the child was conceived under the arrangement; or(ii)whether there is a genetic relationship between the child and any of the parties to the arrangement.…[11]Section 5(a) of the Act. Furthermore, s 6(2)(c) states that the long-term health and well-being of parties to a surrogacy arrangement and their families should be promoted. Section 6(2)(d) states that the autonomy of consenting adults in their private lives should be respected. Did the surrogacy arrangement include natural conception? There seems little doubt that the parties had discussed, prior to OTL’s conception, the proposition that if TRA conceived naturally, whether any child born of that pregnancy would be subject to the surrogacy arrangements. I accept the evidence of CDA and JMB that they all agreed that would be the case, notwithstanding that TRA has provided no evidence on the topic. The fact that TRA has acted in a way entirely consistent with the provisions of the surrogacy agreement from the time of learning of the pregnancy is strong evidence in support of that conclusion. Such an agreement however was not reduced to writing and signed as legislatively required. The question then is whether exceptional circumstances exist such that the Court should dispense with the requirement for the agreement to be in writing and signed. The Act itself provides an example of exceptional circumstances for dispensing with the requirement under s 22(2)(g)(ii) (that each joint applicant is resident in Queensland). The example provided is:One of the joint applicants is temporarily residing outside Queensland because of work commitments but is still in a spousal relationship with the other joint applicant who is resident in Queensland.