Dudley and Anor & Chedi
[2011] FamCA 502
•30 June 2011
FAMILY COURT OF AUSTRALIA
| DUDLEY AND ANOR & CHEDI | [2011] FamCA 502 |
| FAMILY LAW - CHILDREN - overseas surrogacy arrangement - where the male applicant provided the sperm - where the applicants are resident in Queensland and consequently the arrangement was illegal irrespective of where the arrangement occurred - where Australia granted a visa for the children to live in Australia - whether it is appropriate to make a finding as to parentage – the children to live with the applicants – the father and the father’s wife to have equal shared parental responsibility of the children – referral of the reasons for judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld) |
| Family Law Act 1975 (Cth) Penalties and Sentences Act 1992 (Qld) |
| Re: Michael – Surrogacy Arrangements [2009] FamCA 691 Re D and E (2000) 26 FamLR 310 |
| 1st APPLICANT: | Mr Dudley |
| 2nd APPLICANT: | Ms Dudley |
| RESPONDENT: | Ms Chedi |
| FILE NUMBER: | SYC | 7144 | of | 2010 |
| DATE DELIVERED: | 30 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 February 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Lewis Law |
Orders
The children L1 and L2 both born … August 2009 (“the children”) live with the applicants, Mr Dudley and Ms Dudley.
The applicants have equal shared parental responsibility for making decisions about long term issues and day to day issues in respect of the children.
The Registrar provide a copy of this judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld) and, if requested, provide a copy of any document on the court file to the Office of the Director of Public Prosecutions, Queensland.
IT IS NOTED that publication of this judgment under the pseudonym Dudley and Anor & Chedi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7144 of 2010
| Mr Dudley & Ms Dudley |
Applicants
And
| Ms Chedi |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr and Ms Dudley have brought three baby boys back from Thailand to Australia. This application relates to two of them, L1 and L2 (“the children”) born in August 2009. The boys were artificially conceived by using Mr Dudley’s sperm and donated eggs from a Thai woman. Another Thai woman, unrelated to the egg donor, carried and gave birth to the boys. She is named as the respondent. The anonymous egg donor is not a party to these proceedings.
Yet another Thai woman was impregnated with a third zygote produced by Mr Dudley’s sperm and the same egg donor. This resulted in the birth of another child, L3, who was the subject of a separate judgment by Stevenson J delivered on 22 February 2011. Her Honour made orders similar to the orders sought before me[1].
[1] A previous judgment has been reported using the pseudonym “Dennis and Anor & Pradchapet [2011] FamCA 123”. Mr & Ms Dennis are the same persons as Mr & Ms Dudley.
An obstetrician overseeing the pregnancies of the two surrogate mothers in Bangkok, Thailand, induced labour in both women, so that all three children, with the same genetic makeup, were born on the same day.
The birth mothers placed all three children into the sole care of the applicants almost immediately after the birth of the children.
The birth mother of L1 and L2 consents to the applicants having orders made in their favour under the Family Law Act 1975 (Cth) (“FLA”) for parental responsibility and for the children to live with them at their home in Queensland.
On 28 April 2010 a sub-class 101 visa was granted by the Australian Embassy in Bangkok permitting the children to travel to Australia with the father. The children shortly thereafter travelled to Queensland with the applicants and have lived with them since that time.
On the face it appears that at all relevant times, Mr and Ms Dudley were residents of Queensland. At all relevant times it has been illegal for a resident of Queensland to enter into surrogacy arrangements as Mr and Ms Dudley appear to have done.
BACKGROUND
The first applicant, Mr Dudley, was born in New Zealand in 1968 and is now 43 years of age. The second applicant, Ms Dudley, was born in Asia in 1968 and is now 42 years of age. The first applicant is an Australian citizen and the second applicant is a permanent resident of Australia. They married in Australia in 1998.
The applicants had for many years sought unsuccessfully to have children by artificial means. The applicants sought the assistance of doctors at a fertility clinic in Thailand.
The Thai birth certificates of the children show the first applicant and the surrogate mother as the parents of the children. Between August 2009 and April 2010, DNA testing in Australia established the first applicant to be the biological father of the children.
The first applicant was unsuccessful in a Thai court in establishing that the surrogate mother had relinquished all her parental rights. The evidence that I have indicates that this was because Thai courts require a child to obtain the “age of reason” prior to a Thai court making such an order. Without an order providing the surrogate mother had relinquished those rights, the children’s applications for citizenship based on descent were denied by the Australian authorities. As I have already indicated, the children, however, were permitted to enter Australia on a sub class 101 visa issued by the Australian Embassy in Bangkok.
DOCUMENTS RELIED UPON
The applicants read the following material:
12.1.Application for Consent Orders and attached Parenting Plan filed 12 November 2010;
12.2.Affidavit of Mr Dudley filed 12 November 2010;
12.3.Affidavit of Ms Dudley filed 12 November 2010;
12.4.Affidavit of Ms Chedi (Surrogate Mother) filed 12 November 2010;
12.5.Affidavit of S (Interpreter) filed 12 November 2010; and
12.6.Affidavit of T (Thai lawyer) filed 12 November 2010.
THE ILLEGALITY OF THE ARRANGEMENTS
In very recent times Australia has been moving towards a uniform position in relation to the legality of surrogacy arrangements[2] and all places in Australia, except Tasmania and the Northern Territory, now have laws about surrogacy arrangements.
[2] See for example “A Proposal for a National Model to Harmonise Regulation of Surrogacy January 2009” by a Joint Working Group of the Standing Committee of Attorneys-General, Australian Health Ministers’ Conference and Community and Disability Services Ministers’ Conference which proposed that uniform laws be introduced so that commercial surrogacy be illegal on the basis that it, “commodifies the child” and “risks the exploitation of poor families for the benefits of rich ones”.
State laws have aimed to protect women and children from what the legislature has seen as abusive practices which potentially surround the commercialisation of surrogacy. At this date, all State laws that have been enacted authorise altruistic surrogacy and make illegal commercial surrogacy.[3]
[3] For example, s 8 of the Surrogacy Act 2010 (NSW) provides: “A person must not enter into, or offer to enter into, a commercial surrogacy arrangement.”
In the present application before me, all relevant acts done by the applicants were done at a time when the now repealed Surrogate Parenthood Act 1988 (Qld) (“SPA Qld”) was in force. The Act was relatively short and I set it out in full:
Surrogate Parenthood Act 1988
1. This Act may be cited as the Surrogate Parenthood Act 1988.
2. In this Act—
“act as a surrogate parent” means to lend oneself as the bearer of a child to the performance of a prescribed contract that has been made or that is to be made.
“prescribed contract” means a contract, agreement or arrangement made between 2 or more persons, whether formally or informally and whether or not for payment or reward, under which it is agreed—
(a) that a person shall become or shall seek or attempt to become the bearer of a child and that a child delivered as the result thereof shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person firstmentioned in this paragraph; or
(b) that a child delivered from a person who is the bearer of any embryo, foetus or child at the time when the prescribed contract is made shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person firstmentioned in this paragraph.
3. (1) A person shall not—
(a) publish or cause to be published any advertisement, statement, notice or other document that—
(i) is intended or likely to induce a person to agree to act as a surrogate parent; or
(ii) seeks or purports to seek a person to agree to act as a surrogate parent; or
(iii) states or implies that a person is willing to agree to act as a surrogate parent; or
(iv) states or implies that a person is willing to enter into a prescribed contract; or
(b) make, give or receive or agree to make, give or receive a payment or reward for or in consideration of—
(i) entering into a prescribed contract; or
(ii) a person agreeing to act as a surrogate parent; or
(c) enter into or offer to enter into a prescribed contract.
Maximum penalty—100 penalty units or 3 years imprisonment.
(2) A person who does an act that is prohibited by subsection (1) commits an offence against this Act and is liable to be punished therefore if—
(a) the act occurs in Queensland, irrespective of the whereabouts of the offender at that time; or
(b) the offender is ordinarily resident in Queensland at that time, irrespective of where the act occurs.
4. (1) A prescribed contract made after the commencement of this Act is void.
(2) No action shall be maintained in a court of Queensland—
(a) for the enforcement of a prescribed contract made after the commencement of this Act; or
(b) for the recovery of any money or other thing paid or given in connection with a prescribed contract made after the commencement of this Act;
wherever the contract may be made and whatever law may be the proper law of the contract.
Section 3 of the SPA Qld prohibited the applicants in this case from doing what they have done and made it a criminal offence. The extra territorial application of the SPA Qld is clear (see s 3(2)(b) SPA Qld).
The material presented in proceedings before me is starkly deficient in providing any detail of the financial arrangements entered into between the applicants and:
17.1.The surrogate mother;
17.2.The Thai clinic;
17.3.The donor of the eggs;
17.4.The surrogate mother’s independent lawyer; and
17.5.Their own lawyers.
I have no evidence as to what, if any, safeguards were in place to protect the surrogate mother from emotional or financial harm, besides her assertions that she:
18.1.Spoke to the parties with the aid of an interpreter about the surrogacy agreement;
18.2.Had the content of Thai law in the area of surrogacy explained to her by a Thai lawyer;
18.3.Had the content of Australian law in the area of parenting explained to her by an interpreter;
18.4.Had the Parenting Plan read to her in her own language before she signed it; and
18.5.Was read the Australian court documents in her own language before signing them.
I note in passing that Queensland has now passed the Surrogacy Act 2010 (Qld) which has repealed the previous Act as from 1 June 2010. It legalised altruistic surrogacy in Queensland, while maintaining the illegality of commercial arrangements. In doing so, protections have been put around the process, such as a surrogacy guidance report prepared by an independent and appropriately qualified counsellor (s 32). What the applicants did would still have been illegal under the new Queensland law. The penalties relating to commercial arrangements under the new law are the same as under the old.[4]
[4] Queensland has the largest penalty (at least in terms of imprisonment) of up to three years of imprisonment and/or a fine of 100 penalty points for an individual ($10,000 as per section 5 of Penalties and Sentences Act 1992 (Qld)).
PARENTAL STATUS
Stevenson J, in her decision regarding L3, found that the biological father was a ‘parent’ under the FLA. Her Honour commented that this finding was not intended to have any wider implications than a decision about who is a “parent” in the particular circumstances of that case.
I note that the first applicant, in his affidavit, openly indicates that he and his wife seek orders in the Family Court of Australia for shared parental responsibility and for the children to live with them, not only to ensure the children are with them and that they have full parental rights and responsibilities for the children but also to assist them in pursuing the applications for Australian Citizenship by descent on behalf of the children, which has so far not been granted by the Australian authorities.
Persons wishing to be declared a parent do so because of the impact non recognition might have in areas such as:
22.1.medical treatment for the child;
22.2.registering with Medicare and health funds;
22.3.applications for things such as passports or school that require a birth certificate specifying the child’s parents;
22.4.rights for a child arising upon the death of a parent, including rights to an intestacy and superannuation;
22.5.the ability of a child to be referred to as “a child” in a will; and
22.6.complications in relation to recognition as to entitlements and liabilities under the child support regime and recognition of a child’s rights to entitlements on injury or death of a parent in schemes of workers’ compensation[5].
[5] See in part paragraph 6.96 of the report of the Legislative Council Standing Committee on Law and Justice, “Legislation on Altruistic Surrogacy in NSW” released in May 2009.
Stevenson J in her judgment in respect of L3, found that Mr Dudley is a “parent” of L3 for the following reasons:
23.1.He and the surrogate mother both say on their oath that he provided his genetic material to fertilise the anonymously donated egg in the IVF process;
23.2.DNA testing has established that he is the children’s biological father;
23.3.He is registered as the father on the children’s Thai birth certificates and “House Registration” documents;
23.4.He assumed the role of father to the children almost immediately upon their birth;
23.5.He intends, jointly with his wife, to provide ongoing care and support for the children; and
23.6.The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the children’s lives.
The issue arises as to whether or not the first applicant is a parent of the children in the current proceedings. I need to consider whether I make a similar finding to that of Stevenson J. I note that despite the applicant’s legal representatives providing lengthy submissions about whether the first applicant is a ‘parent’, the applicants have not specifically asked to make any determination of the status of L1 and L2 nor their parentage. I am simply being asked to make a confirmatory order as to where they will live and who will have responsibility for them.
Under Thai law, only a birth or surrogate mother has any parental rights in relation to a child born when she was not married to a man. The lawyer who gave evidence in this case deposed to the fact that, in Thailand, no parental rights vest with the biological mother or father in the case of a surrogate birth and deposed further that no Thai law governed surrogacy arrangements.
Importantly in this case, the surrogate mother deposed to the fact that she has never been married. She also gave evidence that she was not in any other relationship with any other man from the time of the surrogacy procedure until present.
The reason these facts are important is because it means that the current provisions of s 60H FLA are not enlivened in this case (see in comparison Re: Michael - Surrogacy Arrangements [2009] FamCA 691). The twins are therefore not precluded from being the children of the applicants, by virtue of s 60H(1)(d) FLA (I have previously referred to the potential conflict between s 60H FLA and s 60HB FLA in Re: Michael).
The FLA contains no definition of the term “parent”. The equivalent of what the new Queensland Surrogacy Act 2010 now calls a “parentage order” can be applied for in all places in Australia except Tasmania and the Northern Territory[6].
[6] Surrogacy Act (Qld) s22; Surrogacy Act 2008 (WA) s21; Parentage Act 2004 (ACT) s26; Status of Children Act 1974 (Vic) s22; Family Relationship Act (SA) s10HB; Surrogacy Act 2010 (NSW) s12. I note Tasmania’s draft Surrogacy Bill 2010 includes such a provision
These State laws have been prescribed[7] for the purposes of s 60HB FLA. Once a State order is made about who is a parent, the federal law will recognise it. By enacting s 60HB FLA, the Federal Government resolved any issue as to whether or not the transfer in the 1980s by the States of powers relating to children created any issue as to whether or not laws about parentage in relation to surrogate children should be made at Federal or State level. Section 60HB FLA provides that State law will govern the determination of parentage and that State law will be recognised by Federal law.
[7] by Regulation 12CAA Family Law Regulations
Had the current State Queensland law regarding parentage applied to the applicants in this case, they would not have been able to get a parentage order. A number of sections in the Surrogacy Act 2010 (Qld) preclude a State parenting order in the applicants’ favour including the requirements that: an application be made within 6 months of the children’s birth (s 21(1)(a)); all parties undertake counselling (s 22(2)(e)(ii)); and most importantly, the agreement is not a commercial surrogacy agreement (s 22(2)(e)(vi) and s 23(1)). The Status of Children Act 1978 (Qld), which is otherwise applicable (see s 17 Surrogacy Act 2010 (Qld)) also does not assist, with an irrebuttable presumption that the surrogate mother is the parent (s 23(2)(a)), and the first applicant, who has provided the sperm, is not (s 23(4)). I note that Status of Children acts are generally more applicable to the protection of a sperm or egg donor in more conventional assisted reproductive procedures.
The applicants have not sought to gain parental status by seeking leave to apply to adopt the children.
Notwithstanding the possible advantages to L1 and L2 in making a finding that Mr Dudley is a parent of L1 and L2, I decline to make that finding for the following reasons:
32.1.Applicable State law made what he did illegal;
32.2.There was at that time no provision in State law that would allow the recognition of any relationship between the twins and Mr Dudley;
32.3.Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;
32.4.Mr Dudley may seek a remedy through adoption legislation; and
32.5.The orders that are sought in this case can be made without recognising Mr Dudley as the father of the twins.
THE STANDING OF THE APPLICANTS
Section 65C(c) FLA provides standing for the applicants to make an application under Part VII FLA without me making a finding that Mr Dudley is a parent of L1 and L2. Any persons who are concerned with the care, welfare and development of children may make an application for the type of orders sought in this case. I make a finding that the applicants are such persons based on the same reasons (listed above) that Stevenson J made a finding of parental status.
Section 65G FLA would ordinarily apply to the application made by the applicants (as I have not found either of them to be a parent of the children). A parenting order about whom a child lives with or the allocation of parental responsibility by consent with a non-parent must not be made unless there is a discussion between the parent and the non biological parent with a family consultant or the court is satisfied that it is appropriate to make the order even though that condition is not satisfied.
In this case I find, as Stevenson J found in the case involving L3, that it would be futile for the parties to discuss any proposed orders with a family consultant. The surrogate mother lives in Thailand and has clearly indicated that she intended to relinquish all her rights and obligations in relation to the children and that she consents to the proposed orders. In the circumstances of this case, I am satisfied that I may make the orders sought by the applicants even though the ordinary conditions of s 65G FLA have not been complied with.
BEST INTERESTS
The circumstances of the birth and the care of L1 and L2 are the same as those for L3.
There is a general policy question as to whether or not I should make the requested orders, which could be perceived in some sense to sanction acts which were illegal in Queensland at the relevant time and which were against public policy (such public policy now being recognised by way of legislation through virtually the whole of Australia in making those acts illegal, with possible severe penalties).
However, the paramount consideration for my decision about the orders sought is the best interests of the twins (s 60CA FLA).[8]
[8] See for example the approach taken by Bryson J in Re D and E (2000) 26 FamLR 310 at paragraph 21.
Given that I am considering whether to make an order with the consent of all the parties to the proceedings, I may, but I am not required to, have regard to all or any of the matters set out in ss 60CC(2) and (3) FLA.
At the end of the day when focusing upon the best interests of L1 and L2, there are a number of undisputed facts:
40.1.They are living with the applicants in Queensland;
40.2.They have been brought up with their other sibling, in respect of whom orders of the nature sought in these proceedings have already been made; and
40.3.They need to live with someone and be looked after by someone.
In respect of the issue of parental responsibility, s 61DA FLA creates a presumption that a child’s parents have equal shared parental responsibility (s 61EA(1)). The presumption can be rebutted however if there is a finding that the application of the presumption would not be in the best interests of the children (s 61DA(4)). The surrogate mother proposes to play no role in the children’s lives whatsoever. Although I have not made a finding that Mr Dudley is ‘a parent’ of the twins, nonetheless, I find that it is in the children’s best interests that the applicants have equal shared parental responsibility for the children.
The applicants seek an order that the children live with them. Relevant to what is in the children’s best interests, the applicants have provided evidence which indicates that they can more than adequately provide for the material needs of the children. The applicants currently live with the three children in a four bedroom home. The children, the subject of this application, live with their other brother (born on the same day). I agree with Stevenson J that there is no reason to doubt that the three children are developing bonds as siblings. I also take into account that the applicants intend the children grow up with an awareness of the Thai culture and I am satisfied, given the cultural links that the second applicant has with the Asian region and the other connections that the first applicant has through his family with Thailand, that the children will in fact maintain a connection with Thai culture.
Accordingly, I find that the orders as sought are in the children’s best interests.
It appears that what the applicants have done in this case is illegal. I will direct the Registrar to send a copy of these reasons for judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld) and if requested, the Registrar is to supply any document on the court file to the Office of the Director of Public Prosecutions, Queensland.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 June 2011.
Associate:
Date: 30.6.2011
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