In the matter of a parentage order
[2025] ACTSC 337
•9 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of a parentage order |
Citation: | [2025] ACTSC 337 |
Hearing Date: | 9 May 2025 |
Decision Date: | 9 May 2025 |
Reasons Published: | 1 August 2025 |
Before: | McWilliam J |
Decision: | (1) Pursuant to sections 28G and 28H of the Parentage Act 2004, a parentage order is made in favour of [the applicants] in relation to [the first child]. (2) Pursuant to sections 28G and 28H of the Parentage Act 2004, a parentage order is made in favour of [the applicants] in relation to [the second child]. |
Catchwords: | PARENTAGE – application under Parentage Act 2004 (ACT) – where two children born as a result of a surrogacy arrangement – effect of amendments to Parentage Act which came into force after the birth of the first child and after the conception of the second child – where transitional provisions permitted order and order in best interests of each child – parentage orders made WORDS AND PHRASES – Parentage Act 2004 (ACT) – “surrogacy arrangement” |
Legislation Cited: | Parentage Act 2004 (ACT) ss 7, 9, 11, 13, 14, 26, 27, 28, 28A, 28B, 28C, 28D, 28H, 28F, 28G, 55, 56, Subdiv 2.5.2, Div 2.2, Pt 7 Parentage Act 2004 (ACT) (Republication No 10) s 24 |
Parties: | [Not Published] ( Applicants) [Not Published] ( Respondents) |
Representation: | Counsel K McLeod ( Applicants) Self-represented ( Respondents) |
| Solicitors Farrar Gesini Dunn ( Applicants) Self-represented ( Respondents) | |
File Number: | SC 89 of 2025 |
McWILLIAM J:
1․On 9 May 2025, the court heard and determined an application for parentage orders to be made in respect of two children, who were born as the result of a successful surrogacy arrangement. Due to the factual and legal complexities presented by the application, and this proceeding being one of the first to grapple with the amended legislative framework, reasons were reserved. These are the reasons.
The arrangement
2․The applicants (the intended mother and father) are a married couple living in the ACT. The respondents are high school friends of the intended mother. They are married with two children of their own.
3․Due to medication being taken by the intended mother for unrelated medical issues, she was unable to safely carry a child. The respondent wife agreed to act as surrogate. Rather than use an unknown egg donor, she also agreed to donate her eggs and to attempt to become pregnant by a self-insemination procedure using the sperm of the intended father.
4․Two children were born of this arrangement. Each child has lived with the intended mother and father since they were born.
Issues for determination
5․The legal framework governing parentage arising out of surrogacy is set out in the Parentage Act 2004 (ACT) (Parentage Act) below. Previously, s 24 of the Parentage Act (up until Republication No 10) did not permit parentage orders to be made in respect of surrogacy arrangements where the birth mother was also the genetic mother (such as here, where a child was born using an egg donated by the surrogate). However, by legislation which commenced on 10 July 2024, being the Parentage (Surrogacy) Amendment Act 2024 (ACT) (Amending Act), that position has now changed.
6․The first child was born before the Amending Act commenced. The second child was conceived before the amendments came into force but born after they took effect. The first issue was therefore to determine whether and how the Parentage Act operated in respect of each child (Issue 1).
7․Another complexity was that the intended father was actually recorded on the birth certificate of the first child as being that child’s parent notwithstanding that he was not married to the person who carried the child. The intended father’s genetic material was also used to conceive the child. That gave rise to an issue whether, at law, he was already the parent of the child, such that an order transferring parentage to him was unnecessary, although a declaration may then have been appropriate (Issue 2).
8․The third issue arose because of the retrospective effect of the legislative amendments. Due to the state of the law at the time the first child was born, the parties had proceeded on the basis that the first child would be adopted by the intended parents. Their legal and medical (counselling) advice and documents evidencing their arrangement were not crafted with the requirements of the Parentage Act in mind. They had also not applied for a parentage order while the first child was less than 6 months old. An issue was therefore to consider whether the requirements of the Parentage Act were met in respect of the first child, and if not, whether the court had discretion to dispense with those requirements (Issue 3).
9․The fourth issue arose because the parties had not taken separate legal or counselling advice in respect of the second child. The arrangement in respect of the first child was so successful that the parties simply repeated the process a second time. That created uncertainty about whether the requirements under the Parentage Act for counselling and legal advice were met in respect of the second child, and if not, whether the court had discretion to dispense with those requirements (Issue 4).
10․Each of these four issues are considered in turn below.
Legislative framework
Requirements for a parentage order to be made
11․Section 28H of the Parentage Act empowers the Supreme Court to make a parentage order in relation to a child born as a result of a surrogacy arrangement. However, there are a number of formal requirements or pre-conditions. These are:
(a)There must have been a surrogacy arrangement under which the intended parent/s indicated their intention to apply for a parentage order about the child: s 28F(1)(a); and
(b)The intended parents of the child must live in the ACT: s 28F(1)(b).
(c)Relevant to the circumstances here, where there are two intended parents under a surrogacy arrangement, the application must be made jointly by both of those intended parents unless leave is given otherwise: s 28G(2).
(d)There are also conditions regarding the timing of the application depending on whether the surrogacy arrangement was altruistic or commercial. For the arrangements under consideration here (which were not commercial), the application must be made when the child born of the arrangement is between 4 weeks and 6 months old: s 28G(3).
(e)However, in such cases of non-commercial surrogacy, an application may be made after the 6 month time limit if the court is satisfied on reasonable grounds that exceptional circumstances justify the court deciding the application: s 28G(4).
Section 28H of the Parentage Act and the test for making a parentage order
12․Where the relevant surrogacy arrangement is not commercial, the court may make a parentage order if satisfied that:
(a)The making of the order is in the best interests of the child: s 28H(1)(a); and
(b)Each presumed parent freely, and with a full understanding of what is involved, agrees to the making of the order: s 28H(1)(b); and
(c)The statutory requirements of subdivision 2.5.2 are met: s 28H(1)(c).
13․Section 28H(2) deals with commercial surrogacy and is not relevant here. Section 28H(3) allows the court to dispense with certain requirements. Of potential application to the present case, s 28H(3) relevantly provides:
(3)In making an order under subsection (1) or (2), the Supreme Court may do any of the following:
(a)…
(b)dispense with the following requirements of subdivision 2.5.2 if satisfied that doing so is in the best interests of the child:
(i) section 26 (Surrogacy arrangement must be in writing);
(ii) section 28 (Legal advice);
(iii) section 28A (Counselling).
Statutory requirements
14․Subdivision 2.5.2 of the Parentage Act (sections 26-28E) requires firstly that a surrogacy agreement be in writing between the birth parent (and any partner) and the intended parent(s), who are each over 18 years old at the time the agreement is made: ss 26, 27, 28B and 28C.
15․Secondly, the two sets of parents must have each received independent legal advice and counselling advice about the effect of the arrangement: ss 28 and 28A. Both of those requirements are discussed in more detail at [74]-[80] below.
16․In recognition of the fact that psychological and emotional maturity is not a light switch that turns on at age 18, if the birth parent is not yet 25 years old, there is additional counselling required about the surrogacy arrangement and its social and psychological implications, and a requirement for the counsellor to be satisfied that the birth parent was of sufficient maturity to understand the surrogacy arrangement and its social and psychological implications: 28C(2).
17․If a procedure is to be used to become pregnant, there is a further requirement that the counsellor must not be connected with any doctor, institution or entity involved in carrying out the procedure: s 28A(4).
18․Thirdly, the surrogacy arrangement must have provided for the payment or reimbursement of only the reasonable expenses in relation to the surrogacy arrangement: s 28D.
19․For completeness, s 28E provides that the birth parent has the same rights to manage their pregnancy and birth as any other pregnant person.
Transitional provisions
20․The transitional provisions in the Amending Act have been incorporated as Part 7 of the Parentage Act. Sections 55 and 56 are of significance for the two children involved in this proceeding. They are in the following terms:
55Parentage order—arrangement made and child born before commencement day
(1)This section applies if—
(a)an arrangement, other than a commercial arrangement, was entered into before the commencement day; and
(b)a person gave birth to a child, under the arrangement, before the commencement day; and
(c)there is no parentage order in force in relation to the child before the commencement day; and
(d)division 2.5, as in force immediately before the commencement day, does not apply to the child, but division 2.5, as in force after the commencement day, would apply to the child had the arrangement been an arrangement mentioned in section 28F (1) (a) entered into on or after the commencement day; and
(e)the person or people who intend to be taken to be the parent or parents of the child under the arrangement live in the ACT.
(2)The person or people may apply to the Supreme Court under section 28G for a parentage order for the child as if—
(a)the arrangement was a surrogacy arrangement; and
(b)the person or people were the intended parent or intended parents of the child under the surrogacy arrangement; and
(c)section 28G (3) does not apply.
(3)An application mentioned in subsection (2) may only be made in the 5-year period beginning on the commencement day.
(4)The Supreme Court may make a parentage order about the child under section 28H (1) as if the child were a child mentioned in section 28F (1).
(5)In making a parentage order about the child, the Supreme Court need not be satisfied under section 28H (1) (c) that the requirements of subdivision 2.5.2 are met.
56Parentage order—arrangement made, but child not born, before commencement day
(1)This section applies if—
(a)an arrangement, other than a commercial arrangement, was entered into before the commencement day; and
(b)a person has not given birth to a child under the arrangement before the commencement day; and
(c)the person or people who intend to be taken to be the parent or parents of the child under the arrangement live in the ACT.
(2)The person or people may apply to the Supreme Court under section 28G for a parentage order for the child as if—
(a)the arrangement was a surrogacy arrangement; and
(b)the person or people were the intended parent or intended parents of the child under the surrogacy arrangement.
(3)The Supreme Court may make a parentage order about the child under section 28H(1) as if the child were a child mentioned in section 28F(1).
(4)In making a parentage order about the child, the Supreme Court need not be satisfied under section 28H(1)(c) that the requirements of subdivision 2.5.2 are met.
21․The key points to draw from these transitional provisions are:
(a)Firstly, that they have express retrospective effect. That is, they operate such that the new legislation regarding parentage orders can apply to arrangements that were made before that legislation came into force.
(b)Secondly, from 10 July 2024 when the amendments took effect, there is a five-year period of transition for people whose parenting journey straddles the amendments. This recognises that it may take years for a successful pregnancy through surrogacy to occur. It also accommodates a period of education and awareness raising for people who may have informally become parents through a successful surrogacy arrangement but have not yet pursued or completed other formal legal channels, such as adoption.
(c)Thirdly, only the intended parents must live in the Territory. This increases the flexibility for orders to be made in respect of arrangements that may involve surrogates living, or procedures undertaken, outside the Territory.
(d)Fourthly, the Supreme Court has power to make a parentage order “as if the child were a child mentioned in section 28F(1)”. I will return to those words when dealing with Issue 3 below.
(e)Fifthly, where the circumstances fall within ss 55 or 56, the Supreme Court has power to make a parentage order without being satisfied that the requirements of subdivision 2.5.2 are met.
22․That flexibility in discretion in those last two points is what aided the orders to be made in the present case.
Issue 1: How does the legislative framework apply to each child?
The first child
23․The non-commercial surrogacy arrangement for the first child was entered into in 2019. The first child was born in 2022. The arrangement was therefore entered into, and the child was born, before the commencement day (10 July 2024). This satisfies the requirements of ss 55(1)(a) and (b).
24․There was no parentage order in force in relation to the child before the commencement day. This satisfies the requirement of s 55(1)(c).
25․Immediately before the commencement day, Division 2.5 of the Parentage Act did not apply in respect of the first child, because there is a genetic connection between the respondent wife and the first child. However, Division 2.5 no longer excludes arrangements where such a genetic connection exists. That division would now apply to the first child, had the arrangement been one mentioned in s 28F(1)(a) and entered into on or after 10 July 2024. The requirement set out in s 55(1)(d) is therefore satisfied.
26․The intended parents of the first child live in the ACT. This satisfies the requirement of s 55(1)(e).
27․Accordingly, s 55 of the Parentage Act applies to the first child: s 55(1). This means that:
(a)the intended parents are authorised to apply for a parentage order under s 28G: s 55(2); and
(b)the court is empowered to make a parentage order about the child under section 28H (1) as if the child were a child mentioned in section 28F(1), and without being satisfied that the requirements of Division 2.5.2 are met: ss 55(4) and 55(5).
28․An application for such an order was made on 14 March 2025, within the five-year transitional period specified under s 55(3).
The second child
29․The non-commercial surrogacy arrangement for the second child was entered into in August 2023 (and therefore before the commencement day), satisfying s 56(1)(a).
30․The second child was born in October 2024. The respondent wife had therefore not given birth to the second child before the commencement day, thereby satisfying s 56(1)(b).
31․Again, the intended parents of the second child live in the ACT, satisfying s 56(1)(c).
32․Accordingly, the Parentage Act applies to the second child: s 56(1). As with the first child, this means:
(a)the intended parents are authorised to apply for a parentage order under s 28G (s 56(2); and
(b)the court has the power to make an order under s 28H (s 56(3)), and in making such an order, need not be satisfied of the requirements of Division 2.5.2 of the Parentage Act (s 56(4).
Issue 2: At law, who was the father of the first child?
33․It was uncontroversial that the respondent wife was conclusively presumed to be the legal parent of the first child at the hearing, having given birth to a child (whether or not the child had her genetic material) as a result of a procedure (defined below): ss 11(1) and 11(2) of the Parentage Act. Her name was recorded on the birth certificate for the child that was in evidence.
34․However, her husband, the respondent father, was not named on the birth certificate. Instead, the intended father’s name was recorded on the birth certificate of the first child as being the parent of that child. His genetic material was also used to conceive the child.
35․The combination of those matters gave rise to the issue whether the intended father was already the legal parent of the first child, in which case an order transferring parentage to him would have been otiose.
36․Counsel for the applicants submitted that, notwithstanding what was stated on the birth certificate, by reason of the operation of a series of presumptions under the Parentage Act, the intended father was in fact not yet legally a parent of the first child. For reasons that follow, I accepted that submission.
Presumptions in favour of the respondent husband being the parent
37․The starting point is that a child cannot have more than two parents at any one time: s 14 of the Parentage Act.
38․The presumptions are found in division 2.2 of the Parentage Act (ss 7-11).
39․Section 7(1) of the Parentage Act relevantly provides that:
(1) A child born to a person while the person is married … is presumed to be a child of the person and the person’s spouse… .
40․The remainder of s 7 deals with presumptions in circumstances of death, annulment or separation.
41․The respondent wife, who gave birth to the first child, was married to the respondent husband at the time the first child was born. Accordingly, under s 7(1), the respondent’s husband and not the intended father is presumed to be the first child’s parent.
42․That presumption is supported by s 11 of the Parentage Act which relevantly provides:
(1) This section sets out presumptions that arise if a person undergoes a procedure as a result of which the person becomes pregnant.
[…]
(4) If semen used in the procedure was produced by another person other than the person’s domestic partner at the time of the procedure, the person who produced the semen is conclusively presumed not to be a parent of any child born as a result of the pregnancy.
(5) If the person undergoes the procedure with the consent of the person’s domestic partner at the time of the procedure, the domestic partner is conclusively presumed to be a parent of any child born as a result of the pregnancy.
(6) For subsection (5), a person is presumed to consent to the carrying out of a procedure in relation to the person’s domestic partner, but the presumption is rebuttable.
[…]
43․“Procedure” is defined in s 11(9):
(9) In this section:
procedure means—
(a) artificial insemination; or
(b) a clinical process to transfer into the uterus of a person an embryo derived from an ovum fertilised outside the person’s body; or
(c) any other way (whether medically assisted or not) by which a person can become pregnant other than by having sexual intercourse with a person.
44․The respondent wife became pregnant with the first child as a result of a procedure within the meaning of s 11(9). The section 11 presumptions therefore apply.
45․The semen used in the procedure was produced by the intended father. He is a person other than the respondent wife’s domestic partner at the time of the procedure. Consequently, the intended father is conclusively presumed not to be a parent of the first child: s 11(4).
46․In addition, the respondent wife underwent the procedure with the consent of the respondent husband, being her domestic partner at the time of the procedure. The respondent husband is conclusively presumed to be a parent of the first child: s 11(5).
47․The presumptions in ss 7 and 11 thus operate in favour of the respondent husband being the other parent of the first child.
Presumptions in favour of the intended father being the parent
48․However, there is also a presumption arising from registered information. Section 9 of the Parentage Act provides:
(1) A person whose name is entered in a register as the name of a parent of a child is presumed to be a parent of the child.
49․Applying this presumption, the intended father is presumed to be a parent of the first child by virtue of his being named on the birth certificate.
How to resolve conflicting presumptions
50․It can be seen that ss 7 and 11 of the Parentage Act suggest that the first child’s parent is the intended father, while s 9 suggests that the first child’s parent is the respondent husband.
51․Section 13 of the Parentage Act deals with situations that involve conflicting presumptions. Section 13(3) relevantly provides:
(3) If 1 of the presumptions arises under section 11 (Presumptions arising from procedure), that presumption prevails over any presumption other than a presumption that arises under section 10 (1).
52․Section 10 deals with presumptions arising from findings of courts. It had no application to the circumstances that came for determination here.
53․Applying the above provision, the presumptions in ss 11(4) and (5) favouring the respondent husband as the legal parent prevailed over the presumption in s 9(1), which favoured the intended father.
54․Consequently, although the recording of the intended father on the birth certificate purported to record what the parties knew was the ultimate desired outcome for the identity of the first child’s father, it did not reflect the true legal position under the Parentage Act and a court order was necessary to effect a transfer in parentage to him.
Issue 3: Were the statutory requirements met with regard to the first child?
Applying for a parentage order – s 28F and 28G requirements
55․Recalling that s 55 permits an application to be made under s 28G in the circumstances set out with regard to Issue 1, the statutory requirements were met here with regard to applying for a parentage order for the first child as follows:
(a)The application was made jointly by the intended parents of “a child mentioned in section 28F”: ss 28G(1) and 28G(2).
(b)Although the application was made outside the 6-month time limit prescribed by s 28G(3), because this arrangement was one brought through the operation of s 55, the requirements of s 28G(3) do not apply: s 55(2)(c).
56․A little more explanation is required about the finding that the first child was “a child mentioned in section 28F”, and it is here that I return to the court’s power in s 55(4) to make an order “as if” the child was one mentioned in section 28F.
57․In relation to non-commercial surrogacy arrangements, s 28F(1) provides:
This subdivision applies to a child if—
(a)there is a surrogacy arrangement, other than a commercial surrogacy arrangement, under which the intended parent or intended parents have indicated their intention to apply for a parentage order about the child; and
(b)the intended parent or intended parents of the child live in the ACT.
Was there a surrogacy arrangement?
58․In this case, there was some uncertainty about whether the parties had a “surrogacy arrangement” under which the intended parents indicated “their intention to apply for a parentage order”.
59․“Surrogacy arrangement” is defined in the Dictionary of the Parentage Act as follows:
surrogacy arrangement means a contract, agreement, arrangement or understanding under which a birth parent and an intended parent or 2 intended parents agree—
(a)that the birth parent will become, or attempt to become, pregnant; and
(b)that the child born as a result of the pregnancy will be taken to be (whether by adoption, agreement or otherwise) the child of the intended parent or intended parents.
60․Although that definition is broad, s 26 does require that any surrogacy arrangement be in writing.
61․Before the court was a document entitled “Surrogacy” which on the face of the document was printed on 4 December 2019. That was the document the parties deposed to forming the surrogacy arrangement for the first child. It includes the following statement:
Our intention is to conceive a baby using ova from [the respondent wife] and sperm from [the intended father], for [the respondent wife] to carry the pregnancy and for [the intended parents] to be the parents of the baby via a parenting order followed by adoption.
62․However, it was not signed and there were parts of the document that were yet to be finalised by the parties. For example, there was a whole section titled “In the case of the unfortunate”, under which the words “further discussions to be had” were written. The parties deposed to proceeding on the basis of what was included in the document from mid-December 2019.
63․Applying the broad definition, I considered that the written document combined with the parties’ conduct was sufficient to constitute at least an “understanding” or “arrangement”. Due to the lack of signature and no other document recording agreement before the court, the parties must have communicated their agreement through conversations about what was about to happen. To the extent that the arrangement was partly oral, I would have dispensed with the requirement under s 28H(3)(b) on the basis that it was in the best interests of the child to do so and in any event, s 26 is located in subdivision 2.5.2 and is one of the matters about which the court need not be satisfied under the transitional provisions.
64․As to the substance of that understanding or arrangement, the document constitutes evidence that the parties intended the birth parent (respondent wife) to attempt to become pregnant and that the child born as a result of the pregnancy will be taken to be the child of the intended parents by agreement and ultimately, by adoption.
65․Accordingly, the arrangement of the parties met the substance of the broad definition of a “surrogacy arrangement”. However, there remained a difficulty. Due to the drafting of s 28F, notwithstanding the wide definition which includes arrangements that may not refer to parentage orders, the words of s 28F still required that the arrangement be one under which the intended parents “indicated their intention to apply for a parentage order about the child.”
66․Parentage order is expressly defined to mean an order under s 28H. There was no such indication here. As counsel for the applicants submitted, the lack of an express intention to apply for a parentage order under s 28H of the Parentage Act is attributable to the different legislative landscape that existed at that time. Having read the affidavit evidence from the parties, I accept that submission. The document should not be taken as indicative of any lack of intention on behalf of the intended parents to seek a parentage order. It was simply that such an option was not open to them at the time.
67․Support for that interpretation of the parties’ arrangement is found in the post-conception “Parenting Plan” which was signed by the parties. That document states:
[The first child] is to remain in the care of [the intended parents] until a Parentage Order, Family Law Order or Adoption Order is made transferring parentage of the child to [the intended parents].
68․This extract expressly refers to orders about parentage and indicates that the parties’ underlying motivation was ultimately to transfer parentage to the intended parents via whichever legal avenue was available to them. Taking this subsequent document into account, the appropriate interpretation of the surrogacy arrangement is that the intended parents’ plan extended to seeking a parentage order, if it became available and they had not already adopted the first child.
69․However, even if that beneficial view of intention under the surrogacy arrangement was not taken, and instead the intention was limited to adoption rather than a parentage order, that would constitute an example of the kind of mischief that s 55(4) of the Parentage Act was undoubtedly aimed at addressing. Applying that section, the court is relieved from being satisfied of the requirement in s 28F.
70․Those are the reasons why I was satisfied that it was appropriate for the first child to be considered “as if” he was a child mentioned in s 28F. There was a surrogacy arrangement, under which the parties intended that the intended parents become the first child’s parents. With s 55(4) of the Parentage Act smoothing the way for flexibility with regard to s 28F(1)(a), it remained to consider the statutory test in s 28H.
Making a parentage order – s 28H requirements
71․I was satisfied that requirements of s 28H were met as follows:
(a)The making of the order was in the best interests of the child, having regard to the affidavit evidence before the court as to how the arrangement came about and the fact that the child (now 3) had lived with the intended parents since birth and the child had known them as his parents all his life: s 28H(1)(a).
(b)Each presumed parent (being the respondent wife and husband) freely, and with a full understanding of what is involved, agreed to the making of the order: s 28H(1)(b).
(c)The requirements of subdivision 2.5.2 were either met, as required by s 28H(1)(c), or alternatively the court need not be satisfied about them by virtue of s 55(5), discussed above at [20]-[22].
72․The order was in the best interests of the first child because he had been raised by the intended parents since birth with the express consent of the respondents. Giving legal effect to that arrangement had all the benefits that are associated with permanent parenting arrangements – certainty and stability of the family unit, enhanced belonging as the two boys develop an understanding of their birth story, and unquestionable enduring legal authority with regard to the daily and long-term care of the first child.
73․Dealing specifically with the requirements of subdivision 2.5.2 (see [14]-[19] above):
(a)The parties were all over 18 and in the case of the respondent wife, she was in her thirties at the time the arrangement was made.
(b)Apart from reasonable medical expenses and pregnancy related expenses (such as buying new clothes), the agreement did not provide for any other payment or for the reimbursement of any other expenses, thereby satisfying s 28D.
74․The uncertainty about whether the requirements of the subdivision were met here arose from the nature of the legal advice obtained by the parties. In that regard, s 28 of the Parentage Act is in the following terms:
28Legal advice
(1)Each party to a surrogacy arrangement must, before entering into the arrangement, obtain legal advice about its effect.
(2)The intended parent or parents must obtain legal advice that is independent to the legal advice obtained by the birth parent and their partner, if any.
(3)If there are 2 intended parents to the surrogacy arrangement, they may obtain the legal advice jointly or separately.
(4)If the birth parent's partner is a party to the surrogacy arrangement, the birth parent and their partner may obtain the legal advice jointly or separately.
75․Here, the affidavit evidence established the following:
(a)The intended parents received legal advice on 10 October 2019 (that is, before the formation of the surrogacy arrangement in December 2019); and
(b)The respondents received legal advice on 16 October 2019. That advice was independent from the advice given to the intended parents.
76․The advice did not in terms deal with the Parentage Act and what was required to obtain a parentage order because that option was not available at the time. However, it did deal with surrogacy and the legal effect of a surrogacy arrangement and that is all that s 28(1) requires. I was satisfied that the requirements of s 28 were satisfied.
77․Alternatively, if s 28 were construed to mean legal advice about the effect of a surrogacy arrangement under the Parentage Act, by operation of the transitional provisions, the court did not need to be satisfied about those matters. Plainly some form of advice and counselling is appropriate, and it was obtained in the present case.
78․Finally, in relation to the counselling requirement, s 28A relevantly provides:
28ACounselling
(1)Each party to a surrogacy arrangement must, before entering into the arrangement, receive counselling about its effect.
(2)If there are 2 intended parents to the surrogacy arrangement, they may receive the counselling jointly or separately.
(3)If the birth parent's partner is a party to the surrogacy arrangement, the birth parent and their partner may receive the counselling jointly or separately.
79․The further requirement under s 28A(4) that the counsellor be independent from the medical treatment providers involved in circumstances where pregnancy is though a procedure (such as IVF) did not apply here.
80․Again, the intended parents received counselling about the effect of the surrogacy arrangement, which was independent from the counselling received by the respondents.
81․Consequently, I was satisfied that all statutory requirements were met with regard to the first child.
Issue 4: Were the statutory requirements met with regard to the second child?
82․The same process of consideration of the requirements under ss 28F, 28G and 28H of the Parentage Act was then repeated for the second child. It is unnecessary to repeat the requirements of age, residence, requisite parties and timing of application, all of which met the statutory requirements. It suffices to state that the second child was born in the last quarter of 2024, and the present application was made in the first quarter of 2025. The application was thus made after the child was at least four weeks old but before the child was six months old: s 28G(3)(a).
Whether a written “surrogacy arrangement” existed for the second child
83․I was satisfied that a written (s 26) surrogacy arrangement (28F) was in place with regard to the second child. The document in question was based on the first surrogacy arrangement and had the same issues as those discussed in relation to the first child, in that it envisaged adoption rather than a parentage order, and that the parties would undertake a parenting agreement aligning with the parenting agreement for the first child.
84․There was no parenting agreement in relation to the second child because by that stage, the Parentage Act had been amended, and the present avenue became available to the parties. That required a tweak in the reasoning process here, because in the circumstances dealing with the first child, the parenting agreement had referred to a “parentage order” which had assisted with the interpretive context for the written document that was found to constitute a surrogacy arrangement.
85․However, for broadly the same reasons as those explained at [58]-[70] above, I was satisfied that the lack of an express intention to apply for a parentage order in the surrogacy arrangement (or any subsequent document) was not fatal to such arrangement being a “surrogacy arrangement” under the Parentage Act. In substance, the intention to apply for an order that the intended parents become the parents – by whatever legislative avenue available – was there and in any event, the transitional provisions permitted the court to treat the arrangement as having met the requirements of s 28F.
Non-commercial nature of the arrangement for the second child (s 28D)
86․Again, this requirement was satisfied as the surrogacy arrangement for the second child provided for the respondent wife’s pregnancy-related expenses including her medical expenses and any ongoing expenses arising out of becoming pregnant. The agreement did not provide for any other payment or for the reimbursement of any other expenses.
Whether the s 28H requirements were satisfied: the lack of any further legal advice or counselling with regard to the second child
87․Recalling the requirements of s 28H (set out above at [12]), I was satisfied that:
(a)The making of the order was in the best interests of the child; and
(b)The respondent wife and husband, being the presumed parents of the child, freely agreed to the making of the order with a full understanding of what is involved.
88․The order was in the best interests of the second child for the same reasons as those given in relation to the first child.
89․It is necessary to explain how I was satisfied that there was a “full understanding”, as that requirement is informed in part by the requirements of subdivision 2.5.2 (again, set out at [14]-[19] above). Specifically, the receipt of independent legal and counselling advice required by ss 28 and 28A of the Parentage Act is directed to ensuring full understanding.
90․The separate issue arising for the application in respect of the second child was that the parties did not receive any further legal advice or counselling prior to entering into the second surrogacy arrangement. The arrangement that resulted in the birth of the first child had been entirely successful, such that the parties did not feel it necessary to go through obtaining advice and counselling that they had already received once before.
Was the statutory requirement for counselling advice met?
91․Dealing first with the lack of counselling advice, I considered that the language of s 28A(1) did not specify that each party must receive counselling about the effect of a particular, or each and every, surrogacy arrangement. The words of the section are sufficiently broad to include counselling about multiple surrogacy arrangements in circumstances where multiple such arrangements are intended at the time of counselling.
92․The counsellor who provided counselling to each party in this case swore an affidavit stating that at the time of counselling, “all parties were aware that at the time they were unable to apply to the court to transfer the parentage of any child or children conceived due to the proposed arrangement being a traditional surrogacy arrangement”. From the language “any child or children”, the inference is that when the parties received counselling, their intention was to have one or more children via a surrogacy arrangement and that the counselling covered that scenario.
93․In my view, independent counselling would ideally have been obtained before proceeding with the second child, as it would have provided the opportunity for independent clinical consideration of each couple’s individual and collective state of mind at that point in time, to ensure emotional stability and well-being before proceeding again. As the first child had been born, the circumstances had changed since the counselling was initially provided and people’s views and feelings may have changed significantly as a result. Ensuring that the counselling was current would have been a prudent step to take, even if one or more of the parties felt that it was unnecessary. However, from the perspective of the statutory legal requirements being satisfied, the substance of the counselling was sufficient to satisfy s 28A(1) with regard to the second child.
94․For completeness, if that finding were wrong, then this is one of the matters that need not be satisfied under the transitional provisions. In the circumstances of this case (where the parties had received counselling, and it was clear they were fully informed about the effects of the surrogacy arrangement), any non-compliance would not have affected the court’s discretion with regard to the making of the parentage order overall.
Was the statutory requirement for legal advice met?
95․The position is perhaps different with regard to the legal advice in respect of the second child. The only legal advice obtained was in relation to the first child, and there was nothing in the material disclosing the advice provided that indicated more than one child was in contemplation at the time.
96․That said, prior to conception of the second child, the legal effect of a surrogacy arrangement had not changed. The legal landscape did change after the second child was conceived, but in substance, the parties had arguably received the relevant legal advice, albeit such advice was not specifically tied to the legal effect of the second birth.
97․Taking into account that the purpose of obtaining legal advice was to ensure that the parties were fully informed by an independent qualified professional, I concluded that either:
(a)The legal advice was sufficient to meet the requirement, for the same reasons as those given in relation to the first child; or
(b)That the court need not be satisfied of that requirement, applying s 56(4); or
(c)It was in the best interests of the second child to dispense with compliance with s 28(1), under s 28H(3).
98․Consequently, I was satisfied that all statutory requirements were been met with regard to the second child and it was appropriate to make the parentage order sought.
Conclusion and orders
99․Accordingly, the orders made by the Court on 9 May 2025 were as follows:
(1)Pursuant to sections 28G and 28H of the Parentage Act, a parentage order is made in favour of [the applicants] in relation to [the first child].
(2)Pursuant to sections 28G and 28H of the Parentage Act, a parentage order is made in favour of [the applicants] in relation to [the second child].
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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