Interstate Substitute Parentage Order Registration: Child AB
[2015] VCC 988
•29 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| Interstate Substitute Parentage Order Registration |
| Child AB |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2015 | |
DATE OF RULING: | 29 May 2015 | |
CASE MAY BE CITED AS: | Interstate Substitute Parentage Order Registration: Child AB | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 988 | |
REASONS FOR JUDGMENT
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Self-represented | |
| For the Secretary of the Department of Justice | Ms M. Richards SC | VGSO |
HER HONOUR:
1 A birth certificate is an important statement of identity for parent and child alike.
2 Parentage is recorded in the Register of Births required to be kept by the Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDMR Act). By s13, the birth of any child born in Victoria must be registered within 21 days of birth. Subject to exceptions not relevant here, the parents of the child are responsible for registering the child’s birth;[1] and the Registrar of Births, Deaths and Marriages must include prescribed information about the parents’ identity in the register.[2] This creates the record, or proof of parentage.
[1] Section 15(1).
[2] Section 16(1).
3 The question of who is the parent of a child can no longer be determined solely by identification of the woman who gave birth to the child, and the biological father of the child or, if the woman was married, any presumptions of paternity resulting from marriage.
4 Adoption laws have for a long time made provision for someone other than the woman who gave birth to the child, her husband, or the biological father of the child to become the legal parents of a child. This is not merely symbolic. An adoption order affects substantive legal rights of children, birth parents and adoptive parents. These rights include the right of a parent to make decisions on behalf of their child, and the right of a parent, and the child, once of age, to make decisions as next of kin, such as permitting, or refusing medical treatment. Parentage also affects property rights, such as the right or obligation to support, or inheritance.
5 Once an adoption order has been made, the Registrar of Births, Deaths and Marriages is required to create a new birth registration record in the Register of Births. The adoptive parents replace the birth mother and her husband or the biological father, if identified, as the parents of the child. Thus, a child, once adopted, is identified on his or her birth certificate as the child of the adoptive parents, and the adoptive parents are identified as the parents of the child. There is nothing in the birth record which identifies the child as adopted, or distinguishes between an adopted child and one who remains registered as the child of the birth mother and her husband, or the biological father.
6 In July 1985 Louise Brown became the first baby to be born following a successful in vitro fertilisation procedure. Advances in assisted reproduction procedures since then have led to conception of children through the use of donor gametes, and to the commissioning of surrogates to carry a pregnancy on behalf of someone else. These procedures have enabled many people, previously unable to conceive or bear children, to found families.
7 This brought about previously unanticipated social and legal consequences. The old common law presumptions and legislative provisions as to parentage did not reflect the intended parentage of children born through such interventions. The Victorian parliament was one of many which introduced legislation to regulate (or restrict) access to assisted reproductive procedures, and to create new presumptions of parentage following the use of donor gametes.
8 Parts II and III of the Status of Children Act 1974 (Vic) (SOC Act) govern the status of children born as a result of artificial insemination or a medical procedure involving the use of donor gametes.
9 The effect of these provisions is to create irrebuttable presumptions of parentage in favour of the woman who gives birth to a child (the birth mother) and, if she has one, her partner.
10 So, the birth mother is the mother of the child, even if she is not the biological mother, that is, even if the embryo was created by the fertilisation of a donated ovum which was then implanted into her. The SOC Act declares the biological mother, that is, the egg donor, is presumed, for all purposes not to be the mother of the child.
11 The male partner of a birth mother whose child is born as a result of artificial insemination or a medical procedure involving the use of donor sperm, provided he consented to the procedure which resulted in the pregnancy, is presumed for all purposes to be the father. The biological father, that is the sperm donor, is presumed for all purposes not to be the father of the child.
12 Thus, the birth mother, and if relevant, her consenting male partner, are treated by law as the parents of the child, and are required to register the birth of the child under s15(1) of the BDMR Act. It is information about their identity, not that of the biological parents which by virtue of s16(1) is required to be included on the birth registration record.
13 Before the introduction of the Assisted Reproductive Treatment Act 2008 (Vic) (ART Act), surrogacy, that is, an arrangement where a woman (the surrogate mother) agrees to carry a pregnancy on behalf of someone else (the commissioning parent/s), with a view to surrendering the child to the commissioning parents to bring up as their own child, was, in practical terms, not legally achievable in Victoria. The ART Act permitted, in the circumstances described in the Act, a registered ART provider to provide assisted reproductive treatment for a surrogacy arrangement.
14 Neither common law presumptions as to parentage, nor the irrebuttable presumptions as to parentage contained in the SOC Act in respect of children who were born as a result of the use of donor gametes were appropriate to reflect the intended legal parentage of children born as a result of a surrogacy arrangement authorised by the ART Act. In fact, these common law and statutory presumptions had the opposite effect.
15 Under the ART Act, a surrogate mother’s own eggs cannot be used.[3] At common law, she would be, as the birth mother, presumed to be the mother of the child. Under Part II or III of the SOC Act, she would be irrebuttably presumed to be the mother, and the egg donor presumed, for all purposes, not to be the mother. In cases where the commissioning mother was the donor of the egg, and so, the biological mother of the child, she would be denied by the operation of Part II or III legal recognition as the mother. Similarly, if the surrogate mother had a male partner, he would be presumed to be the father of the child. If the commissioning mother had a male partner, and he was the sperm donor, he would be irrebuttably presumed not to be the father of the child.
[3] Section 40(1)(ab).
16 So, under Parts II and III of the SOC Act, when a child is born as a result of a surrogacy arrangement, the birth mother and, if she has one, her male partner, are presumed to be the parents of the child. They must register the birth of the child within 21 days of birth, and it follows that they are identified as the parents on the birth record. The commissioning parents are treated in the same way as other gamete donors. Even if the child was biologically theirs, because they had provided both eggs and sperm, they were irrebuttably presumed not to be the parents of the child.
17 In order that the commissioning parents of children born as a result of a surrogacy arrangement could be recognised as the legal parents, the SOC Act was amended by the introduction of a new Part IV. Rather than creating new presumptions as to parentage, as was the case in respect of the use of donor gametes for a woman or couple intending to bring the child born as a result up as their own under Parts II and III, Part IV provided for the making of a Substitute Parentage Order (SPO) in respect of a child born as a result of a surrogacy arrangement permitted under the ART Act.
18 The effect of an SPO is, by s21, to remove the surrogate mother, and, if relevant her husband, as the parents of the child, and to name the commissioning parents as the legal parents of the child. By s26, the child is then treated in law as a child of the commissioning parents as if the child had been born to the commissioning parents. Again, as is the case with adoptions, the Registrar of Births, Deaths and Marriages is required to create a new birth record, naming the commissioning parents as the parents of the child. The child is then identified as the child of the commissioning parents, and the commissioning parents as the legal parents of the child.
19 By s20(1), the commissioning parents of a child born as a result of a surrogacy arrangement can apply for an SPO if the child was conceived as a result of a procedure carried out in Victoria, and they were living in Victoria at the time of making the application. Sections 22 and 23 set out the matters of which the Court must be satisfied before it can make an SPO. In particular, the court must be satisfied it is in the best interests of the child to make the order,[4] and that the surrogate mother and her partner have not received any material benefit from the arrangement.[5]
[4] Section 22(1)(a).
[5] Section 22(1)(d).
20 In addition, the commissioning parents must satisfy the Court, if the surrogacy arrangement was commissioned with the assistance of an ART provider registered under the ART Act, that the Patient Review Panel (PRP) established under that Act had approved the surrogacy arrangement.[6] Before approving a surrogacy arrangement, the PRP must be satisfied a counsellor authorised under the ART Act has seen the results of criminal record and child protection order checks in respect of all parties to the proposed surrogacy arrangement.[7] That is because by s14 of the ART Act there is a presumption against treatment if any party to a treatment procedure has had specified sexual or violent offences proved against them, or if a child protection order has been made against any of them, removing a child from their custody or guardianship.
[6] Section 22(1)(b).
[7] Section 42.
21 If the pregnancy was achieved without the assistance of a registered ART provider, commissioning parents could still apply for an SPO if the pregnancy had been achieved by use of artificial insemination, provided the conditions in s23 of the SOC Act had been complied with.
22 Part IV applies, as s20 makes clear, to children conceived as a result of a treatment procedure carried out in Victoria. It came into effect on 1 January 2010, the same day those provisions of the ART Act, which, to all intents and purposes permitted people to access the services of registered ART providers for achieving a pregnancy through a surrogacy arrangement in Victoria.
23 Altruistic surrogacy had been regulated, but permitted, in most other Australian States and Territories before the ART Act was introduced in Victoria. In recognition that Victorians had been travelling interstate to access ART for surrogacies permitted under the law of that State or Territory, transitional provisions were introduced which permitted the commissioning parents of a child born under an interstate surrogacy arrangement to apply under Part IV for an SPO.
24 In its original form, s46 applied to a child born under a surrogacy arrangement, before 1 January 2010 (the commencement date of the relevant provisions of the ART Act), or within 10 months of the commencement date. By s46(1)(b), this transitional provision applied if the commissioning parents were ordinarily resident in Victoria at the time the child was conceived. And s46(2) expressly stipulated that s46(1) applied whether or not the child was conceived in Victoria.
25 Thus, parliamentary intention was made clear: children who were conceived as a result of an ART procedure carried out interstate before commissioning parents could access ART for surrogacy arrangements in Victoria could be the subject of an SPO in favour of the commissioning parents. But, by s20, children born after that date were only covered by Part IV if they were conceived as a result of a procedure carried out in Victoria, and the commissioning parents were ordinarily resident in Victoria. That is, they were subject to the ART Act provisions, with the s14 presumptions against treatment if certain sexual or violent offences had been proven against any of the parties to a proposed surrogacy agreement, and the consequential requirement to consent to the provision of police and child welfare checks to a counsellor, before PRP approval could be given.
26 The applicants in this case are the commissioning parents of a child born as a result of an ART procedure, pursuant to a surrogacy agreement.
27 At the time of the conception, the commissioning parents, and the surrogate mother and her husband were all ordinarily resident in Victoria. The child was conceived as a result of a procedure carried out in the ACT, authorised under ACT law, approved by the relevant Ethics Committee, and performed by an ART provider duly registered under ACT law. She was born in Victoria on 1 December 2010, 11 months after the surrogacy provisions of the ART Act and Part IV of the SOC Act came into effect.
28 The commissioning parents have deposed that they, and the proposed surrogate mother and her partner had been referred to a clinic in the ACT in 2008, as surrogacy was not then lawfully accessible to them in Victoria. They qualified for treatment and were accepted into the surrogacy/IVF program at the clinic in 2008. As a result of a treatment procedure carried out at the clinic in March 2010, a child was conceived. The surrogate mother gave birth to her in Victoria. The child was surrendered after birth to the care of the commissioning parents pursuant to the surrogacy agreement, and has remained in their care ever since.
29 The commissioning parents are the donors of the gametes which formed the embryo which was successfully implanted in the surrogate mother. The child therefore is the biological child of the commissioning parents, but by operation of Part III of the SOC Act, they are irrebuttably presumed not to be her parents. The surrogate mother and her husband are, by virtue of the presumptions as to parentage contained in Part II of the SOC Act the legal parents of the child. Her birth has been registered accordingly, in accordance with the birth registration requirements in sections 13, 15 and 16 of the BDMR Act.
30 There is no power to make an SPO in respect of this child under the SOC Act. Although she was born after the ART Act, and Part IV of the SOC Act came into force, s20(1) of the SOC Act requires the child to have been conceived as a result of a treatment procedure carried out in Victoria. That is not the case, as the treatment procedure was carried out in the ACT, after Part IV came into operation.
31 The transitional provisions contained in s46(1), (2) and (3) do not apply. Although it is not necessary, for the purposes of s46, that the treatment procedure resulting in conception be carried out in Victoria, if the commissioning parents were ordinarily resident in Victoria at the time of her conception, s46 applies only to children born before 1 January 2010, or within 10 months of that date. This child was born just one month after that end date.
32 Part IV of the SOC Act was amended by the insertion of a new division, 2A, by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). It makes provision for the registration of the birth of a child born in Victoria, and who was conceived as a result of a surrogacy arrangement in another Australian State or Territory. An order made under this Division is called a Registration Order (RO), not an SPO. The making of an RO is no mere formality, dependent on no more than the proof an interstate court has made a corresponding SPO.
33 Section 29B of the new Division 2A sets out the circumstances in which the commissioning parents of a child born in Victoria as a result of an interstate surrogacy arrangement can apply for a RO. The child must have been conceived under a surrogacy arrangement in another Australian State or Territory,[8] born in Victoria,[9] and already the subject of a Corresponding SPO in favour of the commissioning parents.[10] A Corresponding SPO is defined by s17(1) of the SOC Act as
[8] Section 29B(1)(a).
[9] Section 29B(1)(b).
[10] Section 29B(1)(c).
an order—
(a) relating to legal parentage of a child born under a surrogacy arrangement; and
(b) that is made under a prescribed provision of a corresponding interstate surrogacy law.
34 A sealed copy of a parentage order made by the Supreme Court of the ACT under s26 of the Parentage Act 2004 (ACT) has been filed. I am satisfied that the Order of the Supreme Court of the ACT is a corresponding surrogacy parentage order, as that term is defined in s17.
35 The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) also introduced a new provision, s48, in a new part, Part VIII into the SOC Act to govern applications for ROs in respect of surrogacy arrangements entered into before the commencement of Part 6 of the amending act.[11]
[11] Part 6 contained the new Division 2A of the SOC Act.
36 Section 48 is in these terms:
Registration orders—application to surrogacy arrangements before commencement of Part (sic)
(1) Subject to this section, Part IV, as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, applies to an application for a registration order in respect of a surrogacy arrangement entered into before the commencement of Part 6 of that Act.
(2) If the surrogacy arrangement was entered into before 1 January 2010—
(a) the court may make a registration order under section 29E if satisfied that the making of the order is in the best interests of the child; and
(b) the requirements of sections 29C, 29D and 29E do not otherwise apply to the making of the order.
(3) If the surrogacy arrangement was entered into on or after 1 January 2010 but before the commencement of Part 6 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014—
(a) the court may make an order under section 29E if satisfied as to the matters in section 29E(1)(a) to (c); and
(b) the requirements of section 29E do not otherwise apply to the making of the order.
37 The combined effect of the amendments to the SOC Act introduced by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) is to set three different requirements for the making of an RO, depending on the time the surrogacy arrangement was entered in to.
38 Sections 29A - 29I apply to surrogacy arrangements entered into after 30 October 2014.
39 Section 48(2) applies to surrogacy arrangements entered into before 1 January 2010, that is, before the provisions of the ART Act permitting surrogacy in Victoria came into effect; and
40 Section 48(3) applies to surrogacy arrangements entered into between those dates, that is, between 1 January 2010 and 30 October 2014.
41 For children born as a result of a surrogacy arrangement entered into before 1 January 2010, the only matter under s29E of which the court must be satisfied is that the making of the order is in the best interests of the child.
42 If the child was born as a result of a surrogacy arrangement entered into after 10 October 2014, s29E applies in its entirety. Section 29E is in these terms:
Court may make registration order
(1) The court may make a registration order if satisfied that—
(a) making the order is in the best interests of the child; and
(b) the commissioning parents did not enter into the surrogacy arrangement for the purpose of avoiding requirements under this Part or the Assisted Reproductive Treatment Act 2008 that would have applied to the arrangement if the child had been conceived in Victoria; and
(c) at the time the surrogacy arrangement was entered into, the commissioning parents had a genuine connection to the Australian State or Territory in which the child was conceived; and
(d) the child was living with at least one of the commissioning parents at the time the application for the registration order was made; and
(e) the surrogate mother and, if her partner is a party to the arrangement, her partner have not received any material benefit or advantage from the surrogacy arrangement; and
(f) the surrogate mother freely consents to the making of the order; and
(g) the surrogate mother was at least 25 years of age before entering into the surrogacy arrangement.
(2) If the surrogate mother's partner is a party to the surrogacy arrangement, before making a registration order the court must also consider whether her partner consents to the making of the order.
(3) For the purposes of subsection (1)(e), material benefit or advantage does not include any reimbursement of costs permitted by—
(a) the relevant corresponding interstate surrogacy law; or
(b) any prescribed law of the other Australian State or Territory in which the corresponding surrogacy parentage order was made.
(4) On making a registration order, the court may make any consequential or ancillary order it thinks fit in the interests of justice or in the best interests of the child whose birth registration is affected having regard to—
(a) the registration order; and
(b) any order made in respect of the child in another Australian State or a Territory, including an order made under the corresponding interstate surrogacy law of that Australian State or Territory.
43 Section 29E replicates the matters a court is required to be satisfied of before making an SPO under Part IV. But it imposes additional requirements in s29E(1)(b) and (c), namely that the commissioning parents had a genuine connection with the State or Territory in which the child was conceived, and that they did not enter into the surrogacy arrangement interstate for the purpose of avoiding the requirements under the ART Act or Part IV of the SOC Act that would have applied had the child been conceived in Victoria. Thus, s29E(1)(b) and (c) permit commissioning parents who lived interstate at the time the surrogacy arrangement was entered into, and whose surrogacy arrangement conformed with the law of that State, to obtain the benefit of birth registration showing them as the parents of the child if the child was subsequently born in Victoria. But that is not the only effect of s29E(1)(b) and (c).
44 These requirements in s29E(1)(b) and (c) also apply if the child was born as a result of a surrogacy arrangement entered into between 1 January 2010 and 30 October 2014. That is, the court must be satisfied not only that an RO is in the best interests of the child, but that the commissioning parents had a genuine connection with the State or Territory in which the child was conceived, and that they did not enter into the surrogacy arrangement interstate for the purpose of avoiding the requirements under the ART Act or Part IV of the SOC Act that would have applied had the child been conceived in Victoria.
45 Consistently with the legislative intent in restricting access to birth registration in Victoria by commissioning parents in respect of a child born in Victorian as a result of a surrogacy agreement, s46, the transitional provision applicable to SPOs in respect of surrogacy arrangements resulting in a conception before 1 January 2010, or a birth within 10 months of that date, was also amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). A new s-s(4) was added, which makes the SPO transitional provisions subject to s48. It provides:
(4) On and from the commencement of Part 6 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, this section applies subject to section 48.
46 The clear legislative intent of those provisions is, from the time the ART Act permitted surrogacy arrangements in Victoria, to make commissioning parents resident in Victoria at the time of entering into an interstate surrogacy arrangement, and whose child was born in Victoria, subject to the same requirements that would have applied to them if they had sought assisted reproductive treatment in Victoria for a surrogacy arrangement, if they wish to take advantage of the amendments which permitted commissioning parents to be registered as the parents of the child in the Victorian Register of Births.
47 I have already referred to the presumption against treatment under s14 of the ART Act if the commissioning parents or the surrogate mother or her partner have been convicted of a serious sexual or violent offence, as those terms are defined in the ART Act, or if a child protection order has been made against any of them removing a child from their custody or guardianship. I have also referred to the role of the PRP in approving a surrogacy arrangement only after being satisfied an accredited counsellor has been provided with police and child protection check results before providing a report to the PRP.
48 Section 15 of the ART Act provides for a review by the PRP if there is a presumption against treatment by reason of matters revealed by the criminal record or child protection check. The PRP can authorise treatment if it decides the circumstances of the criminal history for sexual or violent offences, or the order removing a child from care does not constitute a barrier to treatment generally, or to treatment of a specified kind.
49 The PRP is specifically directed, when conducting a review, to have regard to the guiding principles of the Act, and, in what can only be seen as a reinforcement of the importance of the first guiding principle set out in s5, is required specifically to consider whether the treatment sought is consistent with the best interests of a child born following the treatment procedure.
50 These presumptions against treatment are not replicated in interstate legislation regulating access to assisted reproductive treatment under a surrogacy agreement. So, it is to these provisions that s29E (1)(b) and (c) are directed.
51 The question, which has vexed me, is whether this application falls under s48(2), requiring me to be satisfied only that it is in the best interests of the child to make the RO sought, or whether it falls under s48(3), and so requires me to be satisfied also that the commissioning parents had a genuine connection with the State or Territory in which the child was conceived, and that they did not enter into the surrogacy arrangement interstate for the purpose of avoiding the requirements under the ART Act or Part IV of the SOC Act that would have applied had the child been conceived in Victoria.
52 That turns on whether, for the purposes of s48, “surrogacy arrangement” means the overarching agreement between the parties, and approved by the relevant ethics committee or PRP before any treatment procedures were performed, or the agreement, at the time of the particular procedure was performed under the overarching agreement to undergo that procedure to become, or try to become pregnant, as a surrogate for the commissioning parents.
53 This is important here because the original approval was given in the ACT before surrogacy was permitted in Victoria under the ART Act, but the procedure by which the surrogate became pregnant was performed after the ART Act came into force. If the surrogacy arrangement that resulted in the pregnancy was made at the time of approval, that is, in 2008, then s48(2) applies and all the applicants have to satisfy the court of is that it is in the best interests of the child to make the order. If the relevant date for the arrangement is the date the procedure by which the surrogate became pregnant was performed, s48(3) applies and the applicants must satisfy the court they had a genuine connection with the State or Territory in which the child was conceived, and that they did not enter into the surrogacy arrangement interstate for the purpose of avoiding the requirements under the ART Act or Part IV of the SOC Act that would have applied had the child been conceived in Victoria.
54 Surrogacy arrangement is defined, somewhat unhelpfully, in s17 of the SOC Act in these terms:
surrogacy arrangement has the meaning given by the Assisted Reproductive Treatment Act 2008.
55 By s3 of the ART Act:
“surrogacy arrangement” means an arrangement, agreement or understanding, whether formal or informal, under which a woman agrees with another person to become or try to become pregnant, with the intention—
(a) that a child born as a result of the pregnancy is to be treated as the child, not of her, but of another person or persons (whether by adoption, agreement or otherwise); or
(b) of transferring custody or guardianship in a child born as a result of the pregnancy to another person or persons; or
(c) that the right to care for a child born as result of the pregnancy be permanently surrendered to another person or persons.
56 The evidence filed in this case, consistently with the common understanding of the success rates of ART procedures, indicates that the procedure which resulted in the surrogate becoming pregnant and giving birth to the child was not the first or only procedure the surrogate underwent pursuant to the surrogacy agreement.
57 My preliminary view was that the surrogacy arrangement entered into at the time of the treatment procedure which resulted in the conception of the child. A surrogacy agreement is not an open ended agreement. Each time a treatment procedure which, if successful, would result in conception, and the birth of a child, is undertaken, the commissioning parents and the surrogate mother and if applicable, her partner must consent. Commissioning parents cannot compel a surrogate mother to undergo a procedure pursuant to an overarching agreement or arrangement. A surrogate mother cannot compel commissioning parents to consent to a procedure pursuant to the agreement or arrangement if they do not wish her to undergo it. There is force, in my view to considering that the requirement for a consent for each separate procedure leads to the conclusion the words “surrogacy arrangement entered into” at the start of each of s48(2) and (3) refers to the particular surrogacy arrangement which resulted in the conception and birth of the child.
58 I have been unable to find any authority directly on point. The application was listed for a Directions Hearing and notice of the application was given to the Secretary of the Department of Justice, under s29C of the SOC Act. Ms Richards SC, Crown Counsel appeared on behalf of the Secretary, and although she submitted the Secretary did not have standing in respect of applications falling under s48, the transitional provision, nonetheless made submissions which I have found of assistance.
59 Ms Richards submitted the relevant date for the agreement was the date the overarching surrogacy agreement was entered into, namely 2008, and not the date the procedure by which the surrogate became pregnant was carried out. She submitted the words “arrangement agreement or understanding by which the surrogate agreed to become, or try to become pregnant” in the definition of surrogacy arrangement in s3 of the ART Act focussed on the original, overarching agreement, and not on the individual procedures. She submitted this interpretation was supported by the context in which surrogacy arrangement appears in the ART Act, as the Act differentiated between the surrogacy arrangement and the treatment procedures regulated by it.
60 Ms Richards provided me with three decisions of the Supreme Court of NSW[12] and one of the District Court of Queensland[13] where applications for parentage orders under Surrogacy Act 2010 (NSW) and Surrogacy Act 2010 (Qld) respectively had been dealt with. In each of those cases, the reasons recited, as part of the narrative of events, that the surrogacy arrangement had been entered into some time before the surrogate became pregnant. The times between the original surrogacy agreement and the procedure resulting in pregnancy ranged between 3 years and less than 3 months. In no case was there any consideration of the issue which has concerned me, namely whether the necessary consents of the commissioning parents and surrogate (and her partner, if applicable) to each procedure performed under the surrogacy agreement constituted a surrogacy arrangement or agreement for the purposes of the applicable Surrogacy Act. There was no need in any of those cases to consider the question which has troubled me, as in each case, the matters of which the court had to be satisfied were the same, whether the operative date was the date of the original agreement or the date of the consent to the procedure which resulted in the pregnancy.
[12]Application of AP [2011] NSWSC 1389; Re FM [2012] NSWSC 445; and Re HBW [2014] NSWSC 1581.
[13]BLH v SJW [2010] QDC 439.
61 I think the definition of surrogacy arrangement in s4 of the ART Act can be interpreted as supporting both the interpretation contended for by Ms Richards, and the preliminary view I had come to. I consider there are arguments both ways on what Parliament intended. On the one hand, it can be contended, as Ms Richards did, that these amendments were introduced to address the interests of Victorians who sought assisted reproductive treatment under a surrogacy arrangement interstate at a time surrogacy was not, for all practical purposes, available in Victoria. On the other hand, s29E(1)(c) and s48(3) make it clear Parliament intended to exclude people who went interstate for assisted reproductive treatment under a surrogacy arrangement in order to avoid the provisions of the ART Act once it came into effect from obtaining a SPO or RO under the SOC Act. Or, put another way, that it intended to make people who went interstate for assisted reproductive treatment under a surrogacy arrangement once surrogacy was available under the ART Act, to comply with the same requirements for police and child welfare checks as that Act imposed as a precondition to treatment in Victoria, if they wished to obtain an SPO or RO.
62 There is little in this to favour one interpretation over the other.
63 In the second reading speech introducing what became the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, the Hon E J O’Donohue said
When the Status of Children Act 1974 provisions dealing with surrogacy and parentage orders were introduced by the Assisted Reproductive Treatment Act 2008, a transitional provision was included to recognise the commissioning parents of a child conceived under a surrogacy arrangement where the child was born in Victoria before the commencement of the relevant provisions or within 10 months of commencement. This transitional provision applied if the commissioning parents were ordinarily resident in Victoria at the time the child was conceived and applied whether or not the child was conceived in Victoria.
However, this transitional provision did not assist in all cases. The government is aware of at least one family who had sought treatment interstate prior to commencement of Victoria’s surrogacy provisions, but was unable to be brought within the scope of the Victorian law, as the birth occurred after the time provided for in the transitional provision.[14]
[14][14] Parliamentary Debates, Legislative Council, 20 August 2014, 2618 (Hon E.J. O’Donohue, Minister for Liquor and Gaming Regulation).
64 I have, not without misgivings, decided I should adopt the interpretation contended for by Ms Richards. Although I think the combined effect of s29E(1)(b) and s48 are capable of interpretation either way, that is they are ambiguous, I accept they can be interpreted in the way contended for by Ms Richards. I am inclined to accept the interpretation contended for by her as I am satisfied that it was Parliament’s intention to introduce these amendments as a result of representations made to the government of the day to permit families in the position these applicants find themselves in to apply for an RO. If the other interpretation were adopted, even if the applicants were able to satisfy the court under s29E(1)(b) they did not enter into the surrogacy arrangement interstate for the purpose of avoiding the requirements under the ART Act or Part IV of the SOC Act that would have applied had the child been conceived in Victoria, they would not be able to establish a genuine connection with the ACT, as required by s29E(1)(c).
65 It follows that the applicants have satisfied me their application for an RO should be determined under s48(2) of the SOC Act. I am satisfied, pursuant to s29B(1) that the applicants are the commissioning parents of a child born under a surrogacy arrangement, that the child was conceived under the surrogacy arrangement in the ACT, that she was born in Victoria, and that a Corresponding Parentage Order has been made in favour of the applicants. Pursuant to s29B(2), a certified copy of her birth certificate and a copy of the sealed corresponding parentage order have been filed.
66 I am satisfied, under s29E(1)(a) it is in the best interests of the child to make the RO sought. Pursuant to s29A the Registrar of Birth Deaths and Marriages is directed to register the birth of the child under s19B of the BDMR Act.
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