Johnson & Anor and Chompunut
[2011] FamCA 505
•30 June 2011
FAMILY COURT OF AUSTRALIA
| JOHNSON AND ANOR & CHOMPUNUT | [2011] FamCA 505 |
| FAMILY LAW - CHILDREN - overseas surrogacy arrangement – where the male applicant provided the sperm – where the applicants are resident and domicile in NSW – where at the time the arrangements were entered into NSW law did not have extraterritorial effect – where Australia is yet to grant a visa for the child to live in Australia – whether it is appropriate to make a finding as to parentage - child to live with the applicants - the applicants to have equal shared parental responsibility of the child |
| Family Law Act 1975 (Cth) Status of Children Act 1996 (NSW) |
| Dudley and Anor & Chedi [2011] FamCA 502 |
| 1st APPLICANT: | Mr Johnson |
| 2nd APPLICANT: | Ms Johnson |
| RESPONDENT: | Ms Chompunut |
| FILE NUMBER: | SYC | 7147 | of | 2010 |
| DATE DELIVERED: | 30 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 February 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Lewis Law |
Orders
The child W, born … September 2010 (“the child”) live with the applicants, Mr Johnson and Ms Johnson.
The applicants have equal shared parental responsibility for making decisions about long term issues and day to day issues in respect of the child.
It is noted that publication of this judgment under the pseudonym Johnson and Anor & Chompunut is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).
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| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7147 of 2010
| Mr Johnson and Ms Johnson |
Applicants
And
| Ms Chompunut |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The child was born by a surrogacy arrangement in Bangkok, Thailand. This was overseen by a fertility centre in Bangkok. Mr Johnson, the first applicant, provided his sperm, to be used in an artificial conception procedure with a donated egg. The anonymous donor of the egg is not a party to these proceedings. The surrogate mother was not the egg donor and was impregnated with the fertilised egg. The child was born in September 2010.
The child’s birth mother consents to the applicants having orders made in their favour under the Family Law Act 1975 (Cth) (“FLA”) for parental responsibility and for the child to live with them at their home in New South Wales. It seems that at all times the applicants intended to maintain their permanent residence in New South Wales.
The surrogate mother placed the child into the sole care of the applicants almost immediately after the birth of the child and has been in the applicants’ care in Thailand since that time. The applicants intend to return to New South Wales with the child when a visa is awarded.
BACKGROUND
The first applicant, Mr Johnson, was born in NSW in 1962 and is now 49 years of age. The second applicant, Ms Johnson, was born in NSW on 28 August 1963 and is now 48 years of age. Both parties are Australian citizens. They married in 1989.
The applicants sought the assistance of doctors at a fertility clinic in Thailand in order to have a child through surrogacy. They have one child of the relationship aged 9, born through an artificial conception procedure. They were unable to conceive a second child via these means subsequently.
The Thai birth certificate of the child shows the first applicant and the surrogate mother as the parents of the child. Soon after the child’s birth, DNA testing was undertaken, which concluded on 26 October 2010 that the first applicant was the biological father of the child.
The child is not eligible for an Australian visa on the basis of descent of an Australian citizen, failing the production of a Thai court order that the surrogate mother has relinquished her right as a parent. I am told it is not possible to obtain such an order in Thailand against an unwed mother until the child has reached the ‘age of reason’ at about seven or eight years. A sub-class 101 visa has not yet been granted permitting the child to travel to Australia with the father. At the time of the hearing before me, the evidence was that it was expected that that visa would be granted soon. The applicants openly indicate that the application for the orders from this court is partly to strengthen their application for Australian citizenship for the child.
DOCUMENTS RELIED UPON
The applicants read the following material:
8.1.Application for Consent Orders filed 12 November 2010;
8.2.Affidavits (2) of Mr Johnson filed 12 November 2010;
8.3.Affidavit of Ms Johnson filed 12 November 2010;
8.4.Affidavit of Ms Chompunut (surrogate mother) filed 12 November 2010;
8.5.Affidavit of Mr SK (former husband of surrogate mother) filed 12 November 2010;
8.6.Affidavit of T (Thai lawyer) filed 12 November 2010;
8.7.Affidavit of S (Interpreter) filed 12 November 2010;
8.8.Parenting Plan dated 27 October 2010;
8.9.Case Outline Document (Exhibit 1); and
8.10.Certificate of Divorce of the surrogate mother (Exhibit 2).
THE ILLEGALITY OF THE AGREEMENT
The applicants are resident in New South Wales. The applicants entered into their surrogacy arrangements prior to 1 March 2011. The relevant law regulating surrogacy in operation when the applicants entered their surrogacy arrangement and when the child was born, was s 42 to 45 of the Assisted Reproductive Technology Act 2007 (NSW) (“ARTA (NSW)”). Section 43 ARTA (NSW) prohibits entering into, arranging or receiving benefits under a commercial surrogacy arrangement in New South Wales. The penalty is 100 penalty units ($11,000 as per s17 Crimes (Sentencing Procedure) Act 1999 (NSW)) or two years imprisonment. Section 45 renders surrogacy agreements void.
I infer that the birth mother was paid some type of fee, either directly by the applicants or by the Thai clinic (which then passed those costs onto the applicants). I suspect, but I do not know, that the fee was an amount more than the birth mother’s costs.
I refer to my judgment in the case Dudley and Anor & Chedi [2011] FamCA 502 regarding the public policy connected to the illegality of commercial surrogacy arrangements.
LACK OF GEOGRAPHICAL NEXUS
Although s 43 ARTA (NSW) created an offence had the applicants done what they had done entirely in New South Wales, before 1 March 2011 it was not illegal for a person ordinarily resident or domiciled in New South Wales to enter into a commercial surrogacy arrangement outside Australia. The offence created by s 43 ARTA (NSW) was subject to Part 1A Crimes Act 1900 (NSW) (“CA (1900)”) and in particular, s 10C CA (1900). It is not clear that it could be said that the offence has an effect in the State of New South Wales. Part 1A CA (1900) and in particularly s 10C CA (1900) would mean that the applicants are unlikely to be guilty of a criminal offence.
The Surrogacy Act 2010 (NSW) has now created a geographical nexus so that persons resident and/or domiciled in New South Wales do commit an offence if they enter into a commercial surrogacy arrangement whether within New South Wales or anywhere outside New South Wales.
DEFINITION OF PARENT
The surrogate mother swore that she and her former husband were divorced on 11 June 2010, and were separated at the time of the procedure. The former husband of the surrogate mother also swore that they divorced on 11 June 2010. He further deposed that he did not consent to the artificial conception procedure in relation to the child in which the surrogate mother was involved. As in Dudley and Anor & Chedi therefore, the provisions of s 60H FLA are not enlivened and the child is not precluded from being the child of the applicants.
I refer to my reasons in the case of Dudley and Anor & Chedi for further discussion of the applicable law regarding the assessment of ‘parent’ for the purpose of the FLA.
In relation to the current state law regarding parentage, the applicants are not assisted. A parentage order may be made under the Surrogacy Act 2010 (NSW) even if the surrogacy agreement was entered into before the commencement of the act (s15). A number of sections in the Surrogacy Act 2010 (NSW) preclude a State parenting order in the applicants’ favour including the requirements that: all parties to the surrogacy agreement undertake counselling (s35); and most importantly, it is mandatory that the agreement is not a commercial surrogacy agreement (s23). The Status of Children Act 1996 (NSW) also does not assist, with an irrebuttable presumption (s14(4)) that the surrogate mother is the parent (s14(3)), and the first applicant, being a sperm donor, is not (s14(2)). I note that Status of Children legislation is generally more applicable to the protection of a sperm or egg donor in more conventionally assisted reproductive procedures.
The applicants have not yet sought to gain parental status by seeking leave to adopt the child.
As in Dudley and Anor & Chedi, despite the uncertain parentage under state law, I note that I do not need to make an assessment of the child’s parentage to make the orders sought in this case, and so decline to do so because of the public policy concerns clearly behind how current surrogacy laws have been framed in New South Wales and consistently with other places in Australia.
I find that the two applicants are persons concerned with the care, welfare and development of the child under 65C(c) FLA and so may make an application for orders. I made this finding for similar reasons as I did in Dudley and Anor & Chedi, that is:
19.1.The applicants and the surrogate mother all say on their oath that the first applicant provided his genetic material to fertilise the anonymously donated egg in the IVF process;
19.2.DNA testing has established that the first applicant is the child’s biological father;
19.3.The first applicant is registered as the father on the child’s Thai birth certificates and “House Registration” documents;
19.4.Both applicants have assumed the role of parents to the child almost immediately on his birth;
19.5.Both applicants intend to provide ongoing care and support for the child; and
19.6.The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the child’s life.
In relation to section 65G FLA, I find as I did in Dudley and Anor & Chedi 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 child and that she consents to the proposed orders. I am satisfied that I may make the orders sought by the second applicant even though the ordinary conditions of s 65G FLA have not been complied with.
BEST INTERESTS
The orders that I am asked to make have to be made with the best interests of the child as my paramount consideration (s 60CA FLA). 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 sections 60CC(2) and (3) FLA.
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 child (s 61DA(4)). The surrogate mother proposes to play no role in the child’s life. Although I have not made a finding that the applicants are ‘parents’ of the child, nonetheless, I find that it is in the child’s best interests that the applicants have equal shared parental responsibility for the child.
The applicants seek an order that the child live with them. In an assessment of the child’s best interests I note it is undisputed that the child is currently living with the applicants in Thailand, the only persons he has spent significant time with. The applicants have always intended to care for the child as their own, an arrangement detailed in the Parenting Plan exhibited. It is undisputed that the surrogate mother does not intend to care for the child and wants no relationship with the child. It is undisputed that the egg donor is unknown.
I am confident the applicants can more than adequately provide for the material needs of the child. Both earn a significant income. Both applicants have work hours that are flexible and can care for the child, with the assistance of professional child care when necessary. The applicants currently live in a large home, within a convenient distance to all necessary facilities. The applicants intend to preserve the child’s culture by travelling to Thailand periodically as a family and also share with him the second applicant’s Asian heritage.
Accordingly, I find that the orders as sought are in the child’s best interests.
I certify that the preceding twenty-five (25) 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
Key Legal Topics
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Family Law
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