Lamb & Anor and Shaw
[2018] FamCA 629
•21 August 2018
FAMILY COURT OF AUSTRALIA
| LAMB AND ANOR & SHAW | [2018] FamCA 629 |
| FAMILY LAW – SURROGACY – Rehearing –Where the question of whether the second respondent is the father of the child and hence should be entered as such on the child’s Birth Certificate was remitted for rehearing – Where the parties consented to a declaration that the birth mother was not living with a man on a bone fide domestic basis at time of implantation – Where s 23 of the Status of Children Act 1978 (Qld) applies – Whether, under Queensland legislation, the donor of semen used to fertilise donor egg, which ovum is then implanted into the womb of another woman, is the father of that child for the purposes of the Family Law Act1975 (Cth) – Where the genetic father is, as a matter of fact, the father of the child – Where s 23(4) uses language that does not destroy the status of the semen donor as the father of the child but merely takes away their parental rights – Where the Acts Interpretation Act 1954 (Qld) mandates the court to interpret that section in a way that will achieve the purpose of the Act – Where the court is satisfied that the genetic father is the father of the child and should be entered on the child’s birth certificate as such. |
| Lamb and Anor & Shaw [2017] FamCA 769 Shaw & Lamb and Anor (2018) FLC 93-826; [2018] FamCAFC 42 Balog v Independent Commission against Corruption (1990) 169 CLR 625 |
| Acts Interpretation Act1954 (Qld) ss 14A, 14B Family Law Act 1975 (Cth) Status of Children Act 1978 (Qld) ss 19, 20, 23 Surrogacy Act2010 (Qld) |
FIRST APPLICANT: SECOND RESPONDENT: | Ms Lamb Mr Sorensen |
| RESPONDENT: | Ms Shaw |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 197 | of | 2016 |
| DATE DELIVERED: | 21 August 2018 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | By written submissions last filed 3 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Victoire |
| SOLICITORS FOR THE APPLICANT: | Marino Lawyers |
| SOLICITORS FOR THE RESPONDENT: | Anderson Fredericks Turner |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Lawrence |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER” | Susan Gray |
Orders
The parties do all acts and things, including signing any necessary documents, to cause the child’s birth registration details to be amended to ensure that Mr Sorensen is entered as the father of the child on the child’s birth certificate.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamb and Anor & Shaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC197/2016
| Ms Lamb & Mr Sorensen |
Applicants
And
| Ms Shaw |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 21 September 2017, for reasons delivered on that day,[1] I made parenting orders in relation to a child thereafter known as C, born in 2016 (“the child”). Specifically I made orders that gave Ms Lamb and Mr Sorensen (“the genetic parents”) sole parental responsibility for the child, who would live with them and spend no time with Ms Shaw (“the birth mother”). Those descriptions of the parties reveal that the child was born under an altruistic surrogacy arrangement; the outcome of the litigation discloses that the altruistic surrogacy arrangement went badly awry.
[1]Lamb and Anor & Shaw [2017] FamCA 769.
In addition to dealing with the parenting arrangements for the child, I also ordered (Order 7(b)) that:
The parties do all acts and things, including signing any necessary documents, to cause the child’s birth registration details to be amended to ensure that:
(a)…;
(b)Mr Sorensen is entered as the father of the child on the child’s Birth Certificate.
An appeal was brought restricted solely to a challenge to that order. On 13 March 2018, for reasons then delivered, the Full Court allowed the appeal,[2] and ordered that:
The question of whether the second respondent is the father of the child the subject of the orders made on 21 September 2017 and hence should be entered as such on the child’s Birth Certificate be remitted for rehearing, if practicable before the Honourable Justice Tree.
[2]Shaw & Lamb and Anor (2018) FLC 93-826; [2018] FamCAFC 42.
On 29 May 2018, with the parties’ consent, it was agreed that the remitted question would be tried only by written submissions, and a timetable was ordered for the exchange of those submissions, at the conclusion of which my decision would again stand reserved.
This is my judgment in relation to the remitted matter.
BACKGROUND FACTS
In my first judgment I traversed in detail the facts which underpinned the surrogacy agreement, its breakdown, the birth of the child, and the subsequent history between the parties. It is unnecessary to repeat that again in these reasons, however to the extent that those findings are relevant, I incorporate them in this judgment. However I should emphasise the following points:
·In 2012, in advance of treatment for cancer, the genetic mother’s eggs were harvested, and four embryos created using the genetic father’s semen;
·Only one of those embryos proved viable, and was frozen;
·On 25 March 2015 the genetic parents and the birth mother executed a surrogacy agreement;
·Pursuant to the surrogacy agreement, on 3 August 2015 the birth mother was implanted with the sole remaining embryo;
·In 2016 the child was born to the birth mother;
·On 15 April 2016, pursuant to interim consent orders that I made on that day, the child was transferred to the care of the genetic parents, and has remained in their care ever since.
THE REMITTER
The appeal succeeded on the basis that a necessary finding of fact, namely, whether or not the birth mother had a de facto partner at the time she underwent implantation with the embryo, was not made, and therefore my reasons in the first judgment were inadequate: at [47]-[50].
Curiously, in the remitted hearing, the successful appellant birth mother conceded that the trial before me had been conducted by her on the express basis that, at the relevant time, she was not in a de facto relationship. Indeed on 29 May 2018, at the directions hearing before me, by consent a declaration was made:
That at the time of implantation of the embryo which became the child the subject of the proceedings, the respondent birth mother was not living with a man as his wife on a bone fide domestic basis, although not married to him.
In the genetic parents’ written submissions, they recite at [16] aspects of the birth mother’s case outline filed in relation to the first trial in February 2017, which specifically said:
.. It is considered s 23 of the Act applies as the respondent did not have a de facto partner at the time (they did not begin living together under a domestic relationship until December 2016) (sic).
Later at paragraph 46 of that outline, the birth mother continued:
In this case, it is submitted that the following are not in contention:
(a)The respondent was unmarried and not living with her partner on a bone fide domestic basis at the time of the fertilisation procedure.
It is greatly to be regretted that these unambiguous concessions were not brought to the attention of the Full Court, in consequence of which an unnecessary remitter has occasioned the parties further expense (noting that the birth mother is represented by pro bono lawyers) and has seen the unfortunate prolongation of these proceedings. The genetic parents say that the reason why they did not bring these matters to the attention of the Full Court was that the basis on which the appeal succeeded was not a ground of appeal, and hence, implicitly, they had not prepared in relation to this issue. Indeed that appears correct, in that at [49] of its reasons, the Full Court felt obliged to allow the appeal on a ground of their Honours’ devising.
In effect, what has transpired is that the birth mother has now conceded that the appeal should not have succeeded on the basis that it did, but nonetheless seeks to have a second opportunity to re-argue matters of law which she failed to persuade me of in the first trial.
THE PROBLEM
The issue which the remitter gives rise to may be easily stated, but less easily resolved. The question is whether, under Queensland legislation, the donor of semen used to fertilise a donor egg, which ovum is then implanted into the womb of another woman, is the father of that child for the purposes of the Family Law Act. It should be made plain that there is no suggestion that the donor does not remain, as a matter of fact, the biological father of the child thereafter born, but rather it is a question of law: is that man the legal father of the child.
RELEVANT STATUTORY PROVISIONS
Section 23 of the Status of Children Act 1978 (Qld) provides as follows:
(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—
(a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or
(b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by a man who is not the husband of the first-mentioned woman.
(2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant—
(a) the woman who has undergone the fertilisation procedure is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b) the woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.
(3) A presumption of law that arises by virtue of subsection (2) is irrebuttable.
(4) Also, the man who produced the semen has no rights or liabilities in relation to any child born as a result of the pregnancy happening because of the use of the semen unless, at any time, he becomes the husband of the child’s mother.
(5) The rights and liabilities of a man who produced the semen and becomes the husband of the mother of a child born as a result of a pregnancy mentioned in subsection (2) are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, are restricted to rights and liabilities that arise after the man becomes the husband of the child’s mother.
That section falls within sub-division 3 of the Status of Children Act, which by s 20 has application as provided for in that section as follows:
This subdivision applies if—
(a) a married woman undergoes a fertilisation procedure other than with her husband’s consent; or
(b) a woman who is not married and does not have a de facto partner or civil partner undergoes a fertilisation procedure; or
(c) a woman who has a de facto partner undergoes a fertilisation procedure other than with her partner’s consent; or
(d) a woman who has a civil partner undergoes a fertilisation procedure other than with her partner’s consent.
This is to be contrasted with the application of sub-division 2, which applies, by virtue of s 16 of the Status of Children Act, “if a married woman, in accordance with the consent of her husband, undergoes a fertilisation procedure.”
The equivalent provision in sub-division 2 to s 23 in sub-division 3 is s 19, which provides as follows:
(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—
(a) an embryo derived from an ovum produced by another woman and fertilised by—
(i) semen produced by the husband of the first-mentioned woman; or
(ii) semen produced by a man other than the husband of the first-mentioned woman; or
(b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by the husband of the first-mentioned woman or by a man other than her husband.
(2) Where a married woman has undergone a fertilisation procedure as a result of which she has become pregnant—
(a) the married woman shall be presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b) the woman who produced the ovum from which the embryo used in the procedure was derived shall be presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy; and
(c) where the semen used for the fertilisation of the ovum from which the embryo used in the procedure was derived was produced by the husband of the married woman, the husband shall be presumed, for all purposes, to be the father of any child born as a result of the pregnancy; and
(d) where the semen used for the fertilisation of the ovum from which the embryo used in the procedure was derived was produced by a man other than the husband of the married woman—
(i) the husband shall be presumed, for all purposes, to have produced the semen and to be the father of any child born as a result of the pregnancy; and
(ii) the man who produced the semen shall be presumed, for all purposes, not to have produced the semen and not to be the father of any child born as a result of the pregnancy.
(3) A presumption of law that arises by virtue of subsection (2) is irrebuttable.
(4) In any proceedings in which the operation of subsection (2) is relevant, a husband’s consent to the carrying out of a fertilisation procedure in respect of his wife shall be presumed but that presumption is rebuttable.
I shall discuss any other relevant statutory provisions during the course of traversing the parties’ arguments.
THE PARTIES’ ARGUMENTS
Overview
Both parties appear to concede that the meaning of s 23(4) of the Status Act is ambiguous or obscure as, pursuant to s 14B of the Acts Interpretation Act (Qld), both have regard to extrinsic material in their written arguments.
Indeed the birth mother’s submissions make extensive reference to a range of extrinsic material, including not only second reading speeches, but a report of a committee tabled in the Queensland Parliament, and the government of the days’ response to that report. I accept that the meaning of s 23(4) is indeed unclear, and therefore recourse may be had to such material.
Moreover, I accept that by s 14A of the Interpretation Act, I am obliged to interpret that section in a way that will achieve the purpose of the Act, rather than another interpretation.
The birth mother’s arguments
The birth mother contends:
·That the purpose of what is now s 23 of the Status of Children Act, by reference to the second reading speech which introduced the bill which inserted what became that section, was “to remedy the specific “anomaly” identified by the government of the day and to ensure that legal relationships between mothers, donors and children are not unintentionally created.” The anomaly was specifically identified in the second reading speech, and is described therein as being that, in the case of women who are married or have a de facto partner, the donor of semen which fertilises their egg was then excluded from “any responsibilities or rights in relation to a child born as a result of such a procedure,” but that was not the situation in relation to a single woman, or a woman in a same-sex relationship, or a married woman who undergoes the procedure without the consent of her husband.
I do not understand this argument to be controversial.
·That the Surrogacy Act2010 (Qld) was preceded by a parliamentary committee’s investigation and report, which report provides some commentary in relation to the effect of the Status of Children Act, to which regard may be had in construing the Status of Children Act. Particularly it is said at [17] of the birth mother’s submissions that, in respect of one aspect of the committee’s report, “it is clear .. that the government well understood that there was no present legislative framework in Queensland upon which an intended parent [under a surrogacy agreement] would be recognised as a parent, and that those intended parents would not (sic) need the assistance of a legislative framework to establish parentage.” Further it is said that the report’s advertence to intending parents’ (under a surrogacy agreement) “desire to be legally recognised as the parents of the child born of their gametes” is an implicit indication that such intending parents were not then legally recognised as the parents of the child. Likewise, the fact that the report recommended that there be mechanisms established for “the transfer of a legal parentage from the birth mother to the intending parents” is an indication that, at least from the committee’s perspective, legal parentage did not then enure in either of the intending parents.
·The government’s response to the committee’s report “makes it clear that it was not countenanced that a male intended parent with a genetic link would be recognised as a father and parent, such that he would be eligible to be registered on the birth certificate. Rather [an extract from the government response] illustrate[s] that the government recognised that it would be necessary for a court order to be made to transfer legal parentage.”
·The Surrogacy Act 2010 differentiates between “birth parent” as defined, and “intended parent” as that term is used in the Act. That would be peculiar if a birth parent could also be an intended parent, as “there would be no need for him to apply to become a parent by discharging the prescriptive provisions of the Surrogacy Act.” Further, the notion of “transfer” is inept to describe any change of status between being a birth parent and an intended parent. Indeed if that is so, then it might be that the father in these circumstances does not have standing to make an application under the Surrogacy Act, because he would not be an intended parent, but rather a birth parent.
·A more cohesive construction of the Surrogacy Act and the Status of Children Act would see recognition that the genetic father is not a birth parent or parent within the meaning of either Act, and will not be so unless or until he married the birth mother, or has a parentage order made in his favour under the Surrogacy Act.
The genetic parents and Independent Children's Lawyer’s arguments
The genetic parents and Independent Children's Lawyer contend:
·That by reference to the second reading speech of the bill which inserted the current s 23 of the Status of Children Act, the anomaly it was intended to cure was twofold. The first was that the donor of semen to a single woman who undergoes an IVF procedure, “is not excluded from any responsibilities or rights in relation to the child born as a result of the procedure.” This “possibly operates as a disincentive to potential donors who could technically incur the responsibilities of parentage.” Further, parliament was concerned to ensure that children born as a result of IVF procedures did not potentially have two mothers and/or two fathers, if both donor semen and a donor egg were used.
·It is useful to compare s 19(2) and s 23(2) of the Status of Children Act. In the former, which deals with a married woman, if donor semen is used, parliament specifically said that the donor was presumed for all purposes not to be the father of any child, where as in the latter provision, parliament employed different language, namely that “the man who produced the semen has no rights or liabilities in relation to any child born..”
·Given the concern identified in the second reading speech, by inserting s 23 of the Status of Children Act parliament did no more than was necessary to cure the anomaly, namely to absolve the donor father from the rights and liabilities of a parent, but otherwise to recognise that the child remained having one mother and one father. Such a statutory position would ensure that semen donors are not discouraged from donating, and does not leave the child in the position of having more than two parents.
THE PROPER CONSTRUCTION OF S 23(4)
It seems to me that the starting point in the construction and application of s 23(4) to this case, is a recognition that, as an incontrovertible matter of fact, the genetic father is indeed the contributor of one half of the genetic material of the child, and hence as a matter of fact, his father. There is no reason why, absent statutory intervention, the common law would not recognise that fact and, as a matter of law, recognise that the father is one of the child’s parents.
Therefore in order for the genetic father to lose the status of parent, there would need to be clear statutory removal of that status or right, but in the absence of such statutory destruction or modification, it will remain. See, for instance, albeit in different contexts, Balog v Independent Commission against Corruption (1990) 169 CLR 625 at 635-6 and Melbourne Corporation v Barry (1922) 31 CLR 174 at 206.
The only contended statutory provision which could potentially effect that level of violence to the right is s 23(4). However, plainly the Status of Children Act deploys two different means of dealing with the donors of semen, dependent upon, amongst other things, whether the woman in question is single or married. If she is married, then by s 19(2), parliament has said that the donor of the semen is irrebutably presumed for all purposes not to be the father. On the other hand, in the case of an unmarried woman, parliament did not apply that irrebutable presumption, but rather adopted a different formulation, namely a lesser destruction of the status of the donor, who simply “has no rights or liabilities in relation to any child born as a result of the pregnancy” from his semen.
I am satisfied that the purpose of the deployment of that language in s 23(4) was indeed to protect semen donors from the rights and liabilities of parenthood, so as, amongst other things, not to discourage donors of semen for single women. Even if I am wrong as to that, and the purpose was that identified by the parliamentary committee later reporting on surrogacy, then it seems to me that the words of the provision simply do not permit the achievement of that intention: Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518. Moreover, extrinsic materials should not be taken into account where it merely indicates a view as to the meaning of existing legislation: Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241.
The fact that this construction may create difficulties under another piece of legislation, for instance those identified by the birth mother in her written submissions, cannot, it seems to me, unduly influence the construction of the Status of Children Act. Section 14A of the Acts Interpretation Act only mandates a construction that will achieve the purpose of the Act, rather than achieve coherence between different statutes, although plainly if such a construction were to accord with the purpose of the Act, that may be a good argument to adopt it.
I am satisfied that in Queensland the genetic father is the father of the child, both as a matter of fact, and as a matter of law.
For the sake of completeness I should say that, as I observed in the first judgment, s 23(4), or more particularly the way in which parliament dealt with semen donors under that provision, is different to how the State parliaments of Victoria and New South Wales have dealt with the situation, in that both of those States have utilised the device of an irrebutable presumption, as was deployed by the Queensland parliament in s 19(2) of the Status of Children Act. Whilst it may be unfortunate that fathers in different States have different rights in the Family Court, that is the product of two things. Firstly the Full Court decision of Bernieres and Anor & Dhopal and Anor (2017) FLC 93-793; [2017] FamCAFC 180, which construed s 60HB of the Family Law Act as leaving it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, which status will be recognised for the purpose of the Family Law Act.[3] Secondly, the fragmentation of powers in relation to children and parenthood which presently exists under the constitutional arrangements of the federation of States which is Australia.
[3] But see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 13: “If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.”
CONCLUSION
For these reasons, order 7(b) as contained in the original orders will again be pronounced.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 August 2018.
Associate:
Date: 21 August 2018
11
8