LWV v LMH
[2012] QChC 26
•8 August 2012
CHILDREN’S COURT OF QUEENSLAND
CITATION:
LWV & another v LMH [2012] QChC 26
PARTIES:
LWV AND AKV
Applicant
v
LMH
Respondent
FILE NO/S:
2505/12
DIVISION:
Children’s Court of Queensland
PROCEEDING:
Application for a parentage order
ORIGINATING COURT:
Children’s Court of Queensland, Brisbane
DELIVERED ON:
8 August 2012
DELIVERED AT:
Brisbane
HEARING DATE:
8 August 2012
JUDGE:
Clare SC DCJ
ORDER:
1) That pursuant to section 22(1) of the Surrogacy Act 2010 (Qld) parentage of LCH born 22 March 2012 be transferred from LMH to LWV and AKV.
2) That LMH relinquish to LWV and AKV custody and guardianship of LCH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable.
3) That LWV and AKV become permanently responsible for the custody and guardianship of LCH.
4) It is declared that:
(a) the name of the child before the order was made was LCH;
(b) the name of the child on the making of the order is LCV.
5) It is declared that the place of birth of the child was at Brisbane in the State of Queensland.
6) It is declared that the Applicants’ name, address and occupation are respectively LWV of CC, Nerang in the State of Queensland, Truck Tyre Technician, and AKV of CC, Nerang in the State of Queensland, Pharmacy Assistant.
7) It is declared that the name and address of the child’s birth parents are LMH of CB, Ormeau in the State of Queensland and the Father is Unknown.
8) That pursuant to section 41D of the Births, Deaths and Marriages Registration Act 2003 (Qld), that the Applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of the child’s Queensland birth certificate registration number 2012/B8802 registered in Brisbane on 2 April 2012.
9) That the Applicants pay the costs of the Respondent for and incidental to the application.
CATCHWORDS:
Surrogacy arrangement - parentage order - statutory interpretation- surrogacy arrangement must be “made before the child was conceived” - meaning of before the child was conceived in s22(2)(e)(iv) of the Surrogacy Act 2010 (Qld)- whether surrogacy arrangement must be entered into before the creation of the embryo
Surrogacy Act 2010 (Qld)
ADVOCATES:
Amy Sanders-Robbins for the applicant.
Stephen Page for the respondent.
SOLICITORS:
Michael Sing Lawyers Pty Ltd for the applicant.
Harrington Family Lawyers for the respondent.
LCH is a long awaited and precious gift, much loved by his family and a miracle of modern medicine. When his biological parents were unable to conceive naturally, his aunt grew and nurtured LCH in her body for them. LCH was born on 22 March 2012. He has been in the care of his natural parents, LWV and AKV, since his release from the hospital. This is an application for a Parentage Order. It is brought by LWV and AKV and supported by the continuing altruism of the birth mother, LMH, who is named as the respondent.
The court’s power to make an order
The parties had a surrogacy arrangement. They have done everything they could to comply with the law and now seek its protection for LCH through the parentage order.
The power to make such an order derives from the Surrogacy Act 2010 (Qld). As one might expect, the Act sets out rigorous conditions for the protection of the birth mother and the protection of the child. For example, the discretion to make a parentage order does not arise unless all of the extensive requirements listed in s 22 are satisfied. Relevantly, subsection (2) provides:
(2) The court may make the parentage order only if it is satisfied of all of the following matters—
(a) the proposed order will be for the wellbeing, and in the best interests, of the child;
(b) the child—
(i) has resided with the applicant, or joint applicants, for at least 28 consecutive days before the day the application was made; and
(ii) was residing with the applicant, or joint applicants, when the application was made; and
(iii) is residing with the applicant, or joint applicants, at the time of the hearing;
(c)the applicant, or joint applicants, were entitled to apply under section 21;
(d) there is evidence of a medical or social need for the surrogacy arrangement;
(e)the surrogacy arrangement—
(i) was made after—
(A) the birth mother and the birth mother's spouse (if any), jointly or separately; and
(B) the applicant, or joint applicants (jointly or separately);
obtained independent legal advice about the surrogacy arrangement and its implications; and
(ii) was made after each of the birth mother, the birth mother's spouse (if any) and the applicant, or joint applicants, obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications; and
(iii) was made with the consent of the birth mother, the birth mother's spouse (if any) and the applicant, or joint applicants; and
(iv) was made before the child was conceived; and
(v) is in writing and signed by the birth mother, the birth mother's spouse (if any) and the applicant, or joint applicants; and
(vi) is not a commercial surrogacy arrangement;
(f) the birth mother and the birth mother's spouse (if any) were at least 25 years when the surrogacy arrangement was made;
(g) the applicant, or each of the joint applicants—
(i) was at least 25 years when the surrogacy arrangement was made; and
(ii) is resident in Queensland;
(h)the birth mother, the birth mother's spouse (if any), another birth parent (if any) and the applicant, or joint applicants, consent to the making of the parentage order at the time of the hearing;
(i)a surrogacy guidance report under section 32 supports the making of the proposed order.
The requirement in s 22 (2) (d) for a “medical or social need” is explained by s 14 which provides that it is enough if there are 2 intended parents consisting of “a man and an eligible woman”. An “eligible woman” is defined as a woman who is unable to conceive or for whom a pregnancy would place either herself or the baby at risk in one of the specified ways. In 2008 LWV underwent a total hysterectomy as treatment for cancer of the cervix. Thereafter, she was unable to conceive or carry a pregnancy. She was therefore an eligible woman within the meaning of s 14, which in turn means that she and her husband had a “medical or social need for the surrogacy arrangement”, within the meaning of s22(2) (d).
By virtue of s 21 (1) (a) of the Act, an application should be brought within the period from 28 days to 6 months after the child’s birth. LCH was 3 months old when the application was filed. There was a prior surrogacy arrangement made with the written consent of all of the parties at a time when they were above the age of 25 years and after each of them had obtained the requisite counselling and independent legal advice. It was not a commercial arrangement. The parties consent to the making of a parentage order. Mr and Mrs V live in Queensland. A surrogacy guidance report supports the making of the order. Those factual matters are all proved by the affidavit material. They satisfy all of the preconditions in s 22(2), apart from ss (2) (e) (iv), namely the requirement that the surrogacy arrangement was made “before the child was conceived”.
The meaning of the term “conceived” as used in ss (2) (e) (iv) is critical to the court’s jurisdiction in this case. This is because the embryo was created years before the surrogacy arrangement, then frozen and not implanted in the uterus until months after the written arrangement was settled. The question now is whether the reference to pre conception as the cut off point in ss (2) (iv) means before the creation of the embryo or simply any time before the transformation of the embryo into a pregnancy. If it were the earlier point in time, the court would have no power to make a parentage order for LCH.
What does “conceived” mean?
The act offers no definition. This appears to be the first time a court has been asked to interpret ss (2) (e) (iv). Nonetheless, the answer seems straightforward. Whatever approach to statutory interpretation is applied, whether it is to view “conceive” as a technical term, or in its everyday meaning, or the meaning that best advances the purposes the Act, the result is the same. The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body.
The everyday meaning
The phrase “conceived a child” is in common usage. It is commonly understood to refer to an actual pregnancy.
One must examine the context of the provision.[1] This is a provision about surrogacy. As expressed in s 5, the purposes of the Act are to safeguard the interests of the child and regulate surrogacy agreements. There is an underlying intention to protect the birth mother from duress to surrender her child. Such issues only emerge after a pregnancy occurs. The Act applies to all forms of conception. The use of invitro fertilisation is now widespread. In my experience when lay people talk about IVF treatments they tend to reserve the term “conceive” for the circumstance where an embryo actually takes to the uterus and the woman succeeds in becoming pregnant as distinct from even the procedure of implantation. I am satisfied that in the ordinary everyday language of the community, the term “conceive a child” means more than what can be achieved in a test tube and refers to the commencement of a pregnancy in a woman’s body. This is consistent with the current editions of both the Oxford English dictionary and the Macquarie Dictionary. They define “conceive” as, inter alia, “ to become pregnant”. The former publication also defines “conceived”, the adjective, as “brought into embryonic existence in the womb”.
[1]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
To construe the cut off point in s 22 (2) (e) (iv) as the point of pregnancy (and therefore after fertilisation) is also consistent with the definition of “ surrogacy arrangement “ in s 7 of the Act.
AKV’s eggs were fertilised and preserved before she underwent the emergency procedure that saved her life but left her unable to carry her own children. This was before the Surrogacy Act had come into existence. It was therefore impossible for her to enter into an arrangement under the Act before the embryos were created. The same situation is likely to confront any woman undergoing emergency procedures in the future, notwithstanding the commencement of the Act. A woman, although desirous of having a baby, would have little hope of securing a compliant surrogacy arrangement in advance of an emergency hysterectomy, given the requirements for the identification of a willing surrogate, proper counselling and legal advice with time to reflect on all of the implications. The Act is intended to help such people in genuine need of surrogacy.
Therefore, to interpret the preconception condition as condition to be satisfied before fertilisation would not only be contrary to the ordinary language of the provision, it would frustrate the underlying intention of the Act. There is no reason to reach beyond the common language for the interpretation of s 22 (2) (e) (iv).
The expert evidence
The court has an affidavit from Dr Justin Nasser, an obstetrician and gynaecologist involved in the case, as well as various definitions from medical dictionaries. Of course, the construction of the statute is a matter for the court, not doctors, but the expert evidence of the biological processes is relevant to that task. According to Dr Nasser:[2]
“The creation of the embryos in 2008 was an act of fertilization. Fertilization is a step on the path way to conception. Many eggs fertilise but many fewer pregnancies are conceived. The act of conception or the act of conceiving the pregnancy was the actual embryo transfer and the subsequent implantation of that embryo into the uterus of Lisa over the next couple of days with the eventual positive pregnancy test approximately two week after 7 July 2011... The act of conceiving in this case is viewed as the act of achieving a pregnancy. Therefore, I view the conception of LCH as occurring from the embryo transfer on 7 July 2011.” Dr Nasser’s professional distinction between the processes of fertilisation and conception is consistent with the common understanding of what it means to conceive a child. The same can be said of the preponderance of definitions from the medical dictionaries cited.
Authorities outside of the jurisdiction
[2]Affidavit of Dr Justin Nasser (2) at para 2
Despite extensive research, the parties have found only one case in which the notion of conception was considered. This is the English case of R (John Smeaton on Behalf of the Society for the Protection of Unborn Children) v the Secretary of State for Health. [3] It was about the legality of the morning after pill and therefore approached the issue of conception in the context of sexual intercourse rather than scientific intervention. The distinction is not a relevant one as regards the true meaning of conception. Professor James Owen Drife, Professor of Obstetrics and Gynaecology at the University of Leeds, and, a Vice-President of the Royal College of Obstetricians and Gynaecologists had testified in this way[4]: “In my view pregnancy begins when the pregnancy test is positive, some ten to fourteen days after conception. My reasons relate to the large numbers of fertilised oocytes which are believed to be lost during the normal menstrual cycle. I do not believe these can be described as “pregnancies”. When teaching students, I describe the processes of spermatogenesis, ovulation and fertilisation as a continuum with implantation and early pregnancy development. I reserve the term “pregnancy” for the phase after implantation. When talking to patients, I would not use the term “pregnancy” until a pregnancy test was positive or a menstrual period had been missed.”
[3] 5 [2002] EWHC 610 (Admin)
[4] 5 [2002] EWHC 610 (Admin), [133]
The weight of evidence in that case led Munby J to conclude:
“Put very simply, there are two key stages in the biological process following sexual intercourse: i) The first is fertilisation. This takes place after the man’s sperm and the woman’s egg have met… ii) The other key stage is implantation. This takes place after the fertilised egg has moved into the womb. It involves a process by which the fertilised egg physically attaches itself to the wall of the womb. The process does not start until, at the earliest, some four days after the commencement of fertilisation. The process of implantation itself takes some days.”
This application
I am satisfied on the material that all of the statutory requirements for the making of a parentage order have been met. Furthermore, I have no hesitation in concluding that the proposed order would be for the welfare and in the best interests of LCH. The discretion to grant the order should be exercised.
Orders
The orders are these:
1)That pursuant to section 22(1) of the Surrogacy Act 2010 (Qld) parentage of LCH born 22 March 2012 be transferred from LMH to LWV and AKV.
2)That LMH relinquish to LWV and AKV custody and guardianship of LCH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable.
3)That LWV and AKV become permanently responsible for the custody and guardianship of LCH.
4)It is declared that:
(b)the name of the child before the order was made was LCH;
(b) the name of the child on the making of the order is LCV.
5) It is declared that the place of birth of the child was at Brisbane in the State of Queensland.
6) It is declared that the Applicants’ name, address and occupation are respectively LWV of CC, Nerang in the State of Queensland, Truck Tyre Technician, and AKV of CC, Nerang in the State of Queensland, Pharmacy Assistant.
7) It is declared that the name and address of the child’s birth parents are LMH of CB, Ormeau in the State of Queensland and the Father is Unknown.
8) That pursuant to section 41D of the Births, Deaths and Marriages Registration Act 2003 (Qld), that the Applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of the child’s Queensland birth certificate registration number 2012/B8802 registered in Brisbane on 2 April 2012.
9) That the Applicants pay the costs of the Respondent for and incidental to the application.
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