MA v PA

[2025] QChC 1

CHILDRENS COURT OF QUEENSLAND

CITATION:

MA & Anor v PA [2025] QChC 1

PARTIES:

MA

(applicant)

v

PA

(respondent)

FILE NO:

BD 2835/24

DIVISION:

Civil

PROCEEDING:

Surrogacy Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

27 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2024

JUDGE:

Richards DCJ

ORDER:

Application granted.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY LEGISLATION – PARENTAGE – SURROGACY – application under s 22(1) of the Surrogacy Act 2010 (Qld) – where the intended parents and surrogate entered into an informal surrogacy agreement without prior legal advice or counselling – where the agreement was later formalised in writing – where the surrogate conceived via artificial insemination and voluntarily relinquished parental rights – where the child has been in the care of the intended parents since birth – whether exceptional circumstances justify dispensing with statutory requirements – whether the order is in the best interests of the child.

LEGISLATION:

Surrogacy Act 2010 (Qld)

SOLICITORS:

S Page of Page Provan for the applicants

R Chapple of Journey Family Lawyer for the respondent

Introduction

1. This application for a parentage order came before me on 28 November 2024 wherein the application was granted however, due to the unusual nature of the application, I indicated I would publish reasons at a later date. These are those reasons.

   Background

2. The female applicant and intended parent is MA. She is 29 years of age and is involved in [redacted]. The male applicant is her husband, MB. He is 33 years of age and also works for [redacted]. The respondent, PA, is 29 years of age. PA was a school friend of MA. They have been friends since March 2004. They all reside together.

3. In 2017, the female applicant, who had suffered over time with chronic pelvic pain, was advised to undergo a hysterectomy. She and MB were hoping to have children and had explored adoption and fostering without success. In 2020 and 2021, PA offered to be a surrogate for the couple. At the time, PA’s mental health was suboptimal and it was suggested by the applicants that she should take care of herself before she worried about surrogacy.

4. On or about 8 January 2023, she again offered to be a surrogate. At that stage she had been seeing a counselling specialist for two years and was able to come off the medication that she had been using. Discussions followed and the three talked about what their expectations of each other would be, what they would need, what would happen if the pregnancy became unsafe for PA, supplements, medications and the need for PA to continue counselling.

5. In February 2023, MA and PA went to see her medical practitioner. They discussed the pregnancy process, including the risks to both PA and any foetus developing as a result of the pregnancy. PA indicated she was still willing to continue with the surrogacy and the couple accepted her offer.

6. On 2 August 2023 and 5 August 2023, MA assisted PA in artificially inseminating herself with MB’s sperm. She became pregnant on 3 September 2023. AA was born on 10 May 2024 by natural birth and he has been living with the applicants since his discharge from hospital on 12 May. MA initially breastfed AA although that only lasted for a short time because he would not suckle. PA is AA’s godmother and she continues to reside with the applicants.

   Discussion

7. At the time of entering into the surrogacy agreement, the parties were unaware of the legal requirements surrounding surrogacy. They did not have any counselling before entering into the agreement. The agreement was not in writing and they did not obtain any prior independent legal advice about the arrangement and its implications. These are all requirements under s 22(2)(e) of the Surrogacy Act 2010 (Qld) (‘the Act’). The question in this case is twofold: first, whether there are exceptional circumstances which allow the Court to exercise its discretion to give a dispensation from compliance with the requirements under s 23(2) of the Act; second, whether that dispensation would be for the well-being and in the best interests of the child.

8. The Act was established to regulate the surrogacy arrangements in Queensland so that the parties to the arrangement understand its nature and implications and to safeguard the child’s well-being and best interests.[1] Importantly, s 6 of the Act sets out the guiding principles;

   [1]Surrogacy Act 2010 (Qld) s 5.

   “(1)This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.

   (2) Subject to subsection (1), this Act is to be administered according to the following principles—

   (a)a child born as a result of a surrogacy arrangement should be cared for in a way that—

   (i)      ensures a safe, stable and nurturing family and home life; and

   (ii)     promotes openness and honesty about the child’s birth parentage; and

   (iii)    promotes the development of the child’s emotional, mental, physical and social wellbeing;

   (b)the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of—

   (i)      how the child was conceived under the arrangement; or

   (ii)     whether there is a genetic relationship between the child and any of the parties to the arrangement; or

   (iii)    the relationship status of the persons who become the child’s parents as a result of a transfer of parentage;

   (c)the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;

   (d)the autonomy of consenting adults in their private lives should be respected.”

9. Section 22 of the Act sets out the steps that need to be taken before a court can make a parentage order. The steps are comprehensive and designed to ensure that all parties are prepared for the smooth transition of the parentage from the surrogate to the intended parents. Many of the conditions required to be undertaken are mandatory, and in those cases, the court does not have a discretion to give a dispensation from compliance. In the relation to the remaining conditions, it is only in exceptional circumstances that a dispensation should be given.

10. At the hearing of this matter, PA gave evidence which indicated that she was a willing party in the surrogacy, that she was aware of her role in AA’s birth and that she was aware that should she leave the house she would not be leaving with him. Her mental health is currently well managed and was stable at the time of entering into the surrogacy arrangement.

11. There is no doubt in this case that MA was an ‘eligible woman’ within the meaning of the Act.[2] She had a hysterectomy in 2017 and is therefore unable to bear her own children. MA and MB are in a stable and loving relationship and the surrogacy arrangement was not entered into lightly. Prior to any attempt at insemination, the parties had discussed the arrangement at length and MA and PA had attended her general practitioner to discuss pregnancy risks.

    [2]Surrogacy Act 2010 (Qld) s 14(2)(a).

12. Whilst ignorance of the law is no excuse, this was an arrangement carefully thought out between close friends who live under one roof. They obtained legal advice and counselling once they realised that was necessary and executed a written version of their previous oral agreement.  AA has been in the care of his intended parents since birth. Although PA lives in the house with them, she does not take an active role in parenting AA and MA has been to all intents and purposes his mother from birth. PA does not have any desire to mother AA.

13. Although the circumstances in which the surrogacy was initiated are unusual, it cannot be said that the arrangement was entered into without due consideration. It is clearly in the best interests of the child that the parentage order be made in favour of the intended parents. Given all the circumstances in this case, I am satisfied that exceptional circumstances exist, that it is appropriate to dispense with the compliance with the requirements in s 22(2)(e)(i), (ii) and (v) of the Act and that it is in the child’s best interests that the application be granted.