O’CONNOR & KASEMSARN

[2010] FamCA 987

FAMILY COURT OF AUSTRALIA

O’CONNOR & KASEMSARN [2010] FamCA 987

FAMILY LAW – CHILDREN – surrogacy – biological father

Family Law Act 1975 (Cth)

APPLICANT: Mr O’Connor

RESPONDENT: Ms Kasemsarn

FILE NUMBER: SYC 5505 of 2010

DATE DELIVERED: 29 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Joe Lynch

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. The children, C and A born … May 2010 live with the father, Mr O’Connor.

2. The father have sole parental responsibility for making decisions on both day to day and long-term issues relating to the children.

IT IS NOTED that publication of this judgment under the pseudonym O’Connor & Kasemsarn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC5505 of 2010

MR O’CONNOR

Applicant

And

MS KASEMSARN

Respondent

REASONS FOR JUDGMENT

1. Mr O’Connor, the applicant, applies for orders for sole parental responsibility in relation to twin girls and an order that they live with him.

2. In May 2010 twin girls, C and A O’Connor (the children) were born to Ms Kasemsarn.

3. The children were conceived by IVF and are the product of the sperm of the applicant, an ova donated by an anonymous woman, implanted into the respondent Ms Kasemsarn.

4. The applicant said that the provision of the donated ova was arranged through a hospital in Bangkok.  He further entered into an arrangement with the respondent for her to be the surrogate mother of the children.  As part of the agreement, she consented to handing the care of the children born of this process to the applicant after their birth.

5. Immediately after the birth of the girls, they were given into the applicant’s care and have lived with him and been in his care ever since. 

6. DNA testing of the children confirms that the applicant is their biological father.

7. An affidavit filed by a lawyer practising in Thailand was to the effect that there are presently no laws governing surrogacy in Thailand and pursuant to section 1546 of the Thai Civil and Commercial Code, a child born of an unmarried woman is deemed to be the legitimate child of that woman.  As a result, he said, the birth mother is the only person having any parental rights over the child and, as a consequence neither the applicant as biological father nor the woman who donated the ova has parental rights.

8. The respondent has been informed of these rights and acknowledged the applicant as the biological father of the children.  She has consented to him being recorded as the father on the children’s birth certificates.

9. The respondent swore an affidavit in the proceedings in which she acknowledges that she bore the children through IVF.  She confirmed that she had agreed to act as surrogate for the children and, on their birth to consent to him having sole responsibility for any children born…