On v Be
[2015] ACTSC 332
•15 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ON & Anor v BE & Anor |
Citation: | [2015] ACTSC 332 |
Hearing Date: | 15 July 2015 |
DecisionDate: | 15 July 2015 |
Before: | Mossop AsJ |
Decision: | See [26] |
Category: | Principal Judgment |
Catchwords: | PARENTAGE – Application for parentage order – substitute parent agreement – independent counselling and assessment – best interests of the child – Parentage Act 2004 (ACT) s 26 |
Legislation Cited: | Adoption Act 1993 (ACT) Legislation Act 2001 (ACT) s 169 Parentage Act 2004 (ACT) ss 7, 9, 10, 11, 12, 13, 14, 23, 24, 25, 26, 29, 40 |
Parties: | ON (First Plaintiff) NN (Second Plaintiff) BE (First Defendant) BE (Second Defendant) |
Representation: | Counsel Ms K McLeod (First and Second Plaintiffs) Self-represented (First Defendant) Self-represented (Second Defendant) |
| Solicitors Farrar Gesini Dunn (First and Second Plaintiffs) Self-represented (First Defendant) Self-represented (Second Defendant) | |
File Number: | SC 198 of 2015 |
Introduction
The plaintiffs seek a parentage order under the Parentage Act 2004 (ACT) (the Act) in relation to a child who, under the Act is presumed to be the child of the defendants. The child is, in fact, the genetic child of both of the plaintiffs. The first defendant gave birth to the child as a result of a surrogacy agreement pursuant to which an embryo created from the first plaintiff’s egg and the second plaintiff’s sperm was implanted in the first defendant. The first defendant’s husband is the second defendant.
Under the Act where a child is born to a woman who has undergone a procedure as a result of which she becomes pregnant, the woman is conclusively presumed to be the mother of the child: s 11(2). If the woman undergoes a “procedure” with the consent of her domestic partner (a term which includes her husband: see Legislation Act 2001 (ACT) s 169(1)) then the domestic partner is conclusively presumed to be a parent of any child born as a result of the pregnancy: s 11(4). For the purposes of those sections “procedure” includes the transferring into the uterus of a woman an embryo derived from an ovum fertilised outside her body: s 11(9).
The presumptions under s 11 are not rebuttable: s 12. There are no prior findings by a court as to the parentage of the child: s 10. The other (rebuttable) presumptions under s 7 and s 9 of the Act are consistent, in this case, with the presumptions arising under s 11. Even if they were not, s 11 would prevail in any event: s 13(3). The presumptions under the Act may only permit a child to have two parents at any one time: s 14. As a consequence, in the present case the first and second defendants are conclusively presumed by the Act to be the parents of the child.
Division 2.5 of the Act permits the making of parentage orders. Where the Court makes such an order certain provisions of the Adoption Act 1993 (ACT) are applied so that the child, in effect, becomes in law a child of the persons who have the benefit of the parentage order: s 29 of the Act.
The most relevant provisions of the Act to the circumstances of this case are as follows:
Division 2.5 Parentage orders
23Definitions for div 2.5
In this division:
birth parent, of a child, means—
(a) the woman who gave birth to the child; or
(b)the other person (if any) presumed under division 2.2 to be a parent of the child.
…
commercial substitute parent agreement—see section 40.
parentage order means an order under section 26.
procedure means the procedure of transferring into the uterus of a woman an embryo derived from an ovum fertilised outside her body.
substitute parent, of a child—see section 24 (1) (c).
substitute parent agreement means a contract, agreement, arrangement or understanding under which—
(a)a woman agrees—
(i)that the woman will become, or attempt to become, pregnant; and
(ii)that a child born as a result of the pregnancy will be taken to be (whether by adoption, agreement or otherwise) the child of someone else; or
(b)a woman who is pregnant agrees that a child born as a result of the pregnancy will be taken to be (whether by adoption, agreement or otherwise) the child of someone else.
24Application of div 2.5
This division applies to a child if—
(a)the child was conceived as a result of a procedure carried out in the ACT; and
(b)neither birth parent of the child is a genetic parent of the child; and
(c)there is a substitute parent agreement, other than a commercial substitute parent agreement, under which 2 people (the substitute parents) have indicated their intention to apply for a parentage order about the child; and
(d)at least 1 of the substitute parents is a genetic parent of the child; and
(e)the substitute parents live in the ACT.
25Application for parentage order
(1)An application may be made to the Supreme Court for a parentage order about the child.
(2)The application may be made by either or both of the substitute parents.
(3)The application may only be made when the child is between the ages of 6 weeks and 6 months.
26Parentage order
(1)The Supreme Court must make a parentage order about the child if satisfied that—
(a)the making of the order is in the best interests of the child; and
(b)both birth parents freely, and with a full understanding of what is involved, agree to the making of the order.
…
(3)In deciding whether to make a parentage order, the Supreme Court must take the following into consideration, if relevant:
(a)whether the child’s home is, and was at the time of the application, with both substitute parents;
(b)whether both substitute parents are at least 18 years old;
(c)if only 1 of the child’s substitute parents has applied for the order, and the other substitute parent is alive at the time of the application, whether—
(i)the other substitute parent freely, and with a full understanding of what is involved, agrees to the making of the order in favour of the applicant substitute parent; or
(ii)the applicant substitute parent cannot contact the other substitute parent to obtain his or her agreement under subparagraph (i);
(d)whether payment or reward (other than for expenses reasonably incurred) has been given or received by either of the child’s substitute parents, or either of the child’s birth parents, for or in consideration of—
(i)the making of the order; or
(ii)the agreement mentioned in subsection (1) (b); or
(iii)the handing over of the child to the substitute parents; or
(iv)the making of any arrangements with a view to the making of the order;
(e)whether both birth parents and both substitute parents have received appropriate counselling and assessment from an independent counselling service;
…
(4)The Supreme Court may take into consideration anything else it considers relevant.
(5)For subsection (3) (e), a counselling service is not independent if it is connected with—
(a)the doctor who carried out the procedure that resulted in the birth of the relevant child; or
(b)the institution where the procedure was carried out; or
(c)another entity involved in carrying out the procedure.
(6)The Supreme Court must make a parentage order under subsection (1)—
(a)if both substitute parents apply for the order—in favour of both substitute parents; or
…
...
40Meaning of commercial substitute parent agreement
In this Act:
commercial substitute parent agreement means a substitute parent agreement under which a person agrees to make or give to someone else a payment or reward, other than for expenses connected with—
(a)a pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or
(b)the birth or care of a child born as a result of that pregnancy.
NoteFor the meaning of substitute parent agreement, see s 23.
Two features of the drafting of these provisions should be noted. First, s 26(1) makes the making of a parentage order mandatory if the Court is satisfied of the matters in paragraphs (a) and (b), yet sub-s (3) sets out a list of matters that must be taken into account in deciding whether to make a parentage order and sub-s (4) permits the Court to take into account anything else it considers relevant. However having regard to the terms of s 26(1)(a) those matters may only be considered to the extent to which they reflect on “the best interests of the child” for the purposes of paragraph (a) or whether the requirements of agreement by both birth parents in paragraph (b) are met. Second, there is no definition of “connected” referred to in s 26(5) and hence the meaning of this relatively non-specific term will need to be determined, in an appropriate case, having regard to the purpose which s 26(5) is intended to serve.
In the present case each party has filed two affidavits which support the making of a parentage order.
The relevant facts
The chronology of matters relevant to the application is as follows.
The first plaintiff is 34 years old. The second plaintiff, her husband, is 37 years old. The first defendant and surrogate mother is 34 years old. Her husband, the second defendant, is 35 years old.
The first and second plaintiffs met in 2003. They had met each other through the first defendant who was their mutual friend. The plaintiffs commenced their relationship in 2005, commenced living together in October 2006, became engaged in April 2008 and were married in November 2009.
The defendants have two children aged five and two.
The medical history of the first plaintiff is outlined in paragraphs 15 through to 34 of her affidavit affirmed 19 June 2015. It is not necessary to set out those facts but I make findings of fact consistent with those paragraphs. In summary, after some IVF treatment in 2011 the first plaintiff became pregnant but for particular reasons set out in the affidavit the first plaintiff gave birth to a stillborn child in 2012 and was unsuccessful with subsequent IVF treatment which took place in 2013 and which either did not result in a pregnancy or resulted in a miscarriage at an early stage.
The first defendant, who had been a friend of the first plaintiff since primary school in 1989, had offered to be a surrogate mother for the first plaintiff after her child was stillborn in 2012. In November 2013 the first plaintiff raised the possibility with the first defendant. Both the first and second defendants agreed to proceed to further investigate the possibility.
Both plaintiffs and both defendants met with a counsellor, Amanda Lucas, on various occasions between February 2014 and April 2014. Ms Lucas completed a recommendation which she provided to the relevant fertility clinic. The first defendant also obtained further medical advice about her capacity to undergo another pregnancy.
In February 2014 and April 2014 respectively the plaintiffs and the defendants met with solicitors from different law firms and obtained legal advice about the proposed surrogacy arrangement.
In June 2014 a counsellor at the fertility clinic indicated that the application for surrogacy had been approved by the clinic’s ethics board.
In June 2014 the plaintiffs and the defendants agreed to enter into a substitute parent agreement whereby the first defendant agreed that she would attempt to become pregnant and that a child born as a result of the pregnancy would be taken to be a child of the plaintiffs. There is no evidence that this agreement was in writing.
On 3 August 2014 an embryo created during an IVF cycle in May 2013 was successfully transferred to the first defendant and resulted in a pregnancy.
The first defendant gave birth to a child (MN) on xxxx. The defendants were recorded as parents on the birth certificate. The next day the child left hospital with the plaintiffs and has resided with them since.
The application was filed on 24 June 2015. Therefore at the time of the application the child was between six weeks and six months old and hence s 25(3) is satisfied.
Are the conditions for the making of a parentage order satisfied?
The preconditions for the making of an order, which are set out in s 24, are satisfied in that:
(a)The child was conceived as a result of a procedure carried out in the ACT: s 24(a).
(b)Neither birth parent of the child is a genetic parent of the child: s 24(b).
(c)There is a substitute parent agreement, namely the arrangement that I have described above. Further it is not a commercial substitute parent agreement (see s 24(c)) because no part of the agreement involved a payment or reward other than for expenses connected with the pregnancy and the birth or care of the child born as a result of the pregnancy. The payments that have been made are set out in each of the affidavits filed today and include amounts paid for legal advice, psychological consultations, fertility drugs, the embryo transfer procedure, general practitioner appointments, medical scans, pathology tests and some expenses relating to clothing related to the pregnancy.
(d)At least one of the substitute parents is a genetic parent of the child because in this case both parents are genetic parents of the child: s 24(d).
(e)The substitute parents live in the ACT: s 24(e).
I now turn to the factors referred to in s 26(3).
(a)Whether the child’s home is, and was at the time of the application, with both substitute parents: the child has since the day after her birth lived with the plaintiffs.
(b)Whether both substitute parents are at least 18 years old: both of the plaintiffs are at least 18 years old.
(c)Whether payment or reward (other than for expenses reasonably incurred) has been given or received by either of the child’s substitute parents, or either of the child’s birth parents, for or in consideration of—
(i)the making of the order; or
(ii)the agreement mentioned in sub-s (1)(b); or
(iii)the handing over of the child to the substitute parents; or
(iv)the making of any arrangements with a view to the making of the order.
Having regard to the evidence that I have referred to above I am satisfied that no payment or reward has been made, given or received other than for expenses reasonably incurred.
(d)Whether both birth parents and both substitute parents have received appropriate counselling and assessment from an independent counselling service: in my view exhibits 1 and 2 are sufficient to demonstrate compliance with that requirement. In particular so far as the requirement exists that the counselling service be independent I rely upon exhibit 2 and in particular the fact that the counsellor practises as a senior psychologist and pain counsellor with Capital Rehabilitation under the supervision of Dr Geoff Speldewinde and the fact that she identifies on page 3 of her curriculum vitae that she practises independently of any clinic and sees her patients as private patients. As a consequence I am satisfied that both birth parents and both substitute parents have received appropriate counselling and assessment from an independent counselling service not connected with the doctor who carried out the procedure or the institution where the procedure was carried out or any other entity involved in the carrying out of the procedure.
There is nothing else of particular relevance to which I need to refer for the purposes of s 26(4).
In my view the making of a parentage order is clearly in the best interests of the child. She is the genetic daughter of the plaintiffs. She has lived with them all her life. She was born as a result of a surrogacy arrangement entered into with the consent of each member of both couples with the intention that a parentage order be made. There is no factor which would tend against the proposition that it is in her best interests to have a parentage order made.
Further, I am satisfied on the evidence that both defendants freely and with a full understanding of what was involved agreed to the making of the order.
For these reasons the requirements of s 26(1) are satisfied and the Court is obliged to make a parentage order. Therefore I make an order substantially in the terms of order 1 set out in the originating application dated 22 June 2015 namely:
1. A parentage order pursuant to s 26 of the Parentage Act 2004 (ACT) in favour of ON and NN in relation to the child MN born on xxxx.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 28 October 2015 |
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