Re application under the Parentage Act 2004 (ACT)

[2023] ACTSC 360

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Re application under the Parentage Act 2004 (ACT)

Citation: 

[2023] ACTSC 360

Hearing Date: 

1 December 2023

Decision Date: 

1 December 2023

Before:

Mossop J

Decision: 

1. Pursuant to s 26 of the Parentage Act 2004 (ACT) (“the Act”) a parentage order is made:

a.     transferring parentage of the child [A] born [date] 2023 (“the child”) from [B] to the substitute parents [C] and [D];

b. approving pursuant to s 28(1)(b) of the Act the change of surname of the child from [that of B] to [that of D]; and

c. ordering pursuant to s 28(3) of the Act that the child will have the given names [A].

Catchwords: 

PARENTAGE ORDER – Application for transfer of parentage under s 26 of the Parentage Act 2004 (ACT) – where child born under surrogacy agreement – whether parentage order must be made – parentage order made

Legislation Cited: 

Parentage Act 2004 (ACT), ss 7(1), 23, 24, 25, 26, 28, Div 2.2, Div 2.5

Parties: 

C (First Applicant)

D (Second Applicant)

B (Interested Party)

Representation: 

Counsel

Self-represented (First Plaintiff)

Self-represented (Second Plaintiff)

Self-represented (Interested Party)

Solicitors

Self-represented (First Plaintiff)

Self-represented (Second Plaintiff)

Self-represented (Interested Party)

File Number:

SC 479 of 2023

MOSSOP J:  

Introduction

[In these reasons the names of the parties and other relevant persons have been anonymised and other identifying information redacted.]

1․These proceedings involve an application for a parentage order under s 26 of the Parentage Act2004 (ACT) which would have the effect of transferring parentage from the birth mother of A to his genetic parents. An order is also sought in relation to A’s name.

2․A is genetically the child of C and D. By birth he is the child of B. [redacted].

3․As a result of [redacted] C was unable to have children. She was at an age where, by the anticipated time of [redacted], it would be unlikely that she would be able to have a child. B offered to be a surrogate parent for her.

4․Prior to the commencement of [redacted], C and D had arranged for preservation of embryos from her ovum and his sperm. C, D and B entered into a substitute parent agreement, a concept defined in the Parentage Act. Each of the parties to the agreement received counselling prior to entry into the agreement. C and D on the one hand and B on the other each received separate legal advice. An embryo was successfully transferred to B in [month] 2022 and A was born on [date] 2023.

5․The evidence relied on in support of the application is:

(a)An affidavit of C dated 16 November 2023;

(b)An affidavit of D dated 16 November 2023; and

(c)An affidavit of B dated 16 November 2023.

6․That affidavit material describes the events leading up to and following A’s birth and indicates the consent of each of the persons to the making of the order. The affidavit of C annexes a series of documents relevant to the application.

7․As will be described later in these reasons, some oral evidence was also given by E, [redacted].

The Parentage Act

8․The Parentage Act provides rules for determining who is the parent of a child. In the case of children conceived as a result of medical procedures, Div 2.5 provides for the making of what are referred to as parentage orders in certain circumstances.

Section 24

9․Section 24 of the Act provides that the division applies where:

(a)a child is conceived as a result of a procedure carried out in the Australian Capital Territory;

(b)neither birth parent of the child is a genetic parent of the child;

(c)there is a substitute parent agreement other than a commercial substitute parent agreement under which the substitute parents have indicated their intention to apply for a parentage order about the child;

(d)at least one of the substitute parents is a genetic parent of the child; and

(e)the substitute parents live in the Australian Capital Territory.

10․The term “procedure” referred to in the first of these requirements is defined as being “the procedure of transferring into the uterus of a person an embryo derived from an ovum fertilised outside the person’s body”. The reference to “conceived” in s 24(a) must be read in light of the definition of “procedure” so that it refers not to the creation of the embryo but to the establishment of the pregnancy in the surrogate mother. A was conceived as a result of such a procedure.

11․There is a substitute parent agreement in evidence. I am satisfied that it is not a commercial substitute parent agreement. The agreement provides for the making of an application to the Supreme Court for an order transferring the parentage of a child born as a result of the arrangement to C and D.

Section 25

12․Section 25 provides that an application for a parentage order may be made by either or both of the substitute parents. In this case the application is made by both substitute parents.

13․The application may only be made when the child is between six weeks and six months old. The application was filed on 17 November 2023, [redacted].

Section 26

14․Section 26 of the Parentage Act puts a mandatory obligation on the court to make a parentage order if satisfied of certain things. Those things and my conclusions in relation to them are as follows.

15․The making of the order is in the best interests of the child: s 26(1)(a). Having regard to the evidence and the considerations that I refer to next, I am satisfied on the evidence, having regard to the circumstances of conception, the relationship between the parties and the evidence about the parties and their motivations that the making of the order is in the best interests of the child.

16․Both birth parents freely and with a full understanding of what is involved agree to the making of the order: s 26(1)(b). In the present case, B [redacted] is not otherwise in a relationship which would give rise to any presumption of parentage under Div 2.2. [redacted].

17․Having imposed a mandatory obligation on the court in s 26(1), the legislature has then specified certain additional considerations in subs (3). That section provides that “[i]n deciding whether to make a parentage order, the Supreme Court must take the following into consideration, if relevant”. In order to read subss (1) and (3) consistently, the considerations in subs (3) must be understood as considerations going to whether or not the two conditions in subs (1), namely best interests of the child and birth parent consent, are satisfied.

18․A summary of the considerations in subs (3), insofar as they are relevant, and my conclusions in relation to them are as follows:

19․Whether the child’s home is and was at the time of the application with both the substitute parents: s 26(3)(a). A has been living with C and D since his birth.

20․Whether both substitute parents are at least 18 years old: s 26(3)(b). Both substitute parents satisfy this requirement. D is [redacted] and C is [redacted].

21․Whether payment or reward other than for expenses reasonably incurred has been given or received by either or both of the child’s substitute parents or either of the child’s birth parents in consideration of various matters relating to the arrangement: 26(3)(d). The evidence is that B agreed to be a surrogate for altruistic reasons [redacted] and did not receive payment other than for expenses reasonably incurred as a result of the surrogacy arrangement.

22․Whether the birth parents and both substitute parents have received appropriate counselling and assessment from an independent counselling service: s 26(3)(e). The definition of “independent” is set out in subs (5). The evidence is that each of D, C and B received counselling and a psychological assessment from F, a registered psychologist. While the evidence does not positively disclose that he is not “connected with” the doctor, institution or entity involved in carrying out the procedure, it does not indicate any connection and is consistent with him not having any connection that the legislation has sought to avoid. [redacted].

23․The court is also empowered to take into account “anything else it considers relevant”. I have taken into account the whole of the material put forward in the three affidavits. So far as C’s health is concerned I was informed at the hearing that her prognosis is good.

24․Both substitute parents have applied for the order and as a consequence, pursuant to s 26(6) the order must be made in favour of both substitute parents.

25․As I have indicated, taking into account the matters required to be taken into account by subs (3), I am satisfied of the matters in s 26(1) and hence must make a parentage order. The content of the order is not specified in the Act. The substitute parent agreement refers to the making of an order “transferring the parentage of any child born as a result of the arrangement”. That provides an appropriate form of language for the order having regard to the purpose of the Act and, in particular, Div 2.5.

Section 28

26․An order is also sought changing A’s surname from [that of B] to [that of D]. Section 28 of the Act deals with the name of children the subject of a parentage order. Where the substitute parents do not have the same surname, the child has the surname approved in the parentage order: s 28(1)(b). So far as given names are concerned, unless there is an application for approval of a given name by the Supreme Court, then if the child has been generally known by particular names, the court may order that the child will have that name or those names as their given name or names. Although it is not clear whether ss 28(2) and (3) require the issue of given names to be addressed, it appears to me to be prudent to include given names in the order that I make. A has been known by the given names A and, as no change is suggested, it is appropriate to include those names in the order that is made.

Order

27․The order of the Court is:

1.Pursuant to s 26 of the Parentage Act 2004 (ACT) (“the Act”) a parentage order is made:

(a)transferring parentage of the child [A] born [date] 2023 (“the child”) from [B] to the substitute parents [C] and [D];

(b)approving pursuant to s 28(1)(b) of the Act the change of surname of the child from [that of B] to [that of D]; and

(c)ordering pursuant to s 28(3) of the Act that the child will have the given names [A].

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 23 January 2024