Re HBW

[2014] NSWSC 1581

Supreme Court

New South Wales

Medium Neutral Citation:	Re HBW [2014] NSWSC 1581
Hearing dates:	In Chambers
Decision date:	11 November 2014
Jurisdiction:	Equity Division
Before:	Darke J
Decision:	Order made for the transfer of parentage of the child and approve the child's surname and given names.
Catchwords:	FAMILY LAW AND CHILD WELFARE - surrogacy arrangement - application for parentage order under Surrogacy Act 2010 (NSW) - whether preconditions in Division 4 of Part 3 of the Act are satisfied - parentage order made
Legislation Cited:	Surrogacy Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 56A.9
Category:	Principal judgment
Parties:	KL (first plaintiff) KAW (second plaintiff) TB (first defendant) RDB (second defendant)
Representation:	Solicitors: Dimocks Family Lawyers (plaintiffs) Dimocks Family Lawyers (defendants)
File Number(s):	A078/2014
Publication restriction:	Nil

Judgment

1. By an Amended Summons filed on 19 June 2014, the plaintiffs seek a parentage order pursuant to the Surrogacy Act 2010 (NSW) ("the Act") in relation to HBW ("the child"), who was born on 4 December 2013. An order is also sought under s 42 of the Act approving the names of the child, as well as an order directing the Registrar to give notice of the orders to the Registrar of Births, Deaths and Marriages and the Director-General of the Department of Health.

1. The first plaintiff, KL, is the proposed mother under the parentage order. She is currently 38 years of age. The second plaintiff, KAW, is the proposed father under the parentage order. He is currently 42 years of age. KL and KAW began a de-facto relationship in June 2010 and were married on 8 November 2013. The plaintiffs are the biological parents of the child. The first defendant, TB, is the birth mother of the child. KL has known and been best friends with TB for twenty three years. TB is married to the second defendant, RDB.

1. The evidence in support of the application includes a joint affidavit affirmed by the plaintiffs, a joint affidavit affirmed by the defendants, and affidavits as to the giving of independent legal advice to the plaintiffs, and the defendants, respectively. The application was supported by a report prepared by an independent counsellor, as required by s 17 of the Act.

1. A pre-conception surrogacy arrangement within the meaning of s 5(1)(a) of the Act was entered into between KL, KAW, TB and RDB on 31 January 2013. The arrangement came about in the following circumstances. KL, after being diagnosed with breast cancer in 2010, undertook fertility preserving IVF treatment before undergoing a bilateral mastectomy and commencing six months of chemotherapy. KL then began a five year chemopreventative medication course, which includes medication that must not be administered during pregnancy. In addition, there is evidence that elevated oestrogen levels, such as occur during pregnancy, would increase the risk of a recurrence of the cancer. TB approached the plaintiffs in 2011 and offered to assist them to start a family. In the pre-conception surrogacy arrangement, it was agreed that TB would be implanted with a foetus conceived through an artificial conception procedure using the plaintiffs' genetic material, and the child would, immediately after its birth, be surrendered to the care of the plaintiffs.

1. In accordance with the arrangement HBW has, since his birth, been in the care of the plaintiffs and is treated as their child.

1. In accordance with s 16 of the Act, the application for a parentage order was made within a period not less than 30 days and not more than 6 months after the child's birth.

1. Pursuant to s 12 of the Act, the Court may make a parentage order in relation to a child of a surrogacy arrangement. The general effect of making a parentage order is to transfer the parentage of a child of a surrogacy arrangement so that the child becomes a child of the intended parent or parents named in the order, and the child ceases to be a child of a birth parent (see s 39 of the Act).

1. By s 18 of the Act, a parentage order can only be made if the preconditions set out in Division 4 of Part 3 of the Act have been met, unless the precondition is not a mandatory precondition and exceptional circumstances justify the making of the order despite the unfulfilment of the precondition. In this case, the Court is satisfied that all relevant preconditions to the making of a parentage order have been met. Relevantly:

(1) the making of the parentage order is clearly in the best interests of the child (s 22 of the Act);

(2) the surrogacy arrangement is not a commercial surrogacy (s 23 of the Act);

(3) the agreement was made after the commencement of the Act and before the conception of the child, thereby satisfying the definition of a pre-conception surrogacy arrangement (s 24 of the Act);

(4) the surrogacy arrangement is an arrangement under which the two intending parents were at the time of entering into the arrangement in a de facto relationship and hence were a "couple" (s 25 of the Act);

(5) the child is under 18 years of age and is not of sufficient maturity to express his wishes (s 26 of the Act);

(6) the birth mother, TB, was at least 25 years of age when she entered into the surrogacy arrangement (s 27 of the Act);

(7) the intending parents, KL and KAW, were each more than 25 years old when they entered into the surrogacy arrangement (ss 28 and 29 of the Act);

(8) there is a medical or social need for the surrogacy arrangement. KL is an eligible woman under the Act who, on medical grounds, is unable to conceive a child or is likely to have her health significantly affected by a pregnancy (s 30 of the Act);

(9) each of the affected parties, namely KL, KAW, TB and RDB, have consented to the making of the parentage order (s 31 of the Act);

(10) the intending parents, KL and KAW, both reside in New South Wales (s 32 of the Act);

(11) the child is living with the intending parents, and has been since the day he was born (s 33 of the Act);

(12) the surrogacy agreement is in the form of a written agreement, signed by the birth mother, the birth mother's partner and the plaintiffs (s 34 of the Act);

(13) each of the affected parties received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement. A surrogacy assessment report prepared by a psychologist is annexed to both joint affidavits (s 35(1) of the Act);

(14) since the birth of HWB and before consenting to the parentage order, TB and RDB have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications. A post surrogacy report for parentage order consent prepared by a psychologist is annexed to both joint affidavits (s 35(2) of the Act);

(15) each of the affected parties received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement. Certificates of independent legal advice have been provided by the plaintiffs' and defendants' solicitors respectively (s 36 of the Act). The requirements of UCPR r 56A.9 have also been satisfied;

(16) the registrable information under Division 3 of Part 3 of the Assisted Reproductive Technology Act 2007 (NSW) has been provided to the Director-General of the Department of Health for entry in the central register under that Act (s 37 of the Act); and

(17) the birth of HWB has been registered in accordance with the requirements in Births, Deaths and Marriages Registration Act 1995 (NSW) (s 38 of the Act).

Determination

1. I consider that in all the circumstances, it is appropriate to make a parentage order in relation to HWB in favour of KL and KAW. The Court also approves the child's name and given names, as sought by the plaintiffs in the Amended Summons.

1. Accordingly:

(1)   The Court makes an order for the transfer of the parentage of the child, HBW, born on 4 December 2013 ("the Child") to the plaintiffs, KL as mother and KAW as father, and approves "W" as the surname and "HB" as the given names of the child.

(2)   The Court directs that the Registrar give notice of this order:

(a) pursuant to s 49 of the Surrogacy Act 2010 (NSW), to the Registrar of Births, Deaths and Marriages; and

(b) pursuant to s 51 of the Surrogacy Act 2010 (NSW), to the Director-General of the Department of Health.

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Decision last updated: 11 November 2014