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

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re HBW

Details

AGLC: Re HBW [2014] NSWSC 1581
Case: [2014] NSWSC 1581
Decision Date: 11 November 2014

CaseChat Overview and Summary

The applicants, a married couple, sought a parentage order under the Surrogacy Act 2010 (NSW) in relation to a child born to a surrogate mother, the respondent. The couple had entered into a surrogacy arrangement with the surrogate, who had been artificially inseminated using the sperm of the husband and the egg of the wife. The dispute centred on whether the conditions outlined in Division 4 of Part 3 of the Act were fulfilled, allowing the court to grant the order.

The central legal issues before the court involved determining whether the surrogacy arrangement met the statutory requirements. Specifically, the court had to consider whether the applicants had genuinely intended to be the parents of the child, if the surrogate had acted in good faith, and whether the arrangement complied with the legislative framework. The court also needed to examine if the arrangement was consistent with the welfare of the child.

In reaching its decision, the court found that the preconditions for granting a parentage order were satisfied. The applicants had genuinely intended to be the parents of the child, and the surrogate had acted in good faith. The court concluded that the arrangement was in the best interests of the child. Consequently, the court granted the parentage order, recognising the applicants as the legal parents of the child. The court further determined that the surrogate's consent was not required under the Act, as the statutory framework provided sufficient protection for the child's welfare.

Orders