Re Michael: Surrogacy Arrangements
[2009] FamCA 691
•3 August 2009
FAMILY COURT OF AUSTRALIA
| RE MICHAEL: SURROGACY ARRANGEMENTS | [2009] FamCA 691 |
| FAMILY LAW - CHILDREN - ADOPTION - surrogacy arrangement - parentage - leave to commence proceedings - “prescribed adopting parent” - jurisdiction of Supreme Court of New South Wales |
| Family Law Act 1975 (Cth) ss 4, 60G, 60H, 60HB, 69R, 69U(1), 69VA, 90G(1), 90UJ(1) Family Law Regulations 1984 Reg 12C; Schedule 6 Status of Children Act 1996 (New South Wales) ss 11, 14, 17 Adoption Act 2000 (New South Wales) ss 26, 28, 30, 87, 90 Acts Interpretation Act 1901 (Cth) ss 15AA, 15 AB |
| Re Patrick:An application concerning contact (2002) FLC 93-096 |
| APPLICANTS: | Paul Casey; Sharon Avalani and Lauren Avalani |
| FILE NUMBER: | SYC | 7686 | of | 2008 |
| DATE DELIVERED: | 3 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 1 April 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANTS: | Andrea Wilson & Associates |
Orders
The application, pursuant to s 60G Family Law Act 1975 for leave to commence proceedings for adoption of Michael born … October 2008, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym “Re Michael: surrogacy arrangements” is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7686 of 2008
| Paul Casey; Sharon Avalani and Lauren Avalani |
Applicants
REASONS FOR JUDGMENT
INTRODUCTION
Who are Michael’s parents?
Michael was born in October 2008 (“Michael”) as a result of a family surrogacy arrangement.
Sharon and Paul are married to one another. Lauren, who is Sharon’s mother, lives in a stable and continuing de facto relationship with Clive (“Clive”).
Sharon was diagnosed with cervical cancer. Prior to Sharon’s treatment, which rendered her infertile, her eggs were harvested. An embryo was produced using Paul’s sperm. The embryo was implanted into Lauren who carried Michael in-utero and gave birth to him.
In accordance with the intention of all adults involved, Michael was handed by Lauren to Paul and Sharon at birth. Sharon immediately commenced breastfeeding Michael and she and Paul have looked after him since that time.
Paul is listed on Michael’s birth certificate as his father and Lauren is listed on the birth certificate as his mother. Michael is known by Paul’s surname.
In this family arrangement, Paul and Sharon consider themselves as Michael’s parents and Lauren and Clive consider themselves as maternal grandmother and maternal step-grandfather.
It came as a surprise to me, and I am afraid it will come as a surprise to the parties, that at law, Lauren is Michael’s mother, Clive is his father, Sharon is his maternal step-sister and Paul is his maternal step-brother-in-law. I discuss below why that is so.
The good news is there is a way to rectify this surprising result.
PRIOR ORDER
On 24 February 2009, Federal Magistrate Sexton ordered by consent, that:-
3. The child [Michael] born […] October 2008 live with the applicants [Paul and Sharon].
4. The applicants have equal shared parental responsibility for making decisions about the day to day care, welfare and development of the said child.
5. The applicants have equal shared parental responsibility for the long term care, welfare and development of the said child.
APPLICATION
Paul and Sharon want to adopt Michael. Paul, Sharon and Lauren have made an application to the Family Court of Australia in the following terms:-
“That pursuant to s 60G of the Family Law Act 1975 the applicants [Paul and Sharon] and the respondent [Lauren] as the prescribed adopting parents seek leave to commence proceedings for the adoption of the child [Michael] born on […] October 2008 by the first applicant as the adoptive mother and by the second applicant as the father.”
The question to be resolved in this case is can or should the Court grant leave to Paul and Sharon under s 60G Family Law Act 1975 (“FLA”) and if not, can or should the Court grant leave to Lauren, to make an application for adoption on behalf of Paul and Sharon.
SECTION 60G FLA
Section 60G(1) FLA is in the following terms:
“(1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
Section 4 FLA defines “prescribed adopting parent” as meaning:-
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
PAUL AND SHARON’S APPLICATION FOR LEAVE
The first question to consider is whether or not either Paul or Sharon is a parent of Michael. I will discuss why they are not.
The starting point is s 60HB FLA which is in the following terms:
(1)If a court has made an order under a prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a child;
then, for the proposes of this Act, the child is the child of each of those persons.
(2)In this section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates Rules.
I have no evidence in this case that an order, as described in s 60HB FLA, has been made. That is not surprising, as s 60HB FLA is currently impotent in New South Wales. There is no law in that State which would allow Paul and Sharon to have an order made in their favour to the effect that Michael was their child (and consequently no prescription has been made under the Family Law Regulations). There are surrogacy laws in the Australian Capital Territory and Western Australia. Victoria has introduced surrogacy legislation which has not yet commenced. A prescription has been made under the Family Law Regulations pursuant to s 60(1)HB FLA for the Australian Capital Territory and Western Australia.
The next section to consider is s 60H FLA. This is a section which more generally covers children born as a result of artificial conception procedures (including the implantation of an embryo in the body of a woman; s 4 FLA).
Prior to December 2008 there had been a debate in the case law about whether or not, for the purposes of the FLA, s 60H of that Act defined “parent”. Guest J in Re Patrick:An application concerning contact (2002) FLC 93-096, concluded that a sperm donor was not a parent for the purposes of the FLA but rather, in that case, found that the sperm donor was a person concerned with the care, welfare and development of the child.
Brown J in Re Mark: An application relating to parental responsibilities (2003) FLC 93-173, expressed a number of reservations about the analysis by Guest J, and by way of obiter, expressed the view that the natural meaning of the word “parent” in the context of Part VII FLA includes the biological mother or father of a child and that s 60H FLA did not provide an exhaustive definition of parent for a child conceived by artificial conception procedures.
In support of her position, Brown J referred to an unreported decision of Faulks J in S v B [2000] FamCA 1280 (28 February 2000, unreported). Federal Magistrate Walters, in Re Jessie & Matthew: Residence application [2004] FMCAfam 656 at paragraph 17, expressed the view (obiter) that he concurred with Brown J’s analysis of s 60H FLA.
The wording of s 60H(1) FLA, as considered in Brown J in Re Mark (supra), was in the following terms:-
(1)If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and
(b) either of the following paragraphs apply:
(i)the procedure was carried out with their consent;
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;
then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.
Brown J concluded that there was nothing in this section that said that the person who provided a genetic material could not also be called a parent.
In December 2008 the wording of s 60H(1) FLA was repealed and replaced with retrospective legislation in the following terms:-
(1)If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material - the child is not the child of that person.
It seems that the debate between Brown J and Guest J has been legislatively decided. Sections 60H(1) FLA and s 60HB FLA provide an exhaustive definition as to who can be called Michael’s parents.
Applying s 60H FLA to the facts of this case, I make the following findings relevant to the first limb of s 60H(1)(b) FLA.
Michael is a child born to Lauren as a result of the carrying out of an artificial conception procedure.
At the relevant time, Lauren was (and still is) a de facto partner of Clive. Under subsection 60H(1)(a) FLA Clive falls within the shorthand title “the other intended parent”. The subsection also implies Lauren was another intended parent. Lauren consented to the carrying out of the procedure and Clive is presumed to have consented to the procedure being carried out (see s 60H(5) FLA), with no evidence provided to rebut that presumption. The persons who provided genetic material, Paul and Sharon, consented to the use of the material in the procedure.
There is an argument, which was not made before me, that the words “the other intended parent” in s 60H(1)(a) FLA, not only required that person to consent to the artificial conception procedure but require that person to also intend, by giving that consent, to become a parent of the child conceived. Clive did not have the intention to become Michael’s parent.
That argument has some attraction because:-
30.1.Section 60H FLA is not expressed to be subject to s 60HB FLA. If s 60HB FLA was in the future enlivened in New South Wales by State law and Federal regulations, it might mean that s 60HB FLA and s 60H FLA produce irreconcilable results. Michael could be said to be a child of Sharon and Paul by s 60HB FLA and said not to be a child of Sharon and Paul by s 60H FLA. Reading s 60H FLA as not applying to surrogacy arrangements, would avoid this inconsistent result.
30.2.Extraneous material can be considered if the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable (s 15AB Act Interpretation Act (Cth)). The Supplementary Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, at page 14, indicates that the legislative purpose of s 60H FLA was to cover the situation where the female partner of a married, heterosexual de facto couple or lesbian couple became pregnant as a result of an artificial conception procedure. Surrogacy arrangements were meant to be covered by s 60HB FLA.
30.3.The surprising result achieved in this case could be avoided if s 60H FLA was found to have no application to the facts of this case.
30.4.If possible, a purposive construction must be given to legislation (s 15AA of the Acts Interpretation Act (Cth)) and it could be argued that Parliament would not have intended an inconsistent or surprising result.
Having considered those arguments, I discount them because in my view the words of the statute are clear and the result reached, whilst surprising, can not be said to be manifestly absurd. Also, to borrow from the words of Nygh J in Heath and Heath; Westpac Banking Corp. (1983) FLC 91-362, at page 78,427:
“Section 15AA(1) of the Acts Interpretation Act 1901 instructs the Court to choose the construction which will best advance the purposes of the legislation, but it does not permit a Court to ignore the ordinary and grammatical meaning of words of a statute which allow the Court no alternative option.”
The words “other intended parent” draws its own internal definition from the words of s 60H(1)(a) FLA. The phrase is used as an abbreviated expression to refer to, inter alia, the de facto partner of a woman who gives birth to a child as a result of the carrying out of an artificial conception procedure.
The definition in s 4 FLA of artificial conception procedure includes the implantation of an embryo in the body of a woman and does not exclude that implantation happening in the context of a surrogacy arrangement.
It is my view that it was the legislative intention of s 60HB FLA to grant the status of parents to the providers of genetic material in a surrogacy arrangement if that was consistent with an order made in accordance with the provisions of a prescribed State law. In circumstances where State law did not allow an order to be made recognising the providers of genetic material as parents, it was Parliament’s intention that they not be recognised as parents. Consequently the provisions of s 60H(1)(d) FLA then apply and a child is not to be considered a child of those who have provided genetic material.
I therefore conclude that it is irrelevant that neither Lauren nor Clive intended that they became Michael’s parents.
Section 60H(1)(c) FLA says that Michael is the child of Lauren and Clive. Section 60H(1)(d) FLA says that Michael is not the child of either Paul or Sharon, who both provided the genetic material. Consequently I find, at law, that Sharon is Michael’s maternal step-sister and Paul is his maternal step-brother-in-law.
Turning to the second limb of s 60H(1)(b) FLA, there is a prescribed law of the State. It is the Status of Children Act 1996 (New South Wales) (“SCA”) (see Regulation 12C; Schedule 6 Family Law Regulations).
Section 11 SCA contains a rebuttable presumption that a child’s parent is a person whose name is entered on the register of births (the presumption is in the same terms as s 69R FLA). In this case, both Paul and Lauren are named on the register.
Section 14 SCA is in the following terms:
14. Presumptions of parentage arising out of use of fertilisation procedures
(1)When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a)her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b)the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
.....
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).
(4) Any presumption arising under subsections (1)–(3) is irrebuttable.
(5) In any proceedings in which the operation of subsection (1) is relevant, a husband’s consent to the carrying out of the fertilisation procedure is presumed.
....
(6) In this section:
(a)a reference to a married woman includes a reference to a woman who is in a de facto relationship with a man
.....
Section 17(2) SCA is as follows:
17 Conflicts involving irrebuttable parentage presumptions
.....
(2)If an irrebuttable presumption arising under this Division conflicts with a rebuttable presumption arising under this Division that is not rebutted in any proceedings, the irrebuttable presumption prevails over the rebuttable presumption.
Applying s 60H(1)(b) FLA (which incorporates the SCA) to the facts of this case, Lauren is a woman living in a de facto relationship who has undergone a fertilisation procedure as a result of which she has become pregnant. Clive consented to the procedure, even though he did not provide any or all of the sperm used in the procedure. Clive is presumed to be the father of Michael born as a result of the pregnancy. Lauren is presumed to be the mother of Michael born as a result of the pregnancy, even though she did not provide the ovum used in the procedure.
Consequently, the provisions of s 60H(1)(b)(ii) FLA are satisfied in this case in that under the SCA, Michael is a child of Lauren and Clive.
Accordingly, under the second limb of s 60H(1)(b) FLA, s 60H(1)(c) FLA says that Michael is the child of Lauren and Clive and s 60H(1)(d) FLA says that Michael is not the child of Paul and Sharon who both provided the genetic material.
Both limbs of s 60H(1)(b) FLA led to the same conclusions.
For completeness, I comment in passing that this result mirrors the situation that exists under the New South Wales Legislation as Paul is presumed not the father (s 14(2) SCA) and Sharon is presumed not to be the mother (s 14(3) SCA). The presumption arising from the registration of Paul’s name on the birth certificate is rebutted because the contest between the rebuttable presumptions in s 11 and s 14 SCA is resolved in favour of the irrebuttable presumptions in s 14 (see s 14(4) and s 17(2) SCA).
Given that Paul is registered on Michael’s birth certificate, the next matter to address, is the status and effect of s 69R FLA which creates a rebuttable presumption of parentage arising from the registration of birth.
Section 69R FLA is in the following terms:-
“If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.”
Section 69U(1) FLA provides that this presumption is rebuttable. Section 69U(1) FLA is in the following terms:-
“A presumption arising under this Subdivision is rebuttable by proof on the balance of probabilities.”
In this case, s 69R FLA cannot be rebutted by proof. Paul would be able to pass a parentage testing procedure.
The question to consider is, does s 69U(1) FLA, provide an exhaustive description of the way the s 69R FLA presumption can be rebutted?
I conclude that the presumption arising from s 69R FLA may not only be rebutted by proof but also rebutted by the operation of another provision of the FLA for the following reasons:
51.1.The words “if, and only if” are not used in s 69U(1) FLA (as they are for example in s 90G(1) FLA; s 90UJ(1) FLA).
51.2.Persons providing genetic material in a surrogacy arrangement could register as parents without any State order being made. If s 69R FLA then allowed them to be parents for the purposes of the FLA, the parliamentary intention behind s 60HB FLA would be circumvented.
51.3.Section 60H(1)(c) FLA and the use of the phrase “the other intended parent” in s 60H FLA seems to imply that there can only be two parents.
51.4.It would not in my view be possible for a court to make a declaration under s 69VA FLA that Paul is Michael’s father based upon the presumption arising from s 69R FLA, because of the existence of s 60H(1)(d) FLA.
Consequently I find the presumption that Paul is Michael’s father because he is registered as such on Michael’s birth certificate is rebutted by the operation of s 60H(1) FLA.
Since neither Paul nor Sharon are Michael’s parent, neither Paul nor Sharon fall within the definition of “a prescribed adopting parent” and consequently I find that no order can be made in their favour pursuant to s 60G FLA. I am obliged to dismiss the application by Paul and Sharon for leave under s 60G FLA.
Notwithstanding I have dismissed the application for leave to adopt, Paul and Sharon, as Michael’s relatives, can jointly as a couple make an application to the Supreme Court (s 26 Adoption Act2000 (New South Wales) (“AA”)).
Amendments have recently been made to New South Wales adoption laws which simplify the process for relative adoptions. The consent of the Director-General of the Department of Community Services is no longer required and the Supreme Court is now able to directly accept independent reports from an approved adoption service assessor or accredited adoption service provider (without the need for the involvement of the Director-General).
Section 28 AA sets out the requirements for adoption by a couple. Paul and Sharon seem to fulfil the basic requirements, age requirements and length of relationship requirements. Because neither person is a parent, it follows neither person is a step parent and the provisions of s 30 AA have no application. Section 90 AA provides that an adoption order cannot be made unless the court is satisfied that the best interests of Michael would be promoted by the adoption.
If Paul and Sharon obtain an order for adoption from the Supreme Court as relatives of Michael, my failure to grant leave to adopt is of no practical consequence.
Paragraph 60HA FLA sets out provisions for the status of children of de facto partners. Of some relevance to the facts in this case, if Paul and Sharon make a successful application for relative adoption, are the provisions of s 60HA(2) which is in the following terms:-
(2) A child of current or former de facto partners ceases to be a child of those partners for the purposes of this Act if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent.
It follows that a finding that Paul and Sharon are not prescribed adopting parents means that if they do adopt Michael, he ceases to be the child of Lauren and Clive.
LAUREN’S APPLICATION FOR LEAVE
Lauren, as a party to these proceedings, has also made an application for leave pursuant to s 60G FLA for her to be able to make an application to the Supreme Court for an order that Paul and Sharon adopt Michael.
Given what I have said above, Lauren is a parent of Michael and consequently falls within the definition of “prescribed adopting parent”.
I would not however exercise my discretion to grant Lauren leave unless I was reasonably confident that there was a basis upon which she could make such an application to the Supreme Court and that she had reasonable prospects of success.
Section 26 of the AA is in the following terms:-
“26. An application for an adoption order may be made in accordance with this Act solely by or on behalf of one person or jointly by or on behalf [sic] a couple.”
Absent any other provision in the AA, it might be thought that Lauren might be able to make an application on behalf of Paul and Sharon to the Supreme Court for an order that Paul and Sharon adopt Michael.
However, the words of s 87 AA preclude such an application being made. Those words are in the following terms:-
87 Application to be consented to by Director-General
(cf AC Act s 18 (2) and (3))
(1) The Court may make an adoption order only on application made by:
(a) the prospective adoptive parent or parents with the consent of the Director-General, or
(b) the Director-General or by a principal officer on behalf of the prospective adoptive parent or parents, or
(c) (Repealed)
(d) a child who is 18 or more years of age for his or her adoption.
(2) Despite subsection (1) (a), the consent of the Director-General to an application for an adoption order is not required:
(a) if the applicant is a step parent or relative of the child, or
(b) if the application relates to an intercountry adoption.
Whilst Lauren is a relative of Michael and consequently would not need the consent of the Director-General, s 87(1)(a) AA makes it clear that an adoption order can only be made upon the application of a prospective adoptive parent (that is, by somebody in whose favour the order will be made). Lauren could not be successful in making an application to the Supreme Court for an adoption order.
Consequently, in the exercise of my discretion, Lauren’s application for leave pursuant to s 60G FLA shall be dismissed.
CONCLUSION
Sections 60H(1) and 60HB FLA now provide an exhaustive definition as to who a parent is in the context of surrogacy arrangements.
Those sections lead to an outcome in this case which none of the parties had intended. It will be different in the future if s 60 HB FLA is enlivened in New South Wales and s 60H FLA is read to be subject to s 60HB FLA.
For s 60HB FLA to have effect, there will need to be further amending legislation in the States and companion regulations made under the Family Law Regulations.
It would be useful to:
71.1.Amend s 60H FLA to make it clear that s 60H FLA is subject to the provisions of s 60HB FLA.
71.2.Amend s 69U FLA to make it clear that parentage presumptions can be rebutted by the operation of other parts of the FLA.
71.3.If it is intended that s 60H FLA has no application to surrogacy arrangements, to amend s 60H FLA to make that clear or alternatively amend the definition of “artificial conception procedures” to exclude surrogacy arrangements from that definition.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 3 August 2009
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