Re RMG

[2014] NSWSC 845

Supreme Court

New South Wales

Medium Neutral Citation:	Re RMG [2014] NSWSC 845
Hearing dates:	In Chambers
Decision date:	25 June 2014
Jurisdiction:	Equity Division
Before:	Darke J
Decision:	Order made for the transfer of the parentage of the child and approval of 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:	SJG (first plaintiff) BG (second plaintiff)
Representation:	Solicitors: King Legal (plaintiffs)
File Number(s):	A043/2014
Publication restriction:	Nil

Judgment

Background

1. By a Summons filed on 27 March 2014, the plaintiffs seek a parentage order in relation to RMG ("the child") pursuant to Part 3 of the Surrogacy Act 2010 (NSW) ("the Act"). An order pursuant to s 42 of the Act approving names for the child, and an order directing the Registrar to give notice of the parentage order to the Registrar of Births, Deaths and Marriages and the Director-General of the Department of Health is also sought.

1. RMG was born on 10 October 2013.

1. The first plaintiff, SJG, is the proposed mother seeking a parentage order in relation to the child. She is 38 years of age. The second plaintiff, BG, is the proposed father seeking a parentage order in relation to the child. He is 42 years of age. SJG and BG are a married couple and are the biological parents of the child. The birth mother is a friend of the biological parents. She will be referred to as KGK. She is married to MAK.

1. A surrogacy arrangement within the meaning of s 5(1)(a) of the Act was entered into between SJG, BG, KGK and MAK after the commencement of the Act and before the conception of the child. It is thus a pre-conception surrogacy arrangement within the meaning of the Act. In this pre-conception surrogacy arrangement it was agreed that KGK would become pregnant with a child which would, after it was born, be immediately surrendered to SJG and BG. The arrangement was made because there was a medical need for the surrogacy arrangement. In 2009, SJG underwent a transplant operation for a donor pancreas and kidney. As a consequence, SJG needs to take anti-rejection medications for her transplanted organs. However, if she were to become pregnant she would have to cease taking the anti-rejection medications. Due to the risk of organ rejection, it was recommended that SJG should not attempt to carry a pregnancy.

1. RMG has lived with SJG, BG and AJM (a daughter of SJG from a previous relationship) since his birth. RMG is treated as a child of SJG and BG. AJM was born in 2005.

1. By s 12 of the Act, the Court may, on application, make a parentage order in relation to a child of a surrogacy arrangement. The purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement.

1. The general effect of making a parentage order in relation to a child is that the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and the child stops being a child of a birth parent and a birth parent stops being a parent of the child. Accordingly, the child of the surrogacy arrangement has the same rights in relation to the intended parent or parents named in the order as a child born to the parents or parents, and the intended parent or parents named in the order have the same parental responsibility as the birth parent had before the making of the order.

1. In accordance with s 16 of the Act, the Summons was filed within a period of not less than 30 days and not more than 6 months after RMG's birth. The application is supported by affidavits sworn by each party to the surrogacy arrangement, affidavits sworn by two psychologists who provided counselling, and an affidavit sworn by a doctor as to the medical need for a surrogacy arrangement. A report of an independent counsellor, as required by s 17 of the Act, was annexed to the affidavit of one of the psychologists.

1. By s 18 of the Act, the Court may make a parentage order only if satisfied that the preconditions to the making of such order 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. The preconditions are set out in Division 4 of Part 3 of the Act.

1. In this case, the Court is satisfied that all applicable preconditions to the making of a parentage order have been met. Relevantly:

(a) I am satisfied that the making of the parentage order is in the best interests of the child: s 22 of the Act;

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

(c) the surrogacy arrangement is a pre-conception surrogacy arrangement: s 24 of the Act;

(d) the surrogacy arrangement is an arrangement under which SJG and BG, as the two intending parents, are a couple as defined: s 25 of the Act;

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

(f) the birth mother, being 38 years of age, was at least 25 years of age when she entered into the surrogacy arrangement: s 27 of the Act;

(g) each intending parent was at least 18 years old when they entered into the surrogacy arrangement: s 28 of the Act;

(h) there is a medical or social need for the surrogacy arrangement: s 30 of the Act;

(i) each of the affected parties, namely SJG, BG, KGK and MAK has consented to the making of the parentage order: s 31 of the Act;

(j) the intending parents reside in New South Wales: s 32 of the Act;

(k) the child is living with the intending parents at the time of the hearing of the application: s 33 of the Act;

(l) the surrogacy arrangement is in the form of an agreement in writing, signed by SJG, BG, KGK and MAK: s 34 of the Act;

(m) 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: s 35(1) of the Act;

(n) since the birth of RMG and before consenting to the parentage order, KGK and MAK have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications: s 35(2) of the Act;

(o) 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: s 36 of the Act. In addition, I note that the requirements of UCPR r 56A.9 have also been complied with;

(p)   the registrable information about the surrogacy arrangement has been provided to the Director-General of the Department of Health as required under the Assisted Reproductive Technology Act 2007 (NSW): s 37 of the Act; and

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

Determination

1. This is clearly an appropriate case in which to make a parentage order in favour of SJG and BG. SJG and BG have acted as the parents of RMG since he was born and I am satisfied that all preconditions to the making of a parentage order have been met. The Court also approves the child's surname and given names, as sought in the Summons.

1. Accordingly:

(1)   The Court makes an order for the transfer of the parentage of the child, RMG, born on 10 October 2013 ("the child") to the plaintiffs, SJG as mother and BG as father, and approves "G" as the surname and "RM" as the given names of the child.

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

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

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

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Decision last updated: 25 June 2014