S v B; O v D

In the case of S v B; O v D, the applicants sought a parentage order under section 14 of the Surrogacy Act 2010 (NSW). The applicants, intended parents, were seeking to transfer parentage of a child born through surrogacy from the surrogate mother and her husband to the intended parents. The surrogate mother and her husband had been listed on the birth certificate as the child's mother and father respectively, while the intended parents were listed as the intended mother and father. The applicants argued that the birth certificate needed to be corrected to reflect the intended parents' status as the child's legal parents.

The primary legal issue before the court was whether a parentage order could be made in circumstances where the statutory preconditions for such an order had not been satisfied. Under section 18 of the Surrogacy Act, a parentage order cannot be made unless the child's birth has been registered in accordance with the statutory requirements, and the intended father's registration as the father on the birth certificate occurred before the parentage order was made, which was not the case in this instance. The court needed to determine if "exceptional circumstances" justified making the parentage order despite the statutory precondition not being met.

The court found that despite the intended father's registration as father on the birth certificate occurring after the parentage order was sought, exceptional circumstances did exist to justify making the parentage order. The court considered the best interests of the child, the intentions of the parties, and the fact that the surrogate mother's husband had been registered as the child's father on the birth certificate. The court was satisfied that the registration of the surrogate mother's husband as the child's father on the birth certificate was a precondition to making the parentage order, but the exceptional circumstances in this case warranted an order transferring parentage from the surrogate mother and her husband to the intended parents. The court made the parentage order, reflecting the intended parents' status as the child's legal parents.