4980/98 APPLICATION OF PJ v DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES.

Supreme Court of NSW|1999-04-06|Before: Windeyer J, Mrs J, Mr J

New South Wales Supreme Court CITATION : PJ V DOCS [1999] NSWSC 340 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4980 of 1998 HEARING DATE(S) : 6 April 1999 JUDGMENT DATE : 6 April 1999

PARTIES : PJ (Applicant) Director General Department of Community Services (Respondent JUDGMENT OF : Windeyer J at 1

COUNSEL : SOLICITORS : Rockliffs (Applicant) Director Legal Services Department of Community Services (Respondent) CATCHWORDS : FAMILY LAW AND CHILD WELFARE - Children - surrogacy arrangement - fertilisation procedure - declaration pursuant to s21 of the Status of Children Act 1996 (NSW) that particular persons are the father and mother of the child ACTS CITED : Status of Children Act 1996 (NSW) Family Law Act 1975 (Cth) DECISION :

7 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4980/98 APPLICATION OF PJ v DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES.

1 HIS HONOUR: Mr and Mrs J seek a declaration pursuant to s 21 of the Status of Children Act 1996 (the Act) that they are respectively the father and the mother of a child E, who was born on 18 December 1998. 2 That child was born as the result of a surrogacy arrangement under which it was arranged that Mrs W, who is the mother of Mrs J, would bear the child, Mrs J being unable to do so, having not developed any uterus. 3 An ovum from Mrs J and fertilised by the sperm of Mr J was inserted in the uterus of Mrs W and as a result of this having been successful, the child was born. This was done with the consent of Mr W, at least so far as the procedure taking place was concerned. 4 It is important to understand that this court is not in any way expressing any view on the desirability or otherwise of such procedures taking place. When I say that, it is for the purpose of that part of the proceedings which is the subject of this judgment, it having been agreed and ordered that the alternative order namely an order for adoption, would be heard subsequently to that part of the proceedings which I am now determining. 5 Nor should it be thought that the court does not understand the distress which has been caused to Mr and Mrs J by these proceedings, and probably also to the parents of Mrs J. Nevertheless, the matter must be determined in accordance with the law and particularly the provisions of the Status of Children Act 1996. S 14 of that Act is as follows: 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.

(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 living with a man as his wife on a bona fide domestic basis although not married to him, and

(b) a reference (however expressed) to the husband or wife of a person: (i) is, in a case where the person is living with another person of the opposite sex as his or her spouse on a bona fide domestic basis although not married to the other person, a reference to that other person, and

(ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married. 6. S 3 of that Act defines fertilisation procedure as being: (a) the artificial insemination of a woman,

(b) the procedure of transferring to a woman's body an ovum, (whether or not produced by her) fertilised outside her body, or (c)...

7 The first question that arises, therefore, is whether or not the procedure which took place here was a fertilisation procedure. It was if it falls within subsection (b) of the definition. The only basis on which it would not fall within that definition is if it could be said that what was transferred to the body of Mrs W was not an ovum fertilised outside her body. The only basis on which it is argued that it was not such an ovum was that the proper description of what was transferred to her uterus was that it was an embryo. 8 According to the evidence of Dr Bowman which, apart from some small variations, is the evidence which was given by Mrs J and Mrs W, Mrs J "underwent ovarian stimulation and had oocyte collected on 9 December 1997, that these were fertilised with the sperm of Mr J, and that six suitable embryos resulted which were then cryo-preserved." Then, following a quarantine period, two embryos were thawed and transferred to the uterus of Mrs W. One of these developed and became the foetus and the child was subsequently born thus in the words of Dr Bowman the child is genetically the child of Mr and Mrs J. 9 I do not think that there is substance in the argument, based on some uncertain distinction between an embryo and a fertilised ovum, particularly in view of the evidence in this case of the very short time between the fertilisation and preservation. In my view what happened was a fertilisation procedure within the definition under the Act. 10 Once that conclusion is reached then the presumptions under s 14 follow automatically as a matter of course. Mrs W, having undergone a fertilisation procedure, is presumed to be the mother of the child. As she underwent or became pregnant by means of a fertilisation procedure, using the sperm obtained from Mr. J who is not her husband, then Mr. J is presumed not to be the father; and as she became pregnant by means of a fertilisation procedure, using ovum obtained from another woman, namely her daughter, then her daughter is presumed not to be the mother of the child. Those presumptions are irrebuttable. 11 In the same way the consent of Mr W to the carrying out of the procedure is presumed, but that presumption is rebuttable, so that if there is evidence on the balance of probabilities that he did not so consent, then that presumption is rebutted. 12 It is necessary to refer to two further matters. One is that s 11 of the Act provides that a person is presumed to be a child's parent if that person's name is entered as such parent in the births, deaths and marriages register. Mr J is registered as the father of E. Mrs W is registered as the mother. The registration of Mrs W as mother does conform with the presumption under s 14 of the Act. The registration of Mr J as the father does not conform with the irrebuttable presumption under s 14 of the Act. It follows from this that as the presumption under s 11 is rebuttable and that under s 14 is irrebuttable, that under s 14 must prevail. 13 The other argument which has been put forward by the solicitor for the plaintiffs is that s12 of the Act provides that if a prescribed court has found that a person is the child's parent there is an irrebuttable presumption that is so. It was argued that this court could find that Mr and Mrs J are the parents of E, and once that was done, they would be presumed to be the child's parents. In my view it would be impossible for this court on this application to disregard s 14 and in accordance with such disregard make a declaration under s 12. That latter section is intended for the protection of persons who have been found to be parents by some other competent court, or by this court in other appropriate proceedings. It is not intended to enable the circumvention of s14. 14 I should add that a good deal of this is not really relevant to the declarations which are sought in the further amended summons. The court is not being asked to declare who is the mother of the child or who is the father of the child but is asked to declare that particular persons are the mother and father of the child; s14 of the Act prevents such a declaration being made. 15 There are two further matters which have been put forward by Miss Harvey for the plaintiffs. The first is that there is some conflict with s60H of the Family Law Act 1975 (Cth) and that it was intended, as can be seen from the Parliamentary debates, that the State Legislation was to bring State Law into conformity with Commonwealth Law. There does not appear to be any inconsistency between s 14 of the Act and s 60H of the Family Law Act. It was also submitted, although I do not think this was very strongly pressed, that there might be some argument that the Act was in contravention of the International Convention of the Rights of the Child. It has not been shown how there is such a breach, if that were relevant, and I do not think that it is possible to carry that argument any distance. 16 The last matter which has been argued before me is the question of the consent of Mr W and whether or not it amounts to a consent under s 14(1) of the Act. It is really purposeless to decide this because whether it was or was not, Mr J would not be the father of the child. However, having said that, Mr W in his second affidavit sworn 6 April 1999, said that he only consented to his wife bearing the child to enable his daughter and Mr J to have their own child and under the belief that both would be recorded on the birth certificate as the parents, and he said in paragraph 9 of his earlier affidavit that he consented to his wife entering the IVF programme for that purpose and in that belief. It is probably best not to make any final determination on this question, but only to say that my preliminary view is that, having consented to the actual procedure being carried out, then that consent was a valid consent, albeit that there might have been a mistaken belief as to one of the results of that procedure going forward. 17 It follows from this that the plaintiff's claim under paragraphs 1 and 2 of the further amended summons must be dismissed. 18 The orders are: 1. The plaintiff's claim under paragraphs 1 and 2 of further amended summons be dismissed.

I direct that the balance of the proceedings be heard by the Judge in charge of the adoption list, namely Bryson J.

Liberty to approach the Associate of Bryson J for a directions hearing when the evidence is complete.

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