A v X; Re Z

Supreme Court of NSW|2022-07-20|Before: Darke J, Visa AJ

niversity Press, 2019) Stewart, Pam and Anita Stuhmcke, 'The 'Child' in Utero and ex Utero' in Lisa Young, Mary Anne Kenny and Geoffrey Monahan, Children and the Law in Australia (LexisNexis Butterworths, 2nd ed, 2017) Category: Principal judgment Parties: A (First Plaintiff) B (Second Plaintiff) X (First Defendant) Y (Second Defendant) Representation: Solicitors: Phang Legal (Plaintiffs) File Number(s): 2022/54272 Publication restriction: None

Introduction

By a Summons filed on 24 February 2022, the plaintiffs, A and B, seek a parentage order pursuant to s 12(1) of the Surrogacy Act 2010 (NSW). The order sought would, if made, transfer parental responsibility for a child, Z, from the defendant birth parents, X and Y, to A and B. The plaintiffs also seek an order approving Z as the child's name. X and Y do not oppose the orders sought by the plaintiffs.
Tragically, Z was stillborn on 6 September 2021 following a decision to medically terminate the pregnancy. An ultrasound and MRI had confirmed that Z's brain had stopped developing due to ventriculomegaly, and had suffered severe damage.
In these circumstances, the application raises a novel question, namely: does the Court, under s 12(1) of the Surrogacy Act, have the power to make a parentage order in relation to a stillborn child? This question has not previously come before this Court, nor, it would seem, before any other Court exercising jurisdiction under a similar statutory scheme.
For the reasons set out in this judgment, I have concluded that the Court does not have the power to make the orders sought by A and B. In my opinion, the Surrogacy Act does not countenance the making of parentage orders where the child, for whom parental responsibility would be transferred, was stillborn. That result follows from the application of ordinary principles of statutory interpretation, that require consideration of the Act's text, context and purpose (see, eg, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ; Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128; [2018] FCAFC 223 at [79] per Allsop CJ, Griffiths and O'Callaghan JJ; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] per Kiefel CJ, Bell and Nettle JJ, and at [41] per Gageler J).
Furthermore, even if one were to assume that the Court is so empowered, A and B have failed to satisfy the mandatory precondition found in s 22(1) of the Surrogacy Act. That mandatory precondition, which is one of a number of indispensable prerequisites to the Court exercising its discretion to make parentage orders, requires the applicant to satisfy the Court that a parentage order 'is in the best interests of the child.' To that extent, s 22(1) reflects the guiding principle of the Surrogacy Act, contained in s 3 thereof, that 'the best interests of the child of the surrogacy arrangement are paramount.'
At the outset, it is important to be clear about what this judgment does not, and does not intend to, decide. This judgment is not concerned with determining the legal status or personality of the human foetus before birth. Occasionally, the common law has been called upon to make determinations of this nature, though only for purposes specific to particular fields of law. The born-alive rule in the criminal law (see, eg, R v Sims (1601) Gouldsb 176; 75 ER 1075 at 1076 per Popham CJ and Fenner J; R v F (1996) 40 NSWLR 245 at 247 per Grove J, McInerney and Hulme JJ agreeing. Cf R v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178 at [26]-[31] per Spigelman CJ, Grove and Bell JJ agreeing) and decisions on the ambit of the Court's protective jurisdiction (see, eg, Paton v British Pregnancy Advisory Service Trustees [1979] 1 QB 276 at 279-80 per Sir George Baker P; A-G (Qld) ex rel Kerr v T (1983) 46 ALR 275 at 277 per Gibbs CJ; Re F (in utero) [1988] Fam 122 at 144-5 per Staughton LJ) instance some of the situations in which the legal status of a human foetus may be relevant (see also Pam Stewart and Anita Stuhmcke, 'The 'Child' in Utero and ex Utero' in Lisa Young, Mary Anne Kenny and Geoffrey Monahan, Children and the Law in Australia (LexisNexis Butterworths, 2nd ed, 2017) Ch 3).
This case, however, is concerned more narrowly with the interpretation of the relevant provisions of the Surrogacy Act, and with the Court's power to make orders in the nature of those sought by A and B.

Factual Background

The first plaintiff, A, is the proposed mother under the parentage orders. She is currently 35. The second plaintiff, B, is the proposed father under the parentage orders. He is currently 37. A and B were married in 2016. The plaintiffs are also the biological parents of Z, having respectively provided the egg and sperm used to create the embryo implanted into X on 11 February 2021.
The first defendant, X, is the birth mother of Z. She is currently 38. The second defendant, Y, is the birth mother's partner. He is currently 38. X and Y were married in 2014.
The parties executed a pre-conception surrogacy agreement on 17 June 2020 (see Surrogacy Act s 5(1)(a), s 24). Prior to that, each of A and B, and X and Y, underwent counselling in accordance with s 35 of the Surrogacy Act and received independent legal advice in accordance with s 36 of the Surrogacy Act. It would appear that the embryonic implantation procedure occurred in New South Wales, notwithstanding X and Y's usual place of residence being Victoria. Z's stillbirth occurred at a hospital in Victoria. However, nothing seems to turn on this fact.
The implantation procedure took place on 11 February 2021. X was informed on 27 February 2021 that the procedure had been successful, and that she was pregnant with Z. On the evidence, it would seem that the early stages of X's pregnancy were medically unremarkable.
However, the parties became aware, from the 26-week ultrasound, that there was a complication. On that occasion, Z was diagnosed with ventriculomegaly. Two weeks later, after a follow-up ultrasound and MRI were performed, the parties were informed that Z's brain had stopped developing and that she had suffered severe brain damage. Having discussed Z's prognosis and anticipated quality of life, A, B, X and Y jointly decided to medically terminate the pregnancy. The medical termination procedure was performed on 2 September 2021. Z was delivered stillborn four days later, on 6 September 2021. On 22 November 2021, and in accordance with s 12(3)(b) and s 13(1) of the Births, Deaths and Marriages Registration Act 1996 (Vic), Z's stillbirth was registered by X and Y.
It is clear that the medical termination of X's pregnancy has had a profound impact on each of the parties to the surrogacy agreement. A deposed that it was always the parties' intention that Z was to be her and B's child, and that this has not changed in light of Z's tragic antenatal death. Similar sentiments have been conveyed by B, X and Y in their affidavits. In these circumstances, the parties request that the Court make the parentage order sought by the plaintiffs, notwithstanding that several statutory preconditions to doing so (some mandatory, and some not mandatory) have not been complied with.

Statutory Scheme

Section 12(1) of the Surrogacy Act empowers the Court, upon an application made under Pt 3 of the Act, to 'make a parentage order in relation to a child of a surrogacy arrangement.' Part 3 of the Surrogacy Act is itself concerned with the formalities and preconditions necessary for the Court to make such orders.
Section 12(2) of the Surrogacy Act states that the purpose of a parentage order 'is to transfer the parentage of a child of a surrogacy arrangement', understood as a transfer from the birth parents to the intended parents. Section 13 of the Act provides that, for the purposes of Pt 3 thereof, 'a reference to a child is a reference to a child of a surrogacy arrangement.'
Unlike, for instance, s 4(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) or s 4(1)(a) of the Family Law Act 1975 (Cth) (each of which extends the definition of 'child' to encompass a stillborn child), the Surrogacy Act does not provide a standalone definition of the term 'child.' Instead, the Surrogacy Act opts, in s 4(2), to define the phrase 'child of a surrogacy arrangement' as follows: In this Act, a reference to a child of a surrogacy arrangement is a reference to a child born as a result of a surrogacy arrangement or who is the subject of a surrogacy arrangement.
Accordingly, the Court may make a parentage order in relation to a child who is either born as a result of a surrogacy arrangement, or who is the subject of a surrogacy arrangement.
As the plaintiffs correctly acknowledge, s 18(1) of the Surrogacy Act provides that, before the Court can exercise its discretion to make orders under s 12(1) of the Act, the Court must be 'satisfied that the preconditions to the making of a parentage order have been met.' Those preconditions are set out in Div 4 of Pt 3 of the Act (see generally AP v RD [2011] NSWSC 1389 at [8]-[27] per Brereton J; Re HBW [2014] NSWSC 1581 at [8] per Darke J): they are of two kinds.
First, there are mandatory preconditions, compliance with which cannot be waived or excused by the Court. These mandatory preconditions are those specified by the Surrogacy Act to be indispensable prerequisites to the making of a parentage order (cf GP v BP [2018] NSWSC 1887 at [14]-[15] per Sackar J).
Secondly, there are non-mandatory preconditions, the satisfaction of which will ordinarily be insisted upon by the Court, unless an applicant satisfies the Court that there are 'exceptional circumstances [that] justify the making of a parentage order, despite the precondition not having been met' (see Surrogacy Act s 18(2)(a)-(b). See also Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 at [15] per Slattery J).
I pause here to note also the operation of s 17 of the Surrogacy Act. That section provides: (1) An application for a parentage order must be supported by a report about the application prepared by an independent counsellor. (2) The report must contain the independent counsellor's opinion as to whether the proposed parentage order is in the best interests of the child and the reasons for that opinion. (3) The report is to include the counsellor's assessment of the following matters: (a) each affected party's understanding of the social and psychological implications of the making of a parentage order (both in relation to the child and the affected parties), (b) each affected party's understanding of the principle that openness and honesty about a child's birth parentage is in the best interests of the child, (c) the care arrangements proposed by the applicant or applicants in relation to the child, (d) any contact arrangements proposed in relation to the child and his or her birth parent or parents or biological parent or parents, (e) the parenting capacity of the applicant or applicants, (f) whether any consent given by the birth parent or parents to the parentage order is informed consent, freely and voluntarily given, (g) the wishes of the child, if the counsellor is of the opinion that the child is of sufficient maturity to express his or her wishes. …
Section 17 is found within Div 2 of Pt 3 of the Surrogacy Act, not within Div 4 of Pt 3 of the Act, which, as stated above, enumerates the 'preconditions to the making of a parentage order.' I mention this because, having not provided a report that complies with s 17 for the Court's consideration, the plaintiffs ask the Court to excuse their non-compliance therewith on the ground that s 17 is not a mandatory precondition in the sense described above, and that 'there are exceptional circumstances that would justify the Intended Parents being unable to satisfy this precondition, being that the Child was stillborn' (cf Surrogacy Act s 18(2)(a)-(b)).
This might have been a cogent entreaty if the obligation imposed upon A and B by s 17 of the Surrogacy Act were a non-mandatory precondition to the making of a parentage order, non-compliance with which could be excused by the Court pursuant to s 18(2) of the Act. In their submissions, the plaintiffs seem to have assumed that this is in fact the case.
However, as I have noted, it is Div 4 of Pt 3 of the Surrogacy Act that enumerates the preconditions, mandatory and non-mandatory, to the exercise of the Court's discretion under s 12(1) of the Act to make parentage orders. Section 18(2) of the Surrogacy Act only countenances relief from performance with respect to non-mandatory preconditions found within that Division (cf BB v DD; Re AA and Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 at [34]-[36] per Robb J).
Section 17 mandates the provision of an independent counsellor's report that includes, among other things, the independent counsellor's opinion as to whether the best interests of the child would be served by making of orders sought by the applicants (Surrogacy Act s 17(2)). While the obligation found in s 17 of the Act is not itself a precondition, in the sense that that term is understood in Div 4 of Pt 3 of the Act, to the making of a parentage order, provision of a supporting counsellor's report is expressed to be an indispensable requirement of an application brought under s 12(1) of the Act.
Put another way, the Court cannot sanction a failure to abide by s 17 of the Surrogacy Act by recourse to s 18(2) of the same. Instead, the consequence of non-compliance with s 17, as a statutory requirement, is to be determined by reference to any indications found within Act as to what results therefrom (cf, in a different context, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] per McHugh, Gummow, Kirby and Hayne JJ).
Were it necessary for me to decide this question, I would have found that the Surrogacy Act does not permit the making of parentage orders without the Court first having been provided with an independent counsellor's report, compliant with the terms of s 17. In the words of that section, such a report must be provided to the Court in support of an application for parentage orders: it must contain the independent counsellor's opinion on whether the orders sought are in the affected child's best interests; and it must set out the reasons for the independent counsellor's opinion. Each of these imperative commands suggests that strict compliance with the terms of s 17 is necessary (see, eg, Varverakis v Police (2003) 225 LSJS 286; [2003] SASC 20 at [14] per Gray J. Cf Application by JSC & RSC [2013] NSWSC 440 at [24]-[27] per Hallen J).
For completeness, I note that the plaintiffs have indicated that, should the Court not be minded to excuse the absence of an independent counsellor's report in this case, they would be inclined to obtain one.

Can a Parentage Order Be Made in relation to a Stillborn Child?

The most difficult question regarding the plaintiffs' application is whether the Court has power to make a parentage order pursuant to s 12(1) of the Surrogacy Act where the child the subject of the proposed order was not born alive.
On this question, the plaintiffs' submissions read: Pursuant to section 38 of the Surrogacy Act 2010 (the Surrogacy Act), the birth of the Child was registered in accordance with the requirements of the Birth [sic], Deaths and Marriages Registration Act 1995 (the BDM Act). Section 4 of the BDM Act defines "birth" to include a stillbirth.
The essence of the plaintiffs' position seems to be this: s 38 of the Surrogacy Act imposes a non-mandatory precondition to the making of a parentage order, that the birth of the child the subject thereof be registered. Z's stillbirth was registered on 22 November 2021, in accordance with the relevant provisions of the Births, Deaths and Marriages Registration Act (Vic). That registration satisfied s 38(1) of the Surrogacy Act. Section 4(1) of the Births, Deaths and Marriages Registration Act (Vic) permits the registration of stillbirths by defining the term 'birth' as inclusive of stillbirth. The cognate definitions in s 4(1) of the Births, Deaths and Marriages Registration Act (NSW) accomplishes much the same by defining the term 'birth' as inclusive of stillbirth and the term 'child' as inclusive of a stillborn child. It thus follows that the Surrogacy Act, by mandating the registration of the birth of the child the subject of the application, countenances the making of parentage orders in relation to stillborn children.
There are some fundamental problems with an argument framed in this way. Of these, the most obvious is that the extended definition of 'birth' in s 4(1) of the Births, Deaths and Marriages Registration Act (Vic), the Act under which Z's stillbirth was actually registered, is expressed to apply only for the purposes of that Act. The same is true of the extended definitions of 'child' and 'birth' in s 4(1) of the Births, Deaths and Marriages Registration Act (NSW). Those definitions are only of relevance for the interpretation of the Acts within which they respectively appear (cf Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635 per Barwick CJ, McTiernan and Taylor JJ; Yager v The Queen (1977) 139 CLR 28 at 43 per Mason J, Barwick CJ and Stephen J agreeing).
The Surrogacy Act does not itself define the terms 'child' or 'birth' as including stillborn children or stillbirths respectively. Indeed, it does not define those terms at all. This is, thus, not a case where the legislature has chosen to transpose the extended definitions of 'child' and 'birth' found in, eg, s 4(1) of the Births, Deaths and Marriages Registration Act (NSW) into the Surrogacy Act (cf Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [30]-[31] per French CJ and Hayne J, Kiefel J agreeing).
The determination of whether s 12(1) of the Surrogacy Act empowers the Court to make a parentage order where the 'child of a surrogacy arrangement' is a stillborn child must be informed by the terms of the Surrogacy Act, read in the context of the Act as a whole, and having regard to the language of the Act. No assistance is to be gained by recourse to the definitions sections in extraneous statutes, even where compliance with one of those statutes is expressed to be a precondition to the making of a parentage order.
Thus, I now turn to consider whether it can be said that Z is either a child born as a result of a surrogacy arrangement, or a child who is the subject of a surrogacy arrangement. For the reasons that I shall now provide, I am of the opinion that Z meets neither description, and hence cannot be regarded as 'a child of a surrogacy arrangement.'

Is Z a child born as a result of a surrogacy arrangement?

As mentioned earlier, the Surrogacy Act does not itself provide definitions for the terms 'child' and 'born.' There is no express legislative indication that either of those terms in s 4(2) of the Surrogacy Act is inclusive of a stillborn child or stillbirth respectively.
In this regard, the difficulty for A and B is that the ordinary English usage of the term 'born' does not permit judicial reading-in of the term 'stillborn.' In its natural use, the term 'born' may be defined as descriptive of a person 'brought forth into independent being or life, from or as from the womb' (Macquarie Dictionary, Born (2)). Conversely, the term 'stillborn' may be defined as 'dead when born' (Macquarie Dictionary, Stillborn (1)).
A stillborn child, by definition, cannot be characterised as a child who is 'brought forth into … life, from or as from the womb.' Furthermore, at least in a legal sense, a stillborn child cannot be characterised as a child who acquires 'independent being' upon its emergence from its mother's womb. In the common law, legal rights and personality are predicated upon a live birth: live birth, aside from catalysing the child's legal rights and personhood, is the marker of a child's independent existence in the eyes of the law (see, eg, A-G (Qld) ex rel Kerr v T (supra) at 277 per Gibbs CJ; In the Marriage of F (1989) 96 FLR 118 at 122-4 per Lindenmayer J; Visa AJ Kurki, A Theory of Legal Personhood (Oxford University Press, 2019) at 8-9; PQR Boberg, The Law of Persons and the Family (Juta & Co Ltd, 1977) at 8-10). This is in addition to the more general observation that a stillborn child relevantly cannot be said to have 'independent being' at all (by virtue of the stillborn child's unfortunate antenatal death). Being, in this context, should be understood as antonymic of death.
That this is the better view of the expression 'child born' is, to my mind, reinforced by the purpose and effects of a parentage order made under s 12(1) of the Surrogacy Act. Section 12(2) of the Surrogacy Act provides that: The purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement.
The purpose expressed in s 12(2) of the Surrogacy Act must be considered alongside the effects that a parentage order has on the child the subject thereof, and on the intended parents. Section 39 of the Surrogacy Act provides that: (1) On the making of the parentage order in relation to a child: (a) the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and (b) the child stops being a child of a birth parent and a birth parent stops being a parent of the child. (2) Accordingly: (a) 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 parent or parents, and (b) 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.
Neither of these general effects of a parentage order is readily reconcilable with a parentage order in relation to a stillborn child. Insofar as the effect in s 39(2)(a) of the Surrogacy Act is concerned, it is logically jarring to say that the stillborn child 'has the same rights in relation to the intended … parents … as a child born' thereto. Indeed, as has already been canvassed, the unborn child possesses no rights at law, including in relation to its parents, unless and until it is born alive (cf, in the context of the law of tort, Stewart and Stuhmcke (supra) at 59-60).
Insofar as the effect in s 39(2)(b) of the Surrogacy Act is concerned, there is arguably no parental responsibility left to transfer from X and Y to A and B in relation to Z. As Z's birth parents, X and Y were entitled and obliged to choose how to lay Z's body to rest upon the child's stillbirth (see, eg, Warner v Levitt (1994) 7 BPR 15,110 at 15,112-5 per Brownie J; Keller v Keller (2007) 15 VR 667; [2007] VSC 118 at [6] per Hargrave J). From the evidence, it appears as though X and Y arranged in consultation with A and B for Z to be buried in this State, close to where the plaintiffs live.
In the case of a stillborn child, satisfaction of the birth parents' obligation to choose how to lay the child's body to rest might be seen as exhausting any parental responsibility imposed with respect to the child. On this view, there would simply be no parental responsibility left to transfer from X and Y to A and B by way of a parentage order under s 12(1) of the Surrogacy Act.
While neither of these considerations definitively forecloses the possibility of the making of parentage orders in relation to a stillborn child, each suggests that the better view is that a stillborn child cannot be said to be a child born as a result of a surrogacy arrangement.

Is Z a child who is the subject of a surrogacy arrangement?

Nor am I persuaded that it can be said that Z is a child 'who is the subject of a surrogacy arrangement.' It seems to me that the very fact of Z's stillbirth is, in this case, enough to conclude that the making of a parentage order in relation to Z would fall outside the purview of the parties' surrogacy arrangement. Z, in other words, simply does not fit the description of a child 'who is the subject of a surrogacy arrangement.'
The phrase 'surrogacy arrangement' is relevantly defined in s 5 of the Surrogacy Act as follows: (1) For the purposes of this Act, a surrogacy arrangement means: (a) an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a pre-conception surrogacy arrangement), or (b) an arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons (a post-conception surrogacy arrangement). (2) An agreement that the parentage of a child is to be transferred to another person is an agreement to the following effect (however expressed): (a) an agreement to consent to a parentage order or an Interstate parentage order being made in respect of the child so as to transfer parentage of the child to another person, (b) an agreement that the child is to be treated as the child of another person (and not of the woman who gives birth to the child), (c) an agreement that the custody of, or parental responsibility for, a child is to be transferred to another person, (d) an agreement that the right to care for a child is to be permanently surrendered to another person.
(This is a case where the relevant surrogacy arrangement between the parties is a pre-conception surrogacy arrangement, in accordance with the precondition contained in s 24 of the Surrogacy Act).
The definition of 'surrogacy arrangement' present in s 5 of the Surrogacy Act is concordant with the terms and ambit of the surrogacy arrangement entered into between the parties on 17 June 2020.
Recitals D and E of the surrogacy arrangement respectively read: (D) It is the intention of the parties for the Birth Mother to try to or become pregnant with a child, and that the parentage of that child as a result (sic) of the pregnancy to be transferred to the Intending Parents. (E) It is the intention of the parties that following the birth of the child, the parties will make a joint application to the Supreme Court of New South Wales for parentage orders affecting the Child.
Clause 1.1 of the surrogacy arrangement defines the term 'child' as follows: Child means any child or children born as a result of the pregnancy arising out of this Arrangement, and the subject of any application for parentage orders made in the Supreme Court of New South Wales arising out of this Arrangement.
Clause 3.8 of the surrogacy arrangement provides that, following the birth of the child: (a) the Birth Mother and the Birth Mother's Partner shall do all necessary acts and things to surrender the care and custody of the Child to the Intended Parents; (b) the parties shall, at the Intended Parents' discretion, undertake paternity testing for the Child; (c) the Birth Mother and the Birth Mother's Partner shall do all necessary acts and things to register of (sic) the birth of the Child. The parties intend that the child will be registered with the forename and surname chosen by the Intended Parents; (d) the parties shall do all necessary acts and things to appoint an Independent Counsellor as defined under Section 17 of the Act to prepare a report in accordance with Section 17 of the Act; (e) the parties shall do all necessary acts and things to provide information about this Arrangement that is registrable information under Division 3 of Part 3 of the Assisted Reproductive Technology Act 2007 (New South Wales) to the Director-General of the Department of Health for entry in the Central Registry; and (f) the parties shall do all necessary acts and things to ensure that any Centrelink Baby Bonus Payments or any other applicable payments are made payable to the Intended Parents, if applicable.
It seems to me that Z does not fall within the ambit of the surrogacy arrangement. My conclusion on this matter is buttressed by the delimitation of the term 'child' in cl 1.1 of the arrangement to 'any child or children born as a result of the pregnancy arising out of the arrangement', and the predication of the obligations in cl 3.8 on the 'birth of the' subject child. It is also consistent with the definition of a pre-conception surrogacy arrangement found in s 5(1)(a) of the Surrogacy Act.
As mentioned in paragraphs [37]-[38] above, the term 'born' does not naturally include the concept of stillbirth. Nor does the noun 'birth'. On an ordinary reading, then, of the terms of the parties' agreement, Z, by reason of Z's stillbirth, falls outside the purview of the surrogacy arrangement. Z, in other words, cannot be characterised as a child 'who is the subject of a surrogacy arrangement.'
For completeness, I note that cll 6.1 and 6.2 of the surrogacy arrangement permitted X, with the consent of each other party thereto, to terminate her pregnancy if, as occurred in this case, the child en ventre sa mère was likely to be born with severe birth defects. In that situation, cl 9.1(d) of the agreement entitled any of the parties thereto to terminate the surrogacy arrangement. The evidence is unclear as to whether any of A, B, X or Y has chosen to exercise her/his right under cl 9.1(d).
However, one cannot extrapolate from the existence of these provisions that the parties' surrogacy arrangement countenanced application to a stillborn child. As discussed, the very definition of child in cl 1.1 of the surrogacy arrangement seems to preclude Z from falling within the arrangement's purview.
Though not necessary to decide, it is doubtful whether the parties could have expressly provided that their surrogacy arrangement was to extend to a stillborn child. As discussed in paragraphs [39]-[43], such an agreement would bring s 4(2) of the Surrogacy Act into a state of friction with ss 12(2) and 39 of the Act.
A surrogacy arrangement expressed in such terms would also appear to be inconsistent with two of the essential requirements of a surrogacy arrangement, set out in s 5(2)(c)-(d) of the Surrogacy Act. These characteristics of a surrogacy arrangement are: (c) … that the custody of, or parental responsibility for, a child is to be transferred to another person, (d) … that the right to care for a child is to be permanently surrendered to another person.
For the above reasons, I conclude that Z is neither a child born as a result of a surrogacy arrangement, nor a child who is the subject of a surrogacy arrangement, and is hence not "a child of a surrogacy arrangement". Accordingly, the Court is not empowered to make a parentage order in relation to Z pursuant to s 12(1) of the Act.
That is sufficient to dispose of the plaintiffs' Summons. However, for the sake of completeness, I propose now to examine whether, on the assumption that the Court were empowered to make the order sought by the plaintiffs, A and B have satisfied the preconditions found in Div 4 of Pt 3 of the Surrogacy Act.

Have A and B Satisfied All Mandatory Preconditions?

There does not appear to be any doubt that the plaintiffs have satisfied most of the mandatory preconditions found in Div 4 of Pt 3 of the Surrogacy Act. It is tolerably clear: that the parties' surrogacy arrangement was not a commercial surrogacy arrangement (Surrogacy Act s 23); that the surrogacy arrangement was executed before X fell pregnant with Z, so as to be a pre-conception surrogacy arrangement (Surrogacy Act ss 5(1)(a) and 24); that A and B are spouses (Surrogacy Act s 25(1)(a)); that X was over the age of 25 when she entered into the surrogacy arrangement (Surrogacy Act s 27); and that A and B were over the age of 18 when they entered into the surrogacy arrangement (Surrogacy Act s 28).
What is far less clear is whether the applicants have satisfied the mandatory precondition in s 22 of the Act. That section provides that: (1) The Court must be satisfied that the making of the parentage order is in the best interests of the child. (2) This precondition is a mandatory precondition to the making of a parentage order.
Broadly, s 22 is but one example of the 'guiding principle' expressed in s 3 of the Surrogacy Act: This Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.
I have some difficulty conceptualising how an applicant in a case such as this can satisfy the Court that the orders sought are in the child's best interests, where the child was not born alive. Indeed, the very fact of Z's stillbirth seems to me to present an insuperable obstacle to the Court being so satisfied. The Court cannot merely be satisfied that a parentage order would have been in Z's best interests, had Z been born alive. It must be satisfied that such an order is presently in Z's best interest (cf Envestra Ltd v Commissioner of Taxation (2008) 169 FCR 300; [2008] FCA 249 at [34] per Mansfield J).
A and B's submissions on this point are cursory. The plaintiffs submit that the orders they seek are in Z's best interests because, unlike X and Y, A and B are Z's biological parents. Similar sentiments have been conveyed by X and Y in their affidavits in support of the plaintiffs' application. The plaintiffs also submit that: Not making a parentage order in the circumstances would subject the Birth Parents and the Birth Parent's family to an unfair and unreasonable outcome, that the stillborn child resulting from surrogacy will continue to be recognised as a child of the Birth Parents and a sibling to the Birth Parents' other children, which was never the intentions of the parties or the Surrogacy Arrangement.
The conclusion to be drawn from this, the plaintiffs contend, is that 'The granting of the parentage order is in the best interest [sic] of all parties.'
I cannot accept those submissions. While I observe that the making of the order sought by A and B would have the effect of completing their surrogacy arrangement with X and Y (cf GP v BP (supra) at [11] per Sackar J), if that arrangement indeed continues to be on foot, neither the mere fact of biological relation to Z, nor the result that Z will continue in law to be recognised as X and Y's child, satisfies me that the orders sought by the applicants are in Z's best interests.
Z's stillbirth presents an epistemic, and perhaps metaphysical, problem for the parties and for the Court. Discerning what Z's best interests are, let alone whether the present application is concordant therewith, is rendered almost, if not entirely, impossible by the fact that Z was not born alive.
That the making of parentage orders in relation to Z in favour of A and B would recognise in law the biological relationship between Z and the plaintiffs, and that this would avoid an 'unfair and unreasonable outcome' for X and Y, might well be in the best interests of the plaintiffs and the defendants. However, neither of those matters satisfies me that the present application is in Z's best interests.
Accordingly, even on the assumption that the Court were able to make parentage orders under s 12(1) of the Surrogacy Act where the child the subject of the orders is not born alive, I would not be satisfied that the applicants have satisfied the Court that the making of such orders would be in Z's best interests in line with s 22(1) of the Surrogacy Act. As the precondition found in s 22(1) of the Act is a mandatory precondition, this would of itself be sufficient to dismiss the plaintiffs' Summons.
I turn now to consider whether non-compliance with some of the non-mandatory preconditions in Div 4 of Pt 3 of the Surrogacy Act presents a further bar to the making of parentage orders. I do so on the theoretical premise that the Court is indeed empowered to make such orders in relation to the parentage of Z, and on the premise that the applicants have satisfied s 22(1) of the Act.

Have A and B Satisfied All Non-Mandatory Preconditions?

It is clear that A and B have satisfied most of the non-mandatory preconditions to the making of a parentage order pursuant to s 12(1) of the Surrogacy Act. On the evidence, I am satisfied that: there is a medical need for the surrogacy arrangement, given that the impetus for the surrogacy arrangement was A being diagnosed with breast cancer, and her continuing endocrinal therapy (Surrogacy Act s 30(1)); each of the relevant parties has consented to the making of a parentage order (Surrogacy Act s 31(1)); A and B are resident in NSW as at the date of this judgment (Surrogacy Act s 32); the surrogacy arrangement is in writing (Surrogacy Act s 34(1)); each of the relevant parties received counselling prior to entering into the surrogacy arrangement (Surrogacy Act s 35(1)); each of the relevant parties received independent legal advice on the surrogacy arrangement (Surrogacy Act s 36(1)-(2)); all registrable information has been provided to the Director-General of the Department of Health (Surrogacy Act s 37(1)); and that Z's birth has been registered in Victoria in accordance with the Births, Deaths and Marriages Registration Act (Vic) s 12(3)(b) (Surrogacy Act s 38(1)).
The only non-mandatory preconditions which have not been satisfied are those found in ss 33 and 35(2) of the Surrogacy Act. Section 33 of the Surrogacy Act provides: The child must be living with the applicant or applicants at the time of the hearing of the application.
Section 35(2) of the Surrogacy Act provides: The birth mother and the birth mother's partner (if any) must have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order.
In relation to the requirement that Z must be living with A and B, the plaintiffs submit that the Court ought to dispense with this non-mandatory precondition pursuant to s 18(2) of the Surrogacy Act. Obviously, the very fact of Z's stillbirth renders technical compliance with this precondition impossible. Were it not for the deficiencies in the plaintiffs' case outlined above, I would be minded to agree with this submission. The precondition contained in s 33 of the Surrogacy Act is not a mandatory precondition, and Z's stillbirth in this regard is an exceptional circumstance justifying judicial dispensation of the requirement that Z currently be living with A and B (Surrogacy Act s 18(2)(a)-(b)).
However, I am not sure that the same could be said for s 35(2) of the Surrogacy Act. The plaintiffs submit that, insofar as the precondition in s 35(2) is concerned: the intention behind the requirement of further counselling under Section 35(2) of the Surrogacy Act is to ensure that the parties' understanding about the surrogacy arrangement and its social and psychological implications remain unchanged prior to them consenting to the parentage order for a child that is alive. The further counselling would serve little purpose in circumstances where the Child is stillborn. The Birth Parents have submitted affidavits to address their understanding and consent to the Court granting the parentage order.
I do not accept this submission. As the plaintiffs' acknowledge, one purpose of s 35(2) of the Surrogacy Act is to ensure that the birth parents of the child the subject of the proposed parentage order can come to terms with any social or psychological implications involved in effectuation of the surrogacy arrangement.
There is no reason to conclude that the provision of further counselling to X and Y would be of little utility here. Indeed, given the emotional and personal effects of Z's stillbirth on each of the parties to this application, it is not unreasonable to suppose that further counselling in accordance with s 35(2) of the Act might alert X and Y to any psychological ramifications the proposed parentage order might have on them, and equip them with the skills to deal therewith.
Thus, I would not be prepared to exempt the applicants from satisfying s 35(2) of the Surrogacy Act, by recourse to s 18(2) thereof. While the Court's power to excuse non-compliance with a non-mandatory precondition under that section does not require A and B to demonstrate that their application is attended by extraordinarily rare circumstances, it does oblige them to show that the factual novelties of the case justify non-performance of the precondition in question (see, eg, S v B; O v D [2014] NSWSC 1533 at [30]-[31] per White J, discussing R v Kelly (Edward) [2000] QB 198 at 208 per Lord Bingham of Cornhill CJ for the Court). Irrespective of the novelty posed by Z's stillbirth, I would not be of the view that the further counselling of X and Y under s 35(2) of the Surrogacy Act is a precondition the performance of which ought to be dispensed with pursuant to s 18(2) of the Act.
Accordingly, even if I were satisfied that the Court has the power to make parentage orders in circumstances where Z was not born alive, and even if one were to assume that all mandatory preconditions to the making of such orders had been satisfied by the applicants, the plaintiffs' application would fail on the ground that there is at least one non-mandatory precondition that remains unsatisfied.

Orders

For the above reasons, the Court must dismiss the application for a parentage order. The plaintiffs' Summons will be dismissed.

Amendments 21 July 2022 - Error in the body of the judgment formatting - corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2022

Re AA and Surrogacy Act 2010(NSW)

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