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[2012] NSWSC 1626
plaintiff. Parentage of the child EMC born 5 November 2010 transferred from NAS to the first plaintiff as father and the second plaintiff as parent; court approved the child's name and directed registrar...
Brereton J granted a parentage order transferring legal parentage of a child born in November 2010 from the birth mother to two intended parents. The court found the birth mother had in fact consented, despite missing formal witnessing documents. The key contested legal issue was whether the surrogacy was 'commercial' because the parties discussed the plaintiffs providing sperm to the surrogate's partner. The judge concluded the sperm-donation matter was collateral and independent, not a reward 'for' entering the surrogacy, and that payments to the birth mother were limited to reasonable surrogacy costs under s 7. Because the arrangement was not commercial the parentage order could be made (paras 3, 7, 13-23, 24).
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1,898 words · generated 31/08/2026
This is an ex tempore judgment of Brereton J in the Supreme Court of New South Wales (Equity Division, Adoption List) deciding an application under the Surrogacy Act 2010 (NSW) for a parentage order in respect of a child born 5 November 2010. The two plaintiffs, Mr MJC and Mr CSC, sought a parentage order transferring parentage from the birth mother, Ms NAS, to them (the first plaintiff as father and the second plaintiff as parent). The hearing was 13 December 2012; the summons was filed 15 August 2012 (paras 1, header).
No linked legislation citations have been extracted yet.
Two statutory preconditions attracted the court’s attention. First was proof of the birth mother’s consent to the parentage order; second was whether the arrangement was a "commercial surrogacy arrangement" within s 9 of the Surrogacy Act 2010, a mandatory disqualifier for parentage orders (paras 2–4).
On the facts: in April 2009 NAS and her partner KAS posted an email seeking sperm donors and offering NAS as a surrogate. The plaintiffs replied. The parties met on 5 May 2009; there was discussion about either plaintiff providing sperm for KAS and NAS offering to be a surrogate (paras 9–12, 15). The child was born 5 November 2010. The plaintiffs and the birth mother gave affidavits (sworn August 2012 for the plaintiffs; 13 August 2012 for NAS and KAS). The affidavits suggested the surrogate might have expected sperm to be provided so her partner could become pregnant, raising the concern that the surrogate had received a "reward or other material benefit" for agreeing to be a surrogate (paras 9–13).
Brereton J analysed the competing pieces of evidence, including the original April 2009 email (which did not mention a condition that sperm must be provided for the surrogate’s partner), the written surrogacy arrangement (which made no reference to sperm donation), the affidavits, and oral evidence given at the hearing. The judge concluded the sperm-donation arrangement stood independently from the surrogacy arrangement (not a benefit 'for' entering into the surrogacy), and that the limited payments made to the birth mother were reimbursable surrogacy costs under s 7 and within the s 9(2) exception (paras 14–23). The court therefore found the arrangement was not commercial and made the parentage order (paras 23–24).
The decision rests on two linked statutory constructions and factual findings.
Consent Although the Rules ordinarily require a formal instrument of consent witnessed and verified, Brereton J accepted that the birth mother’s affidavit of 13 August 2012 expressly stated she consented (para 3). The judge noted the formal route was not followed, but that the affidavit made clear consent was given; the court was satisfied on that basis and found the requisite consent (para 3). That factual finding resolved the consent precondition.
Commerciality under s 9 The statutory definition of a "commercial surrogacy arrangement" is pivotal and is set out at para 7. The Act treats as commercial any arrangement involving provision of a fee, reward or other material benefit or advantage to a person for agreeing to enter into or entering into the surrogacy arrangement, for giving up the child, or for consenting to a parentage order. But s 9(2) provides that a surrogacy arrangement is not commercial if the only fee/reward/benefit provided is reimbursement of the birth mother's surrogacy costs (para 8). The judge therefore had to determine whether either (a) the sperm-donation arrangement was a benefit 'for' entering into the surrogacy arrangement, or (b) payments to the birth mother exceeded the statutory concept of reasonable surrogacy costs (s 7).
On the evidence, Brereton J found a significant tension between the affidavits (which suggested a package deal) and the earlier email of 8 April 2009 (which offered surrogacy but did not stipulate a condition that sperm be provided for the partner). The judge considered the timing and content: evidence suggested the desire for the surrogate’s partner to become pregnant arose incidentally after initial meetings, and the sperm-donation matter was never consummated in the sense of the partner becoming pregnant using plaintiffs' sperm (paras 15–18). The judge emphasised that a collateral arrangement cannot automatically immunise a surrogate arrangement from being commercial if the collateral arrangement is functionally a reward. But here the evidence showed the sperm-donation matter stood independently from, and arose apart from, the surrogacy agreement (paras 17–18). Further, the fact that the written surrogacy arrangement made no mention of sperm provision supported that conclusion (para 14).
On costs, the judge analysed s 7's definition of "birth mother's surrogacy costs", notably s 7(3)(e), which allows reimbursement for loss of earnings for not more than two months around the birth and for other medically necessary pregnancy-related periods (para 20). The evidence showed small discrete payments: $300 for three days following a fall, $500 for approximately five days in connection with threatened premature labour, and four weeks of post-delivery pay, all within the statutory limits (para 21). The judge concluded those payments were reasonable and fell within the s 9(2) exception (paras 21–23).
Therefore, because the sperm-donation arrangement was not a reward "for" entering into the surrogacy arrangement and the payments were permissible surrogacy costs, the arrangement did not become commercial and the mandatory bar to parentage orders did not apply (paras 17–23). The court made the parentage transfer and ancillary orders (paras 24–26).
This judgment operates at the level of statutory application and fact-specific analysis under the Surrogacy Act 2010. The judge:
Practically, the case clarifies that a collateral agreement (here, an agreement about provision of sperm to the surrogate’s partner) will not automatically render a surrogacy arrangement commercial. The critical question is whether the collateral benefit was provided "for" the surrogate agreeing to enter the surrogacy arrangement. The judgment warns that collateralisation could be used to circumvent the Act, but it distinguishes such improper circumvention from collateral arrangements which are independent and not a reward 'for' entering the surrogacy arrangement (para 17). The decision also illustrates how narrowly s 7’s loss-of-earnings limits are to be applied and that modest payments within its limits do not convert an otherwise non-commercial arrangement into a commercial one (paras 20–23).
Para 3: "I am satisfied that she does in fact consent...", Translation: Although the formal witnessed consent document was not produced, the judge accepted the birth mother’s sworn affidavit stating she consented and treated that as sufficient proof for the court’s purposes in this case.
Paras 7–8: Definition of "commercial surrogacy arrangement" and the s 9(2) exception, Translation: The law bars surrogacy arrangements that include a fee or material benefit given as a reward for agreeing to be a surrogate, but it allows repayment of the birth mother’s reasonable surrogacy-related costs without making the arrangement 'commercial'.
Para 13: "it was at least distinctly arguable...", Translation: The affidavits could have supported an argument that the surrogate received a benefit (sperm donation for her partner) in return for agreeing to the surrogacy, which would have been problematic under s 9.
Para 17: "The mere fact that an arrangement is...collateral ... could not of itself mean...", Translation: The judge recognises that simply labelling something 'collateral' will not save it where that collateral was effectively a reward for the surrogacy; courts will look at substance over form to prevent statutory avoidance.
Para 23: "I therefore conclude that the surrogacy arrangement in this case was not a commercial surrogacy arrangement...", Translation: After looking at the evidence and statutory tests, the judge concluded the arrangement was lawful under the Act and therefore the court could make the parentage order.
This decision is directly engaged where:
In such patterns the court will scrutinise timing, documentary evidence (emails, written arrangements) and whether the alleged benefit was a quid pro quo "for" entering into the surrogacy arrangement; the more the benefit is shown to be independent in genesis and in purpose, the less likely it is to fall within s 9(1)’s commerciality test (paras 13–19). Similarly, discrete and verifiable payments within s 7 limits are likely to be treated as permissible reimbursement and not commercialisation (paras 20–23).
This judgment itself does not discuss subsequent authority. The text contains no analysis of later decisions. To know how later courts have treated Brereton J’s reasoning on collateral benefits and the meaning of 'for' in s 9(1), one must search reported decisions, law reports and later judgments citing Application MJC and CSC; re EMC [2012] NSWSC 1626. The judgment, as written, supplies a fact-driven approach and a caution against letting collateral arrangements be used to evade the Act; subsequent courts may adopt, refine or distinguish that approach depending on their facts and statutory interpretation (see paras 17–19, 21–23).
From the judgment’s reasoning several issues remain open for future clarification:
The precise boundary between a collateral arrangement that is independent and one that is effectively a reward 'for' entering into a surrogacy arrangement: the judge relied on the documentary record and sequencing of discussions (paras 15–18). Future cases may give more concrete tests or examples.
How strictly courts will require documentary proof of the birth mother’s consent in circumstances where the formal witnessed instrument is not produced, given that Brereton J accepted an affidavit statement of consent (para 3). Will other judges require the formal instrument nevertheless in most cases?
The evidentiary standard for establishing whether a collateral arrangement was part of the surrogacy bargain: here the written surrogacy arrangement's silence and the April 2009 email were important (paras 14–16). Questions remain about the weight to be given to contemporaneous communications versus later affidavit evidence.
Whether payments that fall close to but arguably outside s 7’s enumerated items might be treated as reasonable under s 7(5) or would be deemed commercial. The judgment interprets s 7(3)(e) narrowly in light of the amounts proved (paras 20–22).
Practitioners should treat these as factual questions that will turn on documentary evidence and contemporaneous communications in each case.
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Judgment (ex tempore) 1HIS HONOUR: By summons filed on 15 August 2012, the plaintiffs MJC and CSC claim a parentage order pursuant to (NSW) Surrogacy Act 2010 for the transfer of the parentage of the child EMC (the child), born 5 November 2010, from the birth mother NAS to the second plaintiff, the first plaintiff being the child's natural father. 2All relevant and applicable preconditions to the making of a parentage order referred to in Division 4 of Part 3 of the Surrogacy Act are satisfied, with two qualifications, to which I now come.
Consent 3The first is the question of the consent of the defendant, the birth mother. As I have mentioned in previous matters under this Act, consent, when required, of a party involved in litigation is ordinarily to be proved in accordance with the Rules by a formal instrument of consent, verified by an affidavit of the witness who witnesses the execution of the consent. That has not been done in this case. However, the affidavit of the birth mother, of 13 August 2012, makes plain that she does, in fact, consent to the orders sought, and she says as much in paragraph 27 of her affidavit. In those circumstances, although the matter has not been correctly and formally proved, I am satisfied that she does in fact consent and, accordingly, I find that the requisite consent has been given.
Whether arrangement is a commercial surrogacy arrangement 4The other matter, which has been the cause of the matter being listed for submissions and argument, is more complex, and relates to the nature of the surrogacy arrangement and, in particular, the requirement of s 23 of the Act, that the surrogacy arrangement must not be a commercial surrogacy arrangement. This is a mandatory precondition, so that it is not open to the court to dispense with compliance with it [s 18(2)(a)]. 5The definition of "surrogacy arrangement" includes, by s 5(1)(a): An arrangement under which a woman agrees to become or 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 preconception surrogacy arrangement). 6There is no doubt that the arrangement between the plaintiffs and the defendant in this case was a pre-conception surrogacy arrangement within that definition, and it is unnecessary to consider the definition of post-conception surrogacy arrangement. 7Section 9 of the Act defines "commercial surrogacy arrangement" as follows: (1) For the purposes of this Act, a surrogacy arrangement is a "commercial surrogacy arrangement" if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person: (a) agreeing to enter into or entering into the surrogacy arrangement, or (b) giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or (c) consenting to the making of a parentage order in relation to a child of the surrogacy arrangement. (2) However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother's surrogacy costs. 8It will be apparent from subsection (1), as set out above, that a surrogacy arrangement is a commercial surrogacy arrangement if the arrangement involves the provision of, inter alia, a reward or other material benefit or advantage to a person for agreeing to enter into or entering into the surrogacy arrangement. It will also be apparent, from subsection (2), that a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee reward or other material benefit or advantage is the reimbursement of the birth mother's surrogacy costs - a topic to which I shall have to return. 9The evidence that has caused me concern in this respect is to be found in each of the affidavits of the plaintiffs, the defendant, and the defendant's own partner. The first plaintiff, in his affidavit 4 April 2012, deposed as follows: 6. In April 2009 [NAS], the defendant, and her partner, [KAS], emailed 'Gay Dads Yahoo', looking for prospective dads and offering to be a surrogate mother. [CSC] and I emailed [NAS and KAS] on 11 April 2009 that we were interested if finding someone to be a surrogate mother, and on 21 April 2009 we received a reply by email from [NAS and KAS] with their expectations around [NAS] being the surrogate mother. In the second email the medical history and biography of [NAS] was set out. 7. On 5 May 2009 [CSC] and I met with [NAS and KAS], who expressed their desire that [KAS] was wanting to be pregnant and have a baby at the same time as [NAS] would be pregnant as a surrogate mother. In the meeting we offered for one of us to be the sperm donor for [KAS]. Subsequent to the meeting but on the same day [NAS and KAS] contacted us to state they had chosen [CSC] and I to be their prospective dads. [CSC] and I were very excited at the prospect of becoming parents. 10In the affidavit of the second plaintiff, also sworn 4 August 2012, he deposed: 6. In April 2009, we were lucky to respond to an email and meet [NAS], the defendant, and the partner, [KAS], who were looking for prospective dads to be a sperm donor, and for [NAS] to be a surrogate mother. The arrangement was perfect for both couples, although [KAS] is still attempting to fall pregnant using [MJC's] sperm. 11In her affidavit sworn 13 August 2012, the defendant, NAS, deposed as follows: 6. In April 2009 [KAS] and I sent an email to Gaydads Yahoo looking for prospective dads to donate sperm to [KAS] and me for use in an artificial insemination procedure so that [KAS] could become pregnant. In the same email we offered for me to be a surrogate mother if the dads wanted a child or children. 7. [MJC and CSC] responded to our email and on 5 May 2009 I met [MJC and CSC] with [KAS]. We discussed the arrangement of either [MJC or CSC] providing his sperm for insemination so [KAS] could get pregnant and of me being a surrogate mother giving berth to a child for them. 12The defendant's partner, KAS, in affidavit also sworn 13 August 2012, deposed as follows: 4. Early on in our relationship I started speaking with [NAS] about having a child. [NAS] has 3 children from previous relationships and I wanted to enjoy the experience of motherhood and still do while being in a relationship with [NAS]. [NAS] has given her full support in this regard. 5. In April 2009 [NAS] and I sent an email to Gaydads Yahoo looking for prospective dads to be a sperm donor to impregnate me and [NAS] offering to be a surrogate mother for a child for them. 6. On 11 April 2009 [NAS] and I received a reply from [MJC and CSC]. 7. On 5 May 2009 [NAS] and I met with [MJC and CSC] who in the meeting offered for one of them to be the sperm donor for me. Subsequent to the meeting and on the same day [NAS] and I contacted [MJC and CSC] saying we had chosen them to be our prospective dads. 13As a result of that evidence, it seemed to me that it was at least distinctly arguable that, by agreeing to being a surrogate in return for the donation of sperm so that the defendant's partner could become pregnant, the defendant was obtaining a reward or other material benefit or advantage for agreeing to enter into, or entering into, the surrogacy arrangement. 14On the other hand, the written surrogacy arrangement itself contains no reference to any such provision. While that cannot be conclusive, because in any event a surrogacy arrangement is not legally enforceable (see s 6 of the Act), nonetheless, it is some support for the view that it was not part of the surrogacy arrangement. 15In addition, evidence has been placed before me of the email of 8 April 2009, to which the witness has referred, which was in the following terms: Message: I am wanting to get in touch with gay couples who are searching for a surrogate. I have completed my family, having 3 healthy children and am in a very solid relationship with my wife. Becoming a surrogate has always been a dream for me because; while we as lesbians find it difficult to search for a sperm donor, I cannot even begin to imagine the difficulty in finding a surrogate to complete your family. 16It will be seen that, contrary to what they have said in each of their affidavits, the email, in fact, did not refer to or stipulate for any condition that sperm be provided so that the surrogate's partner might endeavour to become pregnant. This is important, as it suggests that from the beginning of the negotiations, contrary to the impression given by the four affidavits, there was not a mutual understanding to that effect. Evidence given by the first plaintiff today suggests, somewhat consistently with paragraph 7 of his affidavit set out above, that the desire for the defendant's partner to become pregnant arose incidentally, after the parties had met. 17The mere fact that an arrangement is, in a sense, collateral to the surrogacy arrangement, could not of itself mean that, if it involved a commercial element within the definition, the surrogacy arrangement was not a commercial surrogacy arrangement. Otherwise, it would be open to circumvent the Act by entering into collateral arrangements providing for commercial benefits outside, but collateral to, a surrogacy arrangement. But in this case, it seems to me that the question of provision of sperm so that the defendant's partner might endeavour to become pregnant does stand independently from the surrogacy arrangement. 18I reach that conclusion partly on the basis of the evidence now before the Court, which contradicts that in the affidavits as to when and in what context the question of provision of sperm arose, and also on the basis that, the surrogate's partner not yet having fallen pregnant, there is evidence that the first plaintiff remains prepared to provide sperm to assist that purpose. It seems to me that, in the context of this case, the agreement to provide sperm so that the surrogate's partner could become pregnant was not a reward or other benefit "for" agreeing to enter into or entering into the surrogacy arrangement. 19In those circumstances, I have come to the conclusion that the surrogacy arrangement is not, on that ground, a commercial surrogacy arrangement.
Birth mother's reasonable costs 20I said that I would need to return to the question of reimbursement of the birth mother's surrogacy costs. That arises because, in the course of the first plaintiff's oral evidence, he referred to reimbursement of lost earnings incurred by the surrogate during the surrogacy and in connection with the birth. The birth mother's surrogacy costs are defined in s 7 of the Act as follows: (1) For the purposes of this Act, a "birth mother's surrogacy costs" are the birth mother's reasonable costs associated with any of the following matters: (a) becoming or trying to become pregnant, (b) a pregnancy or a birth, (c) entering into and giving effect to a surrogacy arrangement. (2) The reasonable costs associated with becoming or trying to become pregnant include any reasonable medical, travel or accommodation costs associated with becoming or trying to become pregnant. (3) The reasonable costs associated with a pregnancy or birth include the following: (a) any reasonable medical costs associated with the pregnancy or birth (both pre-natal and post-natal), (b) any reasonable travel or accommodation costs associated with the pregnancy or birth, (c) any premium paid for health, disability or life insurance that would not have been obtained by the birth mother, had the surrogacy arrangement not been entered into, (d) any reasonable costs, including reasonable medical costs, incurred in respect of a child (being the child of the surrogacy arrangement), (e) the cost of reimbursing the birth mother for a loss of earnings as a result of unpaid leave taken by her, but only for the following periods: (i) a period of not more than 2 months during which the birth happened or was expected to happen, (ii) any other period during the pregnancy when the birth mother was unable to work on medical grounds related to pregnancy or birth. (4) The reasonable costs associated with entering into and giving effect to a surrogacy arrangement include the following: (a) the reasonable costs associated with the birth mother and the birth mother's partner (if any) receiving counselling in relation to the surrogacy arrangement (whether before or after entry into the arrangement), (b) the reasonable costs associated with the birth mother and the birth mother's partner (if any) receiving legal advice in relation to the surrogacy arrangement or a parentage order relating to the surrogacy arrangement, (c) the reasonable costs associated with the birth mother and the birth mother's partner (if any) being a party to proceedings in relation to such a parentage order, including reasonable travel and accommodation costs. (5) A cost is reasonable only if: (a) the cost is actually incurred, and (b) the amount of the cost can be verified by receipts or other documentation. (6) In this section: "medical costs" does not include any costs that are recoverable under Medicare or any health insurance or other scheme. 21For present purposes, the particularly relevant provision is subsection (3)(e). At one stage, it seemed that there might have been a 4-month period in respect of which the birth mother was paid in respect of loss of earnings; however, closer examination of the evidence seems to indicate that payments in that respect were limited to: (1)a sum of $300 on 28 September 2010, when she apparently had a fall and received 3 days pay, which would be covered by subsection (3)(e). (2)$500, presumably representing 5 days pay in connection with a threatened premature labour at 32 weeks, which would also be covered by subsection (3)(e)(2); and (3)a period of 4 weeks post delivery paid on 9 December 2010, which is less than the maximum period of 2 months permitted by the section to which I have referred. 22Accordingly, it seems that the arrangement in respect of the birth mother's surrogacy costs covered only "reasonable costs" within s 7, and accordingly is within what is permitted by s 9(2). 23I therefore conclude that the surrogacy arrangement in this case was not a commercial surrogacy arrangement and the Court is, therefore, not precluded from making a parentage order.
Orders 24I order that the parentage of the child EMC born 5 November 2010 be transferred from NAS to the first plaintiff as father, and the second plaintiff as parent. 25I order that the Court approve the name XXXX as the surname, and XXXX XXXX as the given names of the child. 26I direct that the registrar give written notice of the parentage order to the Registrar of Births Deaths and Marriages pursuant to s 49 of the (NSW) Surrogacy Act 2010.
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: 23 May 2013
Parentage of the child EMC born 5 November 2010 transferred from NAS to the first plaintiff as father and the second plaintiff as parent; court approved the child's name and directed registrar notification under s 49 of the Surrogacy Act 2010 (paras 24-26).