other orders would not make adequate provision for the child and an order for adoption would be in the particular child's best interests;
the child has an established relationship with the applicants;
the child is aware of his or her genetic relationship with any of the following: the birth parents, the applicants, and any gamete or embryo donors;
the child has access to information about his or her birth parents and birth family;
the child has an understanding, commensurate with his or her age, of the reasons why the adoption might take place;
requirements as to the birth parents and child's views, wishes and consent as recommended in this Report have been complied with; this includes: that the child be consulted and actively involved in any adoption plans according to his or her level of maturity and understanding; that the birth parents be given early notice of any plans to proceed to an adoption; and that the birth parents be fully informed of the consequences of the adoption for the child and themselves; and
other requirements recommended in this Report have been complied with."
21 The Commission also considered adoptions by step-parents and relatives; the Commission was of the view that such an adoption is "… often an inappropriate way to promote a child's best interest and generally should not be encouraged" (para 4.86) and concluded (para 4.88):
"4.88 Adoption by a step-parent or other relative will normally be appropriate only if:
other care orders would not make adequate provision for the child and an order for adoption would be in the particular child's best interests;
the child has an established relationship of at least five years duration with the step-parent or other relative;
the child has knowledge of and contact with his or her non-custodial birth parent and family;
the child has an understanding, commensurate with his or her age, of the reasons why the adoption might take place;
requirements as to the birth parents' and child's views, wishes and consent as recommended in this Report have been complied with; and
other requirements recommended in this Report have been complied with."
22 The Law Reform Commission was not prepared to make any recommendation for a legislative change which could be seen as promoting surrogacy arrangements. In fact no legislation carrying out the Law Reform Commission's recommendations has been enacted, and the Commission's views do not have the force of law. The Commission's views appear to reflect expert opinion similar to what has been put before me in the report of the delegate of the Director General, and in the report of the social worker Ms Kay Lamport which the Director General obtained for this application.
23 Ms Anita Stuhmcke in her article "Surrogate Motherhood: the legal position in Australia" (1994) 2 Journal of Law and Medicine 116) narrates that "In March 1991 a joint meeting of Australia's Health and Social Welfare ministers resulted in a unanimous agreement to support uniform legislation to control surrogate motherhood in Australia." However no uniform legislation has emerged. This article refers to much earlier literature. The ministerial decision referred to was directed against commercial arrangements and contractual enforceability.
24 A strong statement of "The Case for Discouragement of Surrogacy Arrangements" was made by Ms Penne Watson Janu in her article so titled in (1996) Volume 4, Journal of Law and Medicine 72, her principal perspective being the exploitation of women and fragmentation of motherhood, and the subordination of the welfare and interests of the child.
25 In my understanding the main basis of the view that parenthood through surrogacy and surrogacy adoptions should not be encouraged by public policy or the action of governments, and should be controlled and restricted by legislation is that these arrangements impose potential disadvantages on persons who do not and cannot participate in the decisions which bring the potentiality into existence, and in the decisions which follow. The potential disadvantages will not necessarily be incurred; the prospects of happy outcomes and unhappy outcomes may well be much the same for adoptions after surrogate parenthood as for other adoptions, although it would be difficult to establish whether they are. The potential disadvantages usually relate to happiness, feelings, emotions and perceptions of relationships rather than to concrete circumstances or availability of material resources. When these disadvantages are incurred they can be felt very deeply and have severe impact on the happiness of those affected. Many life histories in which adoptions are involved show that the potential disadvantages are not incurred, and in the cases where they are incurred their impact ranges from slight unhappiness to emotional disturbances of great severity. In my understanding, adoption has overall been a very successful institution and has contributed greatly overall to the welfare and interests of infants who have been surrendered for adoption or otherwise through circumstances do not have a place in a family structure. For public policy the question whether potential disadvantages should be imposed on an infant presents itself in a completely new and different way when the situation is created deliberately.
26 The interests of the infant are not the only interests involved. Guiding and controlling the events are the interests of proposed adopting parents, as perceived by them, in achieving their purposes in life and their happiness by having and rearing an infant. The interests of the birth mother are also involved and there is at least potentially deep emotional disturbance for her. Experience demonstrates the fragility of intentions to surrender infants, however firmly they are held and expressed, and emotional resolution does not always accord with intentions which have been firmly held and carried out. The birth mother is a largely submerged figure in surrogacy stories. Even where the events fully accord with her wishes and intention and there is no inappropriate social or familial influence, there is room for her to perceive the events as emotional sacrifice. She is Cinderella trapped in Act 1, and does not go to the Ball. In a broad address to public policy the interests of surrogate mothers would be a prominent consideration.
27 The perception that the influence of commercial or other economic considerations on the intentions and conduct of a surrogate mother is inappropriate must be very widespread, although some literature to which Ms Watson Janu refers shows that it is not universal. Even in an arrangement which is not commercial there is room for inappropriate pressures to influence a surrogate mother's intentions, particularly where there are familial relationships among the adults involved, as these can give rise to subtle dynamics which may not be articulated or clearly perceived, and also to unsubtle dynamics.
28 No legislation deals with surrogate parenthood or with adoption in relation to surrogate parenthood, and I address the present application in the legal context which exists now and in the factual context of this case. The paramountcy of the welfare and interests of the child in this case altogether overwhelms public policy considerations, not expressed in any legal rule, about whether surrogate parenthood should occur or should be encouraged. In this case it has occurred, and I must address the present facts.
29 This case clearly falls within s 8 of the Adoption of Children Act 1965 (NSW), which prescribes the cases in which the Court's jurisdiction may be exercised. It does so because the applicants have been domiciled in New South Wales since their immigration, and the infant was born in this State. Section 17 of the Adoption of Children Act 1965 states explicitly the principle of law which the court applies to cases involving the welfare of children: "For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration."
30 Part 4 "Adoptions under this Act" contains the more important provisions of the Act, to which other provisions are ancillary, and authorises adoption orders. Part 4 prescribes a number of matters which require to be considered on an adoption application. Some of these do not require separate attention. Subsection 18(2) in effect requires that an application be made with the consent of the Director General, with a number of exceptions. One exception is found in para 18(2)(a) - "The applicant is a person, or the applicants are persons, in whose favour a consent referred to in subs.(2) of s.27 has been given." Subs.27(2) refers to "… a consent expressed to be a consent to the adoption of the child by a relative of the child, or by two persons one of whom is a parent or relative of the child." "Relative" is defined in s.6 in terms which include an aunt of the child, and the proposed adopting mother as the birth mother's sister is an aunt of the child. The birth mother has consented to adoption by the applicants in express terms.
31 Some other requirements of the Act have obviously been met; the child is under 18 years of age (subs.18(1)) the proposed adopting parents are married to each other (s.19) and they are over the age of 21 years (s.20). The Director General has made a report in writing to the Court concerning the proposed adoption (s.21(1)(a)). Evidence filed on behalf of the applicants and also the report itself show matters enumerated in para 21(1)(c) which the Court is to consider. It is clear that each of the applicants is of good repute and is a fit and proper person to fulfil the responsibilities of a parent. They are long settled in Australia and well established, they have no criminal convictions and are not adversely known to police and they have produced affidavits of referees who have known them for many years and attest to their being responsible, trustworthy persons with high moral and family values. They are well housed in a family home which they own, where they have lived for over six years. The proposed adopting father has been employed by his present employer for well over 20 years. He has been employed as a librarian assistant and is now an assistant in the audio-visual section. The proposed adopting mother worked in secretarial duties, and was so employed by a bank for 16 years continuously until she left to attend to duties at home. They are of the Roman Catholic faith, they attend church frequently, they were married in a Roman Catholic church and the child has been baptised.
32 The proposed adopting parents brought care and responsibility to bear on the surrogacy arrangements, participating fully and appropriately in obtaining the decision of the Ethics Review Committee and in all attendances relating to the child's birth. There is no indication in the evidence reports and submissions before me adverse to finding that they are of good repute and that each is a fit and proper person to fulfil the responsibilities of a parent, and I find that they are. In terms of para 21(1)(b), I find that each of them is a suitable person to adopt the infant now in question, having regard to their age, state of health, education, the religious upbringing and convictions of themselves and of the child, the wishes of the birth mother expressed in her instrument of consent, and every relevant consideration to which evidence refers.
33 Section 26 prescribes requirements for consents to adoptions. Having regard to subs.26(3) the consent of the birth mother is required; her consent has been given. Under para (b) consents of fathers of ex-nuptial children are required in some cases, but on no view can the proposed adopting father fall within any of those cases. If for some reason his consent were required, that requirement would be overcome by subs 26(5), because he is one of the applicants for the adoption order.
34 The proposed adopting father's present legal relationship with the infant in terms of personal status was the subject of careful submissions. There is evidence which, were it not for statutory provisions to which I will refer, would lead to a finding that he is the biological father of the infant, as sperm donated by him was used for the artificial insemination of the birth mother. His name appears in the birth certificate as the child's father, and this must be based on an acknowledgment by him under s.11 of the Children (Equality of Status) Act 1976. Lawyers representing the applicants and the Director General made submissions relating to the apparent conflict of presumptions relating to fatherhood created by two New South Wales statutes which, at the time of the child's birth and registration, dealt with that subject.
35 Subsection 11(1) of the Children (Equality of Status) Act 1976 provided to the effect that where a man executed a paternity acknowledgment which is recorded in a Register of Births, "… that man shall, for all purposes, be presumed to be the father of the child." However s.6 of the Artificial Conception Act 1984 provided in these terms:
"(1) Where a woman becomes pregnant by means of
(a) artificial insemination; or
(b) the procedure of implanting in her womb an ovum
(whether or not produced by her) fertilised outside her body,
any man (not being, in the case of a married woman, her husband) who produced semen used for the artificial insemination or the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy.
(2) The presumption of law that arises by virtue of subsection (1) is irrebuttable."
36 Subsection 4(3) made s 6 subject to subs 18A(2) of the Children (Equality of Status) Act which by para (d) made the presumption in s 11(1) prevail over the presumption in s 6 of the Artificial Conception Act.
37 Those statutes have been repealed by the Status of Children Act 1996, which was assented to on 29 October 1996 but had not commenced at the times of the child's birth and registration. That Act commenced on 1 September 1998, before the application for adoption was filed, and by s.37 it repealed the two earlier enactments; savings and transitional provisions in schedule 2 included, in cl.3(1) the following: "(1) A paternity acknowledgment that was executed in accordance with s 11 of the Repealed Status act and in force immediately before the repealed date is taken to be a formal paternity acknowledgment executed under s 19 of this Act." There is no corresponding savings and transitional provision dealing with the presumption in the Artificial Conception Act 1984. The continuing effect of an acknowledgment under the previous legislation is further provided for by ss 11, 13 and 19 of the Status of Children Act 1996. The effect of these provisions is that presumptions arising from registration are rebuttable.
38 Section 14 of the Status of Children Act 1996 deals with presumptions arising out of use of fertilisation procedures and its provisions include: "(2) if a woman 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." This presumption is irrebuttable.
39 The Status of Children Act 1996 does not contain any provision establishing expressly that the irrebuttable presumption arises when the fertilisation procedure and the birth occurred before the Act came into effect. A presumption existed under the repealed legislation, but that part of the repealed legislation has not been expressly continued, even for limited purposes. Section 14 relates to presumptions and the proof of facts; it is procedural in character, and in my opinion it applies now when the question of proof of parentage comes before the Court, irrespective of the time at which the underlying facts occurred.
40 Thus I am confronted with rebuttable presumptions that the proposed adopting father is the child's father arising under s 11 and s 13 of the Status of Children Act 1996, and an irrebuttable presumption that he is not the father arising under subs 14(2); the rebuttable presumptions are rebutted by the irrebuttable presumption and, on the evidence before me, I must conclude and act on the basis that he is not the infant's father and the infant is not his child; there is no relationship between them. On this view there is no requirement for his consent to the adoption application, but if he were the child's father and there were such a requirement it would be overcome by subs 23(5) as he is an applicant.
41 The turning point for decision is the question stated in the last words of subs 21(1) of the Adoption of Children Act, that is the question whether "the welfare and interests of the child will be promoted by the adoption," that being the paramount consideration under s.17. The welfare and interests which fall to be considered relate to the emotional dimensions of life and the happiness of the child at present and in the future. There is nothing adverse to the welfare and interests of the child in relation to the material dimensions of life; the applicants are good people, of good repute, good health, hard working and steady citizens, they have appropriate resources in terms of housing, earnings and earning capacity, and they have a deep commitment to the child's welfare which they formed before the child's birth and even before the child's conception and have always acted on. The birth mother is not an alternative source of all these advantages; even before the child's conception she had a clear and settled intention that the child should be given to her relatives as their child, she has always acted on this basis and has not wavered from it, and she is committed to a relationship with a man who is not the child's father, in a family of her own with a child, or (depending on what the future holds) children, to whom she is committed in a way in which she is not committed to the infant. She lives in a distant State, visits Sydney only from time to time, and has never made material resources available for the infant. It is not practicable to contemplate that the arrangements for the applicants to stand in the position of parents to the infant should be wholly set aside, and it has not been suggested that I should make an order which could have that effect.
42 The conditions contemplated by the Law Reform Commission have not all been fulfilled. With respect of the first condition, an order under the Adoption of Children Act dealing with guardianship or an order under the Family Law Act 1975 dealing with parenting would leave the question of adoption unresolved. In the absence of any conflict I do not see any need for control or definition of the interim position by a Court order. I do not see at what stage, other than at a remove of many years to the child's adolescence, it might be that the child would have any real understanding or effective opportunity for decision which might be brought to bear on adoption. With respect to the second condition the child has an established relationship with the proposed adopting parents, which has extended for the whole of the child's life but not for five years, and does not replace or substitute for any earlier relationship with the birth mother. The third condition is fulfilled. With respect to the fourth condition it is not possible for the child to have any understanding of any issue relating to the adoption. With respect to the fifth and sixth conditions all other requirements of the Adoption of Children Act have been fulfilled. There has been no breach of that Act which would call for any prosecution or like action.
43 The submission by the Director General dealt with restrictions in the Adoption of Children Act on unauthorised arrangements. Arrangements made between the applicants and the birth mother with a view to adoption are not prohibited by s 51(1) of the Adoption of Children Act because they were made with a view to the adoption of the child to persons one of whom is a relative of the child; see subs (2).
44 The submissions also dealt with s 50 which relates to payments in consideration of adoptions. Subsection 50(1) makes it an offence to make or receive a payment in relation to a proposed adoption, while subs (2) creates exceptions relating to legal expenses or fees authorised by the regulations, and hospital and medical expenses paid with the approval in writing of the Director General or the Court. The applicants have paid legal and medical costs of the birth mother, but have not observed the conditions mentioned in subs (2), so they do not fall within the exceptions. There has been no other payment, and the arrangements do not have any commercial aspect. In my opinion it is likely that there has been a breach of the prohibition against making payments and that there has been an offence, although the offence would be technical in nature, and it is very unlikely that there could ever be a prosecution or that if there were any penalty would be imposed. In any event the question whether there was an offence of that kind is peripheral to the question of the welfare and interests of the infant.
45 The view put on behalf of the Director General was generally that granting an adoption order now is premature. The Director General's submissions pointed to and acknowledged positive aspects of the application and of an adoption order if made. The applicants would have well-established full legal rights and responsibility, and a new birth certificate would be issued showing them as parents. The birth mother prefers adoption as the outcome. The applicants are capable individuals who provide responsible and sensitive care for the infant, who is being raised with a loving, stimulating and secure family environment where her developmental needs are well met. The quality of the care provided for the infant is not in question.
46 The submission pointed out the incapacity of the infant to understand the question whether there should be an adoption and to make or express any choices. The submission accepted that the applicants are being as open as they can be with a very young child about the complex family arrangements and circumstances of her conception and birth. It was observed that the infant is too young to be consulted about her views regarding her status, too young to understand the skewing of genealogical relationships that will flow from the making of an adoption order and too young to express a view about the loss of her relationship with her mother and half sister and any further children of her mother. She will have her new legal relationship with these people, and her genealogical relationship with them will be permanently altered and severed.
47 It was submitted that the benefits which would flow from an order of adoption are at this stage focused on the applicants, and that there are no benefits that would flow to the child at this stage except as the order of adoption would affect the personal comfort level and security of the applicants. As well as the effect on their feelings, their practical dealings with government and other institutions will be eased if they can produce a full birth certificate.
48 It was submitted that the benefits of an adoption order for the infant are indiscernible at this stage in her life. This submission accepted that whether or not there is an adoption order, the care and love of the applicants for the infant will continue. The submission pointed out that the infant is vulnerable to the caring adults' wishes to limit the way in which she learns about her background, and that one of the greatest difficulties past participants in adoption have expressed is the negative effects on a child of secrecy. In intrafamily adoptions the skewing of family relationships has also been a particular concern. These concerns are ameliorated if genealogical relationships within a family are acknowledged to the child as the child obtains the capacity to understand them, and not at a deferred stage after some process of maintaining secrecy. The submission pointed out the well-established advantages of having the adoption story before children from a very early age, for example by being recorded in an adoption story book with photographs, to be read and shown to children from a very early time, to be followed by a ready and uninhibited flow of information in accordance with the child's capacity to receive it from time to time.
49 Nothing in the evidence, including Ms Lamport's report, leads me to have any concern that the applicants will not be ready to make the infant's true circumstances open to her. While predictions of the future can never be altogether confident, I see no reason to fear that they will not perform this part of their parenting task well.
50 The Director General's submission put forward for consideration several alternative orders which the Court may make for the care of the infant. These alternatives include giving guardianship to the Director General and care to the applicants. This course is provided for by s 34 of the Adoption of Children Act, and would keep the child's circumstances under review by the Department and by the Court. The Department does not support this course. I do not regard it as appropriate because I do not see any ground for reserving further opportunities of supervision over the applicants.
51 The Director General also referred to the option of making an order under s 24 of the Adoption of Children Act granting guardianship to the applicants. The submission contemplates that the Department's practice in relation to close relative adoptions would be followed for some years, and the question of adoption would come under consideration again at a later stage when the infant had an established relationship of at least five years with the applicants, knowledge of and contact with her birth mother, and an understanding commensurate with her age as to why adoption is taking place.
52 In my opinion the matters supporting the conclusion that there should be an adoption order having regard to the welfare and interests of the child in this case are quite overwhelming. In my view the balance of her interests overwhelmingly favours completing the adoption process over guardianship or parenting orders which would continue the provisionality and potential instability of the present arrangements. I do not see any real advantage in postponing a decision on adoption for several years. When the infant is five or six, and for many years after, she will not be in the position to make any real choice or decision. If the general circumstances favouring adoption were not so highly favourable as the evidence shows they actually are, or if there were any signs of instability or potential conflict among the adults involved, I might have to take a different view.
53 I repeat the statement of Windeyer J in W: Re Adoption (NSWSC 6 July 1998) "It is important to state that in coming to this decision, the Court is not determining whether surrogate births are or are not to be encouraged." It would be incorrect to interpret this decision as expressing approval or endorsement of surrogate parenthood, or as expressing general readiness to ratify surrogacy arrangements with adoption orders. I share the disquiet which has been expressed elsewhere, including by the Law Reform Commission, about surrogate parenthood, and I share the Commission's disapproval of commercial arrangements and their view that surrogacy should not be encouraged and that it is appropriate for the legislature to consider regulating it. These general considerations cannot control my task of adjudication on the facts of the instant case and in conformity with the legal rules found in the Adoption of Children Act 1965, including the paramountcy rule. I do not regard surrogate parenthood as an ideal arrangement, but the circumstances of the present case appear to me to be as favourable as are ever likely to be encountered.
54 This decision if rightly understood should not give encouragement to make arrangements for surrogate parenthood or to seek adoption orders. Any other adoption application must be considered according to law, in which the welfare and interests of the child are paramount; welfare and interests of children cannot be generalised, and must be addressed in detail on the facts of each case, and the outcome of earlier cases will provide little guidance.
55 For these reasons I will make an adoption order as asked.
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