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[2025] ACTSC 294
General information, not legal advice.
Supreme Court of the ACT
2025-07-11
Muller AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Re application under the Parentage Act 2004 Citation: [2025] ACTSC 294 Hearing Date: 26 June 2025 Reasons Date: 11 July 2025 Before: Muller AJ Decision: See [22] Catchwords: PARENTAGE ORDER – application for transfer of parentage under s 28H of the Parentage Act 2004 (ACT) – where surrogacy arrangement was entered into and child was born prior to the commencement of the Parentage (Surrogacy) Amendment Act 2024 (ACT) – consideration of transitional provisions – parentage order made Legislation Cited: Adoption Act 1993 (ACT) Parentage Act 2004 (ACT), ss 24, 28F, 28H, 55 Parentage (Surrogacy) Amendment Act 2024 (ACT) Parentage (Surrogacy) Amendment Bill 2023 (ACT) Cases Cited: BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 Texts Cited: Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard), 25 June 2024 Parties: [REDACTED] (First Plaintiff) [REDACTED] (Second Defendant) [REDACTED] (First Defendant) [REDACTED] (Second Defendant) [REDACTED] (Subject Child) Representation: Counsel M Page (First and Second Plaintiff) H Marjason (First and Second Defendant) Solicitors Page Provan (First and Second Plaintiff) Marjason & Marjason (First and Second Defendant) File Number: SC 372 of 2024 MULLER AJ: Introduction
In these reasons the names of the parties and other relevant persons have been anonymised and other identifying information redacted.
This application was heard before me on 26 June 2025. At that time, I made the orders that are set out below. I now publish my reasons.
In the originating application orders are sought under s 28H of the Parentage Act 2004 (ACT) (Parentage Act) which would have the effect of transferring the parentage of the child from his mother, who is both his birth mother and genetic mother, and her partner, to his genetic father and the husband of his genetic father.
The child was born in Canberra, ACT, on [REDACTED], however his conception occurred as a result of a procedure carried out at an IVF clinic in New South Wales. Well prior to his conception, a surrogacy agreement had been entered into between the four adult persons identified above, with a view to the creation of a child intended to be in a familial relationship with his genetic father and the husband of his genetic father. The husband of the genetic father and the birth mother are siblings.
On 10 July 2024 the amendments to the Parentage Act introduced by the Parentage (Surrogacy) Amendment Act 2024 (ACT) (the Amending Act) commenced. The Amending Act introduced a number of reforms intended to bring the Territory into line with other jurisdictions, particularly in terms of its accommodation of altruistic surrogacy arrangements such as that entered into by the parties to this proceeding.
Significantly, before the Amending Act, the parties were prevented by the operation of s 24 of the Parentage Act (being part of the previous division 2.5), from seeking a parentage order in the Territory because: (a) the procedure by which the child was conceived was carried out in New South Wales; and (b) the birth mother of the child is also his genetic mother.
Transitional provisions
In the course of the ACT Legislative Assembly debate of the bill that became the Amending Act the Attorney General observed: “… This is a significant bill in what it does to harmonise with other jurisdictions to improve the experience for all those involved in the surrogacy arrangement, to recognise the diversity in family relationships and surrogacy arrangements and to remove discrimination and to reduce barriers. To summarise, the Bill includes allowing single people to become intended parents, removing the requirements in the Parentage Act that one intended parent must be a genetic parent of the child, allowing for traditional surrogacy where a surrogate provides their own egg and is a genetic parent. This provides additional flexibility recognising the diverse situations where people may choose to enter into altruistic surrogacy arrangements. It's about removing the requirement that the child is conceived as a result of a procedure carried out in the ACT. Instead, it requires that the intended parents must be living in the ACT when they apply for a parentage order. This measure will enable parties in surrogacy arrangements to have flexibility about how and where conception occurs and to use services of their choice.”
Following the commencement of the Amending Act, s 55(1) of the Parentage Act provides for the circumstance confronted by the parties in this proceeding, where: (a) an altruistic surrogacy arrangement was entered into prior to the commencement day: s 55(1)(a); (b) the child was born, pursuant to that arrangement, prior to the commencement day: s 55 (1)(b); (c) there was no parentage order in force in relation to the child before the commencement day: s 55(1)(c); and (d) division 2.5 as in force immediately before the commencement day does not apply to the child, but division 2.5 as in force after the commencement day, would apply to the child, had the arrangement been entered into after the commencement day: s 55(1)(d).
Division 2.5 of the Parentage Act, prior to amendment, did not apply to the child because of the failure to meet the requirements of s 24 that I have identified above. Subdivision 2.5.2 of the Parentage Act, as amended, would have applied to the child had the arrangement been entered into after the commencement day, because of the operation of s 28F which was introduced by the Amending Act. That section broadens the scope of the Parentage Act in the context of altruistic surrogacy arrangements to include applications by intending parents who live in the Territory, regardless of where the conception event occurred.
Where the qualifications in s 55(1) are all satisfied, as they are here, then s 55(2) provides: 55 Parentage order—arrangement made and child born before commencement day … (2) The person or people may apply to the Supreme Court under section 28G for a parentage order for the child as if— (a) the arrangement was a surrogacy arrangement; and (b) the person or people were the intended parent or intended parents of the child under the surrogacy arrangement; and (c) section 28G (3) does not apply.
The effect of the section as it applies to the case of the child is: (a) the application proceeds as if it were a surrogacy arrangement within the meaning of the Parentage Act, as amended; (b) the parties have a period of five years from the commencement date within which to make the application; (c) the court may make a parentage order about the child under s 28H(1) as if the child were a child mentioned in s 28F(1): and (d) in making a parentage order about the child the court need not be satisfied under s 28H(1)(c) that the requirements of subdivision 2.5.2 are met.
Section 28H(1)
Sub-section (1) of s 28H is in the following terms: 28H Making of parentage order (1) The Supreme Court may make a parentage order about a child mentioned in section 28F (1) if satisfied that— (a) the making of the order is in the best interests of the child; and (b) each presumed parent freely, and with a full understanding of what is involved, agrees to the making of the order; and (c) the requirements of subdivision 2.5.2 are met.
The effect of the transitional provision is that before making a parentage order the court must be satisfied that the order is: (a) in the best interest of the child; and (b) each presumed parent freely, and with a full understanding of what is involved, agrees to the making of the order.
Presumed parent is defined in s 23 of the Parentage Act to mean the birth parent, or the birth parent’s partner. Birth parent of a child is defined to mean the person who intends to or who gave birth to the child.
The affidavits relied upon included affidavits from each of the presumed parents, demonstrating both their understanding of the legal arrangement into which they entered by signing the surrogacy agreement, and their altruistic intent in making the sacrifices involved in the surrogacy process. The sibling relationship between the birth parent and the second plaintiff is clearly a strong motivator for the birth parent and her partner in providing their assistance to enable the plaintiffs to achieve parenthood.
Notwithstanding that in accordance with the transitional provisions, the parties in this case are relieved of the need to satisfy the court that the subdivision 2.5.2 requirements are met, the affidavits relied upon in support of the application demonstrate that virtually all of the requirements have been met in this instance. It is only in respect of counselling that a question is raised, given that the counselling received in this case was provided by the same counsellor who spoke with each of the four adult parties before preparing his report.
The surrogacy arrangement entered into between the parties was one in respect of which each parent group received independent legal advice. The arrangement was documented in extremely thorough terms and demonstrated an exploration of, and agreement about, the range of issues that may arise in the context of a traditional surrogacy arrangement.
Is the making of the order in the best interests of the child
In determining what is in the best interests of the child under the Adoption Act 1993 (ACT), the court is directed to mandatory criteria to be taken into account in forming a view about what is in the best interests of the child. No mandatory criteria or other guidance is given to assist in assessing what is in the best interests of the child under the Parentage Act.
In BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095, Robb J observed at [43]: The difference in the regimes and procedures that exist for the purpose of determining whether parentage and adoption orders should be made must be taken to reflect a different legislative philosophy concerning the circumstances in which it is appropriate for a Court to make the different types of orders. Objectively, it has the effect that the evidence upon which the Court is required to determine whether or not the making of a parentage order is in the best interests of the child is likely to be thin.
In this case: (a) the child has been brought into the world after careful planning by his presumed parents and his intended parents; (b) that plan was born of a strong desire held by both of the intended parents to have an opportunity to parent a child of their own, fully supported by the altruistic intent of the presumed parents; (c) the plan was brought to fruition with the birth of the child; (d) since his birth the child has resided with his intended parents in a loving family environment; and (e) that life is the only life he has known.
Those matters lead me to conclude that the parentage order which is sought is in the best interests of the child.
Orders
BB
DD; Re AA and the