(2004) 62 NSWLR 465
C v B [2013] NSWSC 254
Dasreef Pty Ltd v Hawchar [2011] HCA 21(2011) 243 CLR 585
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305
Judgment (2 paragraphs)
[1]
Judgment
This is an application for a parentage order under s s 12 of the Surrogacy Act 2010 (NSW) (the Act) in respect of a boy who was born on 20 January 2015.
In conformity with s 52 of the Act, which prohibits the publication of any material that identifies, or is reasonably likely to identify, a person as a person affected by a surrogacy arrangement, I will anonymise the persons referred to in these reasons for judgement by using initials. It is common in judgments in matters that seek parentage or adoption orders to use the first letters of the names of the relevant persons. However, as there are aspects of this judgment that may lead to it receiving more than usual publicity, I will adopt artificial initials to refer to the persons concerned.
I need state at the outset that I will not make the parentage order sought by the applicants at this stage. There appear to be serious shortcomings in the manner in which the applicants have attempted to satisfy the requirements of the Act, and it will be necessary for the Court to hear further from the applicants before a final determination can be made as to whether or not the Court can make the parenting order that has been sought.
Rule 56A.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that, unless the Supreme Court otherwise orders, an application for a parentage order is to be dealt with and determined by the Court in the absence of the public and without any attendance by or on behalf of the applicant. The present application has proceeded as contemplated by this rule. For reasons that will appear below, I propose to order otherwise in this case. I do not think that the problems that arise in respect of the present application can be dealt with efficiently by correspondence. I will return to this issue below.
BB v DD; Re AA and the Surrogacy Act 2010 [2015] NSWSC 1095 | Case summary | Zoe
As will be seen, the Act stipulates a number of preconditions to the making of a parentage order. Many of those preconditions are mandatory, so that a parentage order cannot be made if they are not satisfied. In respect of the preconditions that are not mandatory, the Court must require that they be satisfied, unless the Court is satisfied that exceptional circumstances justify the making of the parentage order, notwithstanding that the precondition has not been met. That requires that applicants and their legal advisors pay particular attention in the preparation of the evidence that is provided to the Court to support the application to ensure that all preconditions are satisfied, and that preconditions that are not mandatory are supported by evidence that justifies a finding of exceptional circumstances by the Court.
The necessity for this approach is supported by the provisions of pars (h) and (i) of UCPR rule 56A.8, which provide:
Evidence in support of an application for a parentage order must include evidence of the following…
(h) the facts and circumstances that show that a parentage order may be made, demonstrated by reference to each of the preconditions to the making of a parentage order set out in Division 4 of Part 3 of that Surrogacy Act 2010,
(i) in relation to any precondition to the making of a parentage order that is not met, the facts and circumstances that show that a parentage order may be made despite the precondition having not been met, having regard to section 18 of the Surrogacy Act 2010
It will be appropriate to say something of an introductory nature about the circumstances that have given rise to the difficult problems that prevent the Court making a parentage order at this stage.
The Act may have profound consequences if the mandatory and other preconditons are not satisfied. The birth mother will retain parental responsibility for the child if the Court must refuse to make a parentage order because one or more preconditons are not satisfied. The birth mother may be unwilling or unable to raise the child. The Court can obviously only consider whether a parentage order should be made after the child has been born and given into the custody of the intended parents. Emotional bonds may develop. Yet many of the preconditions must be satisfied by actions undertaken before the birth. Some of those actions cannot be taken after the Court determines that a precondition has not been satisfied (see ss 23, 24, 27, 28, 29, 30, 34, 35(1) and 36(1)). If mandatory preconditions are not satisfied then a parentage order cannot be made. Exceptional circumstances are required to justify the waiver of non-mandatory preconditions. Unless scrupulous attention to detail occurs, immense disappointment, and an unsatisfactory future for a newborn child may follow.
I will call the child AA. As I have noted above, AA was born on 20 January 2015.
The applicants, BB and CC: are two men who have been living in a de facto relationship since 1 September 2006. The birth mother of AA is DD. DD is named as a defendant in the summons. DD supports this application.
The applicants and DD have given evidence in their affidavits that they made, what they described as, a verbal surrogacy arrangement in January 2012. They mean that the surrogacy arrangement was oral. They have asserted this fact in their evidence, but have not given evidence in admissible form of all of the conversations that constituted the full arrangement, whereby all of its terms were agreed.
At the time of the oral surrogacy arrangement BB and CC were living in London, and DD was living in Sydney. BB and DD had been friends for some years, following a period during which they worked together. It was, apparently, a term of the oral surrogacy arrangement that BB and CC: would return to Australia before the birth of AA, and live permanently here with him as a family.
According to BB's affidavit, the applicants did not approach their solicitor, who is the solicitor on the record for the applicants in these proceedings, for legal advice until July 2014. The present application has apparently been made on the basis of whatever legal advice was given to the applicants.
The difficulties that stand in the way of the Court making the parentage order that the applicants have sought, largely arise from the fact that the applicants and DD originally entered into an oral surrogacy agreement, and the steps that the Act requires be taken could only be done, in so far as that was possible, after July 2014.
In her affidavit, DD said that on 5 March 2013, she underwent an artificial insemination procedure at a named fertility clinic in Hurstville in which two embryos of BB and CC: were transferred to her. Following that procedure it was confirmed that she was pregnant with twins, one of which she miscarried at 8 weeks. As I have said, AA was born on 20 January 2015, some 22 months after the procedure referred to by DD.
In fact, BB gave evidence that he and CC found it difficult to obtain a donor ovum in Australia, so they decided to consult a named IVF clinic in Bangkok, Thailand. That clinic created embryos using sperm provided by BB and ova of a known donor. The donor is apparently known to BB and CC, but is not identified in the evidence. BB said that the first two procedures failed, but the third IVF procedure, which occurred in May 2014 succeeded. The evidence provided by the applicants to establish that the payments that they have made in respect of the birth of AA did not have the effect of making the surrogacy arrangement a commercial surrogacy agreement, appears to corroborate that the third IVF procedure occurred in May 2014. The fee paid to that clinic was paid on 6 May 2014.
The written surrogacy arrangement is dated 1 December 2014, although it was apparently signed by the applicants in London and DD in Sydney on separate earlier dates. DD was therefore pregnant with AA when the written surrogacy arrangement was made.
In their summons, the applicants seek a parentage order for the child AA transferring the parentage of AA from the defendant, DD, to the two applicants jointly as fathers.
They also seek an order from the Court waiving the precondition in s 38 of the Act. Section 38 contains a requirement that the birth of the child must have been registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW) (Births Act), which applies in the present case. I will return to this issue below.
The applicants seek an order approving the name of AA, which consists of the hyphenated surnames of BB and CC: as the surname, and two names chosen by the applicants as the given names.
Section 5 of the Act contains a definition of the term "surrogacy arrangement". Two types of surrogacy arrangement are defined. Section 5(1)(a) defines 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 as a pre-conception surrogacy arrangement. By s 5(1)(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 is a "post-conception surrogacy arrangement". Under subsection (4) a variation to a pre-conception surrogacy arrangement that is made after a woman who agrees to become pregnant or to try to become pregnant under the arrangement becomes pregnant is considered to be part of the pre-conception surrogacy arrangement.
Section 12 of the Act empowers the Court, on an application under Part 3, to make a parentage order in relation to a child of a surrogacy arrangement, for the purpose of transferring the parentage of the child.
The applicants have made a joint application as the two intended parents under the surrogacy arrangement, in conformity with the requirements of s 14 of the Act.
Both the oral and the written surrogacy arrangements were entered into after the commencement of Part 3 of the Act: see s 15.
The summons in this matter was filed on 27 February 2015, so the application for the parentage order was made not less than 30 days and not more than 6 months after AA's birth, as is required by s 16 of the Act in relation to surrogacy arrangements made after the commencement of s 16.
Section 17 of the Act requires that an application for a parentage order must be supported by a report about the application prepared by an independent counsellor. UCPR r 56A.7 requires an applicant applying for a parentage order, if there is not to be a preliminary hearing, to file the report under s 17 when filing the originating process. Section 17 provides:
17 Independent counsellor's report
(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.
(4) The report may address any other relevant matters.
(5) The report must:
(a) indicate the persons who were interviewed for the purposes of the report, and the date or dates on which the interviews were conducted, and
(b) set out the basis on which the person making the report claims to be an independent counsellor.
(6) The provisions of any law or rules of court relating to the adducing of opinion evidence apply in relation to the independent counsellor's report, unless inconsistent with this section.
(7) For the purposes of this section, an independent counsellor is a qualified counsellor who:
(a) is not the counsellor who counselled the birth mother, the birth mother's partner (if any) or an intended parent about the surrogacy arrangement, to meet a precondition to the making of a parentage order, and
(b) is not, and is not connected with, a medical practitioner who carried out a procedure that resulted in the conception or birth of the child.
The contents of the independent counsellor's report are crucial to the Court's ability to make the determinations necessary before it can make a parentage order, particularly in relation to the mandatory requirement in s 22 that the Court must be satisfied that the making of the parentage order is in the best interests of the child.
The importance of this evidence is underscored by the requirement in subsection (6) that the provisions of any law or rules of Court relating to the adducing of opinion evidence apply in relation to the independent counsellor's report. In essence, the report must comply with all of the rules that must be satisfied before the Court will receive expert opinion evidence.
It is not necessary to delve into those requirements in detail, and it will be sufficient to set out the following, which is a commonly quoted extract from the judgment of Heydon JA (as his Honour then was) in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) NSWLR 705:
[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).
It should be noted that I have not considered the extent to which the decision of the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 585 may have introduced variations into Heydon JA's statement of principle (particularly in relation to the so-called 'basis rule').
Regulation 7(1) of the Surrogacy Regulation 2011 (NSW) provides that for the purpose of the definition of "qualified counsellor", in s 4(1) of the Act, to exercise the functions of a counsellor under s 17, a person must hold a qualification conferred by a university after at least 3 years full-time study or an equivalent amount of part-time study, and be a qualified psychologist, qualified psychiatrist or qualified social worker, and have specialised knowledge, based on the person's training, study or experience, that enables the person to give opinion evidence as to the matters referred to in s 17 of the Act. Relevantly, reg 7(3) provides that "qualified psychologist" is a person registered as a psychologist in a State or Territory or in New Zealand.
The independent counsellor's report in the present case was provided by Ms Miranda Montrone, psychologist, dated 19 February 2015.
I accept that Ms Montrone's report satisfies the requirements of s 17. I note, in particular, that Ms Montrone appears to be qualified to express the opinions contained in her report, not only because of her general qualifications as a registered psychologist since 1991, but because she has been a member of the Fertility Society of Australia since 1991, she has worked in the areas of infertility and assisted reproduction since about 1992, in various capacities, and over a 16 year period she has worked with approximately 140 altruistic surrogacy cases. In her report Ms Montrone's has dealt in turn with each of the requirements in s 17.
Section 18 of the Act is its linchpin in so far as it provides in subsection (1) that the Court may make a parentage order only if satisfied that the preconditions to the making of a parentage order have been met.
As I have indicated above, the effect of subsection (2) is that if a precondition is a mandatory precondition, it must be satisfied. The Court has no discretion at all if a mandatory precondition is not met. The Court may make a parentage order, despite not being satisfied that a precondition to the making of the order has not been met, if the precondition is not a mandatory precondition and the Court is satisfied that exceptional circumstances justify the making of the parentage order, despite the non-mandatory precondition not having been met.
It would be premature for me to consider in depth what is necessary in a particular case before the Court can be satisfied that exceptional circumstances exist that justify the making of a parentage order despite a particular precondition not having been met. That is an issue that will only arise at the stage of the applicants' response to these reasons for judgement, and I do not wish to prejudge that response. I will merely note, however that in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA, at [66], set out a number of circumstances relevant to the determination of whether there were "exceptional circumstances" as required by UCPR r 31.18(4) to justify the Court giving leave to a party to tender an expert's report that had not been served in accordance with the rule. It is not necessary to set out all of the circumstances. It is instructive to note, however, that proposition (a) was: "Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered." I note that in C v B [2013] NSWSC 254, White J found exceptional circumstances to exist under s 18(2) of the Act without elaborating upon the meaning of the term.
The judgment of Barrett J (as his Honour then was) in Application of RM and ESM - Child X [2004] NSWSC 937; (2004) 62 NSWLR 465 at [9]-[12] concerning the difficulties involved in establishing "special reasons" in the now replaced s 101(5) of the Adoption Act 2000 (NSW) (Adoption Act) for approval by the Court of changes to a child's names may provide some guidance as to what is required to satisfy the Court that the exceptional circumstances required by s 18(2)(b) are present. His Honour held that special reasons would only exist if the Court "positively finds some factor or circumstance related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, or routinely or normally encountered."
I mention these cases only to illustrate the point that, even in relation to preconditions that are not mandatory, if the applicants for a parentage order cannot satisfy the condition, and provide satisfactory proof to the Court that they have done so, that may create a serious impediment to the making of the parentage order.
I also note that in AD v EF [2013] NSWSC 866 at [11], Ball J said: "In considering whether there are exceptional circumstances which would justify the Court determining the application notwithstanding that it was brought late, the Court must have regard to the purpose of the provision from which exception is sought.
As I have noted above, s 22 of the Act enacts a mandatory precondition that the Court must be satisfied that the making of the parentage order is in the best interests of the child.
The Act provides little guidance as to how the Court should determine whether or not the making of a parentage order is in the best interests of the child. This position may be compared with that which obtains under the Adoption Act. Chapter 2 of that Act sets out detailed objects and adoption principles. Chapter 3 authorises the Secretary of the Department of Family and Community Services to provide adoption services, and also enacts a strict regime for the accreditation of adoption service providers. Part 3 of Chapter 4 establishes a process for the selection of prospective adoptive parents other than authorised carers, and Part 3A does the same for authorised carers as adoptive parents. Part 5 establishes a strict regime for ensuring that fully informed and free consents are given by necessary parties, or the need for consent is dispensed with in an appropriate manner. In general, s 87 has the effect that the Court may not make an adoption order unless the application is consented to by the Secretary, or the Secretary or a principal officer of an accredited adoption service provider makes the application, or the child is 18 years of age or older. The Court is required to be satisfied of the matters listed in s 90.
In the case of an application for a parentage order, the Court is generally required to deal with the application in chambers, so it will act on the affidavit evidence of the intended parents, and whatever other affidavit evidence the applicants choose to put before the Court. There is, therefore, not the institutional support for the making of a parentage order that is available to the Court when considering whether an adoption order should be made. The independent report that is required by s 91 of the Adoption Act to be provided to the Court is essentially equivalent to the independent counsellor's report required by s 17 of the Act. That is about the end of it. There is not even the equivalent in the case of an application for a parentage order of the requirement in UCPR r 56.8(l) which requires evidence on an application for an adoption order of the opinions, and reasons for those opinions, of persons who are not related to the proposed adoptive parent or parents relating to the adoptive parents or parents' character and suitability to be an adoptive parent or adoptive parents. Usually compliance with that rule gives the Court the benefit of having affidavits from at least two independent persons who can give evidence about the applicants' character and suitability to be parents based upon long experience. There is not even a specific requirement that the applicant be suitable and have the capacity to provide for the needs of the child: see Adoption Act s 8(2)(i). This may be the reason why police checks that are invariably provided to the Court in adoption cases are not necessarily provided in parentage cases. It all apparently falls under s 22, and little guidance is provided.
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.
The present case exemplifies the situation where the question whether the making of a parentage order is in the best interests of the child is likely to be determined by the consideration that there is no reasonably viable alternative that could be considered to be in the best interests of the child at all. When the application comes before the Court, the child will already have been born to a birthmother who has carried the child through pregnancy with the vowed intention of giving up the child after birth. As will be seen, s 33 of the Act enacts the requirement that the child must be living with the applicants at the time of the hearing of the application. Accordingly, unless there is some reasonably strong evidence to the contrary, by the time the Court comes to consider the issue of what is in the best interests of the child, circumstances will generally create a fait accompli, at least in relation to the development of emotional bonds between the child and the intended parents.
I am satisfied that the condition in s 22 is met in the present case. My comments about the nature of the process of judicially determining whether the making of a parentage order is in the best interests of the child should not be taken to imply any disparagement of the applicants in this case. On the basis of their evidence, and the independent counsellor's report, they have earnestly desired to have a child for some time, they have made all of the arrangements necessary to implement the surrogacy, and they have every intention of providing loving parental care for AA, as long as they are able to do so.
Section 23 of the Act makes it a mandatory precondition that the surrogacy arrangement must not be a commercial surrogacy arrangement. "Commercial surrogacy arrangement" is defined in s 9 as being "if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person" agreeing to enter into or implementing a surrogacy arrangement. Under subsection (2) "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 birthmother's surrogacy costs". The meaning of "surrogacy costs" is set out in s 7 as follows:
7 Birth mother's surrogacy costs - meaning
(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.
In the present case, the applicants have provided detailed schedules of all amounts paid to DD, or paid to third parties in relation to the matters set out in s 7 (1). For the purposes of subsection (5), they have demonstrated that the costs were actually incurred, and they have verified the amount of the costs by receipts or other documentation. I am satisfied that the condition in s 23 has been satisfied.
Under s 24 of the Act, it is a mandatory precondition that the surrogacy arrangement must be a pre-conception surrogacy arrangement.
In the present case, the written surrogacy arrangement made on 1 December 2014 was made at a time when DD was pregnant. It is not a pre-conception surrogacy arrangement.
The applicants will only be able to satisfy the mandatory precondition in s 24 if the oral surrogacy arrangement made in January 2012 can be relied upon as a pre-conception surrogacy arrangement.
I will defer further consideration of this precondition until I come to deal with the condition in s 34, which requires that surrogacy arrangements must be in writing.
The mandatory precondition in s 25, which requires that either there is only one intended parents, or there are two intended parents who, at the time of entering into the arrangement, are a couple, is satisfied in the present case. "Couple" is defined as consisting of a person and the person's spouse or de facto partner. BB and CC were de facto partners at the time they entered into the oral surrogacy arrangement.
As AA is less than one year old, the mandatory precondition in s 26 that the child must be under 18 years of age at the time of the application, and the Court must have regard to the wishes of the child, if the child is of sufficient maturity to express his or her wishes, and the Court considers it appropriate to take those wishes into account, is satisfied. AA is obviously too young to express his wishes.
As DD was born on 12 September 1981, the precondition in s 27 that the birthmother must have been at least 25 years old when she entered into the surrogacy arrangement is satisfied.
As BB was born on 3 September 1979 and CC was born on 20 March 1988, the mandatory precondition in s 28 that each intended parent must have been at least 18 years old when he or she entered into the surrogacy arrangement is satisfied.
Section 29 of the Act provides as follows:
29 Maturity of younger intended parent must be demonstrated
(1) If an intended parent was under 25 years of age when the surrogacy arrangement was entered into, the Court must be satisfied that the intended parent is of sufficient maturity to understand the social and psychological implications of the making of a parentage order.
(2) An intended parent who was under 25 years of age when the surrogacy arrangement was entered into must provide evidence to the satisfaction of the Court:
(a) that he or she received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement, and
(b) that the counsellor was satisfied that he or she was of sufficient maturity to understand the surrogacy arrangement and its social and psychological implications.
(3) This precondition is a mandatory precondition to the making of a parentage order.
(4) This precondition does not apply to a pre-commencement surrogacy arrangement.
(5) If the Court grants leave to an intended parent to make a sole application in respect of a surrogacy arrangement that involves 2 intended parents, it is not necessary to establish that the intended parent who is not a party to the application meets this precondition.
As I have noted, BB was clearly over the age of 25 at the time of the oral surrogacy arrangement. However, CC was born on 30 March 1988. He was 26 years of age at the date of the written surrogacy arrangement. However, if the oral surrogacy arrangement was made in January 2012, CC was just short of his 25th birthday when that arrangement was made. The Surrogacy Act commenced on 1 March 2011, so that the oral surrogacy arrangement is not a pre-commencement surrogacy arrangement for the purposes of subsection (4). It is therefore necessary for the Court to be satisfied that CC is of sufficient maturity to understand the social and psychological implications of the making of a parentage order. I would be prepared to be satisfied of that matter on the basis of CC's affidavit and the independent counsellor's report.
However, the applicants have not provided evidence that CC received the counselling from a qualified counsellor required by s 29(2). Provision of that evidence is a mandatory precondition to the making of a parentage order. CC has given evidence that he received the counselling required by s 35 of the Act on 9 September 2014 before the written surrogacy arrangement was made, but that is not the counselling required by s 29(2).
It will be necessary for the applicants to respond to this provisional conclusion, and I will in due course make directions that permit them to do so.
I note that subsection (5) has the effect that it would not have been necessary for CC to satisfy the mandatory precondition in s 29 (2) if the Court had granted leave to BB to make a sole application in respect of a surrogacy arrangement that involves two intended parent under s 14 (2). I appreciate that that course is entirely contrary to the desire of the applicants in this case.
Section 30(1) of the Act requires that the Court be satisfied that there was a medical or social need for the surrogacy arrangement. Subsection (2)(b)(ii) has the effect that subsection (1) is satisfied in this case because the intended parents are two men.
Section 31(1) makes it a precondition that each of the affected parties must consent to the making of the parentage order. In the present case each of the intended parents and the birthmother are affected parties: see s 4(1) of the Act. "Consent" is defined in the same place as meaning informed consent freely and voluntarily given by a person with capacity to give the consent. In the present case, s 31(2) has the effect that the consent of DD to the making of the parentage order is a mandatory precondition.
Unlike the case in the Adoption Act, no particular formality for consent is prescribed. UCPR r 56A.8 sets out the evidentiary requirements on an application for a parentage order, and subrule (k) requires evidence of the consent of the affected parties; however, the rules do not prescribe any particular formality for consent: AP v RDP [2011] NSWSC 1389 at [19] (Brereton J).
In the present case, however, each of the affected parties has provided an affidavit in which they have given their consent, together with evidence that enables the Court to conclude that it was informed consent freely and voluntarily given by a person with capacity to give the consent. Accordingly, as was the case of the decision of Brereton J in The Application of MM and KFC [2012] NSWSC 445 at [15], the requirement for consent in s 31 of the Act has been satisfied.
Each of the applicants is, at present, resident in New South Wales, so that s 32 of the Act is satisfied.
As AA is presently living with the applicants, s 33 of the Act is also satisfied.
Section 34 of the Act requires, in the present case, that the surrogacy arrangement must be in the form of an agreement in writing, signed by the birthmother and each of the applicants.
While the written surrogacy arrangement dated 1 December 2014 complies with s 34, it does not, as I have noted above, comply with s 24, as it is not a pre-conception surrogacy arrangement. The precondition in s 24 is mandatory.
The precondition in s 34 is not expressed to be mandatory. Consequently, s 18(2) has the effect that the Court may make a parentage order if it is satisfied that exceptional circumstances justify the making of the parentage order, despite the precondition not having been met.
It does not appear to me that the applicants have addressed this question in their application. They have only purported to do so in relation to non-compliance with the precondition in s 38 of the Act.
I will give the applicants an opportunity to respond to this issue. I will not say anything that prejudges the question. However, it would seem to me to be prudent that the applicants give their attention to putting proper admissible evidence before the Court to prove the making and the terms of the oral surrogacy arrangement. As I have noted above, the evidence at present goes little further than bare assertions as to the making of the oral surrogacy arrangement and the content of its terms. The applicants should also address the question of whether there are exceptional circumstances that would justify the Court, in effect, waiving the requirement for a written surrogacy agreement.
Relevantly, s 35 of the Act provides as follows:
(1) Each of the affected parties must have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement.
(2) The birthmother and the birthmother'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.
Neither of these requirements is expressed to be a mandatory precondition.
The evidence establishes that the applicants had counselling for the purposes of s 35 (1) on 9 and 19 September 2014 via Skype with Ms Suzanne Hawkins, psychiatrist. DD had counselling with Ms Hawkins on 19 September 2014. She said that she also had a joint session with Ms Hawkins and the applicants in October 2014 (which is inconsistent with the evidence of the timing of the consultations given by CC).
A report dated 8 December 2014 prepared by Ms Hawkins was put into evidence.
As the applicants must rely upon the oral surrogacy arrangement made in January 2012, the counselling given by Ms Hawkins was not given to the parents or the birthmother before they entered into the surrogacy arrangement.
Furthermore, there is no evidence that DD was given the counselling required by s 35(2) after the birth of AA and before she consented to the parentage order.
Regulations 6 and 7 of the Surrogacy Regulation 2011 have the complicated effect that the qualifications required for a counsellor who provides counselling under s 17 and s 35(2) of the Act are different from the qualifications of a counsellor required to provide counselling for the purposes of s 35(1) of the Act.
I have set out the requirements of reg 7 above, when considering the report given by Ms Montrone for the purposes of s 17. The same qualifications are required for the counselling given to satisfy the requirements of s 35(2). (The only difference in the description of the required qualifications given in reg 7 is that in each case the counsellor must have the specialised knowledge required to give the different types of counselling).
For the purposes of the counselling of each of the affected parties is required by s 35(1) to have been given before they entered into the surrogacy arrangement, the counsellor must satisfy the following:
(a) be a member of, or eligible for membership of, the Australian and New Zealand Infertility Counsellors Association, and
(b) be familiar with any guidelines issued by the Australian and New Zealand Infertility Counsellors Association and the National Health and Medical Research Council that are relevant to the exercise of those functions.
Ms Hawkins' report does not contain a detailed resume of her qualifications, and accordingly it does not support a conclusion as to whether Ms Hawkins is qualified for the separate purposes of regul 6 and reg 7 (which, as I have noted, are different for the purposes of subsections (1) and (2) of s 35. I note that the front page of Ms Hawkins' report describes her as a psychologist, and contains the initials ANZIACA. That probably means that she is a member of the Australian and New Zealand Infertility Councillors Association. There is nothing to establish that Ms Hawkins is familiar with the guidelines referred to in reg 6(1)(b).
As Ms Hawkins' report does not satisfy the requirements of s 35 in relation to the oral surrogacy arrangement, I will not comment at this stage on the adequacy of its contents. I observe, however, that at least in the case of the report required by s 17, the section contains a list of the matters that must be dealt with. All that s 35 is requires is proof of counselling, at different times, "about the surrogacy arrangement and its social and psychological implications". The lack of specificity is likely to make it very difficult for counsellors to know how they should go about counselling the affected parties.
Regulation 6(1)(b) refers to any guidelines issued by the Australian and New Zealand Infertility Councillors Association and the National Health and Medical Research Council that are relevant. Regulation 6 requires that the counsellor has familiarity with the relevant guidelines for the purpose of the counselling before the affected parties enter into the surrogacy arrangement that is required by s 35 (1). There is no express requirement for familiarity with any such guidelines for the purpose of the counselling required to be given to the birthmother after the birth and before her consent to the parentage order is given.
I note, by having had resort to the Australian and New Zealand Infertility Councillors Association web page that it publishes surrogacy counselling guidelines. I am not qualified to determine whether any other guidelines, including any published by the National Health and Medical Research Council are "relevant" to the exercise of the functions of a counsellor.
I observe that it would be prudent for counsellors, and also the legal advisors to parties involved in surrogacy arrangements, to ensure that all relevant guidelines are identified, and followed, and preferably that counsellors reports (particularly under s 35 (1), where familiarity with the guidelines appears to be compulsory) are prepared having regard to the issues contained in the guidelines.
If that is not done then the reports prepared by the counsellors are likely to appear ad hoc to the judge who is asked to make the determination on the application for a parentage order. The evidence may simply not be sufficiently persuasive, if it does not appear to be founded on some scientific basis.
Section 36 of the Act relevantly provides:
(1) Each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement.
(2) The legal advice obtained by the birthmother and the birthmother's partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants.
These requirements are not specified as being mandatory requirements.
In the present case, there is no evidence that any of the affected parties received any legal advice about the surrogacy arrangement and its implications before they entered into the oral surrogacy arrangement.
UCPR r 56A.9 requires that the application for a parentage order must be accompanied by an affidavit sworn by each Australian legal practitioner who gave advice to a person for the purpose of satisfying the precondition to the making of a parentage order referred to in s 36. Subrule (2) specifies the required contents of the affidavit.
In the present case the applicants' solicitor affirmed an affidavit that was filed at the same time as the summons was filed. The solicitor deposes to having given legal advice to the applicants. She says that a photocopy of her Statement of Independent Legal Advice dated 13 November 2014 is attachment A to her affidavit. There is no attachment to the affidavit. I note however that there is a Statement of Independent Legal Advice at page 7 of the written surrogacy agreement dated 1 December 2014. This document conforms to the description in par 2 of the solicitor's affidavit. The Statement of Independent Legal Advice appears to satisfy the requirements of UCPR r 56A.9(2). The present evidence is defective because of the absence of the attachment to the solicitor's affidavit. However, the greater problem is that the legal advice only relates to the written surrogacy agreement, and not the oral one.
In her affidavit, the birthmother states in par 11 that she received independent legal advice from a named solicitor. She does not give the date of that advice, so it is not clear whether it related to the oral or the written surrogacy arrangements.
In any event, the solicitor has not given, and there has not been filed, the affidavit required by the UCPR r 56A.9 (1) in relation to the legal advice given to DD.
The evidence establishes that the information about the surrogacy arrangement that s 37 of the Act requires be given to the Director-General of the Department of Health has been provided.
The final precondition to the making of a parentage order is the requirement in s 38 (1) that the birth of the child must have been registered in accordance with the requirements of the Births Act or a corresponding interstate law.
This precondition is not expressed to be a mandatory precondition.
As I have mentioned, the applicants have applied in their summons for an order that the Court waive this precondition.
AA's birth certificate records DD as being the mother and BB as being the father. The evidence discloses that the applicants wished their names to be on the original birth certificate for AA, but, as they needed to accept that the birthmother's name must be on the birth certificate as the child's mother, only one of them could be named as father. The other would have to wait for the birth certificate to be changed after a parentage order was made.
Section 13 of the Births Act requires that if a child is born in this State, the birth must be registered under the Act. Section 15 of that Act places joint responsibility on the parents of a child for having the child's birth registered under the Act (and both must sign the birth registration statement). Section 17(1) provides for the Registrar to register a birth by making an entry about the birth in the Register including the particulars required by the regulations. Regulation 5 of the Births, Deaths and Marriages Registration Regulation 2011 sets out the particulars that are required to be registered for the purposes of s 14 and 17 of the principal Act. They include in par (d) the full name of each parent of the child.
Section 14 of the Status of Children Act 1996 (NSW) provides for presumptions of parentage arising out of use of fertilisation procedures. Subsection (2) provides:
If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
Subsection (4) has the effect that the presumption arising under subsection (2) is irrebuttable.
The definition of "fertilisation procedure" in s 3 of that Act includes: "(b) the procedure of transferring to a woman's body an ovum (whether or not produced by her) fertilised outside her body". The process by which AA was conceived therefore falls within the definition of "fertilisation procedure".
At the time, the relevant particulars of AA's birth were given to the Registrar under the Births Act, BB was not in law a parent of AA. Consequently, the birth of AA has not been registered in accordance with the requirements of that Act, for the purposes of s 38 of the Act.
The question will, therefore, become whether the circumstances satisfy the Court that exceptional circumstances justify the making of the parentage order, despite the fact that BB's name has wrongly been included in the particulars in the Register in respect of AA.
AA's birth was registered after legal advice was available to the applicants. BB is recorded as being one of the informants. The present evidence would suggest that BB, and perhaps also CC, simply chose to ignore the relevant statutory requirements, because it suited their desires. It may, however, be, that they acted without legal advice, and it was only appreciated by the time that their solicitor acted for them in preparing the summons that it was necessary to seek an order 'waiving' the precondition in s 38 of the Act.
It would, in my view, be an extraordinary circumstance if applicants for a parentage order knowingly failed to register the birth of the child properly, in circumstances where that had the result that a precondition to the making of the parentage order had not been satisfied, so that the parentage order could not be made unless the Court was satisfied that there were exceptional circumstances.
As it follows from the process of reasoning that I had set out above that there are many requirements of the Surrogacy Act that have not been satisfied, I will permit the applicants to include this issue in any further evidence and submissions that they may wish to make in support of their application.
The observations that I have made in these reasons for judgment should be treated as provisional, as I will be open to reconsidering them on the basis of further evidence and submissions.
There is precedent for the Court to deal with applications for parentage orders that do not satisfy all of the requirements of the Surrogacy Act by giving reasons for the inadequacy of the application, and permitting the applicants to supplement their evidence before a final determination is made: see The Application by JSC [2013] NSWSC 440 (Hallen J).
In the present case not only are there many deficiencies, but it is not clear that all of the deficiencies can be cured, or how they may be cured.
Given the level of the difficulties that have been raised by the present application, I am not satisfied that I should continue to deal with this application in chambers. I think that there will be too much scope for misunderstanding to make that an efficient way to proceed.
I will cause these reasons for judgment to be forwarded to the solicitor for the applicants by the Registry, and I will arrange for my associate to communicate with the solicitor for the applicants through the Registry in order to fix a date for a directions hearing in this matter, after the applicants have had an opportunity to consider the ramifications of the provisional conclusions that I have reached. Obviously, these are matters that must be taken most seriously and dealt with expeditiously.
For the moment, I will allow the status quo to continue, as that appears to be in the immediate interests of AA. However, nothing should be done by any of the affected parties to change any of the arrangements for the care of AA pending this application coming back before the Court.
At present DD, as AA's mother, continues to have parental responsibility for AA. A copy of these reasons for judgment should be served on DD by the applicants within 3 days of their receipt. DD should be informed of the day upon which this application will be listed for further directions in a manner that will give her an opportunity to appear.
As there is a need to resolve the outstanding issues urgently, I will expect the directions hearing to occur about two weeks after these reasons for judgement are delivered to the solicitor for the applicants.
As many requirements of the Act are not yet satisfied, I will not make the parentage orders sought by the applicants. At this stage, I will make the following orders:
1. Direct the parties to communicate with the associate to Robb J to fix a directions hearing date, within two weeks of receipt of these reasons of judgment.
2. Order the applicants to serve these reasons of judgment on DD, within three days of their receipt.
3. Direct the parties to inform DD of the future directions hearing date, such that she will have an opportunity to appear.
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Decision last updated: 01 December 2015