BB v DD; Re AA and the Surrogacy Act 2010 [2015] NSWSC 1825 | Case summary

BB v DD; Re AA and the Surrogacy Act 2010 [2015] NSWSC 1825 | Case summary | Zoe

Judgment

This matter involves an application by the plaintiffs for a parentage order under s 12 of the Surrogacy Act 2010 (NSW) (the Act).
Upon my initial consideration of the evidence in support of the application, it became apparent that a number of mandatory and non-mandatory preconditions for the making of a parentage order had not been satisfied, so that I could not make the orders sought on the basis of the material that was before the court, and it was doubtful whether I could make the order at all.
On 6 August 2015, I published reasons for judgment in which I identified the problems that I had detected as a result of my analysis of the evidence: see BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095.
In these reasons, I will use the same terms that I defined in my earlier reasons, and also the same initials to refer to the relevant persons in an anonymous manner.
I appointed a directions hearing after I published my reasons for judgment, so that I could explore with the legal representative of the applicants whether there was anything that could be done to rectify the apparent problems with the application, and to give the applicants an opportunity to file further evidence and deliver additional submissions, if they wished to, in order to support their application.
At a directions hearing that was held on 17 August 2015, I was informed by the solicitor for the applicants that the evidence that was originally filed in support of their application contained significant mistakes of fact. Also, on her instructions, the applicants believed that they could correct the shortcomings in their original application, and satisfy all mandatory conditions for the making of the parentage order that they sought, and also establish that any non-mandatory preconditions that had not been satisfied could be excused.
In accordance with directions that I made on that date, the applicants have filed a number of additional affidavits and submissions. In essence, most of the problems that I identified in my reasons for judgment arose because it appeared to be the fact that not only was the surrogacy arrangement a post-commencement surrogacy arrangement, but it was also a post-conception surrogacy arrangement. The applicants have acknowledged that their original evidence did create this appearance, and they have, by their further evidence, attempted to establish that in fact the surrogacy arrangement in the present case was an oral pre-commencement surrogacy arrangement, which was merely formalised and varied by a written surrogacy agreement that was entered into after the defendant had become pregnant in accordance with the original oral surrogacy arrangement. I will consider the new evidence in detail below.
It need hardly be said that it is essential for parties who intend to apply for the making of a parentage order under the Act to give the closest attention to the requirements of the Act in all of the arrangements that they make to satisfy the requirements of the Act, and then that they and their legal advisors give meticulous attention to the evidentiary requirements of the application. The Act plainly creates a number of mandatory preconditions to the making of parentage orders, and also additional preconditions that are not mandatory, but which can only be excused in exceptional circumstances.
It is self-evident that, as the court can only consider the making of a parentage order after the birth of the subject child, and as the child is required to be delivered into the custody of the applicants before the application is determined, the consequences may be dire if the court is obliged to decline to make the parentage order that is sought. The conditions that the Act imposes on the making of parentage orders are so prescriptive that there is a real likelihood that the court will be obliged to refuse applications, where the applicants and their advisers have not attended adequately to all necessary details. It is hard to imagine a more unsatisfactory outcome than if the court is obliged to refuse to make a parentage order. The result would be that the child is left in limbo, subject to the inclinations of the birth mother, whose objective has probably always been to give custody and parental responsibility of the child to the applicants, or involve the intervention of the Secretary of the Department of Family and Community Services.
The court must, of course, apply the Act according to its letter, and in relation to the question of whether preconditions have been satisfied, there is plainly no scope for the court to excuse failures to satisfy mandatory preconditions, and non-compliance with non-mandatory preconditions can only be excused in exceptional circumstances. There is limited scope for the court to adopt a liberal approach to the question of whether a parentage order should be made, notwithstanding what may be the dire consequences of a refusal of such an order.
In these circumstances, it will be appropriate to start by listing the apparent defects in the application that arose out of the applicants' original evidence. I will do so by reference to the relevant paragraphs of my earlier reasons: 1. The child, AA, was born on 20 January 2015 [9]. The written surrogacy agreement is dated 1 December 2014 [17]. The surrogacy arrangement therefore appeared to be a post-conception surrogacy arrangement: s 5(1)(b). By s 24 of the Act, it is a mandatory precondition to the making of a parentage order that the surrogacy arrangement is a pre-conception surrogacy arrangement [49]. 2. The applicants in their evidence suggested, however, that the written surrogacy agreement only formalised an oral surrogacy arrangement that they made in January 2012 with the birth mother, the defendant, DD. That gave rise to the separate problems; first, that the evidence of the making of the oral agreement was not complete; and secondly, s 34 of the Act imposes a non-mandatory precondition that a post-commencement surrogacy arrangement must be in writing signed by various identified parties [50]. Section 34(2) of the Act has the effect that the precondition requiring writing does not apply to a pre-commencement surrogacy arrangement. The applicants did not seek an order waiving non-compliance with the precondition in s 34, and did not provide any evidence to support a case that there were exceptional circumstances that could justify the absence of a written agreement [67]-[71]. 3. Section 29 of the Act has the effect that it is a mandatory precondition to the making of a parentage order that if an intended parent was under the age of 25 years when the surrogacy arrangement was entered into, the court must be provided with evidence to the satisfaction of the court that that parent received counselling from a qualified counsellor about the surrogacy arrangement and that the counsellor was satisfied of certain matters. The effect of s 29(4) of the Act is that this precondition also does not apply to a pre-commencement surrogacy arrangement. The younger applicant in the present case, BB, was counselled before the written surrogacy agreement was made (but the applicants could not rely upon that agreement because it was a post-conception surrogacy arrangement), but he was not counselled before the alleged oral surrogacy arrangement in January 2012. Thus, it appeared that the court would not be able to make the surrogacy order [56]-[59]. 4. Section 35(1) of the Act imposes a non-mandatory precondition that the applicants and DD must have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before they entered into the surrogacy arrangement. That precondition was not satisfied on the evidence, if the applicants had to rely upon the alleged oral surrogacy arrangement in January 2012 [76]. This precondition does not apply to a pre-commencement surrogacy arrangement. 5. Furthermore, s 35(2) imposes another non-mandatory precondition that DD, as the birth mother, 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 [77]. There was no evidence that DD had received this counselling. The failure to satisfy this precondition arose out of the failure to ensure that DD received the required counselling, and had nothing to do with the issue of the date upon which the surrogacy arrangement had been entered into. This precondition also does not apply to a pre-commencement surrogacy arrangement. 6. A psychologist, Ms Hawkins, gave the applicants and DD the counselling required by s 35(1) of the Act, albeit after the time that it was required to be given. Regulations 6 and 7 of the Surrogacy Regulation 2011 (NSW) require that Ms Hawkins have particular qualifications. It would be difficult for the court to excuse non-compliance with the precondition in s 35(1) of the Act if it were shown that the psychologist who provided the late counselling did not have the requisite qualifications. Ms Hawkins' report did not include evidence to establish her qualifications [81]. This is a deficiency that could be cured by the tender of further evidence that established that Ms Hawkins had the necessary qualifications. 7. Section 36 of the Act establishes a non-mandatory precondition that each of the affected parties must have received legal advice about the surrogacy arrangement and its implications before entering into the surrogacy arrangement. Again, this precondition does not apply to pre-commencement surrogacy arrangements. There was some (albeit incomplete) evidence that the applicants and DD had been given legal advice before they entered into the written surrogacy agreement, but it was apparent on the evidence that they had not received legal advice before they entered into the alleged January 2012 oral surrogacy arrangement [89]. 8. The applicants' solicitor affirmed an affidavit that did not comply with UCPR r 56A.9, in that it did not annexe a copy of her Statement of Independent Legal Advice dated 13 November 2014 [91]. This deficiency could be remedied by the relevant document being tendered into evidence. 9. The evidence required by UCPR r 56A.9 concerning the legal advice required to be given to DD before she entered into the surrogacy arrangement did not appear to have been filed [93]. 10. Finally, the non-mandatory condition imposed by s 38(1) of the Act that the birth of AA must have been registered in accordance with the Births, Deaths and Marriages Registration Act 1995 (NSW) (the Births Act) had not been satisfied, because BB had been registered as the father of AA on his birth certificate, whereas BB was not the father because of the operation of s 14 of the Status of Children Act 1996 (NSW). The applicants were aware of this deficiency, because they formally sought an order in their summons excusing this failure. They did not explain in their evidence, however, why there were exceptional circumstances that would justify the court in excusing this failure [105].
The apparent failure by the applicants to satisfy the mandatory precondition in s 24 of the Act, whereby a parentage order cannot be made unless the surrogacy arrangement is a pre-conception surrogacy arrangement, could be avoided if the applicants could establish that they in fact entered into a surrogacy arrangement before DD became pregnant. In their original evidence they attempted to do so by relying upon an oral surrogacy arrangement that they said they entered into in January 2012. However, that was an oral arrangement, and because it would have been made after the commencement of the Act, it brought with it all of the problems, both mandatory and non-mandatory, that have been summarised in the preceding paragraph.
The applicants now say that in fact they made an oral surrogacy arrangement with DD before the Act commenced. The Act commenced on 1 March 2011. If the applicants could establish that the surrogacy arrangement was made before this date, then they would avoid the problems outlined in par 13(1)-(9), either because the relevant precondition does not apply in the case of pre-commencement surrogacy agreements, or because the non-application of the precondition has the consequential effect that some evidentiary requirement has become unnecessary.
The evidence originally relied upon by the applicants appeared to establish that the applicants and DD entered into an oral surrogacy arrangement in January 2012, by reason of the fact that CC made a bare assertion as to that fact in par 9 of his affidavit, and the mother, DD, made a similar assertion in par 8 of her affidavit. BB's affidavit did not deal with this issue, and was primarily directed to the circumstances in which the written surrogacy agreement was entered into on 1 December 2014.
BB has now affirmed a new affidavit dated 3 September 2015. He says that DD first agreed in principle with him to be a surrogate mother for a child for him during April 2006. On 29 April 2006, DD said in the presence of her brother: "I have agreed to be a surrogate for [BB] in the future after I have given birth to a child of my own". That conversation occurred before BB met CC and formed a permanent de facto relationship with him. BB gave evidence of the following conversations that occurred on 20 and 21 December 2007: DD: I am still going to be a surrogate for [BB] and [CC]. DD's brother: It is an amazing thing that you are doing for the boys. BB: We are very lucky to have a friend like you. [The next day] DD: You will be the sole parents and legal guardians of the child I will carry for you. BB and CC: [That was always our intention]. CC: You would always have a role in the child's life. DD: [Which one of you will be the sperm donor?] BB: [I will be]
BB also said that on 21 December 2007, he and CC agreed with DD that DD would not be paid to carry the child, but BB and CC would cover medical and other associated costs of the surrogacy.
BB said that on Christmas Day 2007, he and CC were staying with BB's parents in Western Australia, when he informed his mother that DD had agreed to be a surrogate for BB and CC one day, but it would not be for a long time as DD would like to have a child of her own first.
DD swore a further affidavit on 3 September 2015 in which she said that "later in 2006" that she had a discussion with BB and CC "in which I confirmed I would be their surrogate after [DD's then de facto partner] and DD had a child.
This evidence reflects the agreement between the applicants and DD that she would not act as a surrogate until after she had first had a child of her own. The evidence was to the effect that there was a further delay because it was decided between the three that BB and CC would first live overseas for a short period.
DD's brother affirmed an affidavit on 3 September 2015 in which he corroborated the occurrence of the conversation deposed to by BB that took place on 20 December 2007.
BB's mother swore an affidavit on 3 September 2015 in which she corroborated the evidence given by BB of the statement he had made to her at Christmas in 2007.
There was no evidence to explain why CC and DD in their original affidavits gave evidence of an oral surrogacy agreement entered into in January 2012, or why the earlier evidence did not mention the conversations leading up to 20 and 21 December 2007.
Although this state of the evidence is unsatisfactory, and as the application has been dealt with in chambers, the new evidence has not been tested, I have concluded that I should accept the new evidence. The original evidence concerning the January 2012 agreement was stated in bare terms, and the occurrence of a conversation between the parties at that time concerning the implementation of the surrogacy arrangement is not inconsistent with the earlier discussions also having taken place. The surrogacy arrangement was reached over a period of time by laypersons, and it is likely that any conversation in January 2012 was more directed to the implementation of the arrangement (after the delays to which I have referred above), and the evidence does not require that I reject the altered case that the applicants now wish to make.
I am also prepared to accept the corroboration provided by DD's brother and BB's mother concerning the timing of the earlier discussions between BB, CC and DD.
In accepting the new evidence provided on behalf of the applicants, I have not ignored the possibility that there would be a temptation for the witnesses to amplify the significance of any discussions that occurred before the Act was enacted to suggest that a positive surrogacy arrangement was made, when there may only have been inconclusive discussions on the subject. The new evidence suggests that the surrogacy arrangement was made in about December 2007. An aspect of the arrangement was that it would not be implemented until after DD had borne her own child, and its implementation was deferred by agreement to enable BB and CC to spend time overseas before they returned to Australia to act as parents for the child that would be borne in accordance with the surrogacy arrangement.
On 27 May 2009, the New South Wales Legislative Council's Standing Committee on Law and Justice tabled a report on "Legislation on Altruistic Surrogacy in NSW". This report recommended the enactment of legislation in New South Wales to address surrogacy. The Surrogacy Bill 2010 (NSW) was introduced into the State Parliament on 21 October 2010, and assent to it was given on 16 November 2010. As I have said above, the Act came into effect on 1 March 2011. In 2010, there was some reporting in the newspapers about the proposed contents of the new act. It appears that the earliest surrogacy legislation that came into force in Australia was the Australian Capital Territory Parentage Act 2004 (ACT), which came into effect on 22 March 2004. Legislation dealing with surrogacy was enacted in Victoria and Western Australia in 2008 and in later years in the other states.
It thus appears that the oral surrogacy arrangement upon which the applicants now seek to rely could not have been made in the context of an understanding by the parties to it that, if the arrangement was implemented, a formal application could be made by the applicants for a parentage order of the nature that can now be made by the court under the Act.
However, this circumstance does not rule out the possibility that the parties did enter into the oral surrogacy arrangement at the end of 2007, and that they intended in due course to implement that arrangement, albeit in an informal manner.
I have concluded that these doubts concerning the evidence do not justify the court declining to accept the sworn evidence of the witnesses.
Relevantly, s 5 of the Act provides: 5 Surrogacy arrangement - meaning (1) For the purposes of this Act, a surrogacy arrangement means: (a) an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a pre-conception surrogacy arrangement), or … (2) An agreement that the parentage of a child is to be transferred to another person is an agreement to the following effect (however expressed): (a) an agreement to consent to a parentage order or an Interstate parentage order being made in respect of the child so as to transfer parentage of the child to another person, (b) an agreement that the child is to be treated as the child of another person (and not of the woman who gives birth to the child), (c) an agreement that the custody of, or parental responsibility for, a child is to be transferred to another person, (d) an agreement that the right to care for a child is to be permanently surrendered to another person. (3) Other matters may be dealt with in a surrogacy arrangement. (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 a part of the pre-conception surrogacy arrangement… Note. A parentage order can be made under this Act in respect of a surrogacy arrangement only if the arrangement is a pre-conception surrogacy arrangement. There are additional preconditions to the making of a parentage order. These are set out in Part 3. (5) In this Act, a reference to the birth mother, in relation to a surrogacy arrangement, is a reference to the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement. (6) In this Act, a reference to an intended parent is a reference to a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement.
Section 6(1) of the Act provides that a surrogacy arrangement is not enforceable.
The use of the term "arrangement" rather than "agreement" suggests that the legislature, in enacting the Act, did not intend that a surrogacy arrangement could not arise unless the circumstances satisfied the requirements for the creation of a contract. That conclusion is reinforced by the rule that a surrogacy arrangement is not enforceable. The definition of "surrogacy arrangement" in s 5 defines the term by reference to an arrangement under which a woman agrees to a certain course. The use of the word "agrees" in this context does not import the concept of a contractual agreement, but is used only in the general sense of that term. That conclusion is supported by the use of the expression "however expressed" in ss (2), which suggests that the creation of the surrogacy arrangement is not dependent on any legal form of words being used.
Subsection (2) is not drafted in terms that expressly state whether the subject matter of the agreement that is necessary before it can be a surrogacy arrangement, and which are set out in sub-pars (a) to (d) are conjunctive or disjunctive; that is, the words "or" and "and", are not used between the sub-paragraphs. The most natural way to read the subsection (by reference to the use of the words "…is an agreement to the following effect…") would lead to a conclusion that the agreement was required to be to the effect of all four sub-paragraphs. However, there are persuasive countervailing considerations that lead me to conclude that an agreement will not be denied the effect of a surrogacy arrangement.
First, sub-par (a) concerns an agreement to consent to a parentage order so as to transfer parentage of the child to another person. Section 15 provides that an application for a parentage order may be made in relation to a surrogacy arrangement entered into before the commencement of the Act (called a pre-commencement surrogacy arrangement). Parties to a pre-commencement surrogacy arrangement would not be expected to know of the provisions in the Act for the making of parentage orders, so that if it was essential that the agreement involve consent to a parentage order, the agreement could not be a surrogacy arrangement for the purposes of the Act in cases where the agreement was entered into before the commencement of the Act, and the parties were unaware of the intended future existence of parentage orders, and the relevant terms of the Act.
Secondly, upon a close reading, the subject of each of the sub-paragraphs is almost the same; in the sense that the sub-paragraphs appear to be slightly different ways of stating essentially the same outcome. It is inherently unlikely that parties who agreed in terms of the subject to one of the sub-paragraphs would then proceed to agree as well in terms of each of the other sub-paragraphs. Subsection (2), by its use of the expression "however expressed", and its statement of four overlapping and substantially identical subjects of the agreement, appears to require no more than the agreement that is said to give rise to the surrogacy arrangement in substance involves one or more of the subjects of sub-pars (a) to (d).
Finally, the agreement referred to in s 5(1)(a) is, in part, an agreement under which a woman agrees "that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons". The meaning of those words is clear enough. The purpose of the elaboration of the meaning of these words in ss (2) is apparently not meant to confine the meaning of the primary term, but is to ensure that an agreement is not excluded from the meaning of that term because of informality of language, or limitations in the precision with which the parties to the agreement contemplated the consequences of that agreement in relation to such matters as parentage orders, how the child would be treated, custody and parental responsibility, and the right to care for the child.
In my view the relationship between ss (1) and (2) does not invite meticulous analysis. The section requires that the determination of whether or not a surrogacy arrangement existed is to depend on the substance or essence of the agreement, and not upon its form.
I am accordingly satisfied that the applicants and DD entered into a pre-commencement surrogacy arrangement at the end of 2007.
While, as will appear from that which follows, this finding will allow the applicants to overcome most of the impediments to the making of a parentage order in respect of AA that I listed in my earlier judgment, the applicants face a new problem that arises out of the terms of s 16 of the Act, which provides: (1) An application for a parentage order in relation to a child may be made not less than 30 days and not more than 6 months after the child's birth, subject to this section. (2) For a pre-commencement surrogacy arrangement, an application for a parentage order may be made not more than 2 years after the commencement of this section. (3) The Court may hear and determine an application for a parentage order that is made after the time limit for making an application under this section if the Court is satisfied that exceptional circumstances justify that action.
The summons in this matter was filed on 27 February 2015. The period of 2 years after the commencement of s 16 ended on 1 March 2013. Accordingly, the court cannot make a parentage order on the present application unless it is satisfied that exceptional circumstances justify that action. That requires consideration of the meaning of the expression "exceptional circumstances" in the context of s 16.
In Baker v R [2004] HCA 45; (2004) 223 CLR 513 at [173], Callinan J referred with approval to a statement of Lord Bingham of Cornhill CJ in the case of R v Kelly (Edward) [2000] 1 QB 198 at 208; [1999] 2 All ER 13 at 20 where his Lordship said: We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In S v B; O v D [2014] NSWSC 1533, which involved an application for a parentage order under the Act, White J said: [30] The precondition in s 38 to the making of a parentage order is not met. Despite that precondition not having been met, the parentage order can be made if I am satisfied that exceptional circumstances justify the making of the order (Surrogacy Act, s 18). The guiding principle in administering the Act is that the best interests of the child be paramount (s 3). The phrase "exceptional circumstances" is used in a wide variety of legislation. The phrase is to be construed in the context in which it appears and having regard to the purposes of the legislation. In its ordinary sense circumstances can be exceptional if they are out of the ordinary. Sometimes the expression "exceptional" is used as a synonym for "special". [White J then repeated the statement by Lord Bingham that I have set out in the preceding paragraph].
A significant number of authorities have considered the meaning of the expression "exceptional circumstances" in various different statutory contexts. I have found the following limited references helpful.
In R v Tootell; Ex parte Attorney-General (Qld) [2012] QCA 273, the Queensland Court of Appeal considered the meaning of the expression "exceptional circumstances" in the context of s 9 of the Penalties and Sentences Act 1992 (Qld). The Court said (footnotes omitted): [18] The Penalties and Sentences Act does not attempt to define or confine what amounts to "exceptional circumstances". This statement of what the adjective means, taken from R v Kelly (Edward), (which has been applied in decisions of this court dealing with the expression as it appears in the Dangerous Prisoners (Sexual Offenders) Act 2003) is helpful: [The Court then set out the statement made by Lord Bingham]. … [24] What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.
In Keane v Keane [2013] FamCA 332; (2013) 50 Fam LR 120, Watts J in the Family Court of Australia considered the meaning of the expression "exceptional circumstances" in s 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth). His Honour made the following observation concerning how the expression "exceptional" can have different meanings depending upon the context: [41] "Exceptional" can have nuanced meanings in different contexts and what is meant by "exceptional" is to be judged not in the abstract, but within the context in which that word is used in a particular piece of legislation. The phrase "exceptional circumstances" is used in different contexts within the CSAA and the FLA. The height at which the bar is set by the word "exceptional" can vary depending upon the legislative context.
The expression "exceptional circumstances" is found in s 14(3)(d) of the Act concerning when the court can grant leave to an intended parent to make a sole application for a parentage order; in s 16(3); and in s 18(2)(b). The use of the expression in s 18(2)(b) governs the circumstances in which the court may make a parentage order despite a precondition that is not mandatory not being satisfied. This last-mentioned use of the expression will have a very significant effect on the circumstances in which parentage orders can be made.
It may be that what is required to satisfy the expression "exceptional circumstances" will differ according to how the expression is used in different parts of the Act. If the expression can have nuanced meanings in different contexts, that may occur not only as between different statutes, but between different uses in the one statute. It is not necessary for me to consider the meaning and effect of the expression in any part of the Act other than s 16(3).
The applicants have not expressly adverted to this problem in their supplementary evidence. It is likely that they were not aware of it. I have decided that there is no point in requiring the applicants to put on further supplementary evidence on this issue. To do so would unnecessarily subject the applicants to further delay, cost and anxiety. I say "unnecessarily", because, in my view, on the whole of the evidence it is self-evident that neither the applicants nor DD were aware of the time constraints imposed upon their application by the Act. They entered into the oral surrogacy arrangement in late 2007, and then deferred its implementation for the reasons that I have given above, and then implemented it after the time stipulated in s 16(2) of the Act had expired.
The question is whether I should be satisfied that these circumstances are exceptional so that it will be justified for the court to make the parentage order that is sought.
What is required to meet the term "exceptional circumstances" in the context of s 16 must depend upon the purposes for which that section was enacted. It is concerned with the timing of applications, and not with the conditions that must be satisfied before a parentage order can be made. The evident intent of the section is to require applications for parentage orders based on pre-commencement surrogacy arrangements to be made within 2 years of the commencement of the section. That is likely to be because pre-commencement surrogacy arrangements are spared the need to satisfy, in their making and implementation, a significant number of the preconditions that must be satisfied in the making and implementation of post-commencement surrogacy arrangements. Section 16(2) creates a window of opportunity, so to speak, for parties to pre-commencement surrogacy arrangements to avail themselves of the statutory indulgences afforded by the Act to those surrogacy arrangements.
Section 16 must, however, be applied having regard to the provision in s 3 that the guiding principle is that the Act is to be administered by reference to the principle that the best interests of the child of the surrogacy arrangement are paramount; the fact that the application cannot be made until after the birth of the child (s 16(1)); and that s 33 requires that the child must be living with the applicants. It is also relevant that the expression "exceptional circumstances" is used in the immediate context of whether those circumstances justify the making of a parentage order. The sufficiency of the circumstances must be judged in accordance with the extent that they justify the making of the order. As is true for this case, many of the absolutely or highly prescriptive preconditions that are intended to protect the child born as a result of the surrogacy arrangement, as well as the natural mother and the proposed parents, are not required to be satisfied in the case of pre-commencement surrogacy arrangements. The issue of whether exceptional circumstances justify an application being made outside the period required by s 16(2) must be judged in relation to the consequences in the particular case of non-compliance with the preconditions being excused.
In my view, the combination of circumstances that the surrogacy arrangement was made orally in late 2007; the parties to the arrangement did not have legal advice; they could not know of the requirement in s 16(2) of the Act until it had been enacted; they did not in fact learn of that requirement; and they deferred the implementation of the surrogacy arrangement for a number of reasons as set out above, are sufficiently exceptional for the purposes of s 16(3) of the Act to justify the making of the parentage order sought in this case.
These circumstances satisfy Lord Bingham's description of being "out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".
I have considered the whole of the evidence in relation to the significance in this case of the pre-conditions that I have discussed above at [11] as not being satisfied. I have decided that there is no warrant for me to conclude that the objectives of the Act will miscarry in any serious way in relation to the best interests of AA, and also the protections intended to be provided to AA, DD and the applicants, if I take the view that the circumstances that have led to the application being made after the time required by s 16(2) of the Act are sufficiently exceptional to justify the court making a parentage order.
I am therefore satisfied that the court is permitted to make the parentage orders sought by the applicants, provided all of the criteria contained in the Act for the making that order are satisfied.
I have set out above at [11] a summary of all of the respects in which the evidence originally provided to support the application fell short of permitting the court to make a parentage order. I have also noted the shortcomings that would not be relevant if the surrogacy arrangement in this case was a pre-commencement one. My finding that there was a pre-commencement surrogacy arrangement has the effect that the problems identified in sub-pars (1) and (2), (3), (4), (5) and (7) to (9) are no longer an impediment to the making of the parentage order.
The additional evidence filed by the applicants has also corrected the shortcoming that I described in sub-par (6).
The problem that I discussed in sub-par (10) that has arisen out of the failure of the applicants to satisfy the non-mandatory condition imposed by s 38(1) of the Act concerning the registration of the birth AA of remains to be considered.
I have previously considered this issue in some detail in MNM and EA v EM; Re ENA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1813 at [25] to [33]. I considered the reasons of White J in S v B (above) at [26] to [32] on the same subject. I will not repeat what I had to say in those reasons, save to repeat the warning that prospective applicants for parentage orders will ignore the requirements of s 38 of the Act at their peril.
The circumstances of the present case are the same as they were in MNM and EA v EM, and I am prepared on balance to accept that exceptional circumstances exist that will justify the court making a parentage order in favour of the applicants, notwithstanding that they did not cause AA's birth to be properly registered. It would not in all the circumstances be justified for the court to refuse to make a parentage order in favour of the applicants solely on the basis of their failure to satisfy s 38 of the Act. However, I should say that the court may find it progressively more difficult to excuse this failure, as time passes, and as lawyers who advise prospective applicants for parentage orders should become more aware of the need to satisfy the precondition in s 38.
I will make the orders sought in the summons, including order 3 concerning approval of the names of AA.

BB v DD; Re AA and the Surrogacy Act 2010

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (2 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (8)

Cited By (1)