This is an application for a parentage order pursuant to s 12 of the Surrogacy Act 2010. The application concerns two children who are now slightly over six months old. I will refer to the children as "M" and "A".
M and A were born pursuant to a surrogacy agreement between their birth parent, L, and their intended parents, Z and X. The parties all consent to the making of the parentage order.
The surrogacy agreement was in writing. Two counterparts of the final, "Execution page", of the agreement were in evidence. One was signed by Z and X, seemingly by hand. Another was signed only by L.
This judgment is concerned with the nature of L's signature. It was not by hand. Rather, it appears to have been typed or inserted using a cursive font. Next to L's signature, is the signature of a witness. It also appears to have been typed or inserted, as it uses the same font as L's signature.
L has given affidavit evidence of the circumstances of the signature:
As I did not have access to a printer to print a hard copy of the agreement, I accessed an electronic copy of the agreement from my home computer … I used an online PDF editing tool to insert my digital signature
L has also given affidavit evidence that she also inserted the signature of the witness, who was present when she signed the agreement.
The issue that arises is whether L's signature is sufficient for the purposes of s 34 of the Surrogacy Act. That section provides (emphasis added):
(1) The surrogacy arrangement must be in the form of an agreement in writing, signed by the birth mother, the birth mother's partner (if any) and the applicant or applicants.
…
To be able to make the parentage order sought, I must be satisfied that this precondition is met (s 18(1)), unless I am "satisfied that exceptional circumstances justify the making of the parentage order" (s 18(2)(b)). The latter course is available because s 34 is not a "mandatory precondition" for the purposes of s 18(2)(a). I am satisfied that the other preconditions are met.
I invited the solicitor for the plaintiffs, Ms Russell, to address the Court in writing on whether an electronic signature was sufficient for the purposes of the Surrogacy Act.
Ms Russell's primary submission was that electronic signatures were sufficient in the circumstances outlined in s 9 of the Electronic Transactions Act 2000. Ms Russell referred to ss 7 and 9 of that Act. I extract those provisions below, along with the definition of "electronic communication" in s 5:
5 Interpretation
(1) In this Act -
electronic communication means -
(a) a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both, or
(b) a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.
7 Validity of electronic transactions
(1) For the purposes of a law of this jurisdiction, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.
(2) The general rule in subsection (1) does not apply in relation to the validity of a transaction to the extent to which another, more specific, provision of this Part deals with the validity of the transaction.
9 Signatures
(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if -
(a) a method is used to identify the person and to indicate the person's intention in respect of the information communicated, and
(b) the method used was either -
(i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement, or
(ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence, and
(c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).
(2) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring -
(a) an electronic communication to contain an electronic signature (however described), or
(b) an electronic communication to contain a unique identification in an electronic form, or
(c) a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator's intention in respect of the information communicated.
(3) The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
Ms Russell also referred to clauses 4 and 7 of the Electronic Transactions Regulation 2017, which exempt specified statutes from the procedures outlined above, and do not refer to the Surrogacy Act. Ms Russell submitted that the circumstances set out in s 9 of the Electronic Transactions Act were met in the present case.
Ms Russell's alternative submission relied upon the definition of "sign" in the Interpretation Act 1987. Section 21(1) of that Act provides:
(1) In any Act or instrument -
sign includes the affixing of a seal and the making of a mark.
Ms Russell submitted that a digital signature relevantly constitutes the making of a mark.
I am unable to accept the submission that the Electronic Transactions Act applies in the present case. Section 9 of that Act (extracted above) provides for the authentication of an "electronic communication". I think that the surrogacy agreement in question is not an "electronic communication" because it is not a "communication of information". Communication implies the passing of information between two different persons. One party's authentication of a document by expressing assent to its content is not a communication in that sense.
I do agree, however, with the alternative submission relying upon the definition of "sign" in s 21(1) of the Interpretation Act. Indeed, I think the case for validity is wider.
In DPP v Currie (2021) 65 VR 61, the Victorian Court of Appeal considered a challenge to the validity of appeals which had been instituted in the name of the Director of Public Prosecutions. The notices of appeal bore electronic signatures "inserted by the Director authorising her associate to affix her electronic signature" (at [1]). The respondents contended that the Director was required herself to affix an electronic signature to comply with s 288(2) of the Criminal Procedure Act 2009 (Vic) (see [2]).
The Court recorded (at [24]) that:
the parties accepted that a notice of appeal would meet the requirement that it be 'signed' if it bore the signature of the Director, whether in handwriting or by the signature being affixed by some physical or electronic means.
The Court accepted this as "the correct understanding of the provision" (at [24]) and went on to give reasons at [25]-[27]:
The Oxford English Dictionary defines 'sign', among other things, as meaning:
To confirm the authenticity or validity of (a document, contract, cheque, etc) by writing one's signature; to render official by affixing one's signature.
In Goodman v J Eban Ltd ('Goodman'), Romer LJ cited the following from the third edition of Stroud's Judicial Dictionary under the title 'Signed; signature':
[S]peaking generally a signature is the writing, or otherwise affixing, a person's name, or a mark to represent his name, by himself or by his authority with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed.
Although these definitions do not specifically refer to electronic signatures, they use the general language of affixation. There is no reason why s 288(2) would be construed as circumscribing the mode by which a notice of appeal is to be 'signed' according to the literal terms of these definitions, rather than permitting a signature to be affixed by any means. To the contrary, the requirement of signature is to be construed having regard to the fact that means of signing a document have varied over time, and now include the affixing of signatures by mechanical or electronic means. In every case, the deployment of the signature - that is, the writing or otherwise affixing of a person's name or mark representing it - amounts to an acknowledgment by the signatory that he or she adopts the document as their own. That is capable of being done by electronic signature just as well as by more traditional means.
These passages make it clear that there is no magic in parties handwriting their signatures onto a traditional hard copy agreement. It is merely one method of signifying acceptance of the agreement's terms. That is why the writing of the party's name is not required and a mark will do just as well, if made with the appropriate intent.
In my view, the traditional approach to the signature of hard copy documents must now accommodate the use of electronic documents, which are recognised as "documents" for the purposes of s 21(1) of the Interpretation Act (Yazbek v Yazbek [2012] NSWSC 594 at [79]-[80]). Such an electronic document (as distinct from a printed copy) cannot itself be physically signed. Usually, however, it may be "signed" by pasting an image of a handwritten signature into it, or by typing a person's name into the signature space on the document, as was done in the present case. If this is done by the party to an agreement with the intent to signify acceptance of the terms, I see no reason why it should not amount to the party's signature on the (electronic) document in the ordinary sense of the term. On any view I think it is that party's "mark" within the Interpretation Act definition of "sign".
It is notable that the passages I have quoted from Currie referred to a party handwriting a signature on a hard copy document as the "affixation" of the party's signature. No doubt this usage derives from execution of instruments under seal: it is natural to speak of "affixing" a seal, and it thus became possible, if perhaps somewhat unnatural, to speak of "affixing" a signature. The wheel has now turned again, and it is entirely natural to speak of "affixing" an electronic signature to an electronic document. The Interpretation Act definition of "sign" refers to affixing a seal, and, in my view, this lends further support to the construction which I favour.
The mere production of an electronic document with the typewritten name of a party appearing in the place for that party's signature does not however prove that it was actually the party's signature. In this regard there is a difference with a handwritten signature on a hard copy document, where inferences may be drawn from similarity to other documents admitted or proved to bear the signature of the party. In the case of an electronic signature on an electronic document, it remains necessary in each case to prove that the signature was in fact placed by the party on the document and that the party did so in order to signify acceptance of the terms.
But in the present case I have evidence in that form from the defendant herself. She says that it was she who typed her name into the electronic document, and it is plain from her testimony that she intended by doing so to signify acceptance of its terms. In these circumstances, I conclude that it had been established that the Surrogacy Agreement was indeed signed by the parties as required.
For those reasons, I am satisfied that s 34(1) of the Surrogacy Act is met, in addition to the other preconditions. I will make the parentage order sought.
[2]
Amendments
18 May 2023 - Jurisdiction updated from Equity to Equity-Adoptions
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Decision last updated: 18 May 2023