GP v BP

Supreme Court of NSW|2018-12-05|Before: Sackar J

Procedural history

These proceedings were commenced by way of Summons filed on 19 February 2018 concerning predominantly an application pursuant to s 12 of the Surrogacy Act 2010 (NSW) (the Act) for orders that the parentage of the child SCR born 22 August 2017 be transferred from BPM and BPF (the birth parents or the Defendants) to GPM and GPF (the genetic parents or the Plaintiffs).
The Plaintiffs (or applicants to use the wording of the Act) to the proceedings are the genetic parents and are pursuant to s 5 of the Act both "intended parents". The Defendants to the proceedings are the birth parents who do not oppose the orders sought.
Relevantly, the Act sets out a number of preconditions before orders can be made for making of a parentage order (s 18), and it makes a clear distinction between preconditions which are mandatory and those which are not mandatory. For not mandatory preconditions the Court must be satisfied that "exceptional circumstances justify the making of the parentage order, despite the precondition not having been met" (s 18(2)(b)).
In this particular application in my view all the relevant mandatory preconditions have been met. However, the only precondition which has not been met is that the applicants "must be resident in New South Wales at the time of the hearing of the application" (s 32). The Plaintiffs reside in Victoria.
Having carefully considered the papers on 5 December 2018 I was satisfied that s 32 was not a mandatory precondition and exceptional circumstances existed that justified the making of the parentage order pursuant to s 12. I made those orders then and indicated I would provide reasons. These are those reasons.

Legislation

I am satisfied that all bar one of the preconditions to making a parentage order have been satisfied in this case. The Plaintiffs are both the "intended parents" (s 5). BPM is the "birth mother" (s 5) and her partner BPF is the "birth mother's partner" and was so at the time the birth mother entered into the surrogacy agreement (s 4). BPM and BPF are both the "birth parents" (s 4).
The Plaintiffs and Defendants all signed a pre-conception surrogacy arrangement (s 5). The Defendants signed the surrogacy arrangement on 23 December 2015. The Plaintiffs signed the surrogacy arrangement on 28 December 2015.
The preconditions to the making of a parentage order are set out in Pt 3, Div 4 of the Act. I am satisfied the making of the parents order is in the best interests of the child, as it gives effect to the surrogacy arrangement, the child is in good health and being appropriately cared for and the child is in the care of the Plaintiffs (s 22). The surrogacy arrangement is not a commercial surrogacy arrangement but was an altruistic one (s 23). The surrogacy arrangement was a pre-conception arrangement signed by the parties on 23 December and 28 December 2015, with the child born on 22 August 2017 (s 24). The two genetic parents were at the time of entering into the arrangement a couple as were the Defendants (s 25). The child is under the age of 18 being approximately 8 months of age (s 26(1)). The child is not of sufficient maturity to express his own wishes and has not done so (s 26(2)).The birth mother was at least 25 years old when she entered into the surrogacy arrangement, being 32 years of age when she entered the surrogacy arrangement (s 27). The Plaintiffs as the intended parents were each at least 18 years old when they entered into the surrogacy arrangement, with the genetic mother 35 and the genetic father 30 years of age (s 28). The maturity requirement of s 29 does not apply. The surrogacy arrangement itself, and the process of the proceedings, evidence the consent of the birth parents (s 31).
I am satisfied there is a medical or social need for the surrogacy arrangement, in that the genetic parents are an "eligible woman" and "man" as per the requirements of the Act (s 30). I am satisfied each of the affected parties have consented to the making of the parentage order (s 31). The child is living with the applicants at the time of hearing this application (s 33). The surrogacy arrangement is in writing, signed by the birth mother, her partner and the applicants (s 34). Each of the affected parties have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement (s 35(1)). The birth mother and her partner 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 (s 35(2)). Each of the parties have received legal advice, for the Plaintiffs from AB of Robb & Associates on 30 April 2015, and for the Defendants from SR of Rama Myers in July 2015 (s 36). All relevant information about the surrogacy arrangement has been provided to the Director-General of the Department of Health (s 37). The birth of the child has been registered in accordance with the relevant requirements (s 38). The timing of the application has been made not less than 30 days and not more than 6 months after the child's birth (s 16). The application has been supported by a report about the application prepared by an independent counsellor (s 17).

Legal principles

As is clear from the above all but the s 32 precondition has been met, because the applicants reside in Victoria not in NSW. That section provides: The applicant or applicants must be resident in New South Wales at the time of the hearing of the application.
This section must be read with s 18 of the Act, which distinguishes between mandatory and non-mandatory preconditions. Section 18 is in the following terms: (1) The Court may make a parentage order only if satisfied that the preconditions to the making of a parentage order have been met. (2) However, the Court may make a parentage order, despite not being satisfied that a precondition to the making of the order has been met, if: (a) the precondition is not a mandatory precondition to the making of a parentage order, and (b) the Court is satisfied that exceptional circumstances justify the making of the parentage order, despite the precondition not having been met. (3) In deciding whether to make the parentage order, the Court may also have regard to any other matter it considers relevant.
Section 32 of the Act is not expressed to be a mandatory precondition, and it therefore falls to be determined whether "exceptional circumstances" justify the making of the parentage order, despite the precondition not having been met.
In a 2013 decision which was factually extremely close to the present case, White J (as his Honour then was) considered the operation of the "exceptional circumstances" requirement in s 18(2)(b): C v B [2013] NSWSC 254. His Honour made the parentage order which was sought, and said (at [5]-[7]): The exceptional circumstance is that the applicant and her husband live approximately 22 kilometres from Albury. They and the birth mother (the applicant's sister) sought treatment in Albury from a doctor specialising in reproductive medicine. The child was born in a hospital in Wodonga. The parties all reside in Victoria. Victoria, like New South Wales, has legislation for the making of substitute parentage orders where a child is born pursuant to appropriate surrogacy arrangements. Pursuant to s 20(1)(a) of the Status of Children Act 1974 (Vic) the "commissioning parents" of a child born under a surrogacy arrangement can only apply to a Victorian court for a substitute parentage order if the child was conceived as the result of a procedure carried out in Victoria and the commissioning parents live in Victoria at the time of making the application. The plaintiffs have received legal advice that as the procedure that resulted in the child's being conceived was carried out in New South Wales, they could not make an application for a substitute parentage order in Victoria. The fact that the procedures that resulted in the child's being conceived took place in New South Wales, although the parties were resident in Victoria (and remain so), is an exceptional circumstance that justifies the making of the parentage order despite the pre-condition in s 32 not having been met.
In S v B; O v D [2014] NSWSC 1533, White J again considered the application of the s 18(2)(b) "exceptional circumstances" requirement, here with respect to the requirement under s 38 for the birth of the child to be registered (also a non-mandatory precondition, able to be waived in exceptional circumstances). At [30], his Honour said: The pre-condition in s 38 to the making of a parentage order is not met. Despite that pre-condition 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". In R v Kelly (Edward) [2000] QB 198 Lord Bingham of Cornhill CJ said (at 249): "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." Although said in a very different context, that description accords with the ordinary English sense of the word.
In Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806, Slattery J also noted that the purpose of the Act is expressed in s 3, which provides that the Act "is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount", and reinforced by s 22 (which requires as a mandatory precondition that the making of the parentage order is in the best interests of the child). By reference to that purpose and to White J's reasoning in both C v B and S v B; O v D, his Honour was satisfied that exceptional circumstances justified the making of a parentage order despite the s 32 precondition not having been met, holding at [19]-[22]: The Court is satisfied that the making of a parentage order here now comes down only to an issue of timing. Were the Court not to find that there were "exceptional circumstances", the mere accident of when this matter was reached in the Court's in-chambers list would determine whether a parentage order would be made, despite the applicants having organised their affairs to be resident in New South Wales for a period of four months, so that the Court could make the orders whilst they were present in the jurisdiction. This outcome is merely an accident of administration, which is in no sense the fault of the applicants. The applicants' lack of residence at the time of the hearing is not an indicator in this case of a lack of connection with this jurisdiction. The child was conceived, born and was first nurtured in New South Wales. The applicants and the child have strong family connections with this State. When considerable effort was invested in securing the applicants' residence in the State at the required time, the applicants' non residence at the time the orders were made, due to an administrative misalignment in the timing of the hearing and of their residence, should in my view qualify as "exceptional circumstances". This conclusion is reinforced in this case by the mandatory consideration of the best interests of the child. It is clearly in the best interest of the child for the order to be made now, rather than at some uncertain future time when the applicants can return to Australia and temporarily re-establish their residence as they did earlier this year. When that can occur is not clear on the evidence, as the applicants have not been asked. But given the employment commitments of the couple in the United States it could reasonably be anticipated that it could not be done for many months. The medical, welfare and family security for the child of having the parentage order made in place in accordance with a regime to which the applicants have diligently accommodated themselves is a powerful factor for making the parentage order now, rather than waiting any longer. The Court will so order.

Evidence

The following affidavits were read by the applicants. I have carefully considered these materials which were in the file: affidavit of BPM (20 February 2018), affidavit of BPF (20 February 2018), affidavit of GPM (19 February 2018), affidavit of GPF (19 February 2018), affidavit of Dr D (15 February 2018), affidavit of Dr S (21 March 2018), affidavit of NM (20 February 2018), affidavit of AB (8 February 2018), affidavit of SR (20 February 2018) and affidavit of EC (30 November 2018).

Consideration

Given the above principles, I am satisfied that exceptional circumstances exist that justify dispensing with the not mandatory precondition of s 32: 1. The surrogacy arrangement was one which necessitated the use of Dr G at Reproductive Medicine Albury who is the only doctor in the region providing IVF services, with the other nearest facilities in either Sydney or Melbourne. 2. The Plaintiffs (as the intended parents) live in Victoria which is 30km from Albury; 3. The Plaintiffs have given evidence of significant detrimental impact of them attempting to utilise an IVF facility in Melbourne, particularly because they having employment commitments and family commitments making it onerous an inappropriate to require them to travel to Sydney and/or Melbourne; 4. The Defendants also live and work in Albury, and travelling to Melbourne would have been onerous and may have placed the surrogacy arrangement in jeopardy, noting that the first implant was unsuccessful and a subsequent procedure was necessary before the pregnancy was securely established and carried to term.
In addition, importantly, the affidavit of Ms EC of 30 November 2018, solicitor for the Plaintiffs, has explained clearly why the application has been made in NSW not Victoria including the arrangements for birth registrations between Victoria and New South Wales.
In my view the health considerations for the genetic mother, the great distance they would have had to traverse to get to Sydney and/or Melbourne and the current state of arrangements in these 'border towns' concerning the birth and registration of children provide exceptional circumstances which warrant making a parentage order despite s 32.

Conclusion

In all of the above circumstances in my view it is appropriate to make the orders sought and that all the statutory preconditions except for s 32 have been met, and there are exceptional circumstances which warrant dispensing with this not mandatory precondition.
Accordingly on 5 December 2018 I made Orders as set out: 1. The Court makes an order for the transfer of the parentage of the child SCR born on 22 August 2017 ("the child") to the plaintiffs GPM as mother and GPF as father and approves the name "R" as the surname and "SCR" as the given names of the child. 2. The Court directs that the Registrar give notice of this order: a. pursuant to Surrogacy Act 2010 New South Wales, s 49 to the Registrar of Births, Deaths and Marriages New South Wales; b. pursuant to Surrogacy Act 2010 New South Wales, s 51 to the Director-General of the Department of Health New South Wales. 3. The Orders be entered forthwith.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2019

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