Lowe v Barry

The Background 1HIS HONOUR: The Plaintiffs, JSC and RSC, a married couple, as intended parents, apply for a parentage order, under the Surrogacy Act 2010 ("the Act"), in respect of the child HR, who was born in June 2012. In the proceedings, the birth mother, CAG, and her husband, CIG, are named as the Defendants. 2The Plaintiffs' application has been dealt with in Chambers, in the absence of the public and without any attendance by, or on behalf of, the parties: Uniform Civil Procedure Rules ("UCPR") rule 56A.4(1). Neither of the parties had made an application for a preliminary hearing which would prevent this occurring. 3However, for reasons to which I shall come, it is necessary to publish these reasons to avoid other parties having the same deficiency in evidence and the consequent delay, that has occurred in this case. The deficiency of evidence has now been remedied. Hopefully, legal representatives of other parties making an application of this type will ensure that all of the mandatory preconditions specified in the Act and the evidence required by the UCPR are satisfied.

The Law 4The Act commenced on 1 March 2011. A parentage order is defined in s 4 of the Act as an order made by the court under the Act for the transfer of the parentage of a child. 5Section 5 of the Act defines "surrogacy arrangement" as: "(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 (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 (a "post-conception surrogacy arrangement")." 6In s 5 of the 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" and 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 the surrogacy arrangement". 7Benjamin J in Lowe v Barry [2011] FAMCA 625, at [3], noted: "In a community understanding, surrogacy is said by Wikipedia to be: ... an arrangement in which a woman carries and delivers a child for another couple or person. This woman may be the child's genetic mother (called traditional surrogacy), or she may carry the pregnancy to delivery after having an embryo, to which she has no genetic relationship, transferred to her uterus (called gestational surrogacy)...." 8In the present case, the evidence reveals that this was a gestational surrogacy. 9Brereton J has outlined the general operation of, principles in, and procedure under the Act, in Application of AP [2011] NSWSC 1389, and has followed that decision in Re Application of MM & KF [2012] NSWSC 445. I am indebted to his Honour and propose to proceed in the same manner as his Honour relevantly outlined in those two cases. 10By s 12 of the Act, the court may, on application, make a parentage order in relation to a child of a surrogacy arrangement, and the purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement. 11By s 39 of the Act, on the making of the parentage order in relation to a child, the child becomes a child of the intended parent or parents named in the order, they become the parents of the child, and the child stops being a child of a birth parent and the birth parent stops being a parent of the child. Thereafter, the child of the surrogacy arrangement has the same rights in relation to the intended parent or parents named in the order as a child born to the parent or parents, and the intended parent or parents named in the order have the same parental responsibility as the birth parent had before the making of the order.