Lowe v Barry [2015] NSWSC 1364 | Case summary

Supreme Court of NSW|2015-09-22|Before: Hallen J, Benjamin J

Judgment

HIS HONOUR: The Plaintiffs, MGH and CJH, a married couple, as intended parents, apply for a parentage order under the Surrogacy Act 2010 (NSW) ("the Act") in respect of the child, HCH, who was born on 5 February 2015. In the Summons, the birth mother, MJH, and her husband, MDH, are named as the Defendants.
MDH is the brother of CJH and the brother-in-law of MGH. MJH is the sister-in-law of MGH.
Each of the Plaintiffs and the Defendants swore an affidavit which has been read in the proceedings. There are a number of other affidavits that have also been read. In addition, the background to the application is set out in the Agreement dated 29 June 2013, between the parties, a copy of which is attached to the affidavit of MJH.
The 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 2005 (NSW) (UCPR) rule 56A.4(1). Neither of the parties had made an application for a preliminary hearing to prevent this occurring.
It is necessary to permit the Plaintiffs to amend the Summons under s 64 of the Civil Procedure Act 2005 (NSW), as it appears there is a typographical error in Order 4, by omitting the word "Victoria", and substituting in lieu thereof, the words "New South Wales". Pursuant to s 14 of the Civil Procedure Act I shall dispense with the need to file and serve an amended Summons as it is tolerably plain, on the facts of the case, that HCH was born in New South Wales and that it is unnecessary to give notice to the Registrar of Births Deaths and Marriages in Victoria.

The Proceedings

The surrogacy arrangement, in this case, was made in a written agreement dated 29 June 2013. Both of the Plaintiffs, as intended parents, and the Defendants, MJH as the surrogate, and MDH as her spouse, were parties to the written agreement. It is, therefore, not "a pre-commencement surrogacy arrangement" which is one entered into before the commencement of Part 3 of the Act: s 15. As stated, the Act commenced on 1 March 2011.
The Plaintiffs filed a Summons on 4 August 2015. This is within the period of not less than 30 days, and not more than 6 months, after HCH's birth: s 16 of the Act.
By s 18 of the Act, the Court may make a parentage order only if satisfied that the preconditions to the making of such order have been met, unless the precondition is not a mandatory precondition and exceptional circumstances justify the making of the order despite the unfullfilment of the precondition. The preconditions are set out in Division 4 of Part 3 of the Act.
In addition to the Court being so satisfied, it may also have regard to any other matter it considers relevant.
Whilst there does not need to be a genetic link between the intended parents, or either of them, and the child, in this case there is such a link, since embryos were created using the sperm of CJH and the ovum of a donor known to the Plaintiffs.
Similarly, whilst there is no requirement for the surrogate to have previously had children, in this case, MJH has two children with MDH.
By s 19, on making a parentage order, the Court may make such other orders in relation to the child as it considers appropriate.
The Plaintiffs also filed evidence of the matters referred to in UCPR rule 56A.8. Having read all of the evidence, I am satisfied of all of the following matters. (a) HCH has, since his birth, been in the care of the Plaintiffs and is treated as their child. Having regard to the surrogacy arrangement, the care arrangements for HCH since birth, and the other matters identified in the evidence relating to HCH, the making of the parentage order would be in the best interests of HCH: s 22. (This is the first mandatory condition.) (b) This was not a commercial surrogacy arrangement: s 9 and s 23. (This is the second mandatory condition.) As stated in the written agreement, it is a purely altruistic arrangement designed to allow the Plaintiffs the opportunity to have a family. The financial responsibility of the Plaintiffs was in accordance with s 7 of the Act. (c) The surrogacy arrangement was a pre-conception surrogacy arrangement: s 24. (This is the third mandatory condition.) (d) At the time of entering into the arrangement, the intended parents, the Plaintiffs were a couple (being husband and wife): s 25. (This is the fourth mandatory condition.) (e) HCH is under eighteen years of age, but not of sufficient maturity to express his own wishes: s 26. (This is the fifth mandatory condition.) (f) The birth mother, MJH, was at least 25 years old, when she entered into the surrogacy arrangement, having been born in December 1979: s 27. (This is the sixth mandatory precondion.) (g) Both Plaintiffs were at least 18 years old when they entered into the surrogacy arrangement, MGH having been born in September 1982 and CJH having been born in August 1973: s 28. (As they were not, at the relevant time, under 25 years of age, the requirement of s 29 that the intended parent be of sufficient maturity to understand the implications of the making of the parentage order does not apply.) (This is the seventh mandatory precondition.) (h) There is a medical need for the surrogacy arrangement: s 30. (i) Each of the affected parties (the Plaintiffs and the Defendants), by the affidavit each has filed, consents to the making of the parentage order and a written consent has been filed by each of MJH and MDH: s 31. (j) The Plaintiffs reside in New South Wales, and HCH continues to live with them at the time of the determination of the proceedings: s 32 and s 33. (k) The surrogacy arrangement was in writing, having been entered into in June 2013 and signed by each of the affected parties: s 34. (l) In late May and early June 2013, a qualified, independent counsellor counselled each of the affected parties before they entered into the surrogacy arrangement,: s 35. (m) Since the birth of HCH, and before consenting to the parentage order, the Plaintiffs have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications: s 35(2) of the Act. (n) In compliance with s 17 of the Act and with UCPR r 56A.7, a report of the counsellor has been filed, which includes her assessment that each affected party understands the social and psychological implications of the making of a parentage order (both in relation to the child and the affected parties), that each affected party understands the principle that openness and honesty about a child's birth parentage is in the best interest of the child, that suitable care arrangements are proposed by the Plaintiffs in relation to the child, as to the contact arrangements in place and proposed in relation to the child and the Defendants, that the Plaintiffs have good parenting capacity, and that all consents given by the affected parties are informed consents, freely and voluntarily given. (o) The Plaintiffs and the Defendants have attended on a Psychologist, following the birth of HCH, which Psychologist has provided a Parentage Order Report recommending the making of the parentage order. (p) Given HCH's age, the child's wishes are not the subject of report. (q) The registrable information about the surrogacy arrangement has been provided to the Director-General of the Department of Health as required under the Assisted Reproductive Technology Act 2007 (NSW): s 37 of the Act. (r) The birth of the HCH has been registered in accordance with the requirements of the Births Deaths and Marriages Registration Act 1995 (NSW): s 38. (s) The application for a parentage order is accompanied by an affidavit sworn by an Australian legal practitioner, AJW, and by JG, who gave advice to the Plaintiffs and to the Defendants, respectively, for the purpose of satisfying the precondition to the making of a parentage order referred to in s 36 of the Act. The affidavit, in each case, states: (i) the name of the affected party to whom the advice was given, the role of the affected party and the date the advice was given, and (ii) that independent legal advice was given to the person before the person entered into the surrogacy arrangement, and (iii) the Australian legal practitioner's belief that the person appeared to understand the legal advice given.
I am also satisfied that it would be appropriate to make a parentage order and I am able to deal with the matter in Chambers.
The Court: (a) Grants leave, pursuant to s 64 of the Civil Procedure Act 2005 (NSW), to the Plaintiffs to amend Paragraph 4 of the Summons by omitting the word "Victoria" and substituting the words "New South Wales". (b) Dispenses, pursuant to s 14 of the Civil Procedure Act, with the need to file and serve an amended Summons. (c) Orders for the transfer of the parentage of the child, HCH, born on 5 February 2015 ("the child") from the Defendants to the Plaintiffs, MGH as mother and CJH as father, and approves the name "H" as the surname and "HC" as the given names of the child. (d) Directs that the Registrar give notice of this order: (i) pursuant to Surrogacy Act 2010 (NSW), s 49, to the Registrar of Births, Deaths and Marriages; (ii) pursuant to Surrogacy Act, s 51, to the Director-General of the Department of Health. (The precise form of the parentage orders should be taken from the amended Order provided by the parties (excepting Paragraph 2 which appears unnecessary because the birth of HCH has been registered). It is an offence under the Act to publish any material that identifies, or is reasonably likely to identify, a person as a person affected by a surrogacy arrangement: s 52.)

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Births Deaths and Marriages Registration Act 1995(NSW)

Lowe v Barry

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