P v Q [2025] ACTSC 319

1. In these reasons the names of the parties and other relevant persons have been anonymised and other identifying information redacted.

2. This application was heard before me on 21 July 2025. At that time, I made Order 1 as set out below. I now publish my reasons together with consequential orders.

3. In the originating application, orders are sought under ss 28G and 28H of the Parentage Act 2004 (ACT) (Parentage Act) which would have the effect of transferring the parentage of the child from the birth mother and her partner to the intended parents, who are her genetic mother and father.

4. The child was born in Canberra, ACT, on [redacted] April 2025, following an embryo transfer procedure carried out at a clinic in the ACT. Before that procedure took place, a surrogacy agreement had been entered into on [redacted] May 2024, between the four adult persons who are parties to this proceeding. The genetic father and the birth mother’s husband are siblings.

5. On 10 July 2024, the amendments to the Parentage Act introduced by the Parentage (Surrogacy) Amendment Act 2024 (ACT) commenced. The amendments introduced a number of reforms intended to bring the Territory into line with other jurisdictions, particularly in terms of its accommodation of altruistic surrogacy arrangements, such as that entered into by the parties to this proceeding.

6. In Re application under the Parentage Act 2004 [2025] ACTSC 294 (Re application) at [7]-[11] I dealt with the transitional provisions in so far as they applied to a surrogacy arrangement entered into, and a child born pursuant to that arrangement, prior to the commencement day.

7. In this application, the surrogacy arrangement was entered into prior to the commencement day, but the child was born after that day.

Applicable transitional provisions

8. Section 56 provides: 56 Parentage order—arrangement made, but child not born, before commencement day (1) This section applies if— (a) an arrangement, other than a commercial arrangement, was entered into before the commencement day; and (b) a person has not given birth to a child under the arrangement before the commencement day; and (c) the person or people who intend to be taken to be the parent or parents of the child under the arrangement live in the ACT. (2) The person or people may apply to the Supreme Court under section 28G for a parentage order for the child as if— (a) the arrangement was a surrogacy arrangement; and (b) the person or people were the intended parent or intended parents of the child under the surrogacy arrangement. (3) The Supreme Court may make a parentage order about the child under section 28H (1) as if the child were a child mentioned in section 28F (1). (4) In making a parentage order about the child, the Supreme Court need not be satisfied under section 28H (1) (c) that the requirements of subdivision 2.5.2 are met.

9. The effect of s 56 is, in this case, noting that the requirements of subs (1) are satisfied: (a) The application proceeds as if it were a surrogacy arrangement within the meaning of the Parentage Act as amended; (b) The court may make a parentage order about the child under s 28H(1) as if the child were a child mentioned in s 28F(1); and (c) In making a parentage order about the child the court need not be satisfied under s 28H(1)(c) that the requirements of subdiv 2.5.2 are met.

Section 28H(1)

10. Subsection (1) of s 28H is in the following terms: 28H Making of parentage order (1) The Supreme Court may make a parentage order about a child mentioned in section 28F (1) if satisfied that— (a) the making of the order is in the best interests of the child; and (b) each presumed parent freely, and with a full understanding of what is involved, agrees to the making of the order; and (c) the requirements of subdivision 2.5.2 are met.

11. The effect of the transitional provision is that before making a parentage order the court must be satisfied that the order is: (a) In the best interest of the child; and (b) Each presumed parent freely, and with a full understanding of what is involved, agrees to the making of the order.

12. “Presumed parent” is defined in s 23 of the Parentage Act to mean the birth parent, or the birth parent’s partner. “Birth parent” is defined in the same section to mean the person who intends to or who gave birth to the child.

13. Although the effect of the transitional provision in s 56(4) is such that there is no obligation to satisfy the court that the requirements of subdiv 2.5.2 are met, the evidence relied upon demonstrated general satisfaction of those requirements.

Evidence before the Court

14. The affidavits relied upon by the plaintiffs included affidavits from each of the presumed parents, demonstrating: (a) A good understanding of the motivations behind the intended parents’ pursuit of a child through surrogacy; (b) The receipt of independent legal advice before entering into the surrogacy arrangement; (c) Counselling from a psychologist independent of the fertility centre managing the embryo transfer, prior to entering into the surrogacy arrangement; and (d) Their altruistic intent in making the sacrifices involved in the surrogacy process.

15. The sibling relationship between the birth parent and the second plaintiff is clearly a strong motivator for the birth parent and her partner in providing their assistance to enable the plaintiffs to achieve parenthood.

16. The affidavits of the intended parents demonstrated that: (a) The surrogacy arrangement was in writing (s 26); (b) The birth parent, the birth parent’s partner and each intended parent were parties to the agreement (s 27); (c) The legal advice and counselling requirements were satisfied (ss 28 and 28A); (d) The age of parties requirement was satisfied (ss 28B and 28C); and (e) The reasonable expenses only of the birth parent and her partner had been met (s 28D).

17. The plaintiffs also relied upon the affidavit evidence of Sarah-Jayne Duryea, a psychologist, affirmed on 12 June 2025. She attested to the performance of psychometric testing on each of the parties, and to her discussion with them concerning the social and psychological implications of the surrogacy arrangement. Importantly, that discussion extended to the impact of the arrangement on the existing children of the birth parent and her partner, who are presently aged [redacted]. In a pre-surrogacy assessment report prepared by Ms Duryea dated 23 May 2024, she expressed the opinion that the group had the psychological resilience to navigate the emotional challenges presented by surrogacy. Ms Duryea stated: • There appears to be no aspect of significant concern in the psychosocial functioning of the Intended Parents or Surrogate and her partner • All parties appear well informed about, and psychologically prepared for surrogacy • All parties appear aware of and capable of managing the social and psychological implications of entering into a surrogacy arrangement • The relationships within and between the parties appear resilient enough to be able to meet the demands of surrogacy both now and in the future • The Surrogate has adequate support available throughout the pregnancy and post birth, and the Intended Parents appear committed to supporting the Surrogate as required • All parties report they will be accessing independent legal advice and therefore will be aware of the legal implications of surrogacy • All parties state they are aware of and compliant with the restrictions of an altruistic surrogacy arrangement • It does not appear that a surrogacy arrangement between the parties would jeopardise the welfare of any child associated with or born as a result of such an arrangement • All parties have read this report and have confirmed that the information contained in it is true and accurate, and that they are aware of any identified risks or recommendations • All parties confirm they are providing free and informed consent to the arrangement and appear to have the capacity to provide such consent • It is my belief that this team is [psychologically] suitable for surrogacy Is the making of the order in the best interests of the child?

18. As I stated in Re application at [18]-[19], unlike the situation under the Adoption Act 1993 (ACT), no mandatory criteria or other guidance is given to assist in assessing what is in the best interests of the child under the Parentage Act.

19. The matters to which I attach significance in this case are: (a) The intended paternal parent and the partner of the birth parent are siblings, and there is evidence of a close and stable familial relationship between the two parent groups; (b) The surrogacy arrangement was first offered by the birth parent in late 2023 and the embryo transfer did not take place until [redacted] July 2024. The parties were thus afforded several months to carefully consider the arrangement into which they entered and its ramifications for them; (c) Given the history of conception and birthing difficulties experienced by the intended parents, the altruistic intent of the birth parent and her partner in entering into the surrogacy arrangement has a solid foundation; and (d) The child has been living with the intended parents since leaving hospital following her birth in April 2025. Although that represents a period of only a few months, there is nothing before me to suggest that any difficulties relevant to this application have arisen for, or between, the parties in the intervening period.

20. Those matters lead me to conclude that the parentage order which is sought is in the best interests of the child.

Orders

21. The order made on 21 July 2025 was: (1) Pursuant to s 28H of the Parentage Act 2004 (ACT), I make a parentage order transferring parentage of the child, [redacted], born [redacted] April 2025, being the child of the surrogacy arrangement dated [redacted] May 2024, from the defendants, [redacted], to the first plaintiff and the second plaintiff, [redacted].

22. The consequential orders I now make are as follows: (2) The Registrar of Births Deaths and Marriages, pursuant to s 16B of the Births Deaths and Marriages Registration Act 1997 (ACT) is directed to reregister the birth of the child, [redacted], born [redacted] April 2025 and registered on [redacted] April 2025: (a) The child’s name before the order was made is [redacted]. (b) The child’s name after the order is made is [redacted]. (c) The child’s sex is female. (d) The place of birth of the child is Canberra, ACT. (e) The names of the parents before this order were [redacted]. (f) The names, date of birth, place of birth and occupation of each of the parents after this order is as follows: (i) [Redacted], born on [redacted], born in Canberra, occupation: [redacted]. (ii) [Redacted], born [redacted], born in Canberra, occupation: [redacted]. (g) The parents were married on [redacted]. [Redacted]

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: