Re Ashley [2023] NSWSC 1295

Re Ashley [2023] NSWSC 1295 - NSWSC 2023 case summary — Zoe

Introduction

HIS HONOUR: Establishing and formalising the parentage of a child is one of the most important, challenging and yet beneficial aspects of this Court's civil jurisdiction.
The Court has vast jurisdiction dealing with children which includes its parens patriae jurisdiction and statutory jurisdiction. Part of that statutory jurisdiction is the Surrogacy Act 2010 (NSW) (Act) (all references to sections in these reasons for judgment will be to that Act unless otherwise indicated).
The circumstances of this case have given rise to an important issue as to whether an order for the transfer of the parentage of a child whom I will refer to as "Ashley" may be made in favour of the plaintiffs who are the intended parents. The first defendant is the birth mother (or surrogate) and the second defendant her husband (together, the "defendants").
A mandatory precondition to the making of a parentage order is that there exists a pre-conception surrogacy agreement: s 24.
The parties had an oral arrangement which was reduced to writing but not executed prior to the birth mother undergoing an artificial conception procedure.
The particular issue that arises is whether the failure of the parties to sign a surrogacy arrangement before the conception of Ashley precludes a finding that there is a pre-conception surrogacy arrangement to enliven the Court's power to make a parentage order.
The consequences of the making of a parentage order are significant.
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 and 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: s 39(1). There is an exception as to the operation of this provision in relation to sexual offences (s 39(4)) but otherwise other relationships involving the child are determined in accordance with that provision: s 39(3).
Accordingly, 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: s 39(2).
Publication of any material that identifies, or is reasonably likely to identify, a person as a person affected by a surrogacy arrangement is prohibited: s 52(1). To achieve the requirement of anonymity and preserve privacy, I have used generalised descriptions in referring to dates and names.

[4]

Facts

The essential facts are as follows.
The intended parents married in 2015. The intended mother commenced a friendship with the birth mother in early-2017.
The intended parents went through a process of surrogacy in another state which, in early-2019, resulted in the birth of a child who I will refer to as "Ava" (not the child's real name). The parentage order was made by a Court seized with jurisdiction in that state in mid-2019.
In early-2021, the defendants offered to enter into a further surrogacy arrangement with the intended parents.
In early to mid-2021 the intended parents and the defendants received pre-conception counselling.
In mid-2021, legal practitioners gave independent advice to each of the intended parents and a form of surrogacy arrangement was documented.
In early-2022, without the parties signing the form of surrogacy agreement, the birth mother underwent an artificial conception procedure and became pregnant with Ashley.
It was not until mid-2022 that the defendants and intended parents signed and formally entered into the surrogacy agreement.
In late-2022, Ashley was born and was relinquished into the care of the intended parents immediately post-birth.
In early-2023, the NSW Department of Health confirmed that the birth information was entered on the central register.
Subsequently, the birth parents received post-birth counselling and all parties received independent counselling and obtained an independent counsellor's report.
In May 2023, the summons in the proceedings was filed.
When the matter first came to me in chambers to consider, because of evidentiary deficiencies, I requisitioned the parties to provide evidence regarding the oral surrogacy arrangement and submissions on what (if any) exceptional circumstances existed which may justify the making of a parentage order. This is a course that may be taken in parentage cases: e.g. see Application by JSC & RSC [2013] NSWSC 440 at [3], [16]-[29] per Hallen J.
It took several months for further material to be provided. The affidavit material now provided is a combination of some factual material and submissions. There is essentially no explanation regarding why in this particular case the surrogacy arrangement document was not signed.
Each party to the proceedings under the Act has a duty to the Court to make known fully and frankly all matters relevant to the making of a parentage order, whether those matters tend to support or tend not to support the making of the order: r 56A.3 Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Further, the evidence in support of an application for a parentage order must include in relation to any precondition to the making of the parentage order that is not met, the facts and circumstances that show a parentage order may be made despite the precondition not having been met, having regard to s 18: r 56A.8(i) UCPR.
Thus, at least one of the clear purposes of the surrogacy rules is to invite applicants to be fully frank with the Court regarding non-compliance with preconditions to the making of a parentage order.

[5]

Surrogacy arrangement

The term "surrogacy arrangement", like all expressions, ultimately depends upon context to define its meaning. It first appears in the "Guiding principle" of the Act where it is stated 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: s 3.
The term next appears in the definition section (s 4(1)) which refers to 5 types of surrogacy arrangements which each have their own specific definition set out a little further into the Act. The five types of surrogacy arrangement (which I will slightly reorder from the manner in which they appear in s 4) are as follows namely: 1. surrogacy arrangement: s 5; 2. pre-commencement surrogacy arrangement: s 15; 3. pre-conception surrogacy arrangement: s 5; 4. post-conception surrogacy arrangement: s 5; and 5. commercial surrogacy arrangement: s 9.
There are biological, medical and legal notions of conception, fertilisation and pregnancy. Precision of terminology of those notions is context specific.
The term "surrogacy arrangement" per se is principally defined in s 5 by reference to a temporal event, namely, pre or post-conception of the child in question.
"Conception" is not expressly defined in the Act. However, it is evident from the definition of pre-conception surrogacy arrangement and a post-conception surrogacy arrangement (s 5 (1)(a),(b)) that, for the purposes of surrogacy arrangements, "conception" in those definitions is equated not with fertilisation per se but a woman agreeing to become or trying to become "pregnant" (pre- conception) or being "pregnant" (post-conception).
"Pregnant" is not defined but leaving aside debate about precisely when pregnancy dates from, pregnancy conventionally is regarded as or at least covers the notion of a fertilized egg being implanted in the wall of a woman's uterus or womb: e.g. Elizabeth A Martin and Jonathan Law, Concise Medical Dictionary (10th ed, 2020, Oxford University Press); Macquarie Dictionary, online ed (Macquarie Dictionary).
Thus, in a general sense, distinction between pre-conception and post-conception for the purposes of surrogacy arrangements focusses attention upon the point of time at which the surrogate undergoes a transfer of an embryo formed (in this case) from the intended parents' gametes, which is implanted in her uterus with the intention of carrying a pregnancy to full-term resulting in the birth of a child.
Specifically, s 5(1) provides that: (1) For the purposes of this Act, a surrogacy arrangement means: (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).
Despite terminology of "arrangement", it is evident from the definition provisions in s 5 that the notion is laden and infused with language of agreement.
Thus, the two types of surrogacy arrangement referred to are ones in which a woman pre or post conception agrees that the parentage of the child will be transferred to another person.
To avoid or to limit the scope for doubt about what constitutes such a crucial matter as a "surrogacy arrangement", s 5(2) then provides that an agreement that the parentage of the child will be transferred to another person is an agreement having at least the following crucial components, namely, an agreement: (a) … to consent to a parentage order or an Interstate parentage order being made in respect of the child so as to transfer parentage of the child to another person, (b) ... that the child is to be treated as the child of another person (and not of the woman who gives birth to the child), (c) … that the custody of, or parental responsibility for, a child is to be transferred to another person, (d) ... that the right to care for a child is to be permanently surrendered to another person.
Having provided for that degree of specific content, the Act makes clear that other matters may be dealt with in a surrogacy arrangement: s 5(3).

[9]

Mandatory and non-mandatory preconditions

As noted above, Pt 3 of the Act distinguishes between mandatory preconditions and non-mandatory preconditions.
Mandatory preconditions are essential conditions compliance with which cannot be waived or excused by the Court (A v X; Re Z [2022] NSWSC 971 (A v X) at [19] per Darke J cf GP v BP [2018] NSWSC 1887 at [14]-[15] per Sackar J) and, subject to one matter I will mention, a failure to comply with such is fatal to an application by an intended parent seeking a parentage order.
Non-mandatory preconditions are those the satisfaction of which will ordinarily be insisted upon by the Court unless the applicant satisfies the Court that there are exceptional circumstances that justify the making of a parentage order despite the preconditions not having been met: s 18(2); A v X at [20] per Darke J.
There are fewer mandatory preconditions than non-mandatory preconditions. Mandatory preconditions for the most part appear early in Div 4 dealing with preconditions.
Several mandatory conditions, as might be expected, focus on the interests, age and wishes of the child. Thus, the Court must be satisfied that the making of the parentage order is in the best interests of the child: s 22. Further, the child must be under 18 years of age at the time the application is made (s 26(1)), and the Court must have regard to the wishes of the child, if the child is of sufficient maturity to express his or her wishes and the Court considers it appropriate to take those wishes into account: s 26(2).
Other mandatory preconditions focus upon the parties themselves such that at the time of entry into a surrogacy agreement: 1. the birth mother and each intended parent must have been at least 18 years old: ss 27(3), 28; and 2. an intended parent under 25 years of age must satisfy the Court of the intended parent's maturity by undergoing counselling and providing evidence to that effect: s 29.
Further, a birth parent's consent to the making of the parentage order, subject to what I note below, is mandatory: s 31.
The other mandatory preconditions are that the surrogacy arrangement must: 1. not be a commercial surrogacy arrangement: s 23; 2. be a pre-conception surrogacy arrangement: s 24; and 3. be an arrangement under which there are 2 intended parents who, at the time of entering into the arrangement, are a couple, or there is only one intended parent: s 25
Despite the appearance of binary consequences or outcomes depending upon whether mandatory preconditions have been met or not, there is at least one respect in which the Court has a power to relieve the rigour of the consequence of the mandatory condition regarding the consent of a birth parent.
Thus, the lack of consent of a birth parent to the making of the parentage order will not be fatal (or have the effect of being a mandatory precondition) if the Court is satisfied that: (a) the birth parent has died or lost capacity to give consent, or (b) the birth parent cannot be located after reasonable endeavours have been made to locate him or her: s 31(2).

[11]

The Surrogacy Bill

The statutory context of the relevant provisions of the Act is evident in part from the prevailing social and legal landscape concerning surrogacy arrangements which led to the introduction of the Surrogacy Bill 2010 (NSW) (Bill) into the Legislative Council on 21 October 2010. The Bill, shortly after being passed in the Legislative Council on 27 October 2010, following active debate, was received in the Legislative Assembly on 28 October 2010 and, eventually, after passing all stages, was assented to on 16 November 2010.
The Second Reading Speech of the then Attorney General, the Honourable John Hatzistergos, reveals part of the context including the objects that the legislation was intended to secure and mischiefs it sought to remedy.
The Attorney General noted that the Government's intention by introducing the law was to provide certainty for parties to surrogacy arrangements and to protect the interests of children born as a result of such arrangements. The Bill, he noted, was subject to the guiding principle that the best interests of children born as a result of surrogacy arrangements are paramount.
The Bill sought to implement the recommendation of the Legislative Council Standing Committee on Law and Justice which tabled its Report "Legislation on Altruistic Surrogacy in New South Wales" in May 2009. The reform also drew on the work of the Standing Committee of Attorneys-General which in March 2008 agreed to develop a national model for the legal recognition of parentage achieved by surrogacy arrangements: New South Wales Legislative Council, Parliamentary Debates (Hansard) (Hansard), 21 October 2010 at 26544 (John Hatzistergos, Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council).
In November 2009, the Standing Committee of the Attorneys-General adopted 15 principles as the basis for drafting model provisions to regulate surrogacy.
In 2010, in New South Wales, the Attorney General explained that in most cases the Status of Children Act 1996 (NSW) had the effect that a child's legal parents were its birth parents (see the presumption under s 9(1), cf s 14). That meant that people who intended to become parents under a surrogacy arrangement and who may in fact be raising a child might face significant legal obstacles in obtaining full parental rights: Hansard at 26545.
Part 3 of the Bill, which became Pt 3 of the Act, addresses parentage orders and was described as providing a framework for the Supreme Court to grant orders that would transfer full legal parentage of children from their birth parent or birthparents to the intended parents under a surrogacy arrangement: Hansard at 26545.
As introduced, the Bill was intended to provide relief to families who would otherwise have to turn to adoption processes which, at times, can be laborious, or parental responsibility orders under family law legislation. An important aspect of the Bill was emphasised as creating several safeguards aimed at protecting the wellbeing and interests of the child and the parties to the surrogacy arrangement: Hansard at 26545.

[12]

Surrogacy arrangements

One of the most striking things regarding the Act when looked at as a whole is the repeated use of the expression "surrogacy arrangement". It or its plural equivalent appears approximately 156 times throughout the Act.
The word "arrangement" may be used in many different senses including in a sense of ordering or structuring something or some matter or describing plans. Sometimes, the word arrangement is used in contradistinction to the word "agreement". In that regard, sometimes what is intended to be conveyed is that some form of loose non-binding plan is anticipated between parties as distinct from obligations in a more formal and binding form.
It seems likely, having regard to the content of the Second Reading Speech coupled with the express provision of the Act that surrogacy arrangements are not enforceable (s 6), that use of the word arrangement" was intended to point up the fact that an accord reached in discussions between a number of parties regarding the conception of a child is (leaving costs of the surrogate aside) not enforceable: see, in particular, the Explanatory Note to the Bill.
Nonetheless, the Act empowers the Court to create binding legal orders for: (a) transferring the parentage of a child of a surrogacy arrangement (s 12), (b) the naming of such child (s 42) and (c) discharging a parentage order (s 44) in the context of surrogacy arrangements per se being unenforceable. Binding ancillary orders may also be made: s 46.
When one appreciates that surrogacy arrangements are unenforceable, there is a social and legal importance for Parliament and society to have created a framework in which discussions between parties regarding the conception of a child which lead to surrogacy arrangements are built on a sufficiently robust foundation that the arrangements, notwithstanding their unenforceability, are (hopefully) unlikely to falter.
One mechanism to achieve that end is to create an environment in which parties who intend to embark upon surrogacy arrangements are required to consider certain matters and be provided with supports so that at a critical early stage their expectations of outcomes and rights are conditioned so that arrangements that are ultimately documented and carried out are less likely to be the subject of dispute.
Principally, the Act does that by way of preparing parties to embark upon surrogacy, underpinning their expectations and regulating their conduct by specifying various preconditions to the making of a parentage order including maturity requirements (ss 27-29), demonstration of a medical or social need for the arrangements (s 30), support and advice for the participants in the form of independent counselling (ss 17, 35) and legal advice (s 36).

[13]

Purposes

Various purposive themes pervade the Act.
Legislation in modern times is often drafted in a way which sets out "guiding principles" regarding: (a) how the legislation is to be construed or administered or (b) how bodies or persons created or empowered under the legislation are to carry out functions or exercise powers: e.g. Local Government Act 1993 (NSW) s 8A (in relation to (a)).
The notion of a "guiding principle" in legislation, or the weight to be afforded to it during the process of construction, is not expressly defined. Nonetheless, it is clear enough that a "guiding principle" is a form of legislative direction to Courts, persons or bodies administering, construing, or applying legislation as to what matter(s) are important or paramount and to be focussed upon in the administration, construction or application of the (relevant) legislation.
Depending on the wording of the "guiding principle(s)", the Court, person or body, which is empowered, exercises the jurisdiction or authority in a way which is viewed through the prism of the principles and other aspects of the legislation are tested or measured by reference to such principles. Another way of understanding this is that the declaration of "guiding principles" is a means of disclosing the purposive intent of the legislation and ensuring that the purpose acts as a guide or pilot to the decision-maker or actor in the administration, construction or application of the legislation.
Guiding principles are, in particular, a mechanism used by Parliament to give direction to Courts, persons or bodies administering legislation dealing with children: see e.g. Children (Protection and Parental Responsibility) Act 1997 (NSW) s 6 (Courts), s 21 (police officers); Children's Guardian Act 2019 (NSW) s 8.
The Act's guiding principle 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 are paramount (s 3) and that the Court must be satisfied that the making of a parentage order is in the best interests of the child: s 22.
Other themes which appear strongly from the structure of the Act and its contents are, without being exhaustive: 1. surrogacy arrangements are unenforceable (s 6(1)) with the exception of allowing parties to enforce an obligation under the arrangement to pay the birth mother's reasonable surrogacy costs (ss 6(2), 7) and commercial surrogacy arrangements are prohibited (ss 8, 23) - these are the subject of offences (ss 8, 10), with the evident purpose (as mentioned in the Second Reading Speech) of preventing the commercialisation of human reproduction; 2. persons engaging in surrogacy arrangements should have a level of maturity in life (ss 27-29) and also have the benefit of counselling: s 35; 3. various persons or parties will be affected by a surrogacy arrangement and, accordingly, their differing interests are to be identified and considered - but with the interests of the child being paramount: ss 4(1), 3 and 22; 4. because of the seriousness of the subject matter, there are preconditions to the making of parentage orders: ss 21-38; and 5. in the making of parentage orders, there are preconditions which are mandatory and those that are not (a matter which I will refer to below): s 18.
Relevantly, for the purposes of this particular matter, one of the preconditions referred to by the Attorney General (cl 32 of the Bill, now s 34 of the Act) is that the arrangement must be in writing and signed. The Attorney General, in his speech, indicated that the requirement of "writing" "aims to focus the parties on the complexity and the potential outcomes of the arrangement": Hansard at 26546.

[14]

Text

In light of the above general context and purposes manifest by the Act, it is necessary to consider whether the failure of the parties to sign a surrogacy arrangement before the conception of Ashley is fatal to the claim for relief.
The Act requires that a surrogacy arrangement must be a pre-conception surrogacy agreement: s 24(1). That is a mandatory precondition: s 24(2).
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(s): s 34(1).
The requirement for signing, in the context of an electronic signature, was recently examined by Parker J in Re M; Application for Parentage Order [2023] NSWSC 531 (Re M).
The requirement for writing is a precondition which does not apply to a pre-commencement surrogacy arrangement: s 34(2).
Certainly, on one view, the surrogacy arrangement document only signed by the parties in mid-2022 is not a pre-conception surrogacy arrangement and the applicant intended parents will only be able to satisfy the mandatory precondition of s 24 if the parties' oral and or unsigned documented arrangements made prior to Ashley's conception can be relied upon as a pre-conception surrogacy agreement.
A similar dilemma presented itself in BB v DD, proceedings heard by Robb J in two separate hearings: BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 (BB v DD (No 1)) on 6 August 2015 and BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2) [2015] NSWSC 1825 (BB v DD (No 2)) on 1 December 2015.
Robb J, in BB v DD (No 1), on the facts then presented (later, significant other facts were presented changing the complexion of the matter) expressed concerns about serious shortcomings in the manner in which the applicants had attempted to satisfy the requirements of the Act and, at least at that stage, indicated that he would not make the parentage order sought: at [3]. The shortcomings at that stage were evidentiary with the evidence then going little further than bare assertions as to the making of an oral surrogacy arrangement and the content of its terms: at [71]. His Honour expressly noted that the observations that he made should be treated as provisional, and that he was open to reconsidering them on the basis of further evidence and submissions: [108].
Ultimately, as events turned out, by the time of the second hearing additional evidence which was adduced demonstrated that in fact the form of agreement with which the Court had to grapple was a pre-commencement surrogacy arrangement: BB v DD (No 2) at [7].
Nonetheless, his Honour, in BB v DD (No 1), in addressing the dilemma before him in the circumstances of that case, provided, albeit in obiter dicta, some analysis of the relevant provisions which must be focussed on in the circumstances of this case.
His Honour observed (in obiter) that because the precondition that the pre-conception surrogacy arrangement be in writing and signed by the relevant parties in s 34 is not expressly mandatory, the effect of s 18(2) is that the Court may make a parentage order if it is satisfied that exceptional circumstances justify the making of the parentage order despite the precondition not having been met: BB v DD (No 1) at [69]; see also Re M per Parker J at [7] .
That appears to me to accord with the text of the statutory provisions in light of the context and purposes I have outlined above. Accordingly, I consider that to be the proper construction of those provisions.

[16]

Legal principles

In the circumstances of this case, it follows that a parentage order may only be made if the Court is satisfied that exceptional circumstances justify the making of a parentage order despite the precondition not being met that prior to Ashley's conception there should be a written agreement in place which was signed by the relevant parties.
The existence of exceptional circumstances (in the absence of a signed written pre-conception arrangement) is one of the matters which enlivens the power to make a parentage order.
A finding of "exceptional circumstances" does not compel the making of a parentage order. The Court must consider the best interests of the child, it may have regard to other relevant circumstances, and it must exercise a discretion as to whether or not to make a parentage order.
The Attorney General in his Second Reading Speech stated regarding exceptional circumstances (Hansard at 26546): Clause 17 gives the court the power to dispense with certain pre-conditions in exceptional circumstances, always subject to the best interests of the child.
The reference to cl 17 is clearly a reference to the terms of s 18 of the Act.
Exceptional circumstances are to be construed in the context and with regard to the purpose of the legislation: S v B; O v D [2014] NSWSC 1533 (S v B) at [30] per White J (as his Honour then was).
The issue of what constitutes exceptional circumstances has been the subject of comment in various cases. For example, in the context of non-compliance with s 32, exceptional circumstances were considered in C v B [2013] NSWSC 254 at [4]-[7] per White J (as his Honour then was) and in Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 at [14]-[17] per Slattery J.
A "circumstance" is by ordinary English definition "a condition, with respect to time, place, manner, agent, etc., which accompanies, determines, or modifies a fact or event": Macquarie Dictionary.
The adjective "exceptional" modifies the noun it relates to by "forming an exception or unusual instance" of the noun. It conveys the sense of being an "unusual" or "extraordinary" instance of the event or events: Macquarie Dictionary.
Exceptional circumstances in the context of s 34 were the subject of some obiter comment by Robb J in BB v DD (No 1).
His Honour stated at [36]-[40]: 36. It would be premature for me to consider in depth what is necessary in a particular case before the Court can be satisfied that exceptional circumstances exist that justify the making of a parentage order despite a particular precondition not having been met. That is an issue that will only arise at the stage of the applicants' response to these reasons for judgement, and I do not wish to prejudge that response. I will merely note, however that in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA, at [66], set out a number of circumstances relevant to the determination of whether there were "exceptional circumstances" as required by UCPR r 31.18(4) to justify the Court giving leave to a party to tender an expert's report that had not been served in accordance with the rule. It is not necessary to set out all of the circumstances. It is instructive to note, however, that proposition (a) was: "Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered." I note that in C v B [2013] NSWSC 254, White J found exceptional circumstances to exist under s 18(2) of the Act without elaborating upon the meaning of the term. 37. The judgment of Barrett J (as his Honour then was) in Application of RM and ESM - Child X [2004] NSWSC 937; (2004) 62 NSWLR 465 at [9]-[12] concerning the difficulties involved in establishing "special reasons" in the now replaced s 101(5) of the Adoption Act 2000 (NSW) (Adoption Act) for approval by the Court of changes to a child's names may provide some guidance as to what is required to satisfy the Court that the exceptional circumstances required by s 18(2)(b) are present. His Honour held that special reasons would only exist if the Court "positively finds some factor or circumstance related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, or routinely or normally encountered." 38. I mention these cases only to illustrate the point that, even in relation to preconditions that are not mandatory, if the applicants for a parentage order cannot satisfy the condition, and provide satisfactory proof to the Court that they have done so, that may create a serious impediment to the making of the parentage order. 39. I also note that in AD v EF [2013] NSWSC 866 at [11], Ball J said: "In considering whether there are exceptional circumstances which would justify the Court determining the application notwithstanding that it was brought late, the Court must have regard to the purpose of the provision from which exception is sought. 40. As I have noted above, s 22 of the Act enacts a mandatory precondition that the Court must be satisfied that the making of the parentage order is in the best interests of the child.
Whilst his Honour's comments were obiter, it is evident they were well considered.
As events transpired, his Honour, in BB v DD (No 2), was required to consider what is meant by "exceptional circumstances" in the context of an application out of time: see s 16(2). His Honour stated as follows at [40]-[47]: 41. In Baker v R [2004] HCA 45; (2004) 223 CLR 513 at [173], Callinan J referred with approval to a statement of Lord Bingham of Cornhill CJ in the case of R v Kelly (Edward) [2000] 1 QB 198 at 208; [1999] 2 All ER 13 at 20 where his Lordship said: 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. 42. In S v B; O v D [2014] NSWSC 1533, which involved an application for a parentage order under the Act, White J said: [30] The precondition in s 38 to the making of a parentage order is not met. Despite that precondition 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". [White J then repeated the statement by Lord Bingham that I have set out in the preceding paragraph]. 43. A significant number of authorities have considered the meaning of the expression "exceptional circumstances" in various different statutory contexts. I have found the following limited references helpful. 44. In R v Tootell; Ex parte Attorney-General (Qld) [2012] QCA 273, the Queensland Court of Appeal considered the meaning of the expression "exceptional circumstances" in the context of s 9 of the Penalties and Sentences Act 1992 (Qld). The Court said (footnotes omitted): [18] The Penalties and Sentences Act does not attempt to define or confine what amounts to "exceptional circumstances". This statement of what the adjective means, taken from R v Kelly (Edward), (which has been applied in decisions of this court dealing with the expression as it appears in the Dangerous Prisoners (Sexual Offenders) Act 2003) is helpful: [The Court then set out the statement made by Lord Bingham]. … [24] What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case. 45. In Keane v Keane [2013] FamCA 332; (2013) 50 Fam LR 120, Watts J in the Family Court of Australia considered the meaning of the expression "exceptional circumstances" in s 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth). His Honour made the following observation concerning how the expression "exceptional" can have different meanings depending upon the context: [41] "Exceptional" can have nuanced meanings in different contexts and what is meant by "exceptional" is to be judged not in the abstract, but within the context in which that word is used in a particular piece of legislation. The phrase "exceptional circumstances" is used in different contexts within the CSAA and the FLA. The height at which the bar is set by the word "exceptional" can vary depending upon the legislative context. 46. The expression "exceptional circumstances" is found in s 14(3)(d) of the Act concerning when the court can grant leave to an intended parent to make a sole application for a parentage order; in s 16(3); and in s 18(2)(b). The use of the expression in s 18(2)(b) governs the circumstances in which the court may make a parentage order despite a precondition that is not mandatory not being satisfied. This last-mentioned use of the expression will have a very significant effect on the circumstances in which parentage orders can be made. 47. It may be that what is required to satisfy the expression "exceptional circumstances" will differ according to how the expression is used in different parts of the Act. If the expression can have nuanced meanings in different contexts, that may occur not only as between different statutes, but between different uses in the one statute. It is not necessary for me to consider the meaning and effect of the expression in any part of the Act other than s 16(3).
His Honour's comments regarding exceptional circumstances to my mind accord with the text of the statutory provisions in light of the context and purposes I have outlined above, and I propose to apply them.

[18]

Further evidence

The further evidence provided by the parties following requisition were two affidavits being a joint affidavit of the intended parents and a joint affidavit of the birth parents.
The joint affidavit of the intended parents acknowledged that the surrogacy agreement had not been signed prior to embryo transfer.
A submission was made to the effect that the steps that the intended parents had undertaken leading to the application for a parentage order had been consistent with the terms, albeit unsigned, of the form of surrogacy agreement formulated in mid-2021. Further reliance is placed upon the fact that prior to Ashley's conception, they had received counselling and had undergone with their first child procedures conforming with the surrogacy provisions of the legislation of the other state.
The exceptional circumstances relied upon by the intended parents are: 1. the fact that the birth parents surrendered Ashley into their care where Ashley has remained since her birth in late-2022 and that Ashley has formed a bonded relationship with each of the intended parents and Ashley's sibling; 2. that there is a close, supportive and ongoing friendship between the two birth parents and intended parents' families (although not expressly stated, the undertone of the submission was that if a parentage order was not made their close relationships may be impaired); 3. their belief that Ashley has a fundamental right to the same legal entitlements as a natural child in circumstances where it was "agreed" they would be legally Ashley's parents and that alternative options open pursuant to provisions of the Family Law Act 1975 (Cth) would not enable them to be registered as parents on Ashley's birth certificate giving rise to a disparity in circumstances between the two children currently under their care and consequently being apt to be a source of confusion and emotional hardship for both children; 4. they would not wish for the birth parents to be burdened by being Ashley's legal parents in circumstances where they say that at all relevant times it was intended that a parentage order would be sought, and Ashley's parentage transferred to them; and 5. finally, that it would be in Ashley's best interests for a parentage order to be made in their favour.
The evidence of the birth parents reveals that discussions about the birth mother undertaking a second surrogacy arrangement occurred with the intended parents as early as mid-2020. The birth parents have raised similar considerations to the intended parents on the issue of exceptional circumstances.
I confess that I find it surprising and indeed somewhat intriguing that none of the initial material let alone the subsequent material has attempted to explain why the surrogacy agreement was not signed in circumstances where at least a period of seven months elapsed between the time that the terms of the agreement per se were the subject of accord between the parties and Ashley's conception.
The intended parents acknowledged in the affidavit that signing the agreement was a "last important administrative step" but do not actually indicate why it was not taken. It is hardly the case that there was time pressure upon them to sign.
Bearing those considerations in mind, I move to consider the issue of exceptional circumstances in light of the best interests of Ashley.

[19]

Best interests of the child

In BB v DD (No 1), Robb J observed (at [41]) that the Act provides little guidance on how the Court should determine whether or not the making of a parentage order is in the best interests of the child. His Honour compared the position under the Act with the contents of the Adoption Act 2000 (NSW) which sets out detailed objects and adoption principles. His Honour noted that in the case of adoption orders, the Court, in considering the making of such orders, is assisted by the involvement of a level of institutional support [I infer in most cases] both by means of the provision of evidence and submissions for the making of an adoption order which does not occur in the case of the making of surrogacy orders: at [42].
Significantly, the Court is asked to consider the making of a parentage order in circumstances in which the application for a parentage order occurs at a point of time not merely when the child is born but usually after some period has elapsed such that the child the subject of the application has left the hands of the birth mother fairly immediately after birth and has lived with and formed emotional bonds with the intended parents.
Those matters, understandable as they are, have a tendency to place the Court in a position, as noted by Robb J, in which it is being asked to make a transfer of a parentage order in circumstances where: 1. practically the making of a parentage order is presented as a fait accompli by the parties and their legal representatives to the Court; and 2. there is not, or might not be, any reasonably viable alternative to the making of such an order that could be considered to be in the best interests of the child: Robb J in BB v DD (No 1) at [41]-[42], [44].
In many cases, the circumstances that I have described above will not matter because the preconditions to making an order will have been complied with and the Court will not be asked to consider the making of an order in the context of there being exceptional circumstances.
Ultimately, on the facts of this case, compelled as I am to consider the best interests of the child, I am prepared to put aside the fact that there is no satisfactory explanation as to why the parties did not sign the agreement that they had negotiated.
The facts relied upon by the parties as providing exceptional circumstances arise in a context of their unexplained failure to attend to requirements of the Act.
Whilst I have lamented the lack of explanation for the signing of the agreement, it is hardly the case that the parties have been indifferent to the other important requirements and preconditions (see below).
The proffered exceptional circumstances, when viewed through the prism of the best interests of Ashley, Ashley's current and future life and the impact on Ashley if a parentage order is not made, to my mind, in the particular circumstances of this case, provide a basis to find that exceptional circumstances exist, and I do so find.

[20]

Satisfaction of the other preconditions

I have dealt with the preconditions of: a pre-conception surrogacy arrangement (s 24), Ashley being under 18 at the time the application was made (s 26) and a signed written agreement in writing: s 34(1).
In respect of the various other requirements and preconditions, I am satisfied that: 1. the application was filed within the permitted 6-month time requirement: s 16(1); 2. having regard to the surrogacy arrangement, and the care arrangements for Ashley since birth, the making of the parentage order would be in the best interests of Ashley: s 22; 3. the arrangement was not a commercial surrogacy arrangement: s 23; 4. at the time of entering into the (unsigned) surrogacy arrangement: 1. the intended parents (being the plaintiffs) were at least 18 years old (s 28(1)) and a "couple" being a person and that person's spouse: s 25; 2. the birth mother was at least 25 years old: s 27(1); 1. Ashley is not of sufficient maturity to express wishes in relation to the application: s 26(2); 2. there is a medical need for a surrogacy arrangement as there are two intended parents who are a man and an eligible woman, and the first plaintiff is unable to conceive: s 30(1), (2)(b), (3)(a); 3. each of the affected parties have capacity to give consent to the making of the parentage order, and have provided consent, being an informed consent freely and voluntarily given: s 31(1), (2); 4. the plaintiffs reside in New South Wales (s 32), and Ashley is living with the plaintiffs at the time of hearing: s 33; 5. each of the affected parties 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); and an affidavit from such counsellor has been provided: s 17; r 56A.7 UCPR; 6. the birth mother and the birth mother's partner received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after Ashley's birth and before consenting to the parentage order: s 35(2); and 7. each of the affected parties received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement (s 36(1)) which in the case of the birth mother and the birth mother's partner was from a practitioner independent of the practitioner who advised the plaintiffs: s 36(2), and affidavits from such practitioners have been provided: r 56A.9 UCPR; 8. all information about the surrogacy arrangement that is registrable information under Div 3 of Pt 3 of the Assisted Reproductive Technology Act 2007 (NSW) has been provided to the Director-General of the Department of Health, for entry in the central register kept under that Act: s 37(1); and 9. Ashley's birth has been registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW): s 38(1).

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Judgment (23 paragraphs)

Legislation Cited (14)

Cases Cited (23)