S v B; O v D

Judgment 1HIS HONOUR: Both these proceedings concern applications for parentage orders under the Surrogacy Act 2010 (NSW). They raise similar issues. In each case the summons, as originally filed, sought an order transferring the parentage of the child from the child's birth mother (a surrogate mother) to the child's intended mother. In neither case was a parentage order initially sought in relation to the child's father. In both cases the child's birth certificate recorded the surrogate mother as the child's mother and the intended father as the child's father. 2One of the children was born in Victoria. Accordingly the Births, Deaths and Marriages Registration Act 1996 (Vic) applied to the parties' obligations to register the child's birth. In both cases the intended parents are resident in New South Wales. The Surrogacy Act 2010 (NSW) applies to both applications (s 32). 3I gave an interim judgment in both matters stating that whilst I was satisfied it was in the best interests of the child that an appropriate parentage order be made, I was not satisfied that the appropriate order was that sought in the summons. 4In one case the ovum was fertilised by a sperm of the intended father. In the other it was not. In both cases, pursuant to s 60H of the Family Law Act 1975 (Cth), s 14 of the Status of Children Act 1996 (NSW) and/or s 10E of the Status of Children Act 1974 (Vic) the husband of the surrogate mother is taken to be the child's father. In both cases the application for the parentage order should have been brought by both the intended mother and the intended father and the order sought should have been for the transfer of the parentage of the child from both the surrogate mother and her husband to the intended mother and the intended father. 5Section 39 of the Surrogacy Act relevantly provides: "39 General effect of order (1) On the making of the parentage order in relation to a child: (a) the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and (b) the child stops being a child of a birth parent and a birth parent stops being a parent of the child. (2) Accordingly: (a) 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 (b) 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. Note. For example, for the purposes of a distribution on intestacy, a child of a surrogacy arrangement is regarded as a child of the intended parent or parents named in the order and the child's family relationships are determined accordingly. See section 109A of the Succession Act 2006." 6"Birth parent" is defined in s 4 of the Surrogacy Act as follows: "birth parent, of a child, means a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born." 7It follows that if a parentage order were made transferring only the parentage of the surrogate mother as mother of the child to the intended mother, that not only would the surrogate mother stop being a parent of the child, but the father who is recognised at law as being the child's father would also stop being a parent of the child. The intended father would not acquire the status of a parent. 8Section 14 of the Status of Children Act 1996 relevantly provides: "14 Presumptions of parentage arising out of use of fertilisation procedures (1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant: (a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and (b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure. ... (2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy. (3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. ... (4) Any presumption arising under subsections (1)-(3) is irrebuttable. ... (6) In this section: (a) a reference to a married woman includes a reference to a woman who is the de facto partner of a man, and (b) a reference (however expressed) to the husband or wife of a person: (i) is, in a case where the person is the de facto partner of a person of the opposite sex, a reference to that other person, and (ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married." 9"Fertilisation procedure" is defined in s 3 of the Status of Children Act as follows: "fertilisation procedure means: (a) the artificial insemination of a woman, or (b) the procedure of transferring to a woman's body an ovum (whether or not produced by her) fertilised outside her body, or (c) the procedure of transferring to a woman's body an ovum (whether or not produced by her) or both the ovum and sperm to enable fertilisation of the ovum to occur in her body, or (d) any other procedure for the assisted conception of children that is prescribed by the regulations." 10The effect of s 14 of the Status of Children Act is that the husband of the surrogate mother is irrebuttably presumed to have been the father of the child when the child was born. Accordingly, he, and not the intending father, nor the genetic father (where they were different), was a "birth parent" within the meaning of the Surrogacy Act. 11Section 60H of the Family Law Act 1975 (Cth) and s 10E of the Status of Children Act 1974 (Vic) are to the same effect. 12It follows that the application for the parentage order should have been brought by both the intended mother and the intended father and the order sought should have been for the transfer of the parentage of the child of both the father and the mother to the intended father and the intended mother. This is consistent with s 14(2) of the Surrogacy Act that provides that: "14 Application for parentage order ... (2) If there are 2 intended parents under the surrogacy arrangement, the application must be made jointly by the intended parents, unless the Court grants leave to an intended parent to make a sole application for a parentage order." 13The summons in each case was amended so that orders were sought for the transfer of the parentage of the child, not only from the surrogate mother to the intended mother, but also for the transfer of the parentage of the child from the husband of the surrogate mother to the intended father. The consent of the husband of the surrogate mother was required to that transfer and was subsequently provided. 14In both cases I was satisfied that it was in the best interests of the child that the parentage order be made. 15A further difficulty arose in both cases in relation to the registration of the child's birth. Section 38 of the Surrogacy Act contains one of the pre-conditions to the making of a parentage order. Section 38 relevantly provides: "38 Birth of child must be registered (1) The birth of the child must have been registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 or a corresponding interstate law. ... (3) In this section, a corresponding interstate law means a law of another State, or of a Territory, that provides for the registration of births, deaths and marriages." 16This is not a mandatory pre-condition. Hence it can be waived in exceptional circumstances. Section 18 of the Act provides: "18 Making of parentage order by Court (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." 17In both cases the registration certificate for the child's birth named the surrogate mother as the child's mother and the intended father as the child's father. In one case the birth was registered in New South Wales. In the other it was registered in Victoria. 18Section 14 of the Births, Deaths and Marriages Registration Act 1995 (NSW) and reg 5(d) of the Births, Deaths and Marriages Registration Regulations 2011 (NSW) required the child's father to be named on the birth registration statement provided to the Registrar of Births, Deaths and Marriages. Section 14 of the Victorian Act and regulation 7(i) of the Births, Deaths and Marriages Registration Regulations 2008 (Vic) were to the same effect. 19Section 15 of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides that the parents of a child are jointly responsible for having the child's birth registered under the Act. That responsibility was imposed on the surrogate mother and her husband. The Registrar can accept a birth registration statement from one of the parents if satisfied it is not practicable to obtain the signatures of both parents to the birth registration statement. Section 15 of the Births Deaths and Marriages Registration Act 1996 (Vic) is to the same effect. 20In neither case was the birth registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act of NSW or Victoria. The man who was irrebuttably presumed to be the father of the child did not join in the application. The man named as the father of the child on the birth registration statement was not the man recognised by law at the time of the registration to be the father of the child. He only becomes the father of the child on the making of a parentage order (or an adoption order if that be necessary). 21Section 11 of the Status of Children Act (NSW) relevantly provides: "11 Presumptions of parentage arising from registration of birth (1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction." 22The same presumption is found in s 69R of the Family Law Act and s 8(1) of the Status of Children Act (Vic). The presumption is rebuttable. The irrebuttable presumption in s 14 and s 8(1) of the Status of Children Act 1994 (Vic) and prevails over the rebuttable presumption in s 11 (Status of Children Act (NSW), s 17(2)). 23It follows that the naming of the intended father as the child's father on the birth certificate did not give him the status of father (Re A and B [2000] NSWSC 640; (2000) 26 Fam LR 317 at [40]). It also follows that the wrong person was named as father on the birth certificate. The birth was not registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW) as required by s 38 of the Surrogacy Act. 24Section 18 of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides: "18 Registration of parentage details The Registrar must not include registrable information about the identity of a child's parent in the Register unless: (a) both parents of the child make a joint application for the inclusion of the information, or (b) one parent of the child makes an application for the inclusion of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason, or (c) one parent of the child makes an application for the inclusion of the information and the Registrar is satisfied that the other parent does not dispute the correctness of that information, or (d) a court orders the inclusion of the information in the Register, or (e) a court makes a finding that a particular person is a parent of the child, or (f) the Registrar is entitled under any law (including a law of another State or the Commonwealth) to make a presumption as to the identity of the child's parent, or (g) the regulations authorise the Registrar to include the information." 25A difficulty in both cases was that the husband of the birth/surrogate mother was not prepared to complete a birth registration statement that named him as the father of the child, notwithstanding that until a parentage order were made under the Surrogacy Act (or an adoption order made if that were required), he was irrebuttably presumed to be the child's father. 26The solicitor for the plaintiffs advised that she provided legal advice to the parties that the birth mother (that is, the surrogate mother) should be recorded on the birth certificate as the child's mother and that the intended father should be named on the birth certificate as the child's father. She advised that in both cases the husband of the birth mother did not wish to be named on the birth certificate as the child's father. She stated: "As the husband of the surrogate mother did not wish to be recorded on the birth certificate, as there was the intention by the plaintiffs to apply for a parentage order with the consent of the defendants and as there was no penalty for registering the second plaintiff as father, or no specific exclusion not to be registered, the advice given by me was for the second plaintiff to be recorded on the birth certificate as father. (In each case the second plaintiff was the intended father.)" 27The solicitor for the plaintiffs submitted that it was in the best interests of each child from the outset that the intending fathers be registered as the children's fathers. Having their name on the birth certificate as father assisted in the process of having the child's name on the Medicare card of the intending father soon after the birth of the child. The children lived with their intended parents very soon after birth. If there had been any post-birth complications for which a father's consent to medical treatment might have been required, having the intended father's name on the birth certificate could have avoided complications. 28In one of the cases the solicitor advised that following the birth of the child the surrogate mother and her partner separated and remain separated and the partner of the surrogate mother initially refused to sign a consent to the application for the parentage order, although it was always the intention and agreement of the parties that the intending father would become the father of the child and the partner of the surrogate mother would never act as the father of the child. 29Hence, recording the intending father as the child's father on the birth certificate reflected the physical realities of the situation. 30The 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." 31Although said in a very different context, that description accords with the ordinary English sense of the word. 32I am satisfied in the present case that there are exceptional circumstances that justify ignoring the non-satisfaction of the pre-condition in s 38. I think it must be unusual and out of the ordinary for parties to be advised by a solicitor that they need not comply with the requirements of the law. That is what the solicitor's advice amounted to in this case. No doubt the advice was well-meaning, but it was wrong. 33The solicitor said that it was intended that the plaintiffs (the intended parents) would apply for a parentage order with the defendants' (the surrogate mother and her husband) consent. But the application initially made was only for the transfer of the mother's parentage. If that had been the only order made the child would be without a father. The incorrect details on the birth certificate would not withstand scrutiny if the child's parentage were in issue. I infer that the reason that the intended fathers in the present case did not initially seek a parentage order for the transfer of the parentage of the children from the partners of the surrogate/birth mothers to them was that they considered that having been recorded on the birth certificate as the children's fathers, they would have that status and nothing more would need to be done. Whilst their registration as the children's fathers gave rise to a presumption that they had that status, the presumption could readily be rebutted with potentially irreversible consequences, for example, if one of the intended fathers died and the question was whether his estate should pass to his child on intestacy. 34The other pre-conditions to the making of the parentage order are satisfied. The affidavits of the legal practitioners originally filed did not comply with r 56A.9 of the Uniform Civil Procedure Rules (Re Application of JSC [2013] NSWSC 440). But that deficiency was corrected. 35It is for these reasons that I have made parentage orders in both cases transferring the parentage of the child from the surrogate/birth mother and her husband to the intended mother and the intended father. 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: 04 November 2014