Jacky Campbell, accredited Family Law specialist and a consultant editor of ours, has presented a webinar as part of Knowledge Week 2016. Here are the webinar recording for your reference. Simply input your details to access the recording.
This article is a part of the series, providing you the key details of the following cases:
- Hall v Hall (2016) – High Court on spousal maintenance and financial resources
- Elford & Elford (2016) – Lottery win during a relationship
- Saintclaire & Saintclaire (2015) – Latest developments in financial agreement cases
- Grainger & Bloomfield and Anor (2015) – Bankruptcy and setting aside financial agreements
- Farnell & Anor and Chanbua (2016) – The “baby Gammy” case dealing with commercial surrogacy. What happened to baby Pipah?
The “baby Gammy” Case
This case received much media attention. The surrogate, Mrs Chanbua, gave birth to twins in Thailand. Gammy remained with the surrogate but Pipah came back to Australia with the commissioning parents. The surrogate applied to the Family Court of Western Australia for Pipah to live with her, Gammy and her husband in Thailand. She was motivated in part by her discovery that Mr Farnell, the commissioning father, was a convicted paedophile.
In making his decision Chief Justice Thackray recognised that Gammy appeared to be thriving in the care of Mrs Chanbua and her extended family. However, in relation to Pipah, who by that stage was aged almost 2 ½, he said (at para 66):
“I have decided that Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though I accept they would love her and would do everything they could to care for all her needs.”
The Family Court of Western Australia made orders giving the commissioning parents, the Farnells, equal shared parental responsibility of Pipah and for Pipah to live with them. However, Thackray CJ found that Pipah was not a child of their marriage and that the State law applied to Pipah’s parentage. The Registrar of Births Deaths & Marriages was directed to register Pipah’s birth to show her surname as that of Mrs Chanbua’s maiden name, and her parents as Mrs Chanbua and Mrs Chanbua’s husband. The Registrar was permitted to record on the birth certificate, if he considered it appropriate, that the Farnells had equal shared parental responsibility.
The surrogate/birth mother, Mrs Chanbua, and the Farnells are required to keep each other informed about Pipah’s welfare and the Farnells are required to engage Pipah in important Buddhist events. The Farnells may, if they wish, provide Mrs Chanbua with copies of Pipah’s school reports, photographs of themselves and Pipah and presents for Gammy. Contact between the two families electronically or face-to-face is as agreed between the families from time to time.
A safety plan was put in place for Pipah, given Mr Farnell’s history of child sexual abuse. Thackray CJ could do this in the same case as the FLA proceedings as the Family Court of Western Australia, unlike the Family Court of Australia, can exercise state child protection jurisdiction. Thackray CJ did not, however, consider that there was significant risk of Mr Farnell re-offending as the offences for which he had been convicted had occurred many years ago, and if he had re-offended since, it was likely that given the publicity to the case, the victims would have made police reports.
Thackray CJ debunked some media myths. He found that the Farnells:
- did not abandon Gammy in Thailand;
- did not seek to access Gammy’s trust fund for Pipah’s welfare needs or to meet their legal costs;
- never applied to the court for access to Gammy’s trust fund for any purpose.
However, Thackray CJ was not prepared to find that, even for a short time, the Farnells did not consider an abortion or contemplate pulling out of the arrangement. He could not make that finding as the Farnells refused to allow their lawyer to view their emails. Thackray CJ was somewhat sympathetic to the Farnells on this issue, given the invasion of their privacy which had already occurred, but he assumed that there were matters in their emails that the Farnells did not want known.
The Farnells were also found to have lied about the source of the egg. It was a donor egg, not one of Mrs Farnell’s. In late October 2016, it was reported in the media (not in this judgment) that no charges will be laid against the Farnells for perjury as it was not in the public interest.
Thackray CJ expressed some strong views on surrogacy:
- If he had heard the case earlier he might have decided that it was in Pipah’s best interests to live with her birth mother and twin brother;
- “The appalling outcome of Gammy and Pipah being separated has brought commercial surrogacy into the spotlight”;
- “The dilemmas that arise when the reproductive capacities of women are turned into saleable commodities”;
- “Surrogate mothers are not baby-growing machines … They are flesh and blood women who can develop bonds with their unborn children”;
- There was a lack of evidence of long-term impact on birth mothers, the children themselves and the other children of birth mothers;
- “I accept it is for others to decide whether the manifest evils associated with overseas commercial surrogacy can be overcome by importing the problem into Australia”;
- There is a lack of alignment of immigration laws (which give citizenship to children born of overseas commercial surrogacy arrangements citizenship) and state laws with respect to parenting and birth certificates.
The Baby Gammy case demonstrated how complex overseas surrogacy arrangements are, and some of the many things that can go wrong.
One matter for certain is that the parties that entered into the arrangement now have an ongoing relationship and ties which they never envisaged. It is also a further example of a case where a Family Law Court was not prepared to just rubber-stamp children born of overseas commercial surrogacy arrangements as being in a child’s best interests. The case was heard over 7 days and resulted in a lengthy judgment of 190 pages.
The introduction of procedural and evidentiary requirements into the Family Law Rules, combined with the strong statements of judges in several cases, including the Baby Gammy case, are a reminder that parents should not embark on overseas surrogacy arrangements thinking that they are guaranteed to obtain parenting orders in Australia.