Jacky Campbell, Partner at Forte Family Lawyers and Wolters Kluwer Australian Family Law & Practice Consultant Author, reviews seven hot cases of 2017. This is the sixth instalment.
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Bernieres & Dhopal (2017) FLC 93-793 – commercial surrogacy
The commissioning parents to a surrogacy arrangement appealed against the trial judge’s failure to make the orders which they had sought, namely:
- declarations of parentage in relation to the child pursuant to s 69VA FLA
- leave to apply for a step-parent adoption pursuant to s 60G.
The Full Court clarified whether declarations of parentage can be made in commercial surrogacy arrangements. There have been different views adopted by single judges in cases such as Dennis and Anor & Pradchpet  FamCA 123, Dudley & Chedi  FamCA 502 and Ellison and Anor & Karnchanit  FamCA 602.
The parties entered into an international commercial surrogacy arrangement. The husband’s sperm was used with ovum donated anonymously. The child’s DNA was matched with the husband’s DNA and a finding of the “relative chance of paternity” of 99.995% was made. The child received an Australian Certificate of Citizenship by Descent and an Australian passport. The birth mother consented to this.
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent, and
(d) if a person other than the woman and the other intended parent provided genetic material – the child is not the child of that person.
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act. …
60H(6) In this section:
This Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Circuit Court Rules
The words “artificial conception procedure” are defined in s 4 of the Act as including:
- artificial insemination; and
- the implantation of an embryo in the body of a woman.
Regulation 12C provides that, for the purpose of s 60H(1)(b)(ii), the Status of Children Act is prescribed. In relation to s 60HB(2), s 14 of that Act is prescribed (reg 12CA). There are no laws prescribed in relation to s 60H(3).
60HB(1) If a court has made an order under a prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
Regulation 12CAA of the Regulations sets out the prescribed laws referred to in s 60HB(1), and for Victoria it is again the Status of Children Act.
The Full Court noted that s 60HB was introduced into the FLA in 2008 at the same time as s 60H was amended by the substitution of a new s 60H(1).
The Revised Supplementary Explanatory Memorandum accompanying the Amending Act explains these amendments in terms (quoted at ):
“76. This item repeals s 60H(1) and substitutes a new s 60H(1) that deals with both married and opposite and same-sex de facto couples. Opposite-sex de facto couples were previously covered in s 60H(4). This subsection is repealed.
- These changes will mean that s 60H(1) applies, as well as to married couples, to current or former de facto partners who are of the same-sex and to current or former de facto partners who are of different sexes where children are born as a result of artificial conception procedures. This would mean that female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother. In addition, genetic material from other than the couple must be used with the relevant donor’s consent. The provision provides that the child is to be the child of the woman giving birth and her de facto partner. …
- New s 60HB deals with children born under surrogacy arrangements. It provides that where a court order has been made under a prescribed law of a State or Territory relating to the parentage of a child that order will determine the parentage of the child.”
Section 69VA – “As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.”
The Full Court said in relation to s 69VA (at  – ):
“This section is in that part of the Act (Part VII) where a number of general provisions dealing with parentage, presumptions and declarations of parentage appear, and the obvious question is whether specific sections such as ss 60HB and 60H prevail over these general provisions where they conflict. The answer to that question is assisted by the rule of statutory construction known as generalia specialibus non derogant. That provides that if there is a specific section or sections of the Act that apply, then that section or those sections prevail, particularly where, as here, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook  FCAFC 170; (2006) 156 FCR 313).
The proposition that ss 60H and 60HB prevail over the general provisions can also be supported by a consideration of the meaning and effect of those two sections. As Chief Judge Thackray explained in Farnell & Anor and Chanbua (2016) FLC 93–700 at ;  FCWA 17 at :
“Sections 60H and 60HB, at least to the extent that they expressly determine the status of children coming within their ambit, would be rendered meaningless if they were not interpreted to displace the presumptions in Division 12 [of the Act]. It should also be noted that ss 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which is entitled “Interpretation – how this Act applies to certain children”. I conclude that while the rules of maternity and paternity in ss 60H and 60HB are not expressed as non-rebuttable presumptions, in effect they are, and they therefore trump the rebuttable Division 12 presumptions. (Footnotes omitted)
We agree with that interpretation.”
The Full Court referred to Ryan J in Mason who expressed (at ) a:
“preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.”
Ryan J said that the effect was that unless an order is made in favour of the applicant pursuant to state law, the provisions of the FLA did not permit the Court to make a declaration of parentage in his favour. She agreed with Watts J in Dudley and Anor & Chedi  FamCA 502, who determined that ultimately state law will govern the determination of parentage of children born under surrogacy arrangements and that state law will be recognised by federal law.
The Full Court agreed with Ryan J’s preliminary view, and said (at ):
“Significantly this interpretation does not leave it open to find that where, as in Victoria, the relevant State legislation does not apply to the particular circumstances of the case, that lacuna can be filled by recourse to s 69VA. That is the approach though that Johns J in Green-Wilson & Bishop [ FamCA 1031] where her Honour reasoned as follows (at ):
“In circumstances where the state legislation is silent with respect to the determination of parentage of children born of commercial surrogacy procedures (which are not prohibited in Victoria), I am satisfied that it is appropriate to make a declaration with respect to a child born of such procedures who is now living in Victoria. To do otherwise would be to elevate public policy considerations (as to the efficacy or otherwise of commercial surrogacy arrangements) above a consideration of the welfare of children born of such arrangements. In my view, the interests of the child must outweigh such public policy considerations.”
The Full Court said (at ):
“In our view it is not possible to discard the plain meaning of legislation where public policy considerations may not be seen to be in the best interests of the children affected.”
In relation to s 60H, the Full Court said (at ) that although “theoretically s 60H could apply to a surrogacy arrangement, a close consideration of the section reveals otherwise”. On its plain meaning, s 60H(1) did not make the commissioning parties the parents of the child. It was designed to cover conventional artificial conception arrangements where the birth mother and her partner were to be the parents of the child.
The commissioning parents argued that the words “the other intended parent” in s 60H(1) must be “read down so as to require the other person (being the ‘other intended parent’) to intend to be the parent of the relevant child”. In other words, interpreting that phrase as a substantive provision rather than a definitional provision. This approach was rejected by Watts J in Re Michael: surrogacy arrangements  FamCA 691. The use of those words in s 60H(1) was considered in extenso (at full length) by Thackray CJ in Farnell who, after examining the debates in Hansard when the Amending Act was introduced into Parliament in 2008 concluded (at ):
“Hansard provides no support for the proposition that Parliament countenanced the possibility that a man and woman who commissioned the birth of a child, whether in Australia or overseas, would be afforded the status of a parent of that child without a court order made under state surrogacy laws. It is equally untenable to suggest that Parliament, in referring to “intended parent” in s 60H(1), had in mind the husband or partner of a woman who had agreed to be a surrogate mother.”
The Full Court concluded (at  – ) that s 60HB specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures. The plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In other words, s 60HB covered that field. As a result, s 69VA was not available because s 60HB covered the field, and s 60H did not apply. The unfortunate result was that the parentage of the child was in doubt. No order had been made under the relevant State legislation (and nor could there be). There was no question that the father was the child’s biological father, but that did not translate into him being a parent for the purposes of the FLA. Further, the mother was not the biological mother, and thus was even less likely to be the “legal parent.”
In relation to s 69VA the trial judge considered that reliance upon s 69VA for the declaration was of no assistance as it was not an independent source of power.
The Full Court (at ) agreed with the approach of the trial Judge and also Johns J in Green-Wilson & Bishop  FamCA 1031. It was “not open to fill the legislative vacuum identified by Johns J by judicial interpretation; it could only be done by legislation.”
In the alternative, the appellants sought a declaration under s 67ZC that each of them was a parent.
67ZC(1) “In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.”
67ZC(2) “In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Full Court said (at ) that “the literal meaning of s 69ZH(2) of the Act is that for s 67ZC to apply the child must be “a child of a marriage”.”
The definition of “child of a marriage” is in s 60F(1):
60F(1) “A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children:
(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
(b) a child of the husband and wife born before the marriage;
(c) a child who is, under subsection 60H(1) or section 60HB, the child of the husband and wife.
Importantly, s 60F(4A) provides:
“To avoid doubt, for the purposes of this Act, a child of a marriage is a child of the husband and of the wife in the marriage.”
Therefore, the child in this case was not within the definition in s 60F(1). The commissioning parents argued that the definition in s 60F(1) was not exhaustive and could be extended such that s 67ZC could apply where it was necessary to ensure the welfare of the child.
Whilst the Full Court accept that the definition in s 60F(1) was not exhaustive, it was not apparent how s 67ZC could be utilised to expand that definition that the child could be found to be a child of a marriage.
Although a number of judges at first instance could have applied s 67ZC to advance the welfare of children who were not children of a marriage (e.g. Re Alex (Hormonal Treatment for Gender Dysphoria) (2004) FLC 93–175; Re Lucy (gender dysphoria)  FamCA 518), as Re Lucy demonstrated, the application of s 67ZC to children other than children of a marriage was not without controversy. The Full Court distinguished these cases (at ):
“However, we have found that in relation to children born under surrogacy arrangements, the intent of the legislature is that s 60HB covers the field, and is the operative provision in the Act concerning parentage of those children. The effect of this is that even if in some respects s 67ZC could arguably apply to the child here, in relation to parentage, this general provision could not prevail over the specific provision, namely s 60HB. Moreover, the application of s 67ZC is not at large; if it were, there would be no need for s 60H, s 60HB, or even s 69VA.”
A further impediment was that the appeal was conducted without a contradictor. It was therefore (at ):
“not the vehicle to address the larger question of whether s 67ZC could permissibly be applied to a child who is not a child of a marriage.”
The Full Court concluded that s 67ZC could not be utilised to make a declaration of parentage, but for different reasons than the primary judge who had proceeded on the basis that s 67ZC only applies where the child is a child of a marriage, whereas the Full Court’s finding was based on the circumstance that s 60HB covers the field. Although his Honour was correct in concluding that s 67ZC could not be utilised to make a parenting declaration, the outcome was correct for reasons other than his Honour expressed.
Leave to adopt
The commissioning parents also submitted that the primary judge erred in failing to find it was in the best interest of the child for them to be given leave to adopt.
The relevant provision is s 60G of the FLA, which provides:
60G(1) “Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.”
60G(2) “In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.”
The commissioning parents sought leave to apply for a step-parent adoption, but complained that the trial judge failed to address that application. The Full Court agreed that the judge did not address the question in the balance of his reasons for judgment, after identifying it earlier as an issue before the court.
Prima facie, there was merit in this ground of appeal. However, the transcript revealed a different story. The primary judge only needed to address s 60G if there was a declaration of parentage in favour of the commissioning father, but not in favour of the commissioning mother. As a declaration was not made in favour of either party, on the commissioning parents’ own case the primary judge was not obliged to address the application pursuant to s 60G.
“a. a parent of the child, or
- the spouse of, or a person in a de facto relationship with, a parent of the child; or
- a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.”
Neither party came within that definition.
Following the hearing of the appeal, and pursuant to orders allowing them to do so the commissioning parents provided written submissions addressing the question of whether the commissioning father was a “parent” for the purposes of s 60G. The commissioning parents conceded that under the Status of Children Act he was not a parent but suggested he was a parent for the purposes of the Adoption Act 1974 (Vic) or the dictionary definition of “parent” applied by the Full Court in Tobin & Tobin (1999) FLC 92–848 could be utilised.
The Full Court could not discern a definition of a “parent” for the purposes of the Adoption Act, and using the dictionary definition of a “parent” overlooked that what needed to be addressed was whether the commissioning parent was a “parent” within s 60G. Not only was the dictionary definition of no assistance, but also the meaning of “parent” under the Adoption Act, if it could be discerned, was of no assistance.
Whilst the Full Court has now clarified the law with respect to making parenting orders with respect to overseas surrogacy arrangements, it has conceded that there is a lacuna – a legislative gap – for these children. Effectively, they are left without any legal parents.
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