Australians are amongst the largest users of international commercial surrogacy in the world. Although many everyday Australians support the legalisation of surrogacy, right now the current bans for commercial surrogacy remain. This poses ongoing challenges for parents undergoing this emotional, expensive and grueling process.
Parents of children born via commercial surrogacy do not have the benefit of the laws governing altruistic surrogacy and the transfer of parentage under that option. There are different approaches and outcomes that practitioners should be aware of when advising clients.
One father, three children – two stark outcomes
Practitioners should be cautious about advising clients about the prospects of successfully securing a parentage order under the Family Law Act 1975 (Cth) in cases of commercial surrogacy. There have been varying approaches taken by the Family Court, even resulting in different outcomes within the same family.
In Dennis and Anor & Pradchapet  FamCA 123 Stephenson J found that the biological father was a parent of the child born to Ms. Pradchapet. However, in stark contrast in Dudley & Chedi  FamCA 502 Watts J declined to make a finding that the same man was the parent of twins born to a different surrogate, Ms. Chedi.
In the interest of the child
In Ellison and Anor & Karnchanit  FamCA 602, Ryan J set out what she considered “best practice” guidelines in such cases. Her Honour also referred to G v H (1994) 181 CLR 387 where the passage of a declaration was said to potentially “be of the greatest significance to a child in establishing his or her lifetime identity” [at 37]. Ryan J was of the view the child’s best interests outweighed state legislation and supported the making of the orders.
Shortcomings of the current approach
In Mason & Mason and Anor  FamCA 424 Ryan J revisited the matter of parentage declarations and refused to make the declaration as sought. In an approach that differs from that which she adopted in Ellison and Anor & Karnchanit, her Honour concluded [at 34]:
“Unless an order is made in favour of the applicant pursuant to the Surrogacy Act [NSW], the provisions of the [Family Law] Act do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I am inclined to respectfully agree with Watts J in Dudley and Anor & Chedi … that ultimately state law will govern the determination of parentage … and that state law will be recognised by Federal Law”.
In Bernieres and Anor & Dhopal and Anor  FamCA 736 Berman J, who refused to make the parentage declaration sought, articulated the shortcomings of bringing such applications pursuant to the Family Law Act [at 121]:
“It may well be an unsatisfactory position that children who are born pursuant to a commercial gestational overseas surrogacy arrangement are not acknowledged by either state or Commonwealth legislation. I am not satisfied however that the definition of a parent should be extrapolated because of a legislative vacuum”.
Hope for the future
As there is no Commonwealth law governing surrogacy and the state laws are complex and lack uniformity, a development in case law will hopefully provide some guidance.
In Saliba & Romyen  FamCA 927, where Berman J took a softer approach than in Bernieres and Anor & Dhopal and Anor and granted the parentage declaration, his Honour stated [at 20]:
“It is hoped the Full Court will provide some clarity to what is a very difficult and distressing hiatus in the provisions of the Act insofar as they relate to the particular issues thrown up by these sorts of applications”.
These findings demonstrate the need for a legal framework in relation to commercial surrogacy. Further clarification would ensure that families are not stuck in ‘legal limbo’.