In The Matter of An Application Pursuant To The Births Deaths and Marriages Registration Act 1997 [2000] ACTSC 39 (5 May 2000)

Last Updated: 16 October 2000

IN THE MATTER OF AN APPLICATION PURSUANT TO THE BIRTHS DEATHS AND MARRIAGES REGISTRATION ACT 1997 [2000] ACTSC 39 (5 May 2000)

CATCHWORDS

FAMILY LAW - application for declaration as to parenthood - child born following surrogacy agreement - donors of ovum and sperm to be parents of child - child raised by them since birth - application supported by surrogate mother and husband - declaration would be in interests of child and all parties - however legislation intractable - application refused.

Births Deaths and Marriages Act 1997, s 16(3)

Artificial Conception Act 1985, s 3, 5, 6

Birth (Equality of Status) Act 1988, s 9(1), 16A

Family Law Act 1975 (Cth)

Adoption Act 1993 (ACT)

No. SC 207 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 5 May 2000

IN THE SUPREME COURT OF THE )

) No. SC 207 of 2000

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION PURSUANT TO THE BIRTHS DEATHS AND MARRIAGES REGISTRATION ACT 1997

CORRIGENDUM

Judge: Crispin J

Date: 5 May 2000

Place: Canberra

Amendment to Reasons for Judgment dated 5 May 2000.

Re paragraph 2, line three of the Judgment delete:

"Brenda"

and replace with:

"Debra"

Associate to Crispin J

5 May 2000

IN THE SUPREME COURT OF THE )

) No. SC 207 of 2000

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION PURSUANT TO THE BIRTHS DEATHS AND MARRIAGES REGISTRATION ACT 1997

ORDER

Judge: Crispin J

Date: 5 May 2000

Place: Canberra

THE COURT ORDERS:

1. That the application be dismissed.

1. This is an application for a declaration that Debra Jane Ryan ("Debra") and Shane Patrick Ryan ("Shane") are the parents of the child Hamish Patrick Darcy Ryan ("Hamish") who was born on 23 June 1998 and for an order pursuant to s 16(3) of the Births Deaths and Marriages Act 1997 that the Registrar amend the birth registration details accordingly. It is clear that Hamish is the biological child of Debra and Shane. However, his birth was the product of a surrogacy arrangement. Debra provided an egg which was fertilised by Shane's sperm and implanted in Sharon Ryan ("Sharon") who was married to Shane's brother Brendan Ryan ("Brendan"). As a result of this implantation Sharon became pregnant and gave birth to Hamish on 23 June 1998.

2. The arrangement to have a child in this manner was initially suggested by Sharon and Brendan. The two couples discussed the matter together and subsequently received appropriate counselling before agreeing to proceed. Brenda was admitted to hospital before Hamish was born and was present for the birth. Shane and Debra have cared for him and effectively been his parents ever since. Sharon and Brendan relate to him as his aunt and uncle. They support Debra and Shane's contention that they should be declared Hamish's parents and have joined with them in the present application. They have provided supporting affidavits.

3. On the evidence before me I am also satisfied that it would be in Hamish's best interests for me to grant the declaration and make the order sought.

4. Regrettably, however, I am unable to do so.

5. Section 5 of the Artificial Conception Act 1985 is in the following terms:

"(1) Where a married woman has, with the consent of her husband undergone a procedure as a result of which she has become pregnant -

(a) her husband shall, for all purposes, be conclusively presumed to be the father of any child born as a result of the pregnancy; and

(b) if any of the semen used in the procedure was produced by a man other than the woman's husband - that man shall, for all purposes, be conclusively presumed not to be the father of any child born as a result of the pregnancy.

(2) In any proceedings in which the operation of subsection (1) is relevant, the consent of a husband to the carrying out of a procedure in respect of his wife shall be presumed, but that presumption is rebuttable."

6. Conversely, s 6 provides as follows:

"Where a woman has undergone a procedure as a result of which she has become pregnant -

(a) the woman shall, for all purposes, be conclusively presumed to be the mother of any child born as a result of the pregnancy; and

(b) if the ovum used in the procedure was produced by another woman - that other woman shall, for all purposes, be conclusively presumed not to be the mother of any child born as a result of the pregnancy."

7. The term "procedure" is defined by s 3 of the Act to include "the procedure of transferring into the uterus of a woman an embryo derived from an ovum fertilised outside her body". That is plainly what occurred in this case.

8. The presumptions created by s 5 and 6 are conclusive rather than rebuttable. Accordingly, the court is bound to accept that the woman who gave birth to the child is his mother and that her husband is his father, regardless of all other considerations.

9. The Birth (Equality of Status) Act 1988 does provide for other presumptions as to parentage but s 16A makes it clear that presumptions arising under the Artificial Conception Act prevail over any others save for a presumption arising under subs 9(1). That sub-section is in the following terms:

"Where -

(a) during the lifetime of a particular person, a court of the Territory, the Commonwealth, a State or another Territory has -

(i) found expressly that the person was a parent of a particular child; or

(ii) made a finding that it could not have made unless the person was a parent of a particular child; and

(b) the finding has not been altered, set aside or reversed;

the person shall be conclusively presumed to be a parent of the child."

10. Mr Eley, who appeared for all four applicants, submitted that this provision gave rise to a general discretion to make findings as to parenthood contrary to any presumptions arising under s 5 and/or 6 of the Artificial Conception Act. I am unable to accept this submission. In my view, the language employed makes it clear that the section operates only when an order of the relevant kind has already been made. The conclusive presumption that then arises ensures that the order has the effect of finally resolving the issue of parentage and preventing any attempt to reopen it by subsequent reliance upon other presumptions. The subsection does not provide any basis for the implication of a discretion to make orders which would not reflect the conclusive presumptions contained in s 5 and 6 of the Artificial Conception Act.

11. The conclusions which I am compelled to reach will please no one. Sharon and Brendan do not wish to be regarded as Hamish's parents. Sharon gave birth to him and she and Brendan no doubt love him but they always intended that he would be the child of Debra and Shane. What they have done has reflected outstanding compassion and generosity of spirit. Yet, regrettably, I am unable to respect their wishes by making the declaration and order sought. On the other hand, there are compelling reasons to regard Debra and Shane as Hamish's parents. Debate as to who may be considered a child's "real" parents usually involves the competing views that it is those who provided the genetic inheritance or those who provide the parental nurture, love and attention. In the present case, Debra and Shane have provided both. Yet the intractable terms of the statute compel me to presume, against their wishes and contrary to undisputed facts, that Sharon and Brendan are Hamish's parents and Debra and Shane are not. Accordingly, Debra and Shane will be forced to make an application to adopt their own child. This is obviously a most unsatisfactory situation.

12. Mr Eley submitted that such a result would not only be an affront to reason and common sense but contrary to Hamish's interests.

13. However, whilst other statutes such as the Family Law Act 1975 (Cth) and the Adoption Act 1993 (ACT) provide that the welfare of the child shall be the paramount consideration, there is nothing in the Artificial Conception Act which permits a judge to even take the welfare of the child into consideration.

14. Whilst I am conscious of the need to ensure due recognition of the parenthood of couples raising a child born to them as a result of reproductive technology procedures, it does appear that the present form of the legislation may require further consideration.

15. The application must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 5 May 2000

Counsel for the applicant: Mr Eley

Solicitor for the applicant: McGuinness Eley, Barristers and Solicitors

Date of hearing: 13 April 2000

Date of judgment: 5 May 2000