AP & anor v RD & anor [2011] NSWSC 1389 (17 November 2011)

Last Updated: 23 November 2011

Supreme Court New South Wales

Case Title:	AP & anor v RD & anor
Medium Neutral Citation:	[2011] NSWSC 1389
Hearing Date(s):
Decision Date:	17 November 2011
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Evidence of informed consent, freely and voluntarily given, of the birth parents and information as to surrogacy arrangement that is registrable information under the (NSW) Assisted Reproductive Technology Act 2007 to be provided.
Catchwords:	FAMILY LAW AND CHILD WELFARE - Surrogacy - application for parentage order under (NSW) Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into pre-commencement of Act - discussion of law - parentage order has legal effect of child ceasing to be child of birth parent and becoming child of intended parents - court may make parentage order subject to certain satisfaction of certain preconditions - preconditions specified to be mandatory and non-mandatory - non-mandatory preconditions may be waived if exceptional circumstances exist - court must be satisfied order in best interests of child - surrogacy arrangement cannot be a commercial surrogacy arrangement -consent must be freely and voluntarily given by persons with capacity to consent - no prescribed formality for consent but must be appropriate evidence of fully informed consent - insufficient evidence of consent of birth parents in present case - all information that is registrable under (NSW) Assisted Reproductive Technology Act 20007 must have been provided - not so provided in present case.
Legislation Cited:	(CTH) Family Law Act 1975 (NSW) Adoption Act 2000 (NSW) Assisted Reproductive Technology Act 2007 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Surrogacy Act 2010, s 3, s 5, s 12, s 15, s 16, s 17, s 18, s 22, s 23, s 24, s 25, s 26, s 27, s 28, s 29, s 30, s 31, s 32, s 33, s 34, s 35, s 36, s 37, s 38 s 39 UCPR r 56A.7, r 56A.8, r 56A.9
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	AP & JP (plaintiffs) RD & PD (defendants)
Representation
- Counsel:
- Solicitors:
File number(s):	A136/2011
Publication Restriction:

JUDGMENT

1. The plaintiffs AP and JP seek a parentage order under the (NSW) Surrogacy Act 2010 in respect of the child LP, who was born on 3 July 2007 in Victoria. As, so far as I am aware, this is the first such application under the Act, it may be of assistance to record some observations about its operation, particularly the requirement for consent.

2. JP was unable to carry a pregnancy by reason of a previous medical procedure. Once it became apparent that JP would not be able to carry a child, the second defendant PD, who is the wife of JP's brother the first defendant RD, offered to do so. All four parties attended appointments with psychologists, psychiatrists, lawyers, doctors and case managers, arranged through a respectable IVF clinic. LP is biologically the child of the plaintiffs, as a result of the harvesting of eggs from JP, which were impregnated with AP's sperm. Following his birth, he was immediately placed in the care of the plaintiffs. Orders were made by consent by a Local Court, exercising jurisdiction under the (CTH) Family Law Act 1975, on 10 September 2007, that the child reside with the plaintiffs and that they have sole parental responsibility.

3. The Surrogacy Act commenced on 1 March 2011. A parentage order is an order made by the Court under the Act for the transfer of the parentage of a child. By s 12, the Court may, on application, make a parentage order in relation to a child of a surrogacy arrangement, and the purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement. By s 39, on the making of the parentage order in relation to a child, the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and the child stops being a child of a birth parent and a birth parent stops being a parent of the child; accordingly, 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 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. In the Act, a reference to the birth mother is a reference to the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement, and a reference to an intended parent is a reference to a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement.

4. By s 5, for the purposes of the Act, a surrogacy arrangement is an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (called a pre-conception surrogacy arrangement ), or an arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons (a post-conception surrogacy arrangement ). An agreement that the parentage of a child is to be transferred to another person includes an agreement to consent to a parentage order being made in respect of the child so as to transfer parentage of the child to another person, an agreement that the child is to be treated as the child of another person (and not of the woman who gives birth to the child), an agreement that the custody of, or parental responsibility for, a child is to be transferred to another person, and an agreement that the right to care for a child is to be permanently surrendered to another person.

5. A parentage order can be made in respect of a surrogacy arrangement only if the arrangement is a pre-conception surrogacy arrangement. However, by s 15, an application for a parentage order may be made in relation to a surrogacy arrangement whether it was entered into before or after the commencement of this Part. A surrogacy arrangement entered into before the commencement of this Part is a pre-commencement surrogacy arrangement , and a parentage order may be made in respect of a pre-commencement surrogacy arrangement even if it was rendered void by a law in force before the commencement of this section, as if it had not been rendered void. In this case, the surrogacy arrangement was made in or about 2004 - in any event, before 2007 - and is therefore a pre-commencement surrogacy arrangement.

6. By s 16, an application for a parentage order in relation to a child may be made not less than 30 days and not more than 6 months after the child's birth. However, for a pre-commencement surrogacy arrangement, an application for a parentage order may be made not more than 2 years after the commencement of this section. As the Act commenced on 1 March 2011, this application is made within the time permitted by the Act in respect of a pre-commencement surrogacy arrangement.

7. In compliance with s 17, and with UCPR, r 56A.7, a report of an independent counsellor has been filed, which includes the counsellor's assessment that each affected party understands the social and psychological implications of the making of a parentage order (both in relation to the child and the affected parties), that each affected party understands the principle that openness and honesty about a child's birth parentage is in the best interests of the child, that suitable care arrangements are proposed by the applicants in relation to the child, as to the contact arrangements in place and proposed in relation to the child and his birth parents, that the applicants have good parenting capacity, and that all consents given by the affected parties are informed consents, freely and voluntarily given. Given the child's age, his wishes were appropriately not the subject of the report.

8. By s 18, the Court may make a parentage order only if satisfied that the preconditions to the making of a parentage order have been met. 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 the precondition is not a mandatory precondition to the making of a parentage order, and the Court is satisfied that exceptional circumstances justify the making of the parentage order, despite the precondition not having been met. In deciding whether to make the parentage order, the Court may also have regard to any other matter it considers relevant. In particular, p ursuant to s 3, the Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.

9. The preconditions to the making of a parentage order are set out in Part 3, Division 4. Those stated to be mandatory cannot be waived by the Court, but others can be waived in exceptional circumstances [see s 18].

10. The first (and mandatory) precondition is that the Court must be satisfied that the making of the parentage order is in the best interests of the child [s 22]. I am satisfied that, having regard to the surrogacy arrangement, and the care arrangements for the child since his birth, the making of a parentage order would be in the best interests of the child.

11. The second (mandatory) precondition is that the surrogacy arrangement must not be a commercial surrogacy arrangement [s 23]. There is nothing to suggest that this was a commercial arrangement.

12. The third (mandatory) precondition is that the surrogacy arrangement must be a pre-conception surrogacy arrangement [s 24]. I am satisfied that the surrogacy arrangement here was a pre-conception surrogacy arrangement.

13. The fourth (mandatory) precondition is that the surrogacy arrangement must be an arrangement under which there are two intended parents who, at the time of entering into the arrangement, are a couple (for which purpose a couple consists of a person and the person's spouse or de facto partner), or there is only one intended parent [s 25]. I am satisfied that at the time of entering the agreement, the intended parents, being the plaintiffs, were a couple as defined.

14. The fifth (mandatory) precondition is that the child must be under 18 years of age at the time the application is made, and the Court must have regard to the wishes of the child, if the child is of sufficient maturity to express his or her wishes and the Court considers it appropriate to take those wishes into account [s 26]. The child is under 18 years of age, being 4 years of age. The child is not of sufficient maturity to express his own wishes.

15. The sixth precondition is that the birth mother must have been at least 25 years old when she entered into the surrogacy arrangement, but for a pre-commencement surrogacy arrangement, it is sufficient that the birth mother was at least 18 years old when she entered into the surrogacy arrangement. In all cases, it is a mandatory precondition that the birth mother was at least 18 years old when she entered into the surrogacy arrangement [s 27]. I am satisfied that the birth mother PD was at least 25 years old, namely about 33 years old, when she entered into the surrogacy arrangement.

16. The seventh (mandatory) precondition is that each intended parent must have been at least 18 years old when he or she entered into the surrogacy arrangement [s 28]. I am satisfied that both plaintiffs were at least 18 years old when he or she entered into the surrogacy arrangement, namely about 38 and 30 years old respectively.

17. It is a further mandatory precondition that, if an intended parent was under 25 years of age when the surrogacy arrangement was entered into, the Court must be satisfied that the intended parent is of sufficient maturity to understand the social and psychological implications of the making of a parentage order [s 29]. As the intended parents were not, at the relevant time, under 25, this would not apply. Further, this precondition does not apply to a pre-commencement surrogacy arrangement.

18. Next, the Court must be satisfied that there is a medical or social need for the surrogacy arrangement. There is a medical or social need for a surrogacy arrangement if, inter alia, there are 2 intended parents under the surrogacy arrangement and the intended parents are a man and a woman who is unable to conceive a child on medical grounds, or is likely to be unable, on medical grounds, to carry a pregnancy or to give birth [s 30]. This condition, if it were applicable, would be satisfied; however, this precondition does not apply to a pre-commencement surrogacy arrangement.

19. By s 31, each of the affected parties (which includes the birth mother, her partner, and the intended parents) must consent to the making of the parentage order. The consent of a birth parent to the making of the parentage order is a mandatory precondition to the making of a parentage order, unless the Court is satisfied that the birth parent has died or lost capacity to give consent, or the birth parent cannot be located after reasonable endeavours have been made to locate him or her. Consent is defined to mean informed consent freely and voluntarily given by a person with capacity to give the consent , but otherwise (unlike, for example, in the (NSW) Adoption Act 2000) no particular formality for consent is prescribed . UCPR r 56A.8 sets outs the evidentiary requirements on an application for a parentage order, and sub-rule (k) requires evidence of the consent of the affected parties; again, however, the rules do not prescribe any particular formality for consent.

20. The only evidence of consent to a parentage order under the Surrogacy Act (which is not the same thing as the parenting orders made under the Family Law Act) is contained in the Counsellor's report, to the effect that the birth parents are "quite comfortable with their names being removed from the birth certificate", and that they were "quite informed as to the consent they were giving and its consequences". In my view, this does not constitute acceptable evidence of informed consent, freely and voluntarily given by a capable party. C onformably with the Court's usual practice where evidence of a consent is required, at least unless consent is given in person in court, a written instrument of consent, verified by the affidavit of an attesting witness, is required. In the case of applications for parentage orders, such consent should be expressed to be "consent to the making of a parentage order under the Surrogacy Act in respect of the child [name]". In order to establish that the consent is informed, and given freely and voluntarily and by a person with capacity to do so, there will need to be affidavit evidence demonstrating that the person giving consent understands the legal and practical effect of the consent and of a parentage order. Preferably this should be given by the attesting witness, who should ordinarily be appropriately qualified (preferably a lawyer), to the effect that he or she explained to the person giving consent the legal and practical effect of the consent, and that the person appeared to understand the explanation and to give the consent freely and voluntarily, and to have the capacity to do so. Informed consent can only be established by proving what information the recipient had. Free and voluntary consent, and capacity can be established only by evidence that the consenting party appears to be acting freely and voluntarily, and to have capacity. There is no such evidence. Accordingly, at this stage the evidence does not satisfy the requirements of s 31.

21. By s 32, the applicants must be resident in New South Wales at the time of the hearing of the application. The applicants reside in this State.

22. By s 33, the child must be living with the applicants at the time of the hearing of the application. I am satisfied that he is.

23. By s 34, the surrogacy arrangement must be in the form of an agreement in writing, signed by the birth mother, the birth mother's partner (if any) and the applicant or applicants. There is no evidence of compliance with this requirement; however, this precondition does not apply to a pre-commencement surrogacy arrangement, so it would not present an obstacle to making a parentage order.

24. By s 35, each of the affected parties must have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement; and the birth mother and the birth mother's partner (if any) must have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order. However, this precondition does not apply to a pre-commencement surrogacy arrangement.

25. By s 36, each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement. The legal advice obtained by the birth mother and the birth mother's partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants. However, this precondition does not apply to a pre-commencement surrogacy arrangement, so its absence presents no obstacle to the making of an order in this case.

26. By s 37, all information about the surrogacy arrangement that is registrable information under Division 3 of Part 3 of the (NSW) Assisted Reproductive Technology Act 2007 must have been provided to the Director-General of the Department of Health, for entry in the central register kept under that Act. However, the Court may waive compliance with this precondition in relation to any information that is not known to an affected party and cannot reasonably be ascertained by the affected party. There is no evidence in respect of this matter, and no evidence upon which a waiver could be granted.

27. By s 38, the birth of the child must have been registered in accordance with the requirements of the (NSW) Births, Deaths and Marriages Registration Act 1995 or a corresponding interstate law. I am satisfied that the birth was registered in New South Wales on 20 July 2007.

28. As this is a pre-commencement surrogacy arrangement, the requirements of UCPR r 56A.9, for an affidavit by a legal practitioner as to advice given prior to entering into the surrogacy arrangement, do not apply.

29. I am therefore satisfied that it would be appropriate to make a parentage order, subject to the following:

(1) evidence of the informed consent of the birth parents, in the form of a written instrument of consent, verified by affidavit of an attesting witness, and evidence demonstrating that the effect of the consent has been explained to the consenting party, and that he and she appeared to understand it, to give the consent freely and voluntarily, and to have the capacity to do so; and

(2) evidence that all information about the surrogacy arrangement that is registrable information under Division 3 of Part 3 of the (NSW) Assisted Reproductive Technology Act 2007 has been provided to the Director-General of the Department of Health, for entry in the central register kept under that Act (or alternatively, in respect of any information not so provided, evidence that such information is not known and cannot reasonably be ascertained).

30. Upon receipt of that evidence, the Court would be in a position to make a parentage order.

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