The Application by MGH and CJH; Re HCH

1. [1]

   HIS HONOUR: The Plaintiffs, MGH and CJH, a married couple, as intended parents, apply for a parentage order under the Surrogacy Act 2010 (NSW) (“the Act”) in respect of the child, HCH, who was born on 5 February 2015. In the Summons, the birth mother, MJH, and her husband, MDH, are named as the Defendants.

2. [2]

   MDH is the brother of CJH and the brother-in-law of MGH. MJH is the sister-in-law of MGH.

3. [3]

   Each of the Plaintiffs and the Defendants swore an affidavit which has been read in the proceedings. There are a number of other affidavits that have also been read. In addition, the background to the application is set out in the Agreement dated 29 June 2013, between the parties, a copy of which is attached to the affidavit of MJH.

4. [4]

   The Plaintiffs’ application has been dealt with in Chambers, in the absence of the public and without any attendance by, or on behalf of, the parties: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rule 56A.4(1). Neither of the parties had made an application for a preliminary hearing to prevent this occurring.

5. [5]

   It is necessary to permit the Plaintiffs to amend the Summons under s 64 of the Civil Procedure Act 2005 (NSW), as it appears there is a typographical error in Order 4, by omitting the word “Victoria”, and substituting in lieu thereof, the words “New South Wales”. Pursuant to s 14 of the Civil Procedure Act I shall dispense with the need to file and serve an amended Summons as it is tolerably plain, on the facts of the case, that HCH was born in New South Wales and that it is unnecessary to give notice to the Registrar of Births Deaths and Marriages in Victoria.

The Law

1. [6]

   The Act commenced on 1 March 2011. A parentage order is defined in s 4 of the Act as an order made by the court under the Act for the transfer of the parentage of a child.

2. [7]

   Section 5(1) of the Act defines “surrogacy arrangement” as:

3. [8]

   In s 5 of the Act, a reference to the “birth mother”, in relation to a surrogacy arrangement, “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 the surrogacy arrangement”.

4. [9]

   Benjamin J in Lowe v Barry [2011] FAMCA 625, at [3], noted:

5. [10]

   In the present case, the evidence reveals that this was a gestational surrogacy.

6. [11]

   Brereton J has outlined the general operation of, principles in, and procedure under the Act, in Application of AP [2011] NSWSC 1389, and has followed that decision in Re Application of MM & KF [2012] NSWSC 445. I, also, have done so previously in Application by JSC & RSC [2013] NSWSC 440. I am indebted to his Honour and propose to proceed, again, in the same manner as his Honour relevantly outlined in those two cases.

7. [12]

   By s 12 of the Act, the court, on application, may make a parentage order in relation to a child of a surrogacy arrangement. The purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement.

8. [13]

   By s 39 of the Act, 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, they become the parents of the child, and the child stops being a child of a birth parent and the birth parent stops being a parent of the child. Thereafter, 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.

9. [14]

   I shall deal with other aspects of the Act by reference to the facts that have been established.

The Proceedings

1. [15]

   The surrogacy arrangement, in this case, was made in a written agreement dated 29 June 2013. Both of the Plaintiffs, as intended parents, and the Defendants, MJH as the surrogate, and MDH as her spouse, were parties to the written agreement. It is, therefore, not “a pre-commencement surrogacy arrangement” which is one entered into before the commencement of Part 3 of the Act: s 15. As stated, the Act commenced on 1 March 2011.

2. [16]

   The Plaintiffs filed a Summons on 4 August 2015. This is within the period of not less than 30 days, and not more than 6 months, after HCH’s birth: s 16 of the Act.

3. [17]

   By s 18 of the Act, the Court may make a parentage order only if satisfied that the preconditions to the making of such order have been met, unless the precondition is not a mandatory precondition and exceptional circumstances justify the making of the order despite the unfullfilment of the precondition. The preconditions are set out in Division 4 of Part 3 of the Act.

4. [18]

   In addition to the Court being so satisfied, it may also have regard to any other matter it considers relevant.

5. [19]

   Whilst there does not need to be a genetic link between the intended parents, or either of them, and the child, in this case there is such a link, since embryos were created using the sperm of CJH and the ovum of a donor known to the Plaintiffs.

6. [20]

   Similarly, whilst there is no requirement for the surrogate to have previously had children, in this case, MJH has two children with MDH.

7. [21]

   By s 19, on making a parentage order, the Court may make such other orders in relation to the child as it considers appropriate.

8. [22]

   The Plaintiffs also filed evidence of the matters referred to in UCPR rule 56A.8. Having read all of the evidence, I am satisfied of all of the following matters.

9. [23]

   I am also satisfied that it would be appropriate to make a parentage order and I am able to deal with the matter in Chambers.

10. [24]

    The Court: