GP v BP

These proceedings were commenced by way of Summons filed on 19 February 2018 concerning predominantly an application pursuant to s 12 of the Surrogacy Act 2010 (NSW) (the Act) for orders that the parentage of the child SCR born 22 August 2017 be transferred from BPM and BPF (the birth parents or the Defendants) to GPM and GPF (the genetic parents or the Plaintiffs).

The Plaintiffs (or applicants to use the wording of the Act) to the proceedings are the genetic parents and are pursuant to s 5 of the Act both “intended parents”. The Defendants to the proceedings are the birth parents who do not oppose the orders sought.

Relevantly, the Act sets out a number of preconditions before orders can be made for making of a parentage order (s 18), and it makes a clear distinction between preconditions which are mandatory and those which are not mandatory. For not mandatory preconditions the Court must be satisfied that “exceptional circumstances justify the making of the parentage order, despite the precondition not having been met” (s 18(2)(b)).

In this particular application in my view all the relevant mandatory preconditions have been met. However, the only precondition which has not been met is that the applicants “must be resident in New South Wales at the time of the hearing of the application” (s 32). The Plaintiffs reside in Victoria.

Having carefully considered the papers on 5 December 2018 I was satisfied that s 32 was not a mandatory precondition and exceptional circumstances existed that justified the making of the parentage order pursuant to s 12. I made those orders then and indicated I would provide reasons. These are those reasons.

The Plaintiffs, as the genetic parents, reside in Town AA, Victoria which is 35km from Albury but 306km from Melbourne and 586km from Sydney. Both Plaintiffs work full time in the area where they live in Town BB and Town AA.

The genetic mother has had a child from a previous relationship, XX, who is 12 years of age and whom the genetic parents both care for in addition to their employment commitments. Due to concerns over the genetic mother’s health and complications incurred during the birth of her first child, the parties entered into a surrogacy arrangement. The arrangement was one whereby an ovum of the genetic mother would be fertilised ‘in vitro’ by the sperm of the genetic father, and thereafter implanted into the birth mother. It was the intention of both parties that the birth mother would carry and give birth to the biological child of the Plaintiffs.

This surrogacy arrangement necessitated the use of a specialist IVF Facility, namely Reproductive Medicine Albury. The evidence is that Dr G at Reproductive Medicine Albury is the only doctor in the region who provides IVF services, with the only other nearest IVF facilities either in Sydney or Melbourne.

I am satisfied that all bar one of the preconditions to making a parentage order have been satisfied in this case. The Plaintiffs are both the “intended parents” (s 5). BPM is the “birth mother” (s 5) and her partner BPF is the “birth mother’s partner” and was so at the time the birth mother entered into the surrogacy agreement (s 4). BPM and BPF are both the “birth parents” (s 4).

The Plaintiffs and Defendants all signed a pre-conception surrogacy arrangement (s 5). The Defendants signed the surrogacy arrangement on 23 December 2015. The Plaintiffs signed the surrogacy arrangement on 28 December 2015.

The preconditions to the making of a parentage order are set out in Pt 3, Div 4 of the Act. I am satisfied the making of the parents order is in the best interests of the child, as it gives effect to the surrogacy arrangement, the child is in good health and being appropriately cared for and the child is in the care of the Plaintiffs (s 22). The surrogacy arrangement is not a commercial surrogacy arrangement but was an altruistic one (s 23). The surrogacy arrangement was a pre-conception arrangement signed by the parties on 23 December and 28 December 2015, with the child born on 22 August 2017 (s 24). The two genetic parents were at the time of entering into the arrangement a couple as were the Defendants (s 25). The child is under the age of 18 being approximately 8 months of age (s 26(1)). The child is not of sufficient maturity to express his own wishes and has not done so (s 26(2)).The birth mother was at least 25 years old when she entered into the surrogacy arrangement, being 32 years of age when she entered the surrogacy arrangement (s 27). The Plaintiffs as the intended parents were each at least 18 years old when they entered into the surrogacy arrangement, with the genetic mother 35 and the genetic father 30 years of age (s 28). The maturity requirement of s 29 does not apply. The surrogacy arrangement itself, and the process of the proceedings, evidence the consent of the birth parents (s 31).

I am satisfied there is a medical or social need for the surrogacy arrangement, in that the genetic parents are an “eligible woman” and “man” as per the requirements of the Act (s 30). I am satisfied each of the affected parties have consented to the making of the parentage order (s 31). The child is living with the applicants at the time of hearing this application (s 33). The surrogacy arrangement is in writing, signed by the birth mother, her partner and the applicants (s 34). Each of the affected parties have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement (s 35(1)). The birth mother and her partner 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 (s 35(2)). Each of the parties have received legal advice, for the Plaintiffs from AB of Robb & Associates on 30 April 2015, and for the Defendants from SR of Rama Myers in July 2015 (s 36). All relevant information about the surrogacy arrangement has been provided to the Director-General of the Department of Health (s 37). The birth of the child has been registered in accordance with the relevant requirements (s 38). The timing of the application has been made not less than 30 days and not more than 6 months after the child’s birth (s 16). The application has been supported by a report about the application prepared by an independent counsellor (s 17).

As is clear from the above all but the s 32 precondition has been met, because the applicants reside in Victoria not in NSW. That section provides:

This section must be read with s 18 of the Act, which distinguishes between mandatory and non-mandatory preconditions. Section 18 is in the following terms:

Section 32 of the Act is not expressed to be a mandatory precondition, and it therefore falls to be determined whether “exceptional circumstances” justify the making of the parentage order, despite the precondition not having been met.

In a 2013 decision which was factually extremely close to the present case, White J (as his Honour then was) considered the operation of the “exceptional circumstances” requirement in s 18(2)(b): C v B [2013] NSWSC 254. His Honour made the parentage order which was sought, and said (at [5]-[7]):

In S v B; O v D [2014] NSWSC 1533, White J again considered the application of the s 18(2)(b) “exceptional circumstances” requirement, here with respect to the requirement under s 38 for the birth of the child to be registered (also a non-mandatory precondition, able to be waived in exceptional circumstances). At [30], his Honour said:

In Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806, Slattery J also noted that the purpose of the Act is expressed in s 3, which provides that 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”, and reinforced by s 22 (which requires as a mandatory precondition that the making of the parentage order is in the best interests of the child). By reference to that purpose and to White J’s reasoning in both C v B and S v B; O v D, his Honour was satisfied that exceptional circumstances justified the making of a parentage order despite the s 32 precondition not having been met, holding at [19]-[22]:

The following affidavits were read by the applicants. I have carefully considered these materials which were in the file: affidavit of BPM (20 February 2018), affidavit of BPF (20 February 2018), affidavit of GPM (19 February 2018), affidavit of GPF (19 February 2018), affidavit of Dr D (15 February 2018), affidavit of Dr S (21 March 2018), affidavit of NM (20 February 2018), affidavit of AB (8 February 2018), affidavit of SR (20 February 2018) and affidavit of EC (30 November 2018).

Given the above principles, I am satisfied that exceptional circumstances exist that justify dispensing with the not mandatory precondition of s 32:

In addition, importantly, the affidavit of Ms EC of 30 November 2018, solicitor for the Plaintiffs, has explained clearly why the application has been made in NSW not Victoria including the arrangements for birth registrations between Victoria and New South Wales.

In my view the health considerations for the genetic mother, the great distance they would have had to traverse to get to Sydney and/or Melbourne and the current state of arrangements in these ‘border towns’ concerning the birth and registration of children provide exceptional circumstances which warrant making a parentage order despite s 32.

In all of the above circumstances in my view it is appropriate to make the orders sought and that all the statutory preconditions except for s 32 have been met, and there are exceptional circumstances which warrant dispensing with this not mandatory precondition.

Accordingly on 5 December 2018 I made Orders as set out: