Commercial International Surrogacy: Family Court Determines No Evidence of ‘Parentage’ of the Child

Background

In Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180 (1 September 2017) the Full Court of the Family Court of Australia (Bryant CJ, Strickland & Ryan JJ) heard an appeal by a married couple against Berman J’s refusal to make a declaration of parentage under section 69VA of the Family Law Act 1975 (the “Act”) and s 67ZC of the Act (orders relating to the welfare of children) in respect of a child born from sperm of the second appellant, Mr Bernieres, and an ovum of an anonymous donor pursuant to a commercial international surrogacy arrangement. They had also applied for leave to apply for a step-parent adoption under s 60G of the Act. The birth mother and her husband were the respondents but took no part in the appeal.

Full Court Analysis

The Full Court of the Family Court referred to s 60HB of the Act in relation to children born under surrogacy arrangements, however noted that for the purposes of this case the relevant legislation pursuant to reg 12CAA of the Family Law Regulations 1984 (Cth) was the Status of Children Act 1974 (Vic). The Court discussed ss 20 and 22 of that Act and explained that demonstrably the appellants were ‘not able to gain any assistance from the relevant Victorian legislation’ as the surrogacy arrangement was ‘clearly commercial as altruistic, was not commissioned with the assistance of a registered ART provider and the procedure was not carried out in Victoria’. Thus, s 60HB did not apply to this case.

His Honour was not satisfied that s 69VA of the Act was a ‘stand alone power but rather required “percentage” of a child to be in issue in proceedings in respect to another matter’. His Honour noted the construct of subdivision E of Division 12 of Part VII of the Act in relation to parentage evidence and the steps to be taken in determining the parentage of a child. His Honour accepted that the ‘focus was to ensure that the court has a wide discretion in relation to the types of orders that can be made in order to determine the parentage of a child and explained that the ‘reference to “receiving evidence” in s 69VA was directed to determining the biological connection and therefore the parentage of a child.

The issue that was considered was whether it was in fact open to apply s 69VA here, and that depended on whether s 60HB conversed the field in relation to surrogacy arrangements, and where s 60H (discussed below) sits in the statutory scheme.

Declarations of Parentage

The Court noted that for the purposes of proceedings, the court may issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

This section is in that part of the Act (Part VII) where a number of general provisions dealing with parentage, presumption and declarations of parentage appear, and the obvious questions was whether specific sections such as ss 60HB and 60H prevail over these general provisions where they conflict. The answer to that question was assisted by the rule of statutory construction known as “generalia specialibus non derogant”. According to this rule, if there is a specific section or sections of an Act that apply to a matter, then that section or those sections prevail, particularly where, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook [2006] FCAFC 170; {2006) 156 FCR 313).

The proposition that ss 60H and 60HB prevail over the general provisions was also supported by a consideration of the meaning and effect of those two sections.

On its plain meaning, if s 60H(1) was applied to a surrogacy, it would result in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material. Thus, neither of the commissioning parties would be able to be the parents of the child under this subsection, and it was clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner were to be the parents of the child.

The Court noted, for the sake of completeness, that unlike s60H(1), ss 60H(2) and (3) of the Act do not expressly exclude any donor of genetic material from recognition as a parent. Judicial opinion was divided as to whether those sub-sections impliedly excluded such a donor. However, because the Court have not heard argument in relation to this matter and was not able to express any informed view about the same. Further, and in any event, it was unnecessary for this court to consider that issue because neither ss 60H(2) or (3) apply in this case; paragraph (b) in both sub-sections cannot be satisfied.

It was plain that s 60HB now specifically addressed the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of s 60HB was to leave it to each of the States and Territories to regulate that status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In order words, s 60HB covered that field, leaving, leaving s 60H to address conventional artificial conception procedures.

Court’s Conclusion

In conclusion, then, according to the Court, s 69VA was not available because s 60HB covered the field, and section 60H did not apply.

The unfortunate result of that conclusion was that the parentage of the child here was in doubt. There was no order made under the relevant State legislation (and nor could there be, as explained in Green-Wilson & Bishop [2014] FAmCA 424).

There was no question that the father was the child’s biological father, but that did not translate into him being a parent for the purposes of the Act. Further, the mother was not even the biological mother, and thus was even less likely to be the ‘legal parent’.

As to whether s 67ZC (orders relating to welfare of children) could be used by the Court to declare parentage, the Full Court said:

“[Section] 67ZC cannot be utilised to make a declaration of parentage … s 67ZC only applied where the child is a child of marriage, whereas the Court’s finding was based on the circumstance that s 60HB covered the field.”

The Full Court also found no error in the dismissal of the appellants’ application for leave to adopt the child.

The effect of those exchanges [between the appellants’ counsel and his Honour] was that it was only necessary for his Honour to address s 60G if there was a declaration of parentage in favour of the second appellant [Mr Bernieres], but not in favour of either party, and thus on the appellants’ own case his Honour was not obliged to address the application pursuant to s 60G.

In any event, for s 60G to apply there must be a prescribed adopting parent’. In s 4(1) a ‘prescribed adopting parent’, in relation to a child, is defined as:

a) A parent of the child, or
b) The spouse of, or a person in a de facto relationship with, a parent of the child; or
c) A parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

Plainly neither party came within that definition.

Orders

The appeal was dismissed.

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