Dispute Between Genetic Parents and Surrogate

Background

In the recent case ofLamb and Anor & Shaw [2018] FamCA 629, the Court of Appeal clarified the law surrounding surrogacy in Queensland.

In this matter two parents whose biological child was birthed via surrogate in Australia were unable to be legally recognised as the parents of their child. This was an unusual case in that the surrogate was the third cousin of the genetic mother. In addition to this, during the pregnancy there was a fall out between the surrogate and the intended parents. The surrogate considered aborting the pregnancy, however her pregnancy was too far along.

Two days after the child was born the genetic parents commenced proceedings. An interim agreement was reached whereby the child was to be taken home by the genetic parent and the surrogate mother agreed to a parentage order application so to legally transfer parentage to the genetic parents. However the surrogate mother later disagreed to the parentage order, seeking to adopt the child.

The genetic parents sought a declaration from the Family Court that they were the parents of the child, however the court could not make such a declaration as there was not a parentage order made at that time under the Surrogacy Act.

Court Analysis

At first instance the court found that it was not in the best interests of the child to have time with the birth mother, and the primary judge made an order requiring the parties to do all acts and things necessary to ensure that the male respondent’s name was entered as the father of the child on the birth certificate.

On appeal, the issue was whether the biological father of the child was also the legal father. The ambiguous provision was s23(4) of the Status of Children Act 1978 (Qld), a precondition that was not addressed in his Honour’s initial reasoning or the submissions of counsel:

“…the man who produced the semen has no rights or liabilities in relation to any child born as a result of the pregnancy happening because of the use of the semen unless, at the time, he becomes the husband of the child’s mother.”

Orders

Pursuant to s14A of the Acts Interpretation Act, Tree J interpreted the section in a way that would achieve the purpose of the Act. Relying on extrinsic material, his Honour was satisfied that “in Queensland the genetic father is the father of the child, both as a matter of fact, and as a matter of law” and upheld the original orders. His Honour noted that the State parliaments of Victoria and New South Wales have dealt with this situation differently through reliance on irrebutable presumptions.

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