Re Ashley [2023] NSWSC 1295

Supreme Court New South Wales

Medium Neutral Citation: Re Ashley [2023] NSWSC 1295 Hearing dates: In chambers Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Equity Before: Meek J Decision: Parentage order made Catchwords: FAMILY LAW AND CHILD WELFARE — Surrogacy — Application for parentage order under Surrogacy Act 2010 (NSW) — Failure by parties to sign pre-conception surrogacy arrangement — Consideration of nature of pre-conditions and purposes of legislation — Pre-conception agreement mandatory and signed written agreement non-mandatory —Consideration of whether exceptional circumstances exist justifying the making of an order — No clear explanation for failure to sign the arrangement — Consideration of evidence in light of guiding principle that the best interests of the child of the surrogacy arrangement are paramount — Overall, Court satisfied that exceptional circumstances exist FAMILY LAW AND CHILD WELFARE — Surrogacy — Purposive approach to construing legislative provisions — Observations regarding aspects of legislative framework designed to ensure participants to surrogacy arrangements (which the law declines to enforce) are conscious of the gravity of the subject matter and adequately advised and counselled so as to minimise the risk that the arrangements falter in light of such unenforceability STATUTORY CONSTRUCTION — Guiding principles — Purpose of guiding principles WORDS AND PHRASES — "Conception" — "Pregnant" Legislation Cited: Adoption Act 2000 (NSW) Assisted Reproductive Technology Act 2007 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Children (Protection and Parental Responsibility) Act 1997 (NSW) Children's Guardian Act 2019 (NSW) Family Law Act 1975 (Cth) Interpretation Act 1987 (NSW) Local Government Act 1993 (NSW) Status of Children Act 1996 (NSW) Surrogacy Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v X; Re Z [2022] NSWSC 971 Application by JSC & RSC [2013] NSWSC 440 BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2) [2015] NSWSC 1825 C v B [2013] NSWSC 254 GP v BP [2018] NSWSC 1887 Kadiev v Petrov [2023] NSWSC 1031 MNM and EA v EM; Re ENA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1813 Re M; Application for Parentage Order [2023] NSWSC 531 S v B; O v D [2014] NSWSC 1533 Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 Texts Cited: Macquarie Dictionary, online ed Martin, Elizabeth A and Jonathan Law, Concise Medical Dictionary (10th ed, 2020, Oxford University Press) New South Wales Legislative Council, Parliamentary Debates (Hansard) Surrogacy Bill 2010 (NSW) Category: Principal judgment Parties: Intended mother (First Plaintiff) Intended father (Second Plaintiff) Birth mother (First Defendant) Birth mother's husband (Second Defendant) Representation: Counsel: