PJ V DOCS [1999] NSWSC 340

New South Wales Supreme Court CITATION : PJ V DOCS [1999] NSWSC 340 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4980 of 1998 HEARING DATE(S) : 6 April 1999 JUDGMENT DATE : 6 April 1999

PARTIES : PJ (Applicant) Director General Department of Community Services (Respondent JUDGMENT OF : Windeyer J at 1

COUNSEL : SOLICITORS : Rockliffs (Applicant) Director Legal Services Department of Community Services (Respondent) CATCHWORDS : FAMILY LAW AND CHILD WELFARE - Children - surrogacy arrangement - fertilisation procedure - declaration pursuant to s21 of the Status of Children Act 1996 (NSW) that particular persons are the father and mother of the child ACTS CITED : Status of Children Act 1996 (NSW) Family Law Act 1975 (Cth) DECISION :

- 7 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

TUESDAY 6 APRIL 1999

4980/98 APPLICATION OF PJ v DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES.

JUDGMENT:

1 HIS HONOUR: Mr and Mrs J seek a declaration pursuant to s 21 of the Status of Children Act 1996 (the Act) that they are respectively the father and the mother of a child E, who was born on 18 December 1998. 2 That child was born as the result of a surrogacy arrangement under which it was arranged that Mrs W, who is the mother of Mrs J, would bear the child, Mrs J being unable to do so, having not developed any uterus. 3 An ovum from Mrs J and fertilised by the sperm of Mr J was inserted in the uterus of Mrs W and as a result of this having been successful, the child was born. This was done with the consent of Mr W, at least so far as the procedure taking place was concerned. 4 It is important to understand that this court is not in any way expressing any view on the desirability or otherwise of such procedures taking place. When I say that, it is for the purpose of that part of the proceedings which is the subject of this judgment, it having been agreed and ordered that the alternative order namely an order for adoption, would be heard subsequently to that part of the proceedings which I am now determining. 5 Nor should it be thought that the court does not understand the distress which has been caused to Mr and Mrs J by these proceedings, and probably also to the parents of Mrs J. Nevertheless, the matter must be determined in accordance with the law and particularly the provisions of the Status of Children Act 1996. S 14 of that Act is as follows: 14. Presumptions of parentage arising out of use of fertilisation procedures (1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant: (a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and