APPLICATION OF D and E [2000] NSWSC 646

Reported Decision : [2000] 26 Fam LR 310

New South Wales Supreme Court

CITATION : APPLICATION OF D and E [2000] NSWSC 646 CURRENT JURISDICTION: ADOPTIONS FILE NUMBER(S) : SC 80040/99 HEARING DATE(S) : Private Chambers. Written Submissions JUDGMENT DATE : 7 July 2000

PARTIES : D and E plaintiffs JUDGMENT OF : Bryson J at 1

COUNSEL : Brian Glendenning solicitor for plaintiffs Derek Smith Solicitor for DOCS SOLICITORS : Harris Wheeler Solicitors Newcastle R. Best, Director Legal Services, DOCS. CATCHWORDS : ADOPTION - surrogate parenthood - birth mother was sister of W artificially inseminated with sperm donated by H - application by H & W for adoption was fully supported by birth mother - placement in good circumstances and no contention among adults involved - consideration of submissions by DOCS adverse to adoption at this stage - consideration of public interest associated with surrogate parenthood - the paramountcy rule was applied - on the facts the interests of the child required an adoption order. DECISION : Adoption order made.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

FRIDAY 7 JULY 2000

Re: 80040 of 1999 Application of D and E Child: F

JUDGMENT 1 HIS HONOUR: This judgment relates to an application for adoption of a child who was born in a surrogate parenthood arrangement. Adoption applications are heard in private and the Court usually imposes a restriction on the publication of reasons for decision, because it would be adverse to the welfare and interests of the children involved to publish particulars. The interests concerned are wider than the ordinary privacy interests of all persons involved, as there can be adverse impacts on the emotional well-being of infants and on the course of their upbringing if particulars of adoption proceedings are published. The Adoption of Children Act 1965 makes special provisions in s 53, s 64 and s 67 to restrict availability of information about adoption proceedings. The availability of information is carefully regulated by the Adoption Information Act 1990, and except under the procedures to which that Act provides, is restricted. 2 Surrogate parenthood is appropriately a subject of public interest and concern, and I have decided to publish my reasons in this case. In these reasons I have omitted the names of persons concerned but necessarily some other information from which identities could be discovered by investigation have been included. I point out now that publication of the identities of the persons involved, and of any matter reasonably likely to enable any of the persons involved to be identified, is an offence under s 53, which is in these words: 53 Restriction on publication of identity of parties (1) Subject to this section, a person who publishes, or causes to be published, in a newspaper or periodical, or by means of broadcasting or television, in relation to an application under this Act or under a law of another State or a Territory of the Commonwealth for the adoption of a child or the proceedings on such an application, the name of an applicant, the child, or the father or mother or a guardian of the child, or any matter reasonably likely to enable any of those persons to be identified, is guilty of an offence against this Act. (2) This section does not apply in relation to the publication of any matter with the authority of the Court to which the application was made. 3 These reasons are published with my authority, but I have not authorised the publication, by anyone, of any other material. I point out that I have not authorised the publication of any identifying material based on inference from facts stated in these reasons, or based on further investigation prompted by those facts. 4 The plaintiffs apply for an order of adoption of a male child. The Court has jurisdiction because the applicants are domiciled and resident in New South Wales and the child has been in the State throughout his life - see ss 6 and 8 of the Adoption of Children Act 1965. The applicants are married to each other; they were married on 1 July 1990 after, in each case, an earlier marriage had been dissolved. The applicants are related to the child. The husband is the father of the child, who was conceived by an artificial conception procedure, artificial insemination using sperm donated by him. The wife is the aunt of the child, as the birth mother is the wife's sister (of the whole blood). The finding that the husband is the father of the child requires fuller explanation. 5 The infant was born on 16 November 1996. The birth was registered on 12 December 1996. The registration showed the birth mother as the mother and the proposed adopting father as the father. The registration showed correctly that these persons were not married to each other. In view of the legislation then in force the information in the register shows that the proposed adopting father made a paternity acknowledgment under subs 11(1) of the Children (Equality of Status) Act 1976, that the paternity acknowledgment was transmitted to the Registrar of Births Death and Marriages and that it was used for the purpose of registration of parentage details in accordance with s 18 of the Birth, Death and Marriages Registration Act 1995. By s 49 of that Act a certificate by the Registrar certifying particulars contained in an entry is admissible in legal proceedings as evidence of the facts recorded in the entry; that is to say a certificate is evidence that the child is the ex-nuptial child of the proposed adopting father. It operates as prima facie evidence, and is rebuttable. 6 Before the commencement of the Status of Children Act 1996 on 1 September 1998 the paternity acknowledgment and the registration based on it established that the proposed adopting father was the father of the infant. This conclusion is based on taking together provisions of the Artificial Conception Act 1984 and the Children (Equality of Status) Act 1976. Section 6 of the Artificial Conception Act according to its terms created an irrebuttable presumption of law to the effect that a man who produced semen used for artificial insemination of a woman to whom he was not married was not the father of the child born as a result of the pregnancy. By subs 4(3), s 6 had effect subject to the provisions of s 18A(2) of the Children (Equality of Status) Act, which provided in para (d) that the presumption under subs 11(1) (which related to paternity acknowledgments) prevailed over any conflicting presumption which arose by virtue of s 6 of the Artificial Conception Act. The Status of Children Act contains provisions to a different effect; the presumption of parentage arising from a paternity acknowledgment, created by s 13 and made rebuttable by s 15 may be rebutted by a presumption against parentage arising under subs 14(2): "If a woman becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy." 7 This presumption is made irrebuttable by subs 14(4), and prevails over a rebuttable presumption pursuant to s 17(2). 8 Before the Status of Children Act came into effect there were proceedings in the Family Court of Australia relating to the infant in which the proposed adopting parents were the applicants and the birth mother was the respondent. Those proceedings were not contentious. The proposed adopting parents sought orders relating to residence and contact, and leave under s 60G of the Family Law Act 1975 (Cth) to apply to the Supreme Court for an order of adoption. On 23 May 1997 the Family Court (Chisholm J) ordered the parties to attend a conference with a Family and Child Counsellor and further ordered that the Counsellor prepare a report for the purpose of assisting the Court in dealing with the applications. The adults and the child attended a conference with a Ms Linda MacKay, a Child and Family Counsellor, who made a report, assessment and recommendation supporting the residence, contact and other proposed orders, including leave to apply for adoption. The application was again before Justice Chisholm on 29 August 1997. The application was not contentious and the orders proposed were made by consent after Justice Chisholm took time to address and consider the proceedings including the Counsellor's report. There was no statement of reasons and no statement of reasons was called for in the circumstances, but it is clear that the orders which were made, including findings of fact expressed in them, were not based solely on the consent of parties but were also based on an address to the issues and on consideration of whether the orders were appropriate. The orders provided to the effect that the infant was to live with the proposed adopting parents, that they were each to have parental responsibility and that the birth mother was to have no parental responsibility. Order (4) was in these terms: "That leave be granted under s 60G of the Family Law Act 1975 to the applicants [naming them] to apply to the Supreme Court of New South Wales for an order for the adoption by them of the child [naming him], the child of the applicant [naming the proposed adopting father] and the respondent [naming the birth mother]." 9 This constitutes an express finding on the subject of parentage and creates a presumption under subs 12(1) of the Status of Children Act which is declared by subs (2) to be irrebuttable. Section 17 of that Act deals with conflicts between irrebuttable parentage presumptions under subs (1): "… the presumption that appears to the Court to be more or most likely to be correct prevails". In deciding which is more likely to be correct the Court is required to look beyond the irrebuttable presumptions themselves to the whole of the material in evidence, on which it is clear that the presumption arising from the finding of the Family Court is correct. There is no other reasonable view of the facts, and nothing would arise for consideration were it not for the presumptions under s 14 relating to parentage arising out of use of fertilisation procedures, which confer on sperm donors a protection which in the present case the father has never wished to have. 10 The artificial conception of the child occurred under arrangements among the birth mother, her sister and her brother-in-law, initiated by an offer by the birth mother, after the wife had become unable to have children of her own following cancer of the cervix and a hysterectomy. The birth mother gave a formal consent to the adoption of the child by the applicants in accordance with subs 26(3) of the Adoption of Children Act. The consent has not been revoked, and is supported by an affidavit of the birth mother which shows that she does not seek any order stipulating that she should have access to or contact with the child. There is no need for any such order, as the family circumstances are that she has contact with the child appropriate for family relationships in which the child is her nephew. The application is not opposed by her and the proposed adoption has never been in any way the subject of contention by her. Her support for the adoption has been shown in a number of ways including participation in proceedings in the Family Court, where she attended a conference ordered by that court with a Family and Child Counsellor, participated in the conference in a way which showed her full support, and consented to the orders of the Family Court of Australia. Her support is further shown by her participation in preparation of a report for these adoption proceedings by another social worker who was appointed by the Director General of the New South Wales Department of Community Services for that purpose. 11 The applicants participated in a supportive way in the birth mother's care and circumstances before the birth. They attended and were present at the birth and immediately adopted their parental roles, caring for the child at the hospital and in their own home ever since leaving the hospital, in all ways appropriate for parents. The birth mother has not taken any part of the parental role. She lives separately from the applicants, although she sees her sister daily as they are both employed in the same organisation. As presented by the evidence and the social worker's report the arrangements which the parties made before the child's conception are being realised in a harmonious way. 12 The applicants are well provided with resources. The husband is employed as a Projects Co-ordinator and the wife is employed as a head school teacher. They own a housing lot with lake frontage on which they are building a dwelling; they have already built a studio apartment, a self-contained dwelling which they occupy, and they are engaged on a project to complete a house which will incorporate the studio apartment and contain three bedrooms, a study, a gymnasium, a lounge room, a dining room, two kitchens and three bathrooms. They also own a motor vehicle, have a savings account, furniture and superannuation entitlements and do not have significant debts, although they will need to borrow to complete the house. Their combined incomes put them in a position to provide amply for the needs of themselves and the child. 13 The applicants are persons of good repute. The husband was convicted of a motoring offence many years ago, so long ago that the police no longer maintain a record of it, and it has no adverse bearing on his character and reputation now. 14 The husband completed secondary education at a State high school and later received TAFE qualifications in Fitting and Machining. The wife completed secondary education, obtained her Higher School Certificate and also obtained a degree as Bachelor of Music from a College of Advance Education. 15 The applicants were raised in different Christian denominations and profess Christian beliefs, although they are not regular church attenders. They propose to raise the child in the Roman Catholic faith, and to give him the opportunity to attend church and follow that faith if he chooses. The instrument of consent does not express any wish with respect to the religious upbringing of the child. 16 The application is supported by the affidavits of referees who have known the applicants for long periods and are in a good position, from their own life experiences, to appraise the suitability of the applicants as parents and to give supporting references. 17 I turn to address the conditions prescribed by the Adoption of Children Act for adoption orders. The child is 3 years of age and falls within para 18(1)(a). In terms of subs 18(2) the application is not made by or with the consent of the Director General, or by the principal officer of a private adoption agency - see para (b), and the applicants fall within para (a) because consent within subs 27(2) has been given to adoption by them as relatives of the child. The applicants are married and apply jointly: subs 19(a). The applicants were born in 1961 and 1962 and are qualified in terms of their ages under s 20. 18 I turn to s 21 regarding the matters of which the Court is to be satisfied before making an adoption order. The Director General has made a report in writing to the Court concerning the adoption pursuant to para 21(1)(a). In terms of para (c) I am satisfied that each of the applicants is of good repute and is a fit and proper person to fulfil the responsibilities of a parent, and that each is a suitable person to adopt the child having regard to their age, state of health, education, religious upbringing and that of the child, and the wishes of the birth mother expressed in her consent. 19 The husband is in good health. Notwithstanding her earlier adverse medical history, the wife is also in good health. 20 The substantial issue for determination is the issue stated in subs 21(1), whether the welfare and interests of the child will be promoted by the adoption. The welfare and interests of the child are to be regarded as the paramount consideration: see s 17. 21 Surrogacy adoptions raise public policy and other general considerations which I discussed in another judgment published today and will not now repeat: see Application of A and B [2000] NSWSC 640. I do not regard surrogacy arrangements as an institution which should be encouraged by the law even where, as in this case, there is no commercial aspect of the arrangement. Consideration of the welfare and interests of the child in this case outweighs, in an overwhelming way, any consideration that in order to serve public policy and discourage surrogacy arrangements an adoption order should be withheld or the Court's response to the application should be modified to accommodate the view that surrogacy arrangements should not be encouraged, or should be discouraged. The applicants, the birth mother and the child have no real interest in the attainment of public policy objectives of that kind. I see no way in which the welfare and interests of the child, which are the paramount consideration, would be served by modifying what would otherwise be an appropriate disposal of this case to accommodate broad public policy considerations relating to whether surrogate parenthood arrangements should be made, or should be encouraged. 22 In this case, as in the other case which I disposed of today, the circumstances as presented to the Court appear to conform to a happy ideal in which there is no conflict among the adults involved, and the birth mother does not have and never has had any wish to depart from the arrangements or disturb them. The proposed adopting parents are well equipped for the parenting task, including in their material resources. The considerations adverse to the application, which have been carefully pointed out in the submissions made on behalf of the Director General, relate principally to potential adverse emotional impacts of the adoption which may arise from the unusual circumstances of the child's conception and existence and the disturbance of the ordinary pattern of family relationships in which the birth mother will become his aunt. While it is unfortunate that risks of emotional disturbance have been incurred for the child, those risks have already been incurred and would not be ameliorated in any real way by any measures open for me to take. Most adoptions work out happily and well, although in significant numbers of cases they do lead to expressed discontent. I cannot make any prediction whether or not there will be a happy outcome of this adoption. The applicants and the birth mother appear to have shown, in their interviews with social workers, an appropriate understanding of the importance of openness and of the appropriate means of communicating the child's history to him at an appropriate age, and there is no reason to fear that they will engage in practices of secrecy, or that they will value secrecy. I have considered the Director General's submissions which have pointed out the availability of other regimes, including guardianship and parenting orders, and the possibility of addressing the question of adoption again at a later stage when the child can be expected to have some opportunity for understanding the events and circumstances. 23 I have decided against taking any of these courses. I see advantages for the child in establishing the legal relationships by an order of adoption in the form which all the adults closely concerned with his welfare feel they should take, and in the form which, in the practical arrangements for the child's life, they already take. 24 For these reasons I have decided to make an adoption order.