APPLICATION OF A and B [2000] NSWSC 640

New South Wales Supreme Court

CITATION : APPLICATION OF A and B [2000] NSWSC 640 CURRENT JURISDICTION: ADOPTIONS FILE NUMBER(S) : SC 80129/98 HEARING DATE(S) : Private Chambers, written submissions. JUDGMENT DATE : 7 July 2000

PARTIES : A and B plaintiffs JUDGMENT OF : Bryson J at 1

COUNSEL : D.M. Coulton for plaintiffs SOLICITORS : Vizzone Ruggero & Associates for Plaintiffs Director-General, Department of Community Services, in person, intervened. 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 circumstnaces 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: 80129 of 1998 Application of A and B

Child: C

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 publication of decisions and reasons, because it would be adverse to the welfare and interests of the children involved to publish any identifying information. The interests concerned are more than the ordinary privacy interests of all persons involved, as there can be adverse impacts on the emotional well-being of children 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 for 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 In these proceedings the proposed adopting parents apply for an adoption order relating to a female child who was born on 28 September 1997. The birth followed artificial conception in a surrogacy arrangement. The application is not contentious as among the birth mother and the proposed adopting parents. 5 The proposed adopting father was born in Uruguay on 5 December 1957. With his parents and their family he migrated to Australia about 1973 when he was 16 years of age. The proposed adopting mother was born in Argentina on 14 February 1960. She migrated to Australia with her family when she was 14 years of age. They met soon after arrival here while their families were living in migrant accommodation. They married at Maroubra on 8 December 1979. No children have been born of their marriage. 6 The birth mother is the sister of the proposed adopting mother. She was born in Argentina on 15 August 1969; she is nine and a half years younger than the proposed adopting mother. She was married in 1993 and has a daughter of that marriage who was born in December 1993. She separated from her husband in 1994 and the marriage was dissolved in March 1995. Her daughter of that marriage has always remained in her care, and no orders relating to her care or access have been made. Her former husband has not maintained a paternal relationship with that child or sought contact with her, and he has been out of communication for several years. The birth mother has been known to the proposed adopting father for many years because of a friendship among their families formed soon after immigration when she was about five years of age. After the failure of her marriage she with her first daughter lived in the applicants' household for some seven months, and they were her chief support during her separation and divorce. 7 The proposed adopting parents throughout their marriage wished to have children of their own, but have been unable to achieve parenthood. In 1996, at a time when the birth mother was a divorced woman, did not have any established de facto relationship and had the care of the daughter of her former marriage, she offered to her elder sister and her brother in law to be a surrogate mother for them. They welcomed this offer, which they saw as enabling them to become parents as they had wished to be for many years. The proposed adopting parents and the birth mother received counselling and advice arranged by Sydney IVF, an infertility clinic. They attended medical, psychiatric and social work assessments relating to their suitability for the procedure, and these assessments were placed before the Ethics Review Committee of the Royal Prince Alfred Hospital, and considered and approved by the Committee before an artificial insemination procedure was carried out in December 1996. The Committee's consideration and the assessments placed before it were extensive, and included exploration of and assessment of the basis of power in the relationships among the three. On the face of things the birth mother was professing to be acting freely and spontaneously in offering surrogate motherhood; the reality of her freedom and spontaneity were explored, and the Committee appears to have been satisfied that the power relationship was such that the surrogate mother would be able to say "no" to the arrangement or to the relinquishment of the child if that were her wish. 8 This was an appropriate subject for close consideration. Judicial experience shows the reality of the potential for conflict when views and intentions of parties to surrogacy arrangements alter. A striking example of the course which such a conflict may take is given by the facts and the decisions in Re Evelyn (1993) 23 Fam LR 53; and Re Evelyn (No 2) 23 Fam LR 73 (Full Court of the Family Court of Australia). That case related to residence and contact for a child of a surrogacy arrangement, and did not relate to an adoption. The course of that dispute illustrates that conduct may differ very widely from earlier professed intentions, and that the intentions and wishes of adults can relate to subjects other than the paramount issue of the welfare and interests of the infant. There is potential for grave conflict in surrogacy arrangements, and decisions such as those taken by the parties in this case and the Ethics Review Committee require address to potentially adverse outcomes which parties to the arrangements are unlikely to present forcefully for consideration, or even to be in a position to see clearly. It is difficult for people to have clear and complete insight into their own emotional positions, even contemporaneously, and even more difficult for them to foresee what they will feel in situations of profound emotional involvement which have not yet occurred. Decisions such as these, if made with real address and attention to what they involve, can only be made with great trepidation. In the present case events have proceeded in the uncontentious and happy course which all concerned expected would occur. 9 The applicants took part in prenatal appointments and prenatal classes. They took a parental role towards the child from the time of her birth onwards. They were both present throughout the birth mother's labour, shared the same room at the hospital and participated in all decisions by paediatric staff. All remained at the hospital for five days and were discharged together. The child then went home with the proposed adopting parents and has been in their continuous care since then. The applicants do not plan to extend their family further. 10 There has been no experience of conflict relating to the child, or relating to any other matter. The birth mother did not take care of the child after the birth. She received social support from her mother in her own home for some time. A few months afterwards the birth mother formed a de facto relationship with a new partner, and later went to live with him in another State; they propose to have a further child or children, and at the time of the application the birth of a child of their relationship was expected. 11 No secrecy is being observed towards the child, although as yet she can have little if any understanding of the circumstances of her origin. On her Christening day the birth mother gave her a "time capsule" box with information and memorabilia about her origin, and the intention expressed to the Social Worker was that this information should be shared with the infant at age-appropriate stages starting when she is about four or five years old. 12 There is free contact and communication between the birth mother and the child through telephone communications, which take place frequently, and visits to Sydney which are infrequent. There is also happy communication between the child and her half-sister. Overall relationships are happy and appropriate for two families where the wives are sisters and their daughters are cousins, and the sisters live independent lives. The birth mother's conduct has been appropriate for an aunt, well known to the child while having a relationship and a family of her own, and living in a distant place. 13 The surrogacy arrangement and its impact on the birth mother and the applicants appear from the evidence put before me to have conformed to an ideal state in which expectations about how emotional relationships would be formed have actually been fulfilled. 14 The application for the Court to make an adoption order after a surrogacy arrangement presents a situation of greater complexity with a different balance of interests to those usually involved. In an adoption a legal status of parenthood which did not exist in nature is created between parents and child. Although adoption has been an institution known to other legal systems since ancient times, it was a 20th Century innovation in the law of New South Wales and in English law from which our law is derived. An adoption application involves the interests of parents as well as of infants, and indirectly involves the interests of others, as the status of other family members is affected by the creation of a legal relationship of parent and child, and there can be impacts on the rights and expectations of other persons, including rights relating to inheritance. The happiness and emotional well-being of adopting and of relinquishing parents are deeply involved in adoptions, and, because adoption orders are usually considered when infants are very young and can have no relevant understanding or wishes or means to express them, the happiness and emotional well-being of the adults involved claim much attention. Important as they are, they are not the most important consideration, and care has to be taken to relegate them to a proper place in the order of importance. 15 Developments in medical techniques and the appearance as a new human experience of surrogate parenthood through artificial conception present situations to deal with which humanity has no long stock of experience. There can as yet be very few people, if there are any, who have reached adulthood in the care of surrogate parents after artificial conception, and there is no stock of human experience based on whole-of-life histories of such people. There is a speculative element in all predictions and opinions about what results may emerge in the emotional lives and happiness of people involved. It could well be that, as with other realms of human experience, the outcomes will be very various and unpredictable, and that people will eventually be found who have been through what appear to be similar and comparable experiences and have had different outcomes. 16 A characteristic which distinguishes surrogate parentage from situations in which adoption has heretofore usually occurred, and bears directly on what is to be perceived as the welfare and interests of the child, is that the child's existence is the result of an intended chain of events in which adoption was a contemplated step. Adoption came into existence in New South Wales as a legal institution in circumstances where what was contemplated was the conferral of the advantages of parenthood and family membership on infants who did not have those advantages, lacked them, and seemed likely to suffer severely relatively to others because of that lack; on foundlings and infants who had been surrendered for adoption for whom the human relationships and resources which usually sustain the life of a family were not available. In cases like those, the contribution made by an adoption order to the infant's welfare and interests is evident. In recent decades step-parent adoptions have become common; the infant has been the child of a marriage, but the marriage has been dissolved and the adopting parents are one natural parent and that parent's new spouse after remarriage. This was a significant adaptation of the institution, as the infant had a place in a family institution but that had proven unsatisfactory, the family institution had been broken and another one was being made. 17 An adoption order as a confirming step in a surrogacy arrangement is also a significant adaptation and a large step away from what were, initially, the usual circumstances of an adoption. The adoption of the child and the conferral on the child of legal relationships with other persons contributes to the child's welfare and interests in a respect which has been wholly preconcerted and has not befallen the child through adverse circumstances, chance or misadventure. There have been significant changes in what appears, on the surface, to be the same institution; the advantages which the adoption order is proposed to confer on the child reciprocate disadvantages which have been imposed by the deliberate choice and preconcerted action of those who ask the Court to act in the infant's welfare and interests. Whatever disadvantages for the child are proposed to be cured by the process have been imposed on the child by the process. 18 Sources of unhappiness and emotional burdens which in some cases, by no means in all cases, present themselves to persons who have experienced adoption arise out of their family structures being different to the family structures of most members of the community, in ways perceived to be anomalous and involving missing patterns of relationships which most members of the community have and apparently enjoy, and missing sources of information about personal relationships and history which most people find it impossible to address in a wholly objective way. Where a child is adopted by a relative, existing patterns of relationships are altered and confused. It is one thing to incur, on behalf of an infant with no understanding of the situation, risks of discontents of these kinds while conferring on the infant a place in a family; it is quite another thing deliberately to incur the risks for a person not yet in existence who is to be brought into existence with that potential burden. 19 Terminology relating to surrogacy is not precise, and if ordinary reproductive processes are not used, medical technology and artificial conception can be employed in a number of ways. In the present case the birth mother was inseminated with semen donated by the proposed adopting father, there was no transplantation of embryo or ovum, and the birth mother is the sister of the proposed adopting mother; sisters of the whole blood, with both parents in common. The word "surrogate" and related words are not altogether apt but have become established; the perception seems to be that the birth mother is the surrogate or delegate of the proposed adopting mother, and this perception can be seen as devaluing her role as herself the child's birth mother. 20 I may not have made a completely clear expression of the source of my strong sense of dissatisfaction with institutionalising surrogate parenthood. Clearly I am not alone in feeling dissatisfaction of this kind. Surrogacy was considered in Ch 11 of LRC 81, the New South Wales Law Reform Commission's Review of the Adoption of Children Act 1965. In para 11.44 the Commission set out a careful list of circumstances which the Commission recommended should be preconditional for facilitation by an agency concerned with infant welfare or by a Court of adoptions under surrogacy arrangements. Paragraph 11.44 is as follows: "11.44 In particular, similar to the adoption of unrelated children discussed in Chapter 4, an agency or the Court should facilitate adoptions under surrogacy arrangements (whether the adoption is intrafamily or not) only where all the following circumstances exist