AP & anor v RD & anor [2011] NSWSC 1389

Supreme Court New South Wales

Medium Neutral Citation: AP & anor v RD & anor [2011] NSWSC 1389 Decision date: 17 November 2011 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Evidence of informed consent, freely and voluntarily given, of the birth parents and information as to surrogacy arrangement that is registrable information under the (NSW) Assisted Reproductive Technology Act 2007 to be provided. Catchwords: FAMILY LAW AND CHILD WELFARE - Surrogacy - application for parentage order under (NSW) Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into pre-commencement of Act - discussion of law - parentage order has legal effect of child ceasing to be child of birth parent and becoming child of intended parents - court may make parentage order subject to certain satisfaction of certain preconditions - preconditions specified to be mandatory and non-mandatory - non-mandatory preconditions may be waived if exceptional circumstances exist - court must be satisfied order in best interests of child - surrogacy arrangement cannot be a commercial surrogacy arrangement -consent must be freely and voluntarily given by persons with capacity to consent - no prescribed formality for consent but must be appropriate evidence of fully informed consent - insufficient evidence of consent of birth parents in present case - all information that is registrable under (NSW) Assisted Reproductive Technology Act 20007 must have been provided - not so provided in present case. Legislation Cited: (CTH) Family Law Act 1975 (NSW) Adoption Act 2000 (NSW) Assisted Reproductive Technology Act 2007 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Surrogacy Act 2010, s 3, s 5, s 12, s 15, s 16, s 17, s 18, s 22, s 23, s 24, s 25, s 26, s 27, s 28, s 29, s 30, s 31, s 32, s 33, s 34, s 35, s 36, s 37, s 38 s 39 UCPR r 56A.7, r 56A.8, r 56A.9 Category: Procedural and other rulings Parties: AP & JP (plaintiffs) RD & PD (defendants) File Number(s): A136/2011