Supreme Court New South Wales Medium Neutral Citation: Application MJC and CSC; re EMC [2012] NSWSC 1626 Hearing dates: 13 December 2012 Decision date: 13 December 2012 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: That parentage of the child be transferred from the birth mother to the first plaintiff as father and the second plaintiff as parent. Catchwords: SURROGACY - parentage order - application for parentage order - whether commercial surrogacy arrangement - whether agreement to donate sperm to partner of surrogate a benefit or reward in consideration of agreement to act as surrogate - reasonable expenses of birth mother Legislation Cited: (NSW) Surrogacy Act 2010, s 9, s 23 Category: Principal judgment Parties: Mr MJC - First Plaintiff (birth father) Mr CSC - Second Plaintiff EMC - Child Ms NAS - Defendant (birth mother) Representation: Counsel: Ms A Wilson (solicitor) - First and Second Plaintiffs Solicitors: Andrea Wilson & Associates - First and Second Plaintiffs File Number(s): A118/2012 Judgment (ex tempore) 1HIS HONOUR: By summons filed on 15 August 2012, the plaintiffs MJC and CSC claim a parentage order pursuant to (NSW) Surrogacy Act 2010 for the transfer of the parentage of the child EMC (the child), born 5 November 2010, from the birth mother NAS to the second plaintiff, the first plaintiff being the child's natural father. 2All relevant and applicable preconditions to the making of a parentage order referred to in Division 4 of Part 3 of the Surrogacy Act are satisfied, with two qualifications, to which I now come. Consent 3The first is the question of the consent of the defendant, the birth mother. As I have mentioned in previous matters under this Act, consent, when required, of a party involved in litigation is ordinarily to be proved in accordance with the Rules by a formal instrument of consent, verified by an affidavit of the witness who witnesses the execution of the consent. That has not been done in this case. However, the affidavit of the birth mother, of 13 August 2012, makes plain that she does, in fact, consent to the orders sought, and she says as much in paragraph 27 of her affidavit. In those circumstances, although the matter has not been correctly and formally proved, I am satisfied that she does in fact consent and, accordingly, I find that the requisite consent has been given. Whether arrangement is a commercial surrogacy arrangement 4The other matter, which has been the cause of the matter being listed for submissions and argument, is more complex, and relates to the nature of the surrogacy arrangement and, in particular, the requirement of s 23 of the Act, that the surrogacy arrangement must not be a commercial surrogacy arrangement. This is a mandatory precondition, so that it is not open to the court to dispense with compliance with it [s 18(2)(a)]. 5The definition of "surrogacy arrangement" includes, by s 5(1)(a): An arrangement under which a woman agrees to become or try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a preconception surrogacy arrangement). 6There is no doubt that the arrangement between the plaintiffs and the defendant in this case was a pre-conception surrogacy arrangement within that definition, and it is unnecessary to consider the definition of post-conception surrogacy arrangement. 7Section 9 of the Act defines "commercial surrogacy arrangement" as follows: (1) For the purposes of this Act, a surrogacy arrangement is a "commercial surrogacy arrangement" if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person: (a) agreeing to enter into or entering into the surrogacy arrangement, or (b) giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or (c) consenting to the making of a parentage order in relation to a child of the surrogacy arrangement. (2) However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother's surrogacy costs. 8It will be apparent from subsection (1), as set out above, that a surrogacy arrangement is a commercial surrogacy arrangement if the arrangement involves the provision of, inter alia, a reward or other material benefit or advantage to a person for agreeing to enter into or entering into the surrogacy arrangement. It will also be apparent, from subsection (2), that a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee reward or other material benefit or advantage is the reimbursement of the birth mother's surrogacy costs - a topic to which I shall have to return. 9The evidence that has caused me concern in this respect is to be found in each of the affidavits of the plaintiffs, the defendant, and the defendant's own partner. The first plaintiff, in his affidavit 4 April 2012, deposed as follows: 6. In April 2009 [NAS], the defendant, and her partner, [KAS], emailed 'Gay Dads Yahoo', looking for prospective dads and offering to be a surrogate mother. [CSC] and I emailed [NAS and KAS] on 11 April 2009 that we were interested if finding someone to be a surrogate mother, and on 21 April 2009 we received a reply by email from [NAS and KAS] with their expectations around [NAS] being the surrogate mother. In the second email the medical history and biography of [NAS] was set out. 7. On 5 May 2009 [CSC] and I met with [NAS and KAS], who expressed their desire that [KAS] was wanting to be pregnant and have a baby at the same time as [NAS] would be pregnant as a surrogate mother. In the meeting we offered for one of us to be the sperm donor for [KAS]. Subsequent to the meeting but on the same day [NAS and KAS] contacted us to state they had chosen [CSC] and I to be their prospective dads. [CSC] and I were very excited at the prospect of becoming parents. 10In the affidavit of the second plaintiff, also sworn 4 August 2012, he deposed: 6. In April 2009, we were lucky to respond to an email and meet [NAS], the defendant, and the partner, [KAS], who were looking for prospective dads to be a sperm donor, and for [NAS] to be a surrogate mother. The arrangement was perfect for both couples, although [KAS] is still attempting to fall pregnant using [MJC's] sperm. 11In her affidavit sworn 13 August 2012, the defendant, NAS, deposed as follows: 6. In April 2009 [KAS] and I sent an email to Gaydads Yahoo looking for prospective dads to donate sperm to [KAS] and me for use in an artificial insemination procedure so that [KAS] could become pregnant. In the same email we offered for me to be a surrogate mother if the dads wanted a child or children. 7. [MJC and CSC] responded to our email and on 5 May 2009 I met [MJC and CSC] with [KAS]. We discussed the arrangement of either [MJC or CSC] providing his sperm for insemination so [KAS] could get pregnant and of me being a surrogate mother giving berth to a child for them. 12The defendant's partner, KAS, in affidavit also sworn 13 August 2012, deposed as follows: 4. Early on in our relationship I started speaking with [NAS] about having a child. [NAS] has 3 children from previous relationships and I wanted to enjoy the experience of motherhood and still do while being in a relationship with [NAS]. [NAS] has given her full support in this regard. 5. In April 2009 [NAS] and I sent an email to Gaydads Yahoo looking for prospective dads to be a sperm donor to impregnate me and [NAS] offering to be a surrogate mother for a child for them. 6. On 11 April 2009 [NAS] and I received a reply from [MJC and CSC]. 7. On 5 May 2009 [NAS] and I met with [MJC and CSC] who in the meeting offered for one of them to be the sperm donor for me. Subsequent to the meeting and on the same day [NAS] and I contacted [MJC and CSC] saying we had chosen them to be our prospective dads. 13As a result of that evidence, it seemed to me that it was at least distinctly arguable that, by agreeing to being a surrogate in return for the donation of sperm so that the defendant's partner could become pregnant, the defendant was obtaining a reward or other material benefit or advantage for agreeing to enter into, or entering into, the surrogacy arrangement. 14On the other hand, the written surrogacy arrangement itself contains no reference to any such provision. While that cannot be conclusive, because in any event a surrogacy arrangement is not legally enforceable (see s 6 of the Act), nonetheless, it is some support for the view that it was not part of the surrogacy arrangement. 15In addition, evidence has been placed before me of the email of 8 April 2009, to which the witness has referred, which was in the following terms: Message: I am wanting to get in touch with gay couples who are searching for a surrogate. I have completed my family, having 3 healthy children and am in a very solid relationship with my wife. Becoming a surrogate has always been a dream for me because; while we as lesbians find it difficult to search for a sperm donor, I cannot even begin to imagine the difficulty in finding a surrogate to complete your family. 16It will be seen that, contrary to what they have said in each of their affidavits, the email, in fact, did not refer to or stipulate for any condition that sperm be provided so that the surrogate's partner might endeavour to become pregnant. This is important, as it suggests that from the beginning of the negotiations, contrary to the impression given by the four affidavits, there was not a mutual understanding to that effect. Evidence given by the first plaintiff today suggests, somewhat consistently with paragraph 7 of his affidavit set out above, that the desire for the defendant's partner to become pregnant arose incidentally, after the parties had met. 17The mere fact that an arrangement is, in a sense, collateral to the surrogacy arrangement, could not of itself mean that, if it involved a commercial element within the definition, the surrogacy arrangement was not a commercial surrogacy arrangement. Otherwise, it would be open to circumvent the Act by entering into collateral arrangements providing for commercial benefits outside, but collateral to, a surrogacy arrangement. But in this case, it seems to me that the question of provision of sperm so that the defendant's partner might endeavour to become pregnant does stand independently from the surrogacy arrangement. 18I reach that conclusion partly on the basis of the evidence now before the Court, which contradicts that in the affidavits as to when and in what context the question of provision of sperm arose, and also on the basis that, the surrogate's partner not yet having fallen pregnant, there is evidence that the first plaintiff remains prepared to provide sperm to assist that purpose. It seems to me that, in the context of this case, the agreement to provide sperm so that the surrogate's partner could become pregnant was not a reward or other benefit "for" agreeing to enter into or entering into the surrogacy arrangement. 19In those circumstances, I have come to the conclusion that the surrogacy arrangement is not, on that ground, a commercial surrogacy arrangement. Birth mother's reasonable costs 20I said that I would need to return to the question of reimbursement of the birth mother's surrogacy costs. That arises because, in the course of the first plaintiff's oral evidence, he referred to reimbursement of lost earnings incurred by the surrogate during the surrogacy and in connection with the birth. The birth mother's surrogacy costs are defined in s 7 of the Act as follows: (1) For the purposes of this Act, a "birth mother's surrogacy costs" are the birth mother's reasonable costs associated with any of the following matters: (a) becoming or trying to become pregnant, (b) a pregnancy or a birth, (c) entering into and giving effect to a surrogacy arrangement. (2) The reasonable costs associated with becoming or trying to become pregnant include any reasonable medical, travel or accommodation costs associated with becoming or trying to become pregnant. (3) The reasonable costs associated with a pregnancy or birth include the following: (a) any reasonable medical costs associated with the pregnancy or birth (both pre-natal and post-natal), (b) any reasonable travel or accommodation costs associated with the pregnancy or birth, (c) any premium paid for health, disability or life insurance that would not have been obtained by the birth mother, had the surrogacy arrangement not been entered into, (d) any reasonable costs, including reasonable medical costs, incurred in respect of a child (being the child of the surrogacy arrangement), (e) the cost of reimbursing the birth mother for a loss of earnings as a result of unpaid leave taken by her, but only for the following periods: (i) a period of not more than 2 months during which the birth happened or was expected to happen, (ii) any other period during the pregnancy when the birth mother was unable to work on medical grounds related to pregnancy or birth. (4) The reasonable costs associated with entering into and giving effect to a surrogacy arrangement include the following: (a) the reasonable costs associated with the birth mother and the birth mother's partner (if any) receiving counselling in relation to the surrogacy arrangement (whether before or after entry into the arrangement), (b) the reasonable costs associated with the birth mother and the birth mother's partner (if any) receiving legal advice in relation to the surrogacy arrangement or a parentage order relating to the surrogacy arrangement, (c) the reasonable costs associated with the birth mother and the birth mother's partner (if any) being a party to proceedings in relation to such a parentage order, including reasonable travel and accommodation costs. (5) A cost is reasonable only if: (a) the cost is actually incurred, and (b) the amount of the cost can be verified by receipts or other documentation. (6) In this section: "medical costs" does not include any costs that are recoverable under Medicare or any health insurance or other scheme. 21For present purposes, the particularly relevant provision is subsection (3)(e). At one stage, it seemed that there might have been a 4-month period in respect of which the birth mother was paid in respect of loss of earnings; however, closer examination of the evidence seems to indicate that payments in that respect were limited to: (1)a sum of $300 on 28 September 2010, when she apparently had a fall and received 3 days pay, which would be covered by subsection (3)(e). (2)$500, presumably representing 5 days pay in connection with a threatened premature labour at 32 weeks, which would also be covered by subsection (3)(e)(2); and (3)a period of 4 weeks post delivery paid on 9 December 2010, which is less than the maximum period of 2 months permitted by the section to which I have referred. 22Accordingly, it seems that the arrangement in respect of the birth mother's surrogacy costs covered only "reasonable costs" within s 7, and accordingly is within what is permitted by s 9(2). 23I therefore conclude that the surrogacy arrangement in this case was not a commercial surrogacy arrangement and the Court is, therefore, not precluded from making a parentage order. Orders 24I order that the parentage of the child EMC born 5 November 2010 be transferred from NAS to the first plaintiff as father, and the second plaintiff as parent. 25I order that the Court approve the name XXXX as the surname, and XXXX XXXX as the given names of the child. 26I direct that the registrar give written notice of the parentage order to the Registrar of Births Deaths and Marriages pursuant to s 49 of the (NSW) Surrogacy Act 2010. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2013