MNM and EA v EM; Re ENA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1813

Supreme Court New South Wales

Medium Neutral Citation: MNM and EA v EM; Re ENA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1813 Hearing dates: In chambers Date of orders: 15 September 2015 Decision date: 15 September 2015 Jurisdiction: Equity - Adoptions List Before: Robb J Decision: Orders made as sought in the plaintiffs' summons, which include a parentage order in favour of MNM and EA, and an order made under s 42 of the Act that ENA have the names requested by the plaintiffs Catchwords: FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – surrogacy – application for a parentage order and other related orders – whether parties satisfy requirements set out in Surrogacy Act 2010 (NSW) – child's birth has not been registered in accordance with requirements of s 38 the Act – court finds exceptional circumstances allowing the court to make a parentage order without satisfaction of s 38 – finding does not create a general precedent regarding parentage orders – parentage orders sought made Legislation Cited: Assisted Reproductive Technology Act 2007 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Surrogacy Act 2010 (NSW) Cases Cited: BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 S v B; O v D [2014] NSWSC 1533 Category: Principal judgment Parties: MNM (first plaintiff) EA (second plaintiff) EM (defendant) Representation: Solicitors: Andrea Wilson & Associates (first and second plaintiffs) File Number(s): 77/2015

Judgment 1. The plaintiffs, MNM and EA, are two men who have been living in a de facto relationship since November 2001. 2. On the 29 July 2015, the plaintiffs filed a summons in which they ask the court to make a parentage order under the Surrogacy Act 2010 (NSW) (the Act) in relation to the child, ENA, who was born on 1 April 2015. The plaintiffs also seek related orders. 3. The defendant in this matter is the surrogate, EM, who is also the mother of MNM. 4. The parties to the proceedings entered into an altruistic surrogacy agreement dated 5 April 2014. 5. These reasons for judgment consider whether the plaintiffs have satisfied the preconditions contained in the Act to the extent that those preconditions must be satisfied before the orders sought by the plaintiffs can be made. 6. The plaintiffs, being the two intended parents under the surrogacy arrangement, have jointly made the present application for a parentage order, in accordance with s 14(2) of the Act. 7. As ENA was born on 1 April 2015, and the summons was filed on 29 July 2015, the application for a parentage order has been made not less than 30 days and not more than 6 months after ENA's birth, as is required by s 16(1). 8. The independent counsellor's report required by s 17 of the Act has been provided in support of the application for a parentage order. The report, prepared by Ms Suzanne Hawkins, psychologist, in my view sufficiently satisfies the requirements of that section. I am satisfied that Ms Hawkins has the qualifications required by the Act. 9. I am satisfied that the surrogacy agreement in this case is not a commercial surrogacy arrangement: s 23. The evidence establishes that the birth mother's surrogacy costs, as defined in s 7 of the Act, which were paid to EM, are consistent with the surrogacy arrangement not being a commercial one. 10. The surrogacy agreement was entered into before the defendant conceived ENA, so it is a pre-conception surrogacy arrangement: s 24. 11. The plaintiffs constitute a couple, being de facto partners, for the purposes of s 25 of the Act. 12. ENA is under the age of 18 years. For the purposes of s 26 of the Act, ENA is not of sufficient maturity to express his wishes concerning the making of the parentage order, and accordingly it is not appropriate for the court to take those wishes into account. 13. The birth mother, EM, was at least 25 years old when she entered into the surrogacy arrangement, as is required by s 27. 14. Each of the intending parents was at least 18 years old when he entered into the surrogacy arrangement: s 28. 15. The younger of the two plaintiffs is 34 years old, so the precondition in s 29 need not be satisfied in this case. 16. As the two intended parents under the surrogacy arrangement are two men, there is a medical need for a surrogacy arrangement for the purposes of s 30 of the Act. 17. Section 31 of the Act requires that each of the affected parties must consent to the making of the parentage order. In the present case, the effect of the definition of "affected parties" in s 4 of the Act is that the consents of the birth mother (the defendant) and the intended parents (the plaintiffs) are the only consents required. EM does not have a partner whose consent is required. I am satisfied that the plaintiffs and the defendant consent to the making of the parentage order. Each of these parties has made an affidavit which proves that consent. 18. Section 32 of the Act is satisfied as the plaintiffs are resident in New South Wales at the present time. 19. As ENA is living with the plaintiffs at the present time, the requirements of s 33 of the Act are also satisfied. 20. The altruistic surrogacy agreement dated 5 April 2014 is a written surrogacy arrangement in accordance with s 34. 21. Section 35(1) of the Act requires that each of the affected parties must have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement. The evidence establishes that Ms Miranda Montrone, a qualified psychologist, provided the necessary counselling to the plaintiffs and the defendant on 14 March 2014 and 3 April 2014 (see report dated 14 April 2014). I am satisfied that the requirements of s 35(1) are satisfied by this evidence. 22. Section 36(2) requires that a birth mother must receive further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order. Ms Montrone has provided a further report dated 24 April 2015, which establishes that she had a counselling session with the defendant on 14 April 2015 in which she provided the counselling required by this provision. 23. Under s 36 of the Act, each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangements, and the legal advice obtained by the birth mother must be provided by a legal practitioner who is independent of the legal practitioner who provided legal advice about the surrogacy arrangement to the plaintiffs. Under the Uniform Civil Procedure Rules 2005 (NSW) r 56A.9, an application for a parentage order must be accompanied by an affidavit sworn by each Australian legal practitioner who gave the advice required by s 36 of the Act, and the affidavit must contain specified information. Affidavits have been made by two independent Australian legal practitioners that comply with the requirements of the Rules, and established that the necessary advice was given to the affected parties. Accordingly, the requirements of s 36 have been satisfied. 24. Section 37 of the Act requires that all information about the surrogacy arrangement that is registrable information under a particular part of the Assisted Reproductive Technology Act 2007 (NSW) must have been provided to the Director-General of the Department of Health, for entry in the central register kept under that Act. The New South Wales Department of Health has confirmed by letter dated 1 May 2015 to MNM that the required information has been provided to the Director-General. 25. Section 38 of the Act requires that the birth of the child must have been registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW), given that ENA was born in this State. The birth of ENA was registered under that Act on 14 May 2015. EA was recorded as being the father and EM was recorded as being the mother. Until such time as the court makes a parentage order in favour of EA, he is not, in law, the father of ENA. In this case, MNM was the sperm donor, rather than EA. However, for the reasons that I gave in BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 at [95] to [105], as a matter of law, a male applicant for a parentage order is not the father of the child for the purposes of the registration of the birth of the child, even if the applicant was the sperm donor. See also the decision of White J in S v B; O v D [2014] NSWSC 1533 at [15] to [25]. In that case, the problem was that the birth mother had a husband who was deemed by law to be the father of the child, and should have joined with the birth mother in registering the birth of the child. The husband should have been registered as the father of the child, rather than the intending father in whose favour the parentage order was sought. In the present case, the birth mother, EM, did not have a husband at the time of the birth. That means that the child did not have a father at all for the purposes of the registration of his birth. 26. Accordingly, even though the birth of ENA has been registered, it has not strictly been registered in accordance with the requirements of the relevant Act. 27. The precondition to the making of a parentage order contained in s 38 of the Act is not stated to be a mandatory precondition. Accordingly, s 18(2) has the effect that the court may make the parentage order sought by the plaintiffs if it is satisfied that exceptional circumstances justify the making of the parentage order, despite the precondition not having been met. 28. To meet this problem, the plaintiffs have sought the following relief in par 2 of their summons: The Court waive the precondition in Section 38 of the Surrogacy Act, 2010 and find there are special circumstances to justify the making of the parentage order sought in Order 1. 1. In S v B; O v D at [26] to [32], White J considered the circumstances that were relevant to whether the court in that case should find that there were exceptional circumstances that permitted the court to make the parentage order, notwithstanding that the precondition in s 38 of the Act had not been satisfied. His Honour noted that the solicitor for the intending parents in that case had actually advised them that the intending father should take part in the registration of the birth of the child, and be noted as the father of the child. As White J observed at [32]: I think it must be unusual and out of the ordinary for parties to be advised by a solicitor that they need not comply with the requirements of the law. That is what the solicitor's advice amounted to in this case. No doubt the advice was well-meaning, but it was wrong. 1. It is not clear whether in the present case the plaintiffs were advised by their solicitor that EA should participate in the registration of ENA's birth on the basis that he was the father. I will only say that this course is not in accordance with the law, and it should not happen. Put simply, it is a dangerous business for applicants for parentage orders under the Act to intentionally fail to satisfy any precondition for the making of the parentage order, even one that is not mandatory. 2. White J was prepared in that case to find that there were exceptional circumstances. In part, his Honour took into account the fact that it was in the best interests of the child from the outset that an intending father be registered as the child's father, because having the intending father's name on the birth certificate as father assisted in the process of having the child's name on the Medicare card of the intending father soon after the birth of the child. That provided some practical protection to the child against the possibility of post-birth complications occurring for which a father's consent to medical treatment might have been required. It is to be noted, however, that White J also had regard to the fact that, in that case, the birth mother had a husband who had declined to participate in the registration of the birth of the child, or being nominated as the father of the child. 3. I am prepared in this case also to find that there are exceptional circumstances that allow the court to make a parentage order without the requirements of s 38 of the Act being satisfied. I have been influenced by the same considerations as was White J; by my satisfaction that it is in the best interests of ENA for the purposes of s 22 of the Act that the parentage order be made; and by my satisfaction that all other preconditions have been met. It would, in all of the circumstances, be extremely unsatisfactory if the court were unable to make a parentage order because of the fact that the precondition in s 38 of the Act had not strictly been satisfied. 4. This decision should not be regarded as establishing a general precedent that applicants for parentage orders will be entitled to a waiver of the requirement in s 38 of the Act, where one of the intending parents is registered as the father or the mother of the child, when that is contrary to the requirements of the law. That step should not be taken by the intending parents because of their desire that one of them be registered as the father, or the mother, as the case may be, from the initial date of registration of the birth of the child. Considerations concerning the convenience of the child's name being recorded on the Medicare card of one of the intending parents may not always be decisive, although it carries some weight. It would be unwise for intending parents to ignore what White J and I have said on this subject. 5. In all of these circumstances, I will make the orders sought in the plaintiffs' summons, which includes an order made under s 42 of the Act that ENA have the names requested by the plaintiffs.