An informed decision to give up one’s progeny freely and voluntarily to another has the potential to bring great happiness to the lives of those who are unable to bear children of their own. Sadly, however, surrogacy arrangements are ripe with the potential for remorse, harm to the child and commercial exploitation. For these reasons, the New South Wales Parliament recently enacted legislation to prohibit commercial surrogacy arrangements, while permitting the Supreme Court to recognise consensual surrogacy arrangements in appropriate circumstances. The Court has now provided useful guidance on the operation of the statute and, in particular, the evidence necessary to prove the arrangement is, in fact, consensual.
Jennifer and Adam very much wanted a child . However, Jennifer had undergone a medical procedure some years earlier, an unfortunate consequence of which was that she was unable to carry a pregnancy to full term.
In around 2004, Jennifer shared her sad news with her brother, Richard, and his wife, Patricia. In response, Patricia offered to carry a child for Jennifer. That offer, and the decision by Jennifer and Adam to accept it, was not made lightly. Together, the four of them sought advice and counselling from psychologists, psychiatrists, lawyers, doctors and case managers. A reputable IVF clinic was instrumental in arranging access to that advice. Having considered the experts’ counsel, the two couples arranged for eggs to be harvested from Jennifer, impregnated with Adam’s sperm and then implanted into Patricia.
Patricia gave birth to Lachlan on 3 July 2007 and immediately gave him to Jennifer and Adam to be placed in their care. Two months later, the two couples together sought and obtained orders from a Local Court in New South Wales that Lachlan reside with Jennifer and Adam and that they have sole parental responsibility. The Court made the orders as sought .
Eight months after the commencement of the Surrogacy Act 2010 (NSW) (the Act) on 1 March 2011, Jennifer and Adam took the novel step of seeking a ‘parentage order’ from the Supreme Court of New South Wales. Theirs was the first hearing of an application to transfer the parentage of a child to another person .
The Act and ‘parentage orders’
Under the Act, a parentage order would legally transfer the parentage of Lachlan so that :
Jennifer and Adam would officially become his parents and he their child
Lachlan would cease to be the child of Patricia and Richard and they would no longer be his parents
Lachlan would have the same rights in relation to Jennifer and Adam if he had been born to them, and
Jennifer and Adam would have the same parental responsibility to Lachlan as Patricia and Richard had to him before the order was made.
A parentage order can only be made in respect of a child of a surrogacy arrangement and, further, it must be a ‘pre-conception’ surrogacy arrangement, not an arrangement made after the birth mother is already pregnant (a ‘post-conception’ surrogacy arrangement) . The arrangement made by Jennifer, Adam, Patricia and Richard satisfied that part of the ‘pre-conception’ requirement but the Act also requires that they had agreed that Lachlan’s parentage be transferred to Jennifer and Adam .
Now, it was several years before the Act commenced when Patricia and Richard agreed to give Lachlan to Jennifer and Adam. It is unlikely that they discussed transferring Lachlan’s ‘parentage’ in those precise terms. However, the Act anticipates that persons might express an agreement to ‘transfer parentage’ in a number of ways. Where there is no express consent to transfer parentage, it is sufficient if the parties have reached an agreement, however it may be expressed, to :
treat the child as the child of another person and not the birth mother
transfer custody or parental responsibility of the child to another person, or
surrender permanently the right to care for the child.
There appeared to be such an agreement in the present case but, as noted below, this issue of proof of this consent received further attention from the Court.
The independent counsellor’s report
An agreement by the parties to transfer parentage is not itself sufficient to warrant the making of a parentage order. The application must be accompanied by the report of an independent counsellor who expresses an opinion that the proposed order is in the best interests of the child, together with their reasons for holding that opinion .
In support of their application, Jennifer and Adam filed an independent counsellor’s report and, as required by the Act, the report included the counsellor’s assessment of each of the following matters:
the extent to which each of Jennifer, Adam, Richard and Patricia understood that making the order would have social and psychological implications for each other and for Lachlan
the extent to which each of those four affected parties understood that openness and honesty about Lachlan’s birth parentage was in his best interests
the care arrangements that Jennifer and Adam proposed for Lachlan
any contact arrangements proposed in relation to Patricia, Richard and Lachlan
Jennifer’s and Adam’s parenting capacity, and
whether Patricia and Richard had given informed consent, freely and voluntarily .
The application was timely because the couples’ arrangement pre-dated the commencement of the Act and, for that reason, it was only possible for the couples to seek a parentage order within two years of the Act commencing. In other words, couples who have entered into similar arrangements only have around 12 months from the date of publication of this article within which time to bring an application for a parentage order.
When determining an application for a parentage order, the Court may have regard to any matter it considers relevant and may make such ancillary orders in relation to the child as it considers appropriate .
In addition, the Act stipulates certain preconditions that the application must satisfy in order for the Court to make a parentage order, some of which are mandatory. The existence of a pre-conception surrogacy arrangement is one of the mandatory preconditions set out in the Act. The other preconditions are :
making the order is in the child’s best interests (mandatory) 
the surrogacy arrangement must not involve the provision of any material benefit or advantage other than reimbursing the birth mother’s surrogacy costs (mandatory) 
there must be a single intended parent or two parents who are a couple (mandatory) 
the child must be under 18 years of age when the application is made and the Court must have regard to the child’s wishes if he or she is sufficiently mature to express them (mandatory) 
the birth mother and each intended parent must be 18 years of age or older when he or she entered into the surrogacy arrangement (mandatory) 
each applicant should reside in New South Wales, and the child should be living with them, when the application is heard (non-mandatory) 
the child’s birth must be registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 (NSW) or in accordance with the law of the jurisdiction in which the child was born (non-mandatory) 
information registrable under the Assisted Reproductive Technology Act 2007 (NSW) should be provided to the Department of Health for entry into a central register (non-mandatory), and 
each of the intended parents and birth parents must give informed consent, freely and voluntarily, to the making of the parentage order and must have the capacity to give that consent (mandatory unless they have died, lost the capacity to consent or cannot be located after reasonable endeavours) .
In the present case, the Court was satisfied that the first seven of these preconditions had been met.
However, the Court found that there was no evidence before it as to whether there was, in the present circumstances, any information registrable under the Assisted Reproductive Technology Act 2007 (NSW). As that precondition is non-mandatory, it was nevertheless open to the Court to make a parentage order if it was satisfied exceptional circumstances justified doing so .
Unfortunately, however, the Court was not satisfied in relation to the last precondition listed above. It was not persuaded that there was adequate evidence of the informed, free and voluntary consent of Patricia and Richard to the making of the parentage order. Jennifer and Adam had sought to rely solely on statements contained in the counsellor’s report to the effect that Patricia and Richard were ‘quite comfortable’ and ‘quite informed’ in relation to providing their consent. The absence of direct evidence of their informed consent was critical.
As Brereton J noted, the Court should have had, before it, written evidence from Patricia and Richard that established that each of them understood the legal and practical effect of providing consent and of a parentage order being made. That should then have been supported by affidavit evidence from a suitable qualified attesting witness (preferably a lawyer) to the effect that he or she had explained to Patricia and Richard the legal and practical effect of giving their consent, that they appeared to understand the explanation and that they gave their consent freely and voluntarily and had the capacity to do so.
In the absence of that evidence, the Court did not make the parentage order at the hearing but instead indicated that it would be prepared to make such an order upon being provided with evidence of informed consent, given freely and voluntarily, in the form described above, together with evidence as to any information registrable under the Assisted Reproductive Technology Act 2007 (NSW), as noted earlier.
It appears from the judgment that Patricia and Richard did not have the benefit of legal advice, independent of any provided to Jennifer and Adam, about the implications of providing their consent to the parentage order . The absence of that independent legal advice prevented the Court from making the orders sought.
As at the date this article was written, the Court has not made the orders sought by Jennifer and Adam. We may have to wait until the filing of the outstanding evidence required by Brereton J before we see the first parentage order made in New South Wales.
In the interim, this judgment provides a useful step-by-step guide to the application of the Act for parentage order applications that may be brought in future.
The objects of the Act emphasise that the best interests of the child must at all times be paramount in connection with the making of a parentage order. This judgment gives effect to that object and demonstrates that the Court will not give effect to the transfer of the child’s parentage by waiving any mandatory preconditions set out in the Act, nor assume that exceptional circumstances warrant the waiver of non-mandatory preconditions.
Practitioners who are asked to assist in the obtaining of a parentage order should ensure that all of the mandatory preconditions specified in the Act are satisfied. Particular care needs to be taken in respect of surrogacy arrangements entered into after 1 March 2011, to which additional preconditions apply.
For more information, please contact:
T +61 2 8233 9640
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1 Not their real names. It is an offence under the legislation to publish any material that identifies, or is reasonably likely to identify, a person as a person affected by a surrogacy arrangement. For ease of reference, this article adopts names with the same first initials as those appearing in the judgment.
2 Under the Family Law Act 1975 (Cth).
3 AP v RD & Anor  NSWSC 1389; BC201108969.
4 s39 of the Act.
5 ss12 and 24 of the Act.
6 s5(1)(a) of the Act.
7 s5(2) of the Act.
8 s17 of the Act.
9 If the counsellor considers that the child is sufficiently mature to express his or her wishes, then the counsellor must also report his or her assessment of the child’s wishes. Here, however, Lachlan was only four years old at the time of the assessment.
10 ss18 and 19 of the Act.
11 Additional preconditions apply to surrogacy arrangements entered into after 1 March 2011, including requirements relating to counselling, legal advice and that there be a medical or social need for the surrogacy arrangement.
12 s22 of the Act.
13 ss9 and 23 of the Act.
14 s25 of the Act.
15 s26 of the Act.
16 ss27 and 28 of the Act.
17 ss32 and 33 of the Act.
18 s38 of the Act.
19 s37 of the Act.
20 s31 of the Act.
21 s18(2) of the Act.
22 See AP v RD  NSWSC 1389; BC201108969 at .