Last month the Family Law section of the Law Council released its comprehensive report about a range of issues relating to parentage under the Family Law Act. The report of the Family Law Council was released on 14 August 2014 (http://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Pages/FamilyLawCouncilpublishedreports.aspx) and contains 19 new recommendations about issues related to who is considered to be a parent under the Family Law Act 1975 and whether those provisions in the Family Law Act lead to outcomes which are “appropriate, non-discriminatory and consistent for children”.

The release of this report is particularly timely in light of events relating to baby Gammy, a child born (in Thailand) to a Thai surrogate mother, whose father is an Australian and whom, along with his wife, is accused of having abandoned the child, who was suffering from a number of serious health issues.

The reference to the Family Law Council was made by the former Attorney General Nicola Roxon, in part in recognition of the diversity of families in Australia, the rapid pace of change to reproductive technology and changing attitudes in our communities about family.

The report has attempted to focus on the interaction between the law and social and domestic considerations around family, and the fundamental concern to ensure children are not disadvantaged because of inconsistencies in or the failure of the law to provide for the particular circumstances of their parentage.

While 19 new recommendations are made in the Report, Council clearly urges the Government to enact a Federal Status of Children Act to “provide a clear statement of parentage laws for the purposes of all laws of the Commonwealth.” (Executive summary, vii)

This would also allow part VII of the Family Law Act (the part dealing with children) to focus on how parties (and the Courts,) can best resolve disputes about parenting of children after a relationship has ended, based on what is in the best interests of the children, and not on the legal status or otherwise of the adults interested in the care of the children.

There are presently inconsistencies between certain provisions in the Family Law Act including a definition of “parent” in the definition section, certain (rebuttable) presumptions of parentage, other sections that “deem” a child to be the child of certain people in certain circumstances, and the power of the Court to make declarations about parentage in certain circumstances. In some instances, the operation of these provisions is unclear, particularly in relation to surrogacy arrangements, and especially in circumstances where particular State or Territory legislation about the status of children may not apply.

The inconsistency between these provisions is well illustrated by the circumstances of a single woman who has a child from an assisted reproductive process – and the donor of the genetic material is not excluded under section 60 H of the Family Law Act from being a parent of the child. Or consider the situation where in a surrogacy case, the intended father is not a father of the child born to the surrogate mother if the mother has a partner.

The Family Law Council has recommended that the Family Law Act should be as consistent with State and Territory laws as possible on these issues and recommends amendment to Section 60 H of the ACT (children born as a result of assisted reproduction technology). The principal recommendation from the Council about these issues is the creation of a separate Status of Children Act for all Commonwealth laws.

The particular difficulties relating to children born as a result of surrogacy arrangements are addressed comprehensively in the Report. In particular, the provisions in the Family Law Act relating to domestic surrogacy arrangements (s60HB) don’t apply to children born outside of Australia or under a commercial surrogacy arrangement (which agreements are prohibited under all State and Territory legislation about surrogacy). The report suggests that “many hundreds” of children have been born to Australian couples as a result of overseas surrogacy arrangements, yet only 19 cases have been brought to the Family Law Courts in which parties have sought parentage orders about the children. The Family Law Council expressed grave concern for the many children who must accordingly, be living in Australia without a secure legal (parentage) relationship to the people caring for them.

The Family Law Council recommends an international regulatory response to these issues, but in the meantime, recommends striking a balance between the concerns about the exploitation of surrogates, the protection of children’s identity rights and ensuring that children born from illegal surrogacy arrangements are not denied legal status. Council recommended providing the Family Court with power to effect, after the birth of the child, a transfer of the child’s parentage from the surrogate to the intended parents, as long as certain safeguards are met. These might include (Recommendation 13):

a) That the Order is to be subject to the best interests of the children;
b) That allowance is made for parties who may change their minds;
c) The surrogate mother must provide full and informed consent;
d) The surrogacy agreement, including details of any money paid, must be in evidence;
e) Regard should be had as to whether the intending parents have acted in good faith towards the surrogate mother;
f) Details of the actions taken or arrangements made by the intended parents to ensure the child has access to information about the child’s genetic, gestational and cultural origins must be included;
g) If the arrangement involves multiple births, orders must be made for all children born;
h) The legality of the surrogate arrangement should remain a relevant consideration for the Court when making a decision about parentage.

Hopefully, further reform at a Commonwealth level, will follow on from the measured recommendations contained in this Report.

Di Simpson is one of the Partners of DDCS Lawyers, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.