For people in same sex relationships, pondering the possibilities of parenthood, there are a number of options available to them in their quest to have a child. None of them is necessarily straightforward or without some legal risk and or uncertainty.
Lesbian couples may readily access the services of fertility clinics both in the ACT and elsewhere to assist them in having a child. If sperm is to be provided by a known donor, a formal agreement with that person should be entered into to set out the expectations of all parties as to the role, if any, the donor will play in the life of the child.
People change their minds. That agreement will not prevent the donor making an application to a Court in pursuit of a relationship with the child. This risk does not apply if anonymous donor sperm has been used.
Relationships end. A child born to a same sex couple from an assisted conception will be considered the child of the couple and both are parents under the Family Law Act. The person carrying the child or the person with the genetic connection to the child will not have primacy, for those reasons alone, in any parenting application before the court. The best interests of the child will be the paramount consideration when making orders for that child.
In the ACT The Parentage Act 2004 permits altruistic surrogacy arrangements, whereby a person conceives and delivers a child to be raised by other people. There are significant limitations in the Act.
The Court will consider an application for parentage orders under a substitute parent agreement if:
1. the child is conceived as a result of a procedure performed in the ACT;
2. neither birth parent is a genetic parent of the child;
3. there is a substitute parent agreement, other than a commercial agreement, under which the two substitute parents have indicated their intention to apply for a parentage order for the child;
4. at least one of the substitute parents is a genetic parent of the child; and
5. the substitute parents live in the ACT.
The Court must be satisfied that the order would be in the best interests of the child; that the birth parents have freely and fully consented (or are now dead or cannot be located); there was no payment or reward (other than expenses reasonably incurred); and that the parties have had appropriate independent counselling (independent of the doctor or institution carrying out the procedure).
This ACT surrogacy framework therefore excludes:
- overseas surrogacy arrangements,
- arrangements whereby one of the birth parents has a genetic connection to the child;
- arrangements where the substitute parents have no genetic connection to the child; and
- surrogacy for a single parent.
Overseas and commercial surrogacy
There are sound policy grounds for opposing commercial surrogacy arrangements. The risk of exploitation of vulnerable women, especially in economically disadvantage countries, is significant. It is difficult to ensure that the financial benefits of the surrogacy arrangement actually flow to the surrogates and their families. It is difficult to ensure that women give free and informed consent to these arrangements. How will states guard against the risk of “baby farming” in circumstances where the truth about the families of origin may be concealed.
In Australia, commercial surrogacy is prohibited and criminal sanctions apply. All states and Territories with surrogacy legislation have included provisions dealing specifically with commercial surrogacy.
In the ACT, Queensland and NSW, the prohibitions against commercial surrogacy have extra-territorial effect. Residents of the ACT who seek commercial surrogacy overseas are at risk of prosecution in the ACT.
Despite these provisions, “fertility tourism” is thriving. People take these steps when other fertility remedies in this country have failed or are not available to them. It appears that commercial surrogacy arrangements are probably occurring regularly.
Careful consideration of the overseas surrogacy agreement needs to occur. We recommend obtaining advice about the effect of the agreement and the risks arising from such both in Australia and in the country in which the procedure is to occur.
Pregnancy is not without risk. The Agreements often express obligations around the “health” of the child and measures relating to termination in certain circumstances. Who is responsible for the child if a party changes their mind? Who takes care of the child if born with a disability or health condition not otherwise detected in genetic or other screening? The “what ifs” are many and often grim.
Bringing the child back to Australia may create challenges. If one of the “parents” has a genetic link to the child, (providing the sperm for the artificial conception process) that may be sufficient for immigration purposes. That parent is commonly named on the birth certificate for the child, (along with the birth mother).
Formal recognition of the parenting relationship with the child is important. In a practical sense, enrolling a child in school, obtaining medical assistance and a myriad of other day to day parenting tasks require proof of the parenting relationship.
The Family Law Act does not define “parent”. The Act contains provisions to address parentage of children born as a result of artificial conception procedures (section 60H). That provision assigns parentage to persons in a relationship at the time of the artificial conception process. If the surrogate mother is in a relationship at the time of the birth of the child that woman and her partner, at first instance, will be presumed to be the parents of the child. The donor of genetic material is expressly excluded as a parent.
Section 60HB of the Act recognises parenting orders made under State or Territory surrogacy legislation.
What will the court do?
The Family Court has taken quite different approaches to parenting applications made by Australian parents of children born in international surrogacy arrangements.
In two recent decisions, involving the same family, two Judges responded differently to the same set of facts (Dennis and Pradchaphet  FAM CA 123 and Dudley and Chedi  Fam CA 502). An Australian couple travelled to Thailand and participated in a formal surrogacy arrangement with two different women. Three children were born as a result and the male applicant was the sperm donor for each pregnancy. The birth mothers were not the genetic mothers of the children. The applicant’s partner had no genetic connection to the children.
In the first case, the Judge made a finding of parentage for the male applicant, based on a DNA test in evidence. The applicant’s partner could not be declared the parent of the child as none of the possible legislative pathways applied. However, a person does not need to be a parent to seek parenting orders. Usually, the Court is required to direct parties to participate in counselling before it will make a consent order about parental responsibility or a child living with a non-parent.
In this instance, the court recognised the futility of requiring that counselling process occur, given where the birth mother lived and the evidence before the court about her decision not to have a relationship with the child.
Orders for the children to live with the applicants and for equal shared parental responsibility were made.
However, a different Judge subsequently heard the other application concerning the twins. The Judge noted that under the Queensland legislation at the time of the procedures, surrogacy arrangements were illegal. Subsequent Queensland law (The Surrogacy Act 2010) permitted surrogacy arrangements, but not commercial surrogacy agreements.
The Judge was critical of aspects of the evidence before him and inferred that the surrogacy arrangement was commercial.
While the Judge granted the parenting Orders sought by the couple (residence and parental responsibility orders) as being in the best interests of the children, he didn’t declare the male applicant to be a parent. Noting that the actions of the applicants “appeared to be illegal” the Judge referred the matter to the Queensland DPP for consideration. It is understood that the DPP declined to take the matter further.
In another Family Court decision in 2012, (Ellison and Anor And Karchanit  Fam CA 602) the applicants also engaged in a surrogacy arrangement in Thailand. An unknown egg donor was used and one of the applicants (Mr. Ellison) provided the sperm. Twins were born. The other applicant, Mr. Ellison’s partner, had no genetic connection to the children.
The applicants were also from Queensland, and it was apparent that at the relevant time, the surrogacy arrangement was illegal. The Judge dealt with the possible criminality of the arrangement differently and granted certificates, under the Evidence Act, to the applicants, to prevent the use of their evidence in the Family Court proceedings in other proceedings.
The Judge made a series of recommendations about the development of best practice in these cases. Mr. Ellison sought a declaration of parentage arising from the DNA testing results. That declaration was made. However, there was no order that could be made by the Court to also declare his partner to be a parent of the children.
It appears that state based adoption legislation may provide the final solution for those parents and children who cannot obtain parentage orders under either surrogacy legislation or the Family Law Act.