hubert & juntasa [2011] famca 504

FAMILY COURT OF AUSTRALIA

HUBERT AND ANOR & JUNTASA [2011] FamCA 504

FAMILY LAW - CHILDREN - overseas surrogacy arrangement – where the first applicant provided the sperm – where the applicants are resident and domicile in NSW – where at the time the arrangements were entered into NSW law did not have extraterritorial effect – where Australia granted visa for the child to live in Australia – whether it is appropriate to make a finding as to parentage - child to live with the applicants - the applicants to have equal shared parental responsibility of the child

Family Law Act 1975 (Cth)Assisted Reproductive Technology Act 2007 (NSW)Crimes (Sentencing Procedure) Act 1999 (NSW)Crimes Act 1900 (NSW)Surrogacy Act 2010 (NSW)Status of Children Act 1996 (NSW)

Dudley and Anor & Chedi [2011] FamCA 502

1st APPLICANT: Mr Hubert

2nd APPLICANT: Mr Peralta

RESPONDENT: Ms Juntasa

FILE NUMBER: SYC 1786 of 2011

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lewis Law

FamCA Coversheet and Orders

ORDERS

1. The child P born … September 2010 (“the child”) live with the applicants, Mr Hubert and Mr Peralta.

2. The applicants have equal shared parental responsibility for making decisions about long term issues and day to day issues in respect of the child.

It is noted that publication of this judgment under the pseudonym Hubert and Anor & Juntasa is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

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FamCA Coversheet and Orders

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7186 of 2011

Mr Hubert and Mr Peralta Applicants

And

Ms Juntasa Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The child was born by a surrogacy arrangement in Bangkok, Thailand. This was overseen by a fertility centre in Bangkok. Mr Hubert, the first applicant, provided his sperm, to enable the production of the zygote. The anonymous donor of the egg is not a party to these proceedings. The fertilised zygote was implanted in the surrogate mother’s uterus. The surrogate mother was a gestational carrier only. The child was then born in September 2010.

2. The child’s birth mother consents to the applicants having orders made in their favour under the Family Law Act 1975 (Cth) for parental responsibility and for the child to live with them at their home in New South Wales.

3. The surrogate mother placed the child into the sole care of the applicants almost immediately after the birth of the child. The child shortly thereafter travelled to New South Wales, Australia with the applicants and has lived with them since that time.

BACKGROUND

4. The first applicant, Mr Hubert, was born in Australia in 1971 and is now 40 years of age. The second applicant, Mr Peralta, was born in South America in 1966 and is now 44 years of age. Both parties are Australian citizens. They have lived in a de facto relationship since 1996.

5. The applicants, both male, sought the assistance of doctors at a fertility clinic in Thailand in order to have a child through surrogacy.

6. The Thai birth certificate of the child shows the first applicant and the surrogate mother as the parents of the child. Soon after the child’s birth, DNA testing was undertaken, which concluded on 25 October 2010 that the first applicant was the biological father of the child.

FamCA Reasons Page 1

7. The child was refused an Australian visa on the basis of descent of an Australian citizen, failing the production of a Thai court order that the surrogate mother has relinquished her right as a parent. I am told it is not possible to obtain such an order in Thailand. On 5 November 2010 a sub-class 101 visa was granted permitting the child to travel to Australia with the father by the Australian Embassy in Bangkok. The parties wish my orders to enable them to apply for Australian citizenship for the child.

DOCUMENTS RELIED UPON

8. The applicants read the following material:

8.1. Application for Consent Orders filed 23 March 2011;

8.2. Affidavit of Mr Hubert filed 23 March 2011;

8.3. Affidavit of Mr Peralta filed 23 March 2011;

8.4. Affidavit of Ms Juntasa (surrogate mother) filed 23 March 2011;

8.5. Affidavit of Mr N (former husband of surrogate mother) filed 23 March 2011;

8.6. Affidavit of T (Thai lawyer) filed 23 March 2011;

8.7. Affidavit of S (Interpreter) filed 23 March 2011;

8.8. Parenting Plan dated 9 March 2011; and

8.9. Case Outline Document (Exhibit 1).

THE ILLEGALITY OF THE AGREEMENT

9. The applicants are resident in New South Wales. The applicants entered into their surrogacy arrangements prior to 1 March 2011. The relevant law regulating surrogacy in operation when the applicants entered their surrogacy arrangement and when the child was born, was s 42 to 45 of the Assisted Reproductive Technology Act 2007 (NSW) (“ARTA (NSW)”). Section 43 ARTA (NSW) prohibits entering into, arranging or receiving benefits under a commercial surrogacy arrangement in New South Wales. The penalty is 100 penalty units ($11,000 as per s17 Crimes (Sentencing Procedure) Act 1999 (NSW)) or two years imprisonment. Section 45 renders surrogacy agreements void.

10. I infer that the birth mother was paid some type of fee, either directly by the applicants or by the Thai clinic (which then passed those costs onto the applicants). I suspect, but I do not know, that the fee was an amount more than the birth mother’s costs.

11. I refer to my judgment in the case of Dudley and Anor & Chedi [2011] FamCA 502 regarding the rationale behind the illegality of commercial surrogacy.


12. I have no evidence as to what, if any, safeguards were in place to protect the surrogate mother from emotional or financial harm. I do acknowledge that the surrogate mother:

12.1. Spoke to the parties with the aid of an interpreter before she entered into a surrogacy agreement with them;

12.2. Had the content of Thai law in the area of surrogacy explained to her by a Thai lawyer;

12.3. Had the content of Australian law in the area of parenting explained to her by an interpreter;

12.4. Had the Parenting Plan read to her in her own language before she signed it; and

12.5. Was read the Australian court documents in her own language before signing them.

LACK OF GEOGRAPHICAL NEXIS

13. Although s 43 ARTA (NSW) created an offence had the applicants done what they had done entirely in New South Wales, before 1 March 2011 it was not illegal for a person ordinarily resident or domiciled in New South Wales to enter into a commercial surrogacy arrangement outside Australia. The offence created by s 43 ARTA (NSW) was subject to Part 1A Crimes Act 1900 (NSW) (“CA (1900)”) and in particular, s 10C CA (1900). It is not clear that it could be said that the offence has an effect in the State of New South Wales. Part 1A CA (1900) and in particularly s 10C CA (1900) would mean that the applicants are unlikely to be guilty of a criminal offence.

DEFINITION OF PARENT

14. The surrogate mother swore that she and her former husband were divorced on 25 May 2010, and were separated at the time of the procedure. She gave evidence that she was not in another de facto relationship with any other man at that time of the procedure. The former husband of the surrogate mother swore that they divorced on 5 May 2010 (I assume that the difference in dates is a typographical error). He further deposed that he did not consent to the artificial conception procedure in relation to the child in which the surrogate mother was involved. Like the case of Dudley and Anor & Chedi therefore, the provisions of s 60H FLA are not enlivened and the child is not precluded from being the child of the applicants.

15. I refer to my reasons in the case of Dudley and Anor & Chedi for further discussion of the applicable law regarding the assessment of ‘parent’ for the purpose of the FLA.

16. In relation to the current state law regarding parentage, the applicants are not assisted. A parentage order may be made under the Surrogacy Act 2010 (NSW)


even if the surrogacy agreement was entered into before the commencement of the act (s15). However, a number of sections in the Surrogacy Act 2010 (NSW) preclude a State parenting order in the applicants’ favour including the requirements that: all parties undertake counselling (s35); and most importantly, it is mandatory that the agreement is not a commercial surrogacy agreement (s23). The Status of Children Act 1996 (NSW) also does not assist, with an irrebuttable presumption (s14(4)) that the surrogate mother is the parent (s14(3)), and the first applicant, being a sperm donor, is not (s14(2)). I note that Status of Children acts are generally more applicable to the protection of a sperm or egg donor in more conventionally assisted reproductive procedures.

17. The applicants have not yet sought to gain parental status by seeking leave to adopt the child.

18. As in Dudley and Anor & Chedi despite the uncertain parentage under state law, I note that I do not need to make an assessment of the child’s parentage to make the orders sought in this case, and so decline to do so because of the public policy concerns behind how current surrogacy laws have been framed in New South Wales and consistently with other places in Australia.

19. I find that the two applicants are persons concerned with the care, welfare and development of the child under 65C(c) FLA and so may make an application for orders. I made this finding for similar reasons as I did in Dudley and Anor & Chedi that is:

19.1. The applicants and the surrogate mother all say on their oath that the first applicant provided his genetic material to fertilise the anonymously donated egg in the IVF process;

19.2. DNA testing has established that the first applicant is the child’s biological father;

19.3. The first applicant is registered as the father on the child’s Thai birth certificates and “House Registration” documents;

19.4. Both applicants have assumed the role of parents to the child almost immediately on her birth;

19.5. Both applicants intend to provide ongoing care and support for the child; and

19.6. The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the child’s life, except the surrogate receiving a photograph of the child once a year.

20. In relation to section 65G FLA, I find as I did in Dudley and Anor & Chedi that it would be futile for the parties to discuss any proposed orders with a family consultant. The surrogate mother lives in Thailand and has clearly indicated that she intended to relinquish all her rights and obligations in relation to the child


and that she consents to the proposed orders. I am satisfied that I may make the orders sought by the first and second applicant even though the ordinary conditions of s 65G FLA have not been complied with.

BEST INTERESTS

21. The orders that I am asked to make have to be made with the best interests of the child as my paramount consideration (s 60CA FLA). Given that I am considering whether to make an order with the consent of all the parties to the proceedings, I may, but I am not required to, have regard to all or any of the matters set out in sections 60CC(2) and (3) FLA.

22. In respect of the issue of parental responsibility, section 61DA FLA creates a presumption that a child’s parents have equal shared parental responsibility (s 61EA(1)). The presumption can be rebutted however if there is a finding that the application of the presumption would not be in the best interests of the child (s 61DA(4)). The surrogate mother proposed to play no role in the child’s life. Although I have not made a finding that the applicants are ‘parents’ of the child, nonetheless, I find that it is in the child’s best interests that the applicants have equal shared parental responsibility for the child.

23. The applicants seek an order that the child live with them. In an assessment of the child’s best interests I note it is undisputed that the child is currently living with the applicants in NSW, the only parents she has known. The applicants have always intended to care for the child as their own, an arrangement detailed in the Parenting Plan exhibited. It is undisputed that the surrogate mother does not intend to care for the child and wants no relationship, save for a yearly photograph. It is undisputed that the egg donor is unknown.

24. The applicants have shown they can more than adequately provide for the material needs of the child, which they have been doing since soon after her birth. They have formulated an appropriate plan for the care of the child with flexibility. The applicants currently live within a convenient distance to all facilities they may require as new parents. The applicants intend to preserve the child’s culture and give her the option of learning her local language and religion.

25. Accordingly, I find that the orders as sought are in the child’s best interests.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 June 2011.

Associate:

Date: 30.6.2011


hubert & juntasa [2011] famca 504

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