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When Is A Biological Parent Not A Legal Parent?

Question – when is a biological parent not a legal parent? Answer – in the ever-increasing world of surrogacy, it would appear.

A number of recent family law decisions have highlighted the legal minefield involved in surrogacy arrangements – whether altruistic or commercial.

In Shaw & Lamb and Ors, the Full Court of the Family Court upheld an appeal by a birth mother against an Order made by the primary Judge ordering the biological father be included on the child’s birth certificate. It was not in dispute that the father was in fact the biological father of the child. What was in dispute was whether that meant that the biological father was the child’s legal parent as a result of the child being born as a result of an altruistic surrogacy arrangement.

The child was born in Queensland. The Full Court endorsed another recent Full Court decision – Bernieres & Dhopal – which held that each of the States and Territories regulate the status of children born under surrogacy arrangements and not Commonwealth law – ie the Family Law Act. In Queensland, the relevant regulations are the Surrogacy Act 2010 and the Status of Children Act 1978.Here, the married couple had not sought a “parentage order” in Queensland’s Children’s Court pursuant to the provisions of the Surrogacy Act to the effect that they would be the child’s legal parents. Had such a parentage order been made, then a transfer of parentage to the married couple would have occurred and been recognised in the Family Court.

However, as no parentage order was made, it fell to the Status of Children Act to determine the child’s parentage. That Act operated such that the donor of sperm used to fertilise a donor ovum implanted into another woman’s womb, remains the father of the resultant child, but has no rights or liabilities relating to it and further, there is an irrebuttable presumption that the ovum donor is not the mother of the child, but the recipient is.

So, whilst the biological father was the father, he was not a parent pursuant to the Family Law Act and nor was the ovum donor (the father’s wife) the child’s mother or its parent.

In Sigley & Sigley a couple originally from Victoria but living in the USA, entered into a commercial ‘Gestational Surrogacy Agreement’ in the USA. Twin daughters were born as a result and the couple were the biological parents of the girls. Following their birth, parenting Orders were made in the USA confirming the couple’s legal parentage of their daughters. The couple then sought to register the parenting orders in Australia as an ‘overseas child order’ which would give the Orders the same force and effect as if they had been made in Australia – ie the couple would be the girls’ legal parents.

Commercial surrogacy (variously defined as payment beyond reimbursable expenses) is prohibited in Australia. It is also a criminal offence for residents of NSW, Qld and the ACT to engage in commercial surrogacy offshore. The couple did nothing illegal. That is the case even if they had been resident in Victoria and had travelled to the USA. For these (and other reasons) Forrest J decided that the commercial nature of the arrangement was no reason to not register the Orders. The couple were, accordingly, the girls’ legal parents.

Compare this result then to the abovementioned case of Bernieres & Dhopal which also involved an overseas commercial surrogacy arrangement. In that case, the ‘intended parents’ sought a declaration of parentage but were denied. Bernieres & Dhopal was the first decision of the Full Court of the Family Court which considered whether it is legally possible for the Court to make a declaration of parentage in international surrogacy cases. The unanimous answer to that question was ‘no’, even when there is clear evidence that the Australian ‘intending parent’ is genetically the parent of the child and the woman who worked as the surrogate has no genetic link to the child.

The difference between the two cases appears to be that one set of ‘intended parents’ sought to register an overseas parentage order already made whilst the other set of ‘intended parents’ sought a declaration of parentage in the first instance.

For mine, surely there needs to be a more consistent approach in determining who is a parent when a surrogacy arrangement is involved?

Image Credit – Mladen Mitrinovic ©

Written by Michelle McDermott on May 3, 2018

Michelle prefers a pragmatic approach to resolving matters and pays particular attention to ensuring that her clients not only feel supported in the process but also that they understand, and are involved in, the decision making throughout. If, however, Court proceedings are required, Michelle has the skills and strategies to litigate cases efficiently. View Michelle’s profile

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