BA & Anor v LM & Anor [2022] QChC 4

CHILDRENS COURT OF QUEENSLAND CITATION: BA & Anor v LM & Anor [2022] QChC 4 PARTIES: BA and SJ (Applicants) v LM and KA (Respondents) FILE NO: D17/22 PROCEEDING: Application for a parentage order DELIVERED ON: 25 February 2022 DELIVERED AT: Maroochydore HEARING DATE: 25 February 2022 JUDGE: Cash QC DCJ ORDER: Order as per draft. CATCHWORDS: SURROGACY ARRANGEMENT – application for a parentage order – where parties entered into an altruistic surrogacy arrangement – whether the order is for the wellbeing and in the best interests of the child – where all parties consent to the order. LEGISLATION: Surrogacy Act 2010 (Qld) APPEARANCES: Applicants appeared in person. No appearance by the respondents. [1] HIS HONOUR: This is an application for a parentage order under the Surrogacy Act 2010 (“the Act”) in respect of a child I will refer to as DH. The present application is made to give effect to the surrogacy arrangement and to recognise the applicants as DH’s parents. It is the second time I have had the pleasure of meeting the applicants and approving a surrogacy arrangement. The first occasion was in 2019 in respect of a young girl who will be DH’s older sister. [2] Before I deal with the application, I wish to make some observations about the way in which I will refer to the parties and to the child. It does seem cold and insensitive to mention them only acronyms, but it is necessary because it guards the privacy of the parties in a manner that is consistent with section 51 and 53 of the Act. As such, and without intending any disrespect, I will refer to the applicants as BA and SJ, the respondents as LM and KA, and to the children as DH and also PJ. [3] It is convenient to commence with the legislative framework under the Act. Among the Act’s guiding principles is the paramountcy of the wellbeing and best interests of a child born because of a surrogacy arrangement. As well, the autonomy of consenting adults in -- 1 of 4 -- their private lives is to be respected.1 A surrogacy arrangement is an arrangement under which a woman (and, if relevant, their spouse) agrees to become pregnant with the intention that any child of the pregnancy will be treated as the child of the other parties to the arrangement.2 While commercial arrangements are prohibited, the birth mother may be reimbursed their surrogacy costs.3 A parentage order is an order for the transfer of parentage of a child born as a result of a surrogacy arrangement.4 An application for a parentage order must be made no sooner than 28 days, and no later than six months, after the birth of the child.5 The court may make a parentage order only upon satisfaction of the matters set out in section 22. Those matters are:6 (a) the proposed order will be for the wellbeing, and in the best interests, of the child; (b) the child— (i) has resided with the applicant, or joint applicants, for at least 28 consecutive days before the day the application was made; and (ii) was residing with the applicant, or joint applicants, when the application was made; and (iii) is residing with the applicant, or joint applicants, at the time of the hearing; (c) the applicant, or joint applicants, were entitled to apply under section 21; (d) there is evidence of a medical or social need for the surrogacy arrangement; (e) the surrogacy arrangement— (i) was made after— (A) the birth mother and the birth mother’s spouse (if any), jointly or separately; and (B) the applicant, or joint applicants (jointly or separately); obtained independent legal advice about the surrogacy arrangement and its implications; and (ii) was made after each of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants, obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications; and (iii) was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants; and (iv) was made before the child was conceived; and (v) is in writing and signed by the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants; and (vi) is not a commercial surrogacy arrangement; (f) the birth mother and the birth mother’s spouse (if any) were at least 25 years when the surrogacy arrangement was made; (g) the applicant, or each of the joint applicants— (i) was at least 25 years when the surrogacy arrangement was made; and (ii) is resident in Queensland; 1 Section 6. 2 Section 7. 3 Sections 10 and 11. 4 Section 12. 5 Section 21. 6 The court may dispense with some of the matters in section 22 if there are exceptional circumstances. As the applicants have proved the relevant matters it is not necessary to consider this provision. -- 2 of 4 -- (h) the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant, or joint applicants, consent to the making of the parentage order at the time of the hearing; (i) a surrogacy guidance report under section 32 supports the making of the proposed order. [4] With this in mind I turn to the evidence in the present application. The applicants are a married couple and apply jointly for the parentage order. There is a social need for the surrogacy arrangement as both applicants possess male sex characteristics, so they are unable to conceive.7 The applicants depose that they made an altruistic surrogacy arrangement with the respondents in January 2021. As I have mentioned, this was the second time such an arrangement had been made. For the applicant’s eldest child, the second respondent KA carried the pregnancy. On this occasion the first respondent LM carried DH. Prior to making the agreement, all parties received counselling and independent legal advice. The first applicant, BA, provided sperm and a friend donated her eggs. The donor egg was fertilised, and an embryo transfer took place in late January 2021. The resultant embryo was carried by first respondent, LM, and on 11 October 2021 a child, DH, was born at a hospital in New South Wales. [5] Following the birth of DH, he was given into the applicants’ care. The birth was registered with the child’s full name, which includes the applicants’ surname. The child has lived with the joint applicants since the date of his birth and came to Queensland with them 10 days after his birth. The application was filed on 17 January 2022. I am satisfied, therefore, that the application was made not less than 28 days and not more than six months after the child’s birth.8 [6] The surrogacy arrangement involved parties in New South Wales but nothing in the Queensland Act suggests the legislation does not recognise arrangements made involving people outside the jurisdiction. Before making the surrogacy arrangements the relevant parties received appropriate counselling and independent legal advice. There is affidavit evidence from the parties’ solicitors and qualified counsellors to that effect. The surrogacy arrangement was made with the consent of all relevant parties and was entered into before DH was conceived. The arrangement is in writing and is not a commercial surrogacy arrangement. The applicants personal circumstances are that they are now aged 36 and 29. They reside in Queensland. They live in comfortable circumstances and are raising DH’s older sister. The respondents are both aged 35. They have two daughters. And, as I have mentioned, all of the parties consent to the making of the order. [7] The applicants have filed an affidavit of Ms Dickinson, psychologist, exhibiting a surrogacy guidance report as required by section 32 of the Act. Ms Dickinson is satisfied that the making of the proposed parentage order would be for the wellbeing and in the best interests of DH and recommends that the orders be made. [8] It of course remains for me to be satisfied that the proposed parentage order would be for the wellbeing, and in the best interests, of DH. The evidence shows that the applicants have demonstrated their capacity to care for children and have the parenting skills required to meet the needs of DH. The applicants’ daughter, PJ, whom I have already mentioned and who is present here in court, is a testament to their capabilities as parents. It is apparent that 7 Section 14. 8 Section 21(1). -- 3 of 4 -- the applicants are a caring and loving couple. DH has lived with the applicants from just after his birth. He is already a member of their family and PJ is enjoying her role as big sister. The applicants are good friends with the respondents and have discussed and made plans to maintain the relationship. In due course, the applicants intend to inform DH about his surrogacy story and the role the respondents played in his conception. The respondents’ generosity in becoming a surrogate for the applicants on a second occasion and supporting this present application is again a matter that ought to be acknowledged. [9] In the circumstances, I am comfortably satisfied that the proposed parentage order is for the wellbeing, and in the best interests of, DH. I make an order transferring the parentage of DH to the applicants in terms of the draft order that I have initialled and will place with the papers. -- 4 of 4 --