BA & Anor v KA & Anor [2019] QChC 40

CHILDRENS COURT OF QUEENSLAND CITATION: BA & Anor v KA & Anor [2019] QChC 40 PARTIES: BA and SJ (Applicant) v KA and LM (Respondent) FILE NO/S: D 149/9 DIVISION: Civil PROCEEDING: Application for a parentage order ORIGINATING COURT: Childrens Court of Queensland at Maroochydore DELIVERED EX TEMPORE ON: 8 November 2019 DELIVERED AT: Maroochydore HEARING DATE: 8 November 2019 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 – whether there is a medical or social need for the surrogacy –where all parties consent to the order. LEGISLATION: Surrogacy Act 2010 (Qld) APPEARANCES: Applicants in person Respondents in person [1] HIS HONOUR: The applicants are a married couple. They apply for a parentage order pursuant to the Surrogacy Act 2010 in relation to a child. As both applicants possess male sex characteristics, they are unable themselves to conceive. The respondents to the application generously agreed to enter into an altruistic surrogacy arrangement so the applicants could achieve their desire of becoming parents. The first applicant, BA, provided sperm and a friend donated eggs. The resultant embryo was carried by the first respondent, KA, and, on 24 June 2019, a child, PJ, was born at the Sunshine Coast University Hospital. -- 1 of 4 -- 2 [2] The present application is made pursuant to the Surrogacy Act to give effect to the surrogacy arrangement and to recognise the applicants as PJ’s parents. Before I deal with the application, I wish to make some observations about the manner in which I will refer to the parties. I refer to the applicants as BA and SJ, and the respondents as KA and LM, and their child as PJ. I intend no disrespect to any of the parties by using these abbreviations. It is necessary, because it guards the privacy of the parties in a manner that is consistent with sections 51 and 53 of the Act. [3] It is convenient to commence with the legislative framework under the Act. Among the Act’s guiding principles is the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement are paramount considerations. As well, the autonomy of consenting adults in 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 and reproduced below: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 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 -- 3 (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; (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] One of the requirements is that there is a medical or social need for the surrogacy arrangement. That is established, in this case, by the fact that the applicants are a male same-sex couple.7 The other matters referred to in section 22 are established in the affidavits filed in the proceedings. [5] The applicants depose that they entered in an altruistic surrogacy arrangement in May 2018. The donor egg was fertilised and an embryo transferred took place in October 2018. The arrangement was made in New South Wales, but there is nothing in the Queensland Act to suggest the legislation does not recognise arrangements made outside the jurisdiction. Before entering into the surrogacy arrangement, all of the relevant parties received appropriate counselling and independent legal advice. The arrangement was made with KA’s consent and before PJ was conceived. The arrangement is in writing and is not a commercial surrogacy arrangement. The applicants and respondents were all at least 25 years old when the arrangement was made and the applicants are now resident in Queensland. All of the parties consent to the making of a parentage order. [6] As well, the applicants have filed an affidavit from a psychologist exhibiting a surrogacy guidance report, as required by section 32. The report concludes: “I am satisfied that all parties are fully aware of the potential implications from social, psychological and family perspectives of making an application for a parentage order, and the psychological needs for PJ as a result of the surrogacy. I am satisfied that no parties exhibit any current psychological symptoms of concern. I am satisfied that all parties have been fully advised and discussed social and psychological aspects raised above, and are in full agreement. I am satisfied that the making of the proposed parentage order would be for the wellbeing, and in the best interests of, PJ.” [7] 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 the child. The evidence shows that the applicants are thoughtful and caring people. The manner in which they have undertaken the entire process shows planning and insight. This bodes well for their capacity to be nurturing parents to PJ. She has lived with the applicants from two days after her birth and they 7 Section 14. -- 3 of 4 -- 4 stayed at the hospital with her for the days immediately following her birth. SJ has taken 12 months leave to care for PJ and BA has made arrangements to work from home part of the time. The applicants are in a good financial position and both are employed. They have discussed and made plans with the respondents to maintain a relationship with them and, in due course, to inform PJ about the essential role the respondents played in her conception. The respondents obviously share the applicants’ love for PJ, and their generosity in becoming a surrogate and supporting this application should be acknowledged. [8] I am comfortably satisfied that the proposed parentage order is for the wellbeing and in the best interests of PJ. There will be an order transferring the parentage of PJ to the applicants in terms of the draft order that has been provided by the applicants, which I will initial and place with the papers. -- 4 of 4 --