BLH & Anor v SJW & Anor [2010] QChC 1

1-1 CHILDREN’S COURT OF QUEENSLAND CITATION: BLH & Anor v SJW & Anor [2010] QChC 1 PARTIES: BLH and MH (Applicants) v SJW and MW (Respondents) FILE NO/S: 2592/2010 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Children’s Court of Queensland DELIVERED ON: 28 September 2010 DELIVERED AT: Brisbane HEARING DATE: 28 September 2010 JUDGE: Irwin DCJ ORDER: 1. That pursuant to section 22(1) of the Surrogacy Act (Qld) 2010 parentage of CWH born 11 May 2010 be transferred from SJW and MW to BLH and MH; 2. That SJW and MW relinquish to BLH and MH custody and guardianship of CWH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable; 3. That BLH and MH become permanently responsible for the custody and guardianship of CWH; 4. That pursuant to section 41D of the Births, Deaths and Marriages Registration Act (Qld) 2003, that the applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of CWH’s Queensland birth certificate registration number [number stated] registered in Brisbane on 21 May 2010; 5. That pursuant to section 63(4) of the Surrogacy Act -- 1 of 21 -- 1-2 ORDER 1 10 20 30 40 50 60 (Qld) the Court dispense with the following requirements: Under chapter 3 of the said Act: (i) that the surrogacy arrangement was made after the parties had obtained independent legal advice about the arrangement and its implications (section 22(2)(e)(i)); (ii) that the surrogacy arrangement was made after the parties had obtained counselling from an appropriately qualified counsellor upon the surrogacy arrangement and its social and psychological implications (section 22(2)(e)(ii)); (iii) that the surrogacy arrangement was not in writing prior to the conception of the intended child (section 22(2)(e)(v)); and (iv) that an affidavit under section 31 be produced to the court. 6. The first and second applicants pay the costs of the first and second respondents of the application. CATCHWORDS: APPLICATION - SURROGACY ACT - PARENTAGE ORDER - where the application is for a parentage order to be made under s 22(1) of the Surrogacy Act 2010 (Qld) - where the respondent’s consented to the making of the order - where a verbal parentage agreement was entered into in contemplation of, but prior to, the passing or commencement of the Act - where a written parentage agreement was made retrospectively which confirmed the verbal agreement - where the application relies on the transitional provisions of the Act - where certain non-mandatory requirements have not been complied with - whether to exercise discretion to dispense with requirements - where discretion exercised - where application for a parentage order granted Acts Interpretation Act 1954 (Qld), ss 32DA(1), 32DA(5), 36 Births, Deaths and Marriages Registration Act 2003 (Qld), s 41D Status of Children Act 1978 (Qld), s 17(2) Surrogacy Act 2010 (Qld), ss 7, 8, 9(1), 12, 14(1)(b)(ii), 21(1), 22(2), 23(1), 25, 26, 27, 28, 30, 31, 32, 62, 63 COUNSEL: K. Cherry (solicitor) for the applicants E. Higgens (clerk) for the respondents by leave -- 2 of 21 -- 1-3 ORDER 1 10 20 30 40 50 60 SOLICITORS: Colville Johnstone Lawyers for the applicants Smith & Associates for the respondents -- 3 of 21 -- 1-4 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application pursuant to section 22(1) of the Surrogacy Act (Qld) 2010 (The Act) designed to transfer parentage of the child CWH born on 11 May 2010 to the first and second applicants. The background to this application is set out in the surrogacy arrangements which have been exhibited to the affidavits filed by each of the parties in this case. Throughout early 2009 the first applicant and the first respondent came to a verbal agreement in relation to the first respondent becoming a surrogate mother for the first applicant's intended child. This agreement was made in consultation with the second applicant and the second respondent, who were fully advised of their joint intentions. The agreement provided the following: (a) the first respondent agreed to become pregnant with the first applicant's child with the intention that a child born as a result of the pregnancy would be treated as a child not of her but of the applicants; (b) she and the second respondent agreed to relinquish to the applicants custody and guardianship of any child born as a result of the pregnancy; (c) the applicants agreed to become permanently responsible for the custody and guardianship of any child born as a result of the pregnancy; (d) the applicants would meet the first respondent's surrogacy and legal costs; -- 4 of 21 -- 1-5 ORDER 1 10 20 30 40 50 60 (e) the agreement is not a commercial surrogacy agreement, it is purely altruistic and designed to allow the applicants the opportunity to have a family; and (f) if possible, following the birth of the child the parties would take all steps and sign all documents necessary to apply to the Childrens Court of Queensland for an order transferring the parentage of the child to the applicants. This agreement was made in contemplation of the Act, but prior to the Act being passed or commencing. Sometime in or around August 2009 the first respondent learned that she was pregnant with a child born as a result of the surrogacy arrangement. From that time until the birth of the child all parties continued to be of the understanding that the surrogacy agreement would take effect upon the birth of the child. As I have stated, on 11 May 2010 the first respondent gave birth to the child CWH in Brisbane. The applicants attended at the hospital for the birth. On the following day the applicants took the child home to their residence at Holland Park. The child has lived permanently with the applicants since that time. They have provided for the child's day-to- day needs, including his physical, emotional, psychological and development needs. Subsequently, a written agreement has been made retrospectively to confirm the verbal agreement made prior to the conception of the child. That agreement has been intended to bind all parties and to bring certainty to the mutual -- 5 of 21 -- 1-6 ORDER 1 10 20 30 40 50 60 understanding of the parties concerning the parentage of the child. By this application the parties wish to provide legal certainty for the child in relation to parentage and provide him with the same legal rights and status as all other children. The Act was assented to on 16 February 2010, that is after conception of CHW, and it commenced on 1 June 2010. The application relies on the transitional provisions for the Act set out in chapter 5. This application, as is apparent, concerns a pre-commencement surrogacy arrangement as defined in section 62 of the Act. By that section a pre-commencement surrogacy arrangement means an arrangement entered into between a pre-commencement birth mother and pre-commencement intended parent, or pre- commencement intended parents, before the commencement that corresponded to a surrogacy arrangement. The applicants, therefore, seek to dispense with certain requirements under section 22 of the Act pursuant to section 63(4) of the Act. I will refer to these requirements later in this decision. The respondent's consent to the application is evidenced at paragraph 31 of their affidavits. They appear here with their legal representative this morning and that legal representative confirms this is the case. -- 6 of 21 -- 1-7 ORDER 1 10 20 30 40 50 60 Consistently with what I have already said, the parties entered into a verbal surrogacy arrangement pursuant to section 7 of the Act in early 2009 and that arrangement was reduced to writing in the surrogacy agreement after the child's birth. That agreement was executed by the applicants in June 2010 and the respondents in August 2010. It is marked as an exhibit to each of the party's affidavits. Part 3 of the surrogacy agreement provides that the parties will take all steps to do what they are doing today and that is to apply to the Court for a parentage order. A parentage order is defined in section 12(1) of the Act as "an order made by the Court under chapter 3 for the transfer of the parentage of a child born as a result of a surrogacy arrangement." The first respondent is the birth mother of the child pursuant to section 8(1) of the Act. The second respondent is the birth mother's spouse and birth parent of the child pursuant to sections 8(2) and 8(3) of the Act respectively. The second respondent is also the presumed parent of the child pursuant to section 17(2) of the Status of Children Act (Qld) 1978. This presumption will continue to apply until a parentage order is made pursuant to section 17 of the Act. The first and second applicants are the intended parents of the child pursuant to section 9(1) of the Act. As is noted, under that provision parentage of a child born as a result of a surrogacy arrangement may only be transferred to one intended parent who is single or, as in this case, to two -- 7 of 21 -- 1-8 ORDER 1 10 20 30 40 50 60 intended parents who are a couple. Section 9(2) defines a couple to be a person and the person's spouse. Spouse is defined in the Acts Interpretation Act 1954 (Qld), section 36, to include a de facto partner. Under section 32DA(1) and (5) of the Acts Interpretation Act the gender of the person is not relevant. It therefore follows that a couple for the purposes of the Act includes a same sex couple, in this case two intended male parents. That is further confirmed by section 14(1)(b)(ii) which states that for an application for a parentage order if there are two intended parents under the surrogacy arrangement there is a medical or social need for that arrangement if the intended parents are two men. The first applicant is the biological father of the child. I am satisfied on the basis of the evidence placed before me in affidavit form that this is not a commercial surrogacy agreement as defined in section 10 of the Act. As stated in the agreement, it is a purely altruistic arrangement designed to allow the applicants the opportunity to have a family. There is a medical or social need for the surrogacy arrangement as a result of the two intended parents being men, as I have already referred to under section 14(1)(b)(ii) of the Act. -- 8 of 21 -- 1-9 ORDER 1 10 20 30 40 50 60 The intended parents have been in a de facto relationship for nine years and were married in New Zealand in 2008. However, it is the fact of them being in a de facto relationship which, in my view, is more relevant to my determination, having regard to the legislative provisions to which I have already referred. Pursuant to section 21(1) of the Act the application is made not less than 28 days and not more than six months after the birth of the child on 11 May 2010. I am hearing this application on 28 September 2010 and the application was lodged on 10 September 2010. It is noted, however, that as this is a "pre-commencement" surrogacy arrangement, pursuant to section 63(2) of the Act, the applicants in fact have two years in which to bring the application. Section 22(2) of the Act lists a number of matters which the Court must be satisfied of prior to making a parentage order. I am satisfied that the application complies with all of these requirements save for those under section 22(2)(e)(i) and (ii) and (v) of the Act. I will return to those requirements shortly. However, it is first necessary for me to address the other requirements that must be satisfied before I may exercise my discretion to make a parentage order. -- 9 of 21 -- 1-10 ORDER 1 10 20 30 40 50 60 The proposed order must be for the well-being and in the best interests of the child. I am satisfied that this is the case because, as set out in the evidence before me, for example, in paragraphs 20 to 23 of the first respondent's affidavit it is deposed that it is believed that it is in the child's best interests that a parentage order be made so he has the same status, protection and support available to him as any other child not born of such an arrangement or born of a post-commencement surrogacy arrangement. For example, his rights under succession law and in relation to financial support. Further, the first respondent believes that the child will suffer social disadvantage should his birth certificate not record the applicants as his parents, for example, when enrolling the child in school or other activities or when making decisions in relation to his health and welfare, which would ordinarily be made by a recognised legal guardian. On that basis and some other matters relating to the child's well-being and best interests, to which I will subsequently refer, I am satisfied that the proposed order complies with section 22(2)(a) of the Act. In addition, as I have already said, the child has resided with the joint applicants for at least 28 consecutive days before the day that the application was made, was residing with them when the application was made and is residing with them at the time of the hearing. Accordingly, -- 10 of 21 -- 1-11 ORDER 1 10 20 30 40 50 60 section 22(2)(b) is satisfied. So too is section 22(2)(c) because I am satisfied that the joint applicants are entitled to apply under section 21 of the Act for this order. For reasons that I have already referred to on the basis of section 14(1)(b)(ii) there is evidence of a medical or social need for the surrogacy arrangement so as to satisfy section 22(2)(d) of the Act. Further, as required by section 22(2)(e)(iv) the surrogacy arrangement in this case was made before the child was conceived. I am also satisfied as required by section 22(2)(vi) for reasons I have already given that this is not a commercial surrogacy arrangement. In addition, as required by section 22(2)(f) the birth mother and her spouse were at least 25 years when that arrangement was made. As appears from the affidavits and the surrogacy agreement the first respondent is currently 41 years of age and the second respondent is currently 46 years of age. Similarly, as required by section 22(2)(g)(i) of the Act each of the joint applicants was at least 25 years when the arrangement was made. The first applicant is 40 years of age and the second applicant is 38 years of age. For the purposes of section 22(2)(g)(ii) I am satisfied on the basis of the affidavit evidence that each of the joint applicants are resident in Queensland. -- 11 of 21 -- 1-12 ORDER 1 10 20 30 40 50 60 Section 22(2)(h) is satisfied because, as I have already said, the parties consent to the making of the parentage order as at the time of the hearing today. Finally, as required by section 22(2)(i) a surrogacy guidance report under section 32 supports the making of the proposed order. That is the report of Ms Du Chesne. Ms Du Chesne is a registered psychologist. I will subsequently refer to some aspects of her report that demonstrate compliance with that provision. The aspects in which the application does not comply with the requirements under section 22(2) of the Act are: (a) that the surrogacy arrangement be made after the parties had obtained independent legal advice about the arrangement and its implications (section 22(2)(e)(i)); (b) that the surrogacy arrangement be made after the parties had obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications (section 22(2)(e)(ii)); and (c) that the surrogacy arrangement be in writing prior to the conception of the intended child (section 22(2)(e)(v)). Importantly, the application does not seek to dispense with any of the mandatory requirements as defined in section 23(1) of the Act. Those are as follows: -- 12 of 21 -- 1-13 ORDER 1 10 20 30 40 50 60 (a) that the order will be for the best interests and the well-being of the child (section 22(2)(a)); (b) that the surrogacy arrangement was made with the consent of the birth mother, the birth mother's spouse and the joint applicants (section 22(e)(iii)); (c) that the surrogacy arrangement was made before the child was conceived (section 22(2)(e)(iv)). I note that this section does not mandate that it is in writing prior to conception, a matter provided for in section 22(2)(e)(v); and (d) that the surrogacy arrangement is not a commercial surrogacy arrangement. I have already given reasons for why I consider that those mandatory requirements have been satisfied. Section 63(4) of the Act gives the Court additional powers in relation to pre-commencement surrogacy arrangements to dispense with any requirement under chapter 3, save for the requirement that the surrogacy arrangement was made with the consent of all the parties. These are discretionary powers vested in the Court if the Court considers it is: (a) for the well-being and in the best interests of the child born as a result of the pre-commencement surrogacy arrangement to dispense with the requirement (section 63(4)(a)); or (b) otherwise impractical for the pre-commencement intended parents to comply with the requirement (section 63(4)(b)). -- 13 of 21 -- 1-14 ORDER 1 10 20 30 40 50 60 The affidavit material filed by each of the parties confirms that they believe section 63(4)(a) should apply and that the requirements which I have identified should be dispensed with given that: (a) the child will then have the same status, protection and support available to him as any other child not born of such an arrangement or born of a post-commencement surrogacy arrangement, for example in relation to succession law and child support issues; and (b) the child may suffer social disadvantage should his birth certificate not record both applicants' names as his parents, for example this may prevent the intended parents from dealing with the child's schools and healthcare providers. I have already made reference to each of those issues in being satisfied that section 22(2)(a) of the Act has been fulfilled. The explanatory notes to the Surrogacy Bill 2009 suggest that these are the primary reasons why the Parliament has legislated for and provided a two year window of opportunity for applications to be filed in relation to children born as a result of pre-commencement surrogacy arrangements. The explanatory notes confirm the Parliamentary intent that pre-commencement children have the right to the same status, support and protection available as any other children. As is submitted on behalf of the applicants, pages 10-12 of the explanatory notes provide insight into the reasons why a -- 14 of 21 -- 1-15 ORDER 1 10 20 30 40 50 60 transfer of parentage is beneficial. For example, it is stated on page 10 of the explanatory notes: "If the parent-child relationship is not legally recognised the child will have reduced rights or entitlements than other children within the community. These include reduced rights under succession law, both under intestacy and if contesting a will of the intended parent under the family maintenance provisions of the Succession Act 1981. Also, if the parentage of the child is not transferred to the intended parents the child may have a claim against the estate of the birth parents in certain circumstances. This creates uncertainty for the birth parents, particularly in relation to the distribution of their estate to other children they may have." Further, at page 11 of the notes it is stated: "The Bill allows the parentage order to be registered with the Births, Deaths and Marriages Registry so that the birth certificate will show the intended parents as parents of the child. Recording details of the intended parents on the child's entry on the birth register will confirm the legal status of the child and avoid any social disadvantage to the child. ... There could be social disadvantage if the child's birth certificate does not show the intended parents as the child's parents. This could occur in situations when the child is to be registered for school or with a sporting club that requires -- 15 of 21 -- 1-16 ORDER 1 10 20 30 40 50 60 lodgment of the child's birth certificate. Further, this may affect the ability of the intended parents to engage with service providers, health professionals or others involved with the child because they are not recognised as the child's legal guardians." Further, it is submitted on behalf of the applicants that page 15 of the explanatory notes provide insight into the Parliamentary intent concerning children born of a pre-commencement surrogacy arrangement. It is noted that it had been found that there were already some children who were born as a result of a surrogacy arrangement in Queensland. It is stated that a child born under such an arrangement does not enjoy the same legal certainty and status of other children and it was for these reasons that the Bill allows intended parents of a child who is born before the Bill commences or born pursuant to a surrogacy agreement entered into before the Bill commences to apply to the Court for a parentage order. In particular, it is stated: "The retrospective application of the Bill is important to ensure that all children experience the same status and legal certainty regardless of the circumstances that resulted in their birth." For these reasons I find that in accordance with section 63(4)(a) of the Act it is for the well-being and in the best interests of the child, who was born as a result of the -- 16 of 21 -- 1-17 ORDER 1 10 20 30 40 50 60 pre-commencement surrogacy arrangement, to dispense with the requirements that I have identified. I agree with the submission on behalf of the applicants that the affidavit filed by Ms Du Chesne is particularly helpful in demonstrating that the surrogacy arrangement has been a well- thought out and well-managed plan and that all parties agree that a parentage order will be for the well-being and in the best interests of the child. That is perhaps best illustrated by quoting from the summary and opinion of Ms Du Chesne's report as follows: "It is my opinion, formed after consulting with the intended parents, the birth mother and her spouse, that a parentage order would be for the well-being and in the best interests of this child." Ms Du Chesne recognises that this assessment is limited because it does not claim to provide any guarantees regarding the intended parents' ability to parent and it does not offer a thorough psychological assessment of any of the parties. However, recognising this, she expresses the opinion: "Nevertheless, all parties, and in particular, the birth mother and the intended parents, had considered the issues closely and were determined to act for the child's well-being. The birth mother stated that she had contemplated her own family and that she was very happy to help the intended parents to create a family. Her position of being willing to help others was supported by her previous egg donation and by -- 17 of 21 -- 1-18 ORDER 1 10 20 30 40 50 60 her husband's corroboration. The long-term and positive relationship between the couples is a strength of this arrangement." The affidavit material filed by each of the parties also confirms that they believe that section 63(4)(b) of the Act should apply and that the requirements I have identified should be dispensed with, given that they entered into the surrogacy agreement prior to the Surrogacy Act commencing and prior to consideration of the Surrogacy Bill 2009 and therefore they were not aware of those requirements at the time of entering the verbal surrogacy agreement. Therefore, it was not reasonably practicable to attend to those matters prior to the conception of the child as the parties were not aware that those requirements would apply. In any event, the parties have subsequently reduced their verbal surrogacy arrangement to writing and exhibited it to their affidavits filed in these proceedings, as I have already stated. Further, they have subsequently received independent legal advice in relation to the agreement, with affidavits of their independent legal advisers also being filed in these proceedings. They have also attended upon an appropriately qualified counsellor, Ms Du Chesne, for the purposes of the surrogacy guidance report. As indicated, this report has also been filed in these proceedings. -- 18 of 21 -- 1-19 ORDER 1 10 20 30 40 50 60 In these circumstances I exercise my discretion to dispense with the requirements under section 22(2)(e)(i), (ii) and (v). I am satisfied that the applicant has filed all documents required by section 25 of the Act, with the exception of an affidavit under section 31 of the Act (as required by section 25(1)(h)). This refers to an affidavit from a counsellor who gave counselling to the birth mother, her spouse and the joint applicants before the surrogacy arrangement was made. This did not occur for the reasons I have already indicated, that is the surrogacy arrangement was made prior to the Act commencing prior to consideration of the Surrogacy Bill 2009 and therefore the parties were not aware of this requirement at the time of entering the verbal surrogacy agreement. Again, the applicant has requested that the Court exercise its discretion to dispense with this requirement and for the reasons that I have previously given in support of dispensing with the other requirements I also dispense with this requirement. The other documents filed pursuant to section 25 of the Act comply with the provisions of sections 26, 27, 28, 30 and 32. Of particular importance and assistance in relation to the arrangement being for the well-being of the child is the affidavit and surrogacy guidance report of Ms Du Chesne pursuant to section 32 of the Act, to which I have already referred. -- 19 of 21 -- 1-20 ORDER 1 10 20 30 40 50 60 For completeness, I note also that a copy of the birth certificate has been filed. Therefore, subject to the extent to which I have dispensed with the requirements under section 22(2) of the Act, I am satisfied of the matters which are a condition precedent for the exercise of my discretion to make a parentage order under that section. In those circumstances I make a parentage order on the following terms: 1. That pursuant to section 22(1) of the Surrogacy Act (Qld) 2010 parentage of CWH born 11 May 2010 be transferred from SJW and MW to BLH and MH. 2. That SJW and MW relinquish to BLH and MH custody and guardianship of CWH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable. 3. That BLH and MH become permanently responsible for the custody and guardianship of CWH. 4. That pursuant to section 41D of the Births, Deaths and Marriages Registration Act (Qld) 2003, that the applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of CWH's Queensland birth certificate registration number [number stated] registered in Brisbane on 21 May 2010. -- 20 of 21 -- 1-21 ORDER 1 10 20 30 40 50 60 5. That pursuant to section 63(4) of the Surrogacy Act (Qld) the Court dispenses with the following requirements: Under Chapter 3 of the said Act: (i) that the surrogacy arrangement was made after the parties had obtained independent legal advice about the arrangement and its implications (section 22(2)(e)(i)); (ii) that the surrogacy arrangement was made after the parties had obtained counselling from an appropriately qualified counsellor upon the surrogacy arrangement and its social and psychological implications (section 22(2)(e)(ii)); (iii) that the surrogacy arrangement was not in writing prior to the conception of the intended child (section 22(2)(e)(v)); and (iv) that an affidavit under section 31 be produced to the court. 6. The first and second applicants pay the costs of the first and second respondents of the application. ... HIS HONOUR: So I will make an order as per draft as amended by me, which is initialled and dated today the 28th of September 2010. ... ----- -- 21 of 21 --