BNJ & Anor v DZ & Anor [2026] QChC 13

CHILDRENS COURT OF QUEENSLAND CITATION: BNJ & Anor -v- DZ & Anor [2026] QChC 13 PARTIES: BNJ & DRJ (applicants) v DZ & FZ (respondents) FILE NO: D117/26 DIVISION: Civil PROCEEDING: Application for parentage order pursuant to the Surrogacy Act 2010 (Qld) ORIGINATING COURT: Childrens Court at Southport DELIVERED ON: 21 August 2026 DELIVERED AT: Southport HEARING DATE: 29 May 2026; 21 August 2026 JUDGES: Wooldridge KC DCJ ORDER: 1. Application allowed. 2. Order as per draft. CATCHWORDS: SURROGACY ARRANGEMENT – application for a parentage order pursuant to the Surrogacy Act 2010 (Qld) – where the birth mother gave birth to two children, one being the biological child of the intended parents and one being the biological child of the birth parents – where the parentage order is sought in relation to the biological child of the intended parents only – where all parties consent to the order –whether the order is in the best interests of the child – whether section 24 precludes the court from making a parentage order in relation to only the one child. Acts Interpretation Act 1954 (Qld), section 14A Surrogacy Act 2010 (Qld) ss 5, 6, 7, 12, 19, 21, 22, 24, 32 Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 35 LWV & another v LMH [2012] QChC 26 -- 1 of 21 -- 2 SOLICITORS: S Jefford OAM for the applicants Respondents appeared on their own behalf -- 2 of 21 -- Overview1 [1] The applicants seek a parentage order be made pursuant to Chapter 3 Part 2 of the Surrogacy Act 2010 (Qld) (‘the Act’), in relation to a child ‘T’. The respondents consent to the making of a parentage order in favour of the applicants, with respect to the child T. [2] The application initially came to be heard before me on 29 May 2026. Thereafter, further written submissions were filed 10 June 2026. [3] The factual circumstances of the application are sufficiently atypical that the issues presented would not ordinarily be expected to arise for determination. In November 2025, the respondent DZ gave birth to two children, T and S. Child T, to whom the application for the parentage order pertains, is the biological child of the applicants. Child S is the biological child of the respondents. The enquiries undertaken by the parties have not identified any other reported cases in Australia where two children have been born following a surrogacy arrangement, where one child is the biological child of the intended parents, and the other was conceived by the birth parents. [4] Each of the parties have otherwise done all that can be done by them to comply with the law, and facilitate the outcome – intended from the outset – whereby a parentage order would be made in relation to T, in favour of the applicants. As addressed below, each of the requirements specified in section 22 of the Act for the making of a parentage order in relation to the child T, in favour of the applicants, is here established. [5] However, section 24 of the Act provides, in the event of ‘multiple births’, that despite any other provision of the Act, a court may make a parentage order about a child in favour of an applicant, or joint applicants, only if the court also makes a parentage order about each living birth sibling of the child, in favour of the same applicant(s). 1 Individuals have been referred to by acronym or otherwise anonymised in order to protect the privacy of the parties and children concerned. See Chapter 3 Part 6 of the Surrogacy Act 2010 (Qld). -- 3 of 21 -- 4 The term ‘birth sibling’ (of a child)’ is defined2 to mean ‘a brother or sister of the child who is born as a result of the same pregnancy as the child’. No parentage order is sought on the application in relation to the child S. [6] The applicants squarely confronted the prohibitory language of section 24 as presenting a “textual difficulty” to the granting of the application for a parentage order in relation to T only. The applicants advanced a number of submissions as to why the application would be granted, notwithstanding the terms of section 24. [7] For the reasons outlined below, I have determined that the unique circumstances of the present application do not engage the operation of section 24. Accordingly, the application for the parentage order in favour of the applicants in relation to the child T, is allowed. Factual background The parties [8] The child T is a female child born in 2025. The respondents, DZ & FZ are the birth parents of T; DZ is the birth mother, and FZ the birth mother’s spouse.3 The respondents consent to the making of the parentage order sought on the application in relation to T. [9] The applicants BNJ and DRJ are a married couple, and the intended parents.4 BNJ is a childcare educator, by occupation. DRJ is a cabinet maker, by occupation. They reside in Queensland. BNJ has a medical condition whereby she was born without a uterus, and is therefore unable to bear a child through pregnancy. BNJ is therefore an eligible woman as defined in section 14(2)(a) of the Act, and there is therefore an established medical or social need for the surrogacy arrangement5. 2 Section 24(3). 3 As defined in section 8 of the Act 4 As defined in section 9 of the Act. 5 See section 14(1) of the Act. -- 4 of 21 -- 5 The surrogacy arrangement [10] The applicants and the respondents connected through a mutual friend and on social media. On various dates in August of 2024 each of the applicants and the respondents undertook counselling with an appropriately qualified6 psychologist about the surrogacy arrangement and its social and psychological implications. A written surrogacy agreement was then entered into in September 2024, signed by all parties. Each of the applicants and the respondents obtained independent legal advice about the surrogacy arrangement and its implications prior to entering into the agreement, including as to the matters contemplated by section 30 of the Act. [11] At that time of entering into the agreement, BNJ was 25 years of age and DRJ was 28 years of age. DZ and FZ were each 27 years of age. DZ and FZ were already at that time the parents of five children, the youngest of whom was born in 2024. The surrogacy arrangement was an altruistic arrangement; it was not a commercial arrangement.7 [12] Each of the parties state that it was their expectation that DZ was to be a surrogate for the applicants, that by the surrogacy arrangement DZ would try to become pregnant with an embryo created from the ovum and sperm of the applicants, and that it was intended that any child born from the surrogacy arrangement would be the legal child of the applicants, and that parentage of the child would be transferred from the respondents to the applicants. Consistent with that, the terms of the surrogacy agreement entered into by the parties included the following recitals, which formed part of the operative agreement: G. [The applicants] have created embryos using eggs from [BNJ] and sperm from [DRJ] at [named fertility specialist]. … I. [DZ] intends to become pregnant with one of [the applicants’] embryos. J. The parties intend that treatment, and the embryo transfer procedure will take place at [named fertility specialist] in Queensland, unless otherwise agreed. 6 As defined in section 19 of the Act. 7 See section 10 and 11 of the Act. -- 5 of 21 -- 6 K. The parties intend that if [DZ] becomes pregnant with one of [the applicants’] embryos, the parentage of the child born as a result of the pregnancy is to be transferred to [the applicants]. L. The parties intend that any child born through this arrangement is to be treated as the child of [the applicants] and not of [the respondents]. The embryo transfer and subsequent pregnancy [13] An initial embryo transfer, which occurred in November of 2024, did not result in an ongoing pregnancy. [14] On 11 April 2025 the fertility specialist transferred one embryo8 created from the ovum of BNJ and the sperm of DRJ, into the uterus of DZ (‘the April 2025 embryo implantation’). [15] On 15 April 2025 DZ took a home pregnancy test which indicated that she was pregnant. [16] During an ultrasound on 28 April 2025 two embryonic sacs were identified. An ultrasound conducted on 12 May 2025 identified that DZ was carrying two foetuses. Subsequent gender testing of each foetus, and DNA testing conducted following an amniocentesis procedure in November of 2025, established that one child, a female, T, was the biological child of the applicants, further to the April 2025 embryo implantation, and one child, a male S, was the biological child of the respondents. The child S was conceived separately to the April 2025 embryo implantation process, and without medical assistance. The respondents had not intended to conceive a child at the time, however that is not to suggest the child S is anything other than loved and wanted by the respondents. [17] The two children, T and S, grew in utero as gestational twins. Each of the children were born on the same date in November 2025, by caesarean section. 8 Consistent with the view expressed by her Honour Judge Clare SC in LWV & another v LMH [2012] QChC 26, I proceed on the basis that conception would be understood to mean the commencement of the pregnancy. Accordingly, the date of creation of the implanted embryo is of no relevance to the application; the surrogacy arrangement was entered into prior to the implantation of the embryo and therefore prior to the conception of the child. -- 6 of 21 -- 7 The position of the parties [18] Upon confirmation of the genetic parentage of each of the two children being carried by DZ, the applicants proceeded on the basis that the chid T was the child (that would be) born of the surrogacy arrangement, and that the child S was a child conceived by the respondents and therefore the child of the respondents. Each of the respondents state that they considered S to be their child, and that they did not enter into a surrogacy arrangement with the applicants with the intention of relinquishing any biological child of their own to the applicants. [19] The applicants were present at the birth of T. The respondents relinquished physical care of T to the applicants from the day of her birth. When T was discharged from hospital she was discharged into the care of the applicants. The respondents have had no involvement in the day-to-day care of T. [20] While, as required9, the respondents are named on T’s birth certificate as the parents of T, the name of T was selected by the applicants. It is that name which the applicants seek be specified in the parentage order.10 [21] The applicants are seeking a parentage order with respect to the child T only. No order is sought by the applicants with respect to the child S. The applicants do not seek S be placed in their care or consider S to be their child. The applicants have played no role in the day-to-day care of S. [22] The respondents consent to the parentage order being made with respect to T in favour of the applicants. They do not consider T to be their child and are uncomfortable with remaining the legal parents of T. They do not support any parentage order being made with respect to S. They have not and do not intend to relinquish the care of S, to the applicants, or otherwise. The respondents have cared for the child S from the moment of his birth. [23] Each of the applicants have sworn an affidavit which I am satisfied addresses the matters required by section 26 of the Act, including their understanding of the social, psychological and legal implications of the surrogacy arrangement and the making of 9 See section 18 of the Act. 10 See section 35 of the Act. -- 7 of 21 -- 8 the parentage order, and of openness and honesty about the child’s birth parentage being for the wellbeing and in the best interests of the child. DZ, as the birth mother (of both T and S), and FZ as the birth mother’s spouse, have also each sworn an affidavit which I am satisfied addresses the matters required to be addressed by sections 27 and 28 of the Act, respectively, including their understanding of the social, psychological and legal implications of the surrogacy arrangement and the making of the parentage order, and of openness and honesty about the child’s birth parentage being for the wellbeing and in the best interests of the child. [24] All parties express the view that the making of the parentage order with respect to the child T, in favour of the applicants, is in the best interests of the child T. Surrogacy Guidance Report [25] In early 2026 the applicants and the respondents engaged an independent11 counsellor, Ms Duryea to provide counselling to the parties and prepare a Surrogacy Guidance Report as contemplated by sections 22(2)(i) and 32 of the Act. A copy of Ms Duryea’s Parentage Assessment Report is before the Court. In preparing the report Ms Duryea met with each of the applicants on three occasions, each of the respondents on three occasions, and the parties, jointly, on one occasion12. [26] Ms Duryea’s report supports the making of the proposed parentage order in relation to child T, as being in the best interests of the child T. [27] In Ms Duryea’s opinion all parties were adequately informed about, and demonstrated an appropriate understanding of the legal, social and psychological implications of the proposed parentage order, and appeared capable of managing those implications in a considered and child-focused manner. All parties indicated their consent to be freely and voluntarily given, and appeared to have capacity to provide informed consent to the proposed transfer of parentage.13 The respondents were consistent in their indication to Ms Duryea that the purpose of the surrogacy arrangement was to assist the applicants in becoming parents and that they do not consider, and have never considered, themselves, to be the parents of T, socially or psychologically. During 11 As defined in section 19 of the Act. 12 Although FZ was required to leave early on the occasion of the joint meeting. 13 See the definition of consent in section 19 of the Act. -- 8 of 21 -- 9 her individual sessions with the respondents and the joint session with all parties, Ms Duryea identified no indication of unresolved distress or uncertainty relating to the relinquishment of the care of T to the applicants, or ambivalence or conflict between the parties in relation to the proposed parentage order. [28] The parties also demonstrated a shared understanding that openness and honesty regarding T’s origins and parentage will be in her best interests over time; the respondents demonstrated an appreciation of the need for that to extend in an age- appropriate way to their biological child S, also. [29] Ms Duryea identified no concerns with the applicants’ emotional, psychological or practical capacity to parent T. In her opinion the applicants have demonstrated the capacity to provide T with stable, responsive and nurturing care, and present with a genuine emotional investment in her wellbeing and development. [30] Ms Duryea otherwise observed that the available literature does not, in her view, support rigid or blanket assumptions being made that children born of twin births should be kept together, or is necessary to prevent developmental harm, or conversely that separation is inherently beneficial. More specifically, in her opinion, the available research does not provide a substantial directly analogous evidence base concerning the planned separation from birth of gestational twins in the specific context of a surrogacy arrangement involving different genetic parentage. Ms Duryea identifies that any opinion sought to be expressed with reference to such literature or research as is available, therefore need be expressed with appropriate caution, and understood as being an inference drawn from the broader developmental literature rather than from a body of directly comparable empirical study. [31] Ms Duryea concluded as follows: ‘Having regard to the available evidence it is my opinion that the most significant developmental considerations in the present case are likely to be the stability and responsiveness of the caregiving environments each infant enters following birth, the emotional availability of the adults caring for them, and the manner in which their origins and relationships are spoken about over time. On the balance of probabilities and assuming that both infants are raised in stable and nurturing family systems, the available research does not support the -- 9 of 21 -- 10 conclusion that separation of the twins from birth is, in itself, likely to cause psychological harm attributable to separation alone. The evidence more strongly supports the view that developmental outcomes will be shaped by the quality of caregiving, family functioning, openness about origins, and the thoughtful management of relationships over time… …On that basis, it is my opinion that separation of the twins from birth is unlikely, on the balance of probabilities, to result in psychological harm attributable to separation alone.’ [32] Ms Duryea’s report contemplates the potential significance of each of T and S being born of a twin birth, and that such relationship is likely to carry ongoing emotional and developmental significance for both children over time, notwithstanding the children are being raised in separate households. Both families expressed to Ms Duryea that contact between the families is already established and forms part of their current lived reality, rather than being merely aspirational. The parties have described an intention that the children will grow up knowing one another and be raised with an age-appropriate understanding of their place within the wider family network. [33] Such opinions as expressed by Ms Duryea as to the separation of T and S in this case, are relevant to her assessment that the making of the parentage order sought in the present case would, in all the circumstances, be for the wellbeing and in the best interests of the child T.14 They do not bear upon the construction or general operation of the statutory scheme under the Act. The legislative framework [34] The main objects of the Surrogacy Act 2010 (Qld) are to regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and, in the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result, to establish procedures to ensure parties to the 14 As contemplated by section 32(d)(iii) of the Act. -- 10 of 21 -- 11 arrangement understand its nature and implications, and to safeguard the child’s wellbeing and best interests.15 [35] Section 6 of the Act sets out the principles pursuant to which the provisions of the Act are to be administered: Section 6 Guiding principles (1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount. (2) Subject to subsection (1), this Act is to be administered according to the following principles— (a) a child born as a result of a surrogacy arrangement should be cared for in a way that— (i) ensures a safe, stable and nurturing family and home life; and (ii) promotes openness and honesty about the child’s birth parentage; and (iii) promotes the development of the child’s emotional, mental, physical and social wellbeing; (b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of— (i) how the child was conceived under the arrangement; or (ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or (iii) the relationship status of the persons who become the child’s parents as a result of a transfer of parentage; (c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted; 15 Section 5 of the Act. -- 11 of 21 -- 12 (d) the autonomy of consenting adults in their private lives should be respected. [36] The term surrogacy arrangement is defined to mean an arrangement, agreement or understanding between a woman and another person or persons, under which the woman agrees to become, or try to become, pregnant, with the intention that a child born as a result of the pregnancy is to be treated as the child, not of the woman, but of the other person or persons, and whereby it is agreed that the woman will relinquish the guardianship of a child born as a result of the pregnancy to the other person or persons, and that they will become permanently responsible for the custody and guardianship of the child.16 [37] A parentage order is an order made by the court under Chapter 3 of the Act for the transfer of the parentage of a child born as a result of a surrogacy arrangement.17 On an application under Chapter 3 Part 2 of the Act, the court may make a parentage order for the transfer of parentage of a child to an applicant, or joint applicants.18 Unless and until a parentage order is made under the Act transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 (Qld) apply to the child.19 [38] A court may only make a parentage order if it is satisfied of each of the matters set out in section 22(2) of the Act, namely: (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 16 Section 7 of the Act. 17 Section 12(1) of the Act. 18 Section 22(1) of the Act. 19 As confirmed by section 17 of the Act. See for example sections 16 to 19 of the Status of Children Act 1978 (Qld). -- 12 of 21 -- 13 (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; -- 13 of 21 -- 14 (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. [39] Section 23 then permits a court to dispense with some, (but not all20), of the requirements mentioned in section 22, provided the court is satisfied that there are exceptional circumstances for giving the dispensation, and the dispensation will be for the wellbeing and in the best interests of the child. [40] Section 24 of the Act is entitled Additional requirement if multiple births. The proper construction and application of s 24 of the Act have been at the forefront of the present application. Section 24 reads as follows: 24 Additional requirement if multiple births (1) This section applies if a child has a living birth sibling. (2) Despite any other provision of this Act, the court may make a parentage order about the child in favour of an applicant, or joint applicants, only if it also makes a parentage order about each living birth sibling of the child in favour of the applicant, or joint applicants. (3) In this section— birth sibling, of a child, means a brother or sister of the child who is born as a result of the same pregnancy as the child. 20 The court may not dispense with a requirement mentioned in section 22(2)(a), or (e)(iii), (iv) or (vi). -- 14 of 21 -- 15 Whether the court may make a parentage order in favour of the applicants, in relation to the child T [41] The current application for a parentage order is brought within the timeframes specified under the Act21. The application otherwise complies with the requirements of section 21 of the Act; the application is jointly made by the two intended parents, who were and remain a couple. Each of the documents mentioned in section 25 of the Act have been filed and are before the court. The form of order sought complies with the requirements of section 34 of the Act as to what must be stated in the order, where granted. [42] As identified in the factual background to the application, outlined above, each of the matters listed in section 22(2)(b) to (i) of the Act, of which the court need be satisfied before a parentage order may be made, are here established. The further matter of which the court need be satisfied, as required by section 22(2)(a) of the Act, is that the proposed order will be for the wellbeing, and in the best interests, of the child. In my view the evidence before the court clearly establishes that the proposed order will be for the wellbeing of the child T and is in the best interests of the child T. As has been submitted, there are compelling reasons to make the parentage order sought, notwithstanding T’s shared gestational period with S. There is no need on this application to consider dispensation of any of the matters in section 22 of the Act as may be permitted by section 23 of the Act. [43] While I am satisfied that the other preconditions for the making of a parentage order in relation to the child T are established, such that, the court may otherwise make a parentage order in relation to T, the court is also required to consider whether section 24 would here operate to preclude the court from making a parentage order with respect to the child T, unless a parentage order were also being made in favour of the applicants in relation to the child S. [44] On the hearing of the application, it was submitted that while section 24 did not ‘expect or intend the separation of birth siblings, nor the making of a parentage order for one child, without a parentage order for the other child…the statutory presumption 21 See section 21(1) of the Act. The child T was more than 28 days and less than 6 months of age at the time of the filing of the application. -- 15 of 21 -- 16 against separating birth siblings is not absolute [and] the court retains a discretion to depart from the presumption where the best interests of the child or children require it’.22 It was submitted that the better construction of the section was that it was directed to ensuring that the court addressed the position of all children born under the arrangement, rather than compelling the same substantive parentage order be made for each child, regardless of their differing circumstances.23 [45] I am unable to conclude that section 24, where it applies, may be construed as the applicants contend, as, in effect, identifying a further matter for the court to consider in determining whether a parentage order would be made, as opposed to specifying an additional, mandatory pre-requisite or precondition to a parentage order being made. Chapter 3 of the Act identifies matters or requirements of which the court must be satisfied before the court may make a parentage order in relation to a child. Consistent with that, section 24 is entitled ‘Additional requirement if multiple births’. Irrespective of section 24, proposed separation of a child from a birth sibling resulting from or endorsed by the making of a parentage order, would likely be a relevant factor for a court to consider in determining whether the court is satisfied that the making of a proposed parentage order is for the wellbeing of and in the best interests of the child. In my view the clear effect of section 24 is that, where it applies, it precludes the court making a parentage order in relation to one child, unless the court is also satisfied of the requirements for the making of a parentage order in favour of the same applicants, in relation to all living birth siblings of the child, and the court is to be making a parentage order in favour of the same applicants in relation to each of the living birth siblings. [46] I am also unable to accept the submission that the requirements of section 24 may be dispensed with in the exercise of the court’s discretion. While, as the applicants identify, section 23 of the Act empowers a court to dispense with requirements for the making of a parentage order, that does not assist the applicants’ position on the current application. Section 24 contains no comparable provision whereby the court may dispense with the requirements in section 24(2)24. Section 23 specifies particular 22 Submissions on behalf of the applicants filed 28 April 2026, at [35] to [36]. 23 Submissions on behalf of the applicants filed 28 April 2026, at [41]. 24 By contrast see section 20(3) Surrogacy Act 2010 (NSW) which allows the making of a parentage order with respect to only one birth sibling, if the court considers it is in the best interests of the child to make the order. -- 16 of 21 -- 17 requirements which in certain circumstances the court may dispense with, each of which are in section 22 of the Act. Section 23 makes no reference to section 24. Further, section 24(2) expressly provides that the additional requirement prescribed by section 24 need be demonstrated ‘[d]espite any other provision of this Act’; that is section 24 would be understood to further qualify section 23, rather than be read subject to section 23. [47] Here, the applicants do not seek a parentage order in relation to the child S, such order is not consented to by the respondents, and it is accepted that the legislative requirements for the making of a parentage order in relation to the child S are not here established. It follows that if section 24 applies in the present case, the court is precluded from making a parentage order in relation to T, and the application for the parentage order in relation to T must be refused. [48] While I did not accept the submissions advanced by the applicants as to the construction of section 24, creating, where applicable, a presumptive position which can be displaced in the exercise of the court’s discretion, I invited the parties to make further submissions as to the construction of the section, and whether the section in fact applied in the present circumstances. It is that matter to which the supplementary submissions filed after the first hearing date were primarily directed, although the submissions previously advanced (addressed above) were maintained in the alternative. [49] As the applicant submits, the inclusion of a requirement that a birth sibling be a brother or sister of the child suggests that the provision contemplates an element beyond the circumstance that the person was born as a result of the same pregnancy as the child. A contrary construction would deprive the reference to a brother or sister of having any operative effect. On that basis, a child will be a birth sibling of another child where they are: i) Firstly, a brother or sister of that child, (a sibling); and ii) Secondly, have been born as a result of the same pregnancy as that child (and thereby a birth sibling). Further, for the purposes of determining whether a child is a birth sibling, being born as a result of the same pregnancy as a child will not, of itself, establish that someone -- 17 of 21 -- 18 is a brother or sister of that child, or conversely, (although such relationship will commonly exist). [50] The terms sibling, brother, or sister, are not defined in the Act25. Nor are the terms otherwise utilised in the Act outside of section 24. Where the terms appear in other Queensland legislation, they are also commonly left undefined. Where defined, such definition is usually of the nature of an inclusive definition, to specify or clarify that any reference to a sibling, brother or sister, includes, for example, step and/or half siblings.26 In other instances, provisions which refer to a sibling, or brother or sister within a class of persons, may also specify step, half-blood, adopted or other relationships, to be within the relevant class of persons. [51] For present purposes, in the absence of any further prescribed definition, it is sufficient to identify that each of the terms sibling, brother and sister, in their ordinary usage, contemplate the existence of some shared parentage between two individuals, involving at least one parent. Such shared parentage may arise genetically, or as a result of some other circumstance giving rise to the shared parental relationship. [52] As the applicant submits, there is no shared biological parentage between T and S. However, by operation of law, as matters presently stand, T is the child of the respondents, and as such there is a shared parental relationship with S. [53] For a child to be a birth sibling of a child, the child must also be born as a result of the same pregnancy as the child. Perhaps unsurprisingly this phrase, or the term pregnancy, are also undefined in the Act. It is incontrovertible that DZ was pregnant with each of S and T at the same time. However, in my view, the concept of a child being born as a result of the same pregnancy in section 24, cannot be understood independently of the underlying surrogacy arrangement. 25 Nor are they terms defined in the Acts Interpretation Act 1954 (Qld). 26 Section 118 of the Guardianship and Administration Act 2000 (Qld) defines sibling more broadly, for a specific purpose, to also include an adopted or foster sibling. The Transplantation and Anatomy Act 1979 (Qld) defines sibling, broader still, to also include, for example a sibling by surrogacy, and a person who for reason of custom or cultural tradition is regarded as a sibling (see section 4). -- 18 of 21 -- 19 [54] The proper construction of the provision requires that the court’s focus be on the text of the provision, considered in the context of the Act as a whole. 27 The interpretation of the Act that will best achieve the purpose of the Act is to be preferred to any other interpretation.28 [55] In considering the proper construction of section 24, it is in my view, highly relevant that the statutory regime under the Act does not provide for any ability to make a parentage order with respect to the child S. The Act provides for (in particular circumstances) the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement.29 An application under Chapter 3 of the Act for a parentage order is made in relation to a child30, being, as defined, a child born as a result of the surrogacy arrangement.31 Having regard to the terms of the surrogacy arrangement as existed between the applicants and the respondents, and the circumstances of S’s conception, S could not, on any view, be said to be a child born as a result of a surrogacy arrangement. [56] That is not, however, to suggest that the question of whether a child is a child born as a result of a surrogacy arrangement is to be determined solely by reference to the terms of the surrogacy agreement. For example, where one child was born as a result of a surrogacy arrangement, any monozygotic twin of that child arising from the splitting of a fertilised ovum into two embryos, would also be a child born as a result of the surrogacy arrangement, irrespective of the birth of the twin being foreseen or contemplated by the parties to the surrogacy arrangement or the terms of the agreement. Different considerations to the present case would also arise in the event of, for example, the implantation of multiple embryos. [57] It is unnecessary on the current application to consider further or seek to define what temporal or factual nexus may result in the conclusion that a child is a child born as a result of a surrogacy arrangement, or more particularly, in what circumstances multiple children born in the context of a pregnancy in which the exceptionally rare 27 Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355. 28 Acts Interpretation Act 1954 (Qld), section 14A. 29 See section 5 Main Objects of the Act. 30 See section 21(1) of the Act. 31 See the definition of child in section 19 of the Act. -- 19 of 21 -- 20 phenomena of superfecundation or superfetation had occurred, (as occurred here), may each be considered to be a child born as a result of a preceding surrogacy arrangement. Here, S’s conception occurred entirely incidentally to, and independent of the surrogacy arrangement, and of the steps taken to implement that surrogacy arrangement. S is not a child born as a result of a surrogacy arrangement between the applicants and the respondents. [58] The overarching intention of section 24 is clear enough on its face – to preclude, in the event of multiple births, the making of one or more parentage orders that would result in the separation of birth siblings. The question which arises, is as to whether the prohibition operates where only one child, and no other child, is a child of the surrogacy agreement, and to which the Act otherwise applies. [59] There is in my view good reason to conclude that it does not. I accept the applicants’ submission that an outcome where, as a legislative absolute, a parentage order in relation to T cannot be made in any circumstances, because of the existence of another child to whom the Act otherwise has no application, is contrary to the guiding principles of the Act and the broader statutory scheme under the Act. It is an outcome that was not intended. The present scenario does not give rise to concerns that the provision was intended to address, such as the selective transfer of children born as a result of a surrogacy arrangement. [60] In my view, where a child is born pursuant to a surrogacy arrangement, another child who is not born pursuant to the surrogacy arrangement will not be a child born of the same pregnancy within the meaning of section 24, and will not therefore be a birth sibling. In those circumstances, section 24 would not operate to preclude the court making a parentage order with respect to a child who was born as a result of the surrogacy arrangement. The court would be required to consider whether the circumstances otherwise permitted and supported the making of the parentage order sought. -- 20 of 21 -- 21 [61] Some further, limited, support for that view may be gleaned from the following discussion of the provision in the course of the second reading speech for the Surrogacy Bill.32 Mr DICK: Clause 24 explains what orders a court may make where there are multiple births from a pregnancy that is the result of a surrogacy arrangement. Where the child has a living birth sibling the court can only make a parentage order about the child if it also makes a parentage order about each other living birth sibling in the applicant’s or joint applicants’ favour. ‘Birth sibling’ is defined to mean a brother or sister of the child who was born as a result of the same pregnancy as the child. Therefore, if twins are born as a result of the pregnancy that occurred as a result of the surrogacy arrangement the parentage order must be made in relation to both children and to the same intended parents. (emphasis added) Conclusion [62] Accordingly, I conclude that in the unique circumstances presented by this case, S is not a birth sibling of T. As such section 24 of the Act does not apply to prohibit the making of a parentage order in favour of the applicants, with respect to T only. [63] The application is allowed. The order is made as per draft. 32 Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 11 February 2010 at 297. -- 21 of 21 --