The child was born on May 11, just before the commencement of the new laws. The Surrogacy Act allows for an amnesty period of up to 2 years for altruistic surrogacies entered into before the Act started. This case was one of those.
In the case, known as BLH and HM v SJW and MW, the first applicant (the biological father of the child) and the first respondent came to a verbal agreement so that the first respondent would become the surrogate 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.
The agreement provided:
(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;
(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.
Judge Irwin stated:
After the child was born, the parties entered into a written surrogacy arrangement, reflecting what had already been agreed.
His Honour found that the surrogacy arrangement was for the wellbeing 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 the surrogate'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 [surrogate] 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...
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 thatpre-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 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 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 pre-commencement surrogacy arrangement, to dispense with the requirements that I have identified.
The case is a useful first step in decisions about how the Surrogacy Act 2010 Qld will take effect.
A feature of any altruistic surrogacy now entered into Queensland is that it requires a written surrogacy arrangement to be in place before the child was conceived and after legal advice and counselling steps have occurred.. If the facts were to be repeated, with the child conceived after 1 June 2010, the applicants could not have obtained a parentage order. It is vital that anyone contemplating surrogacy get expert advice- it is a process that can contain legal traps.