On Sunday I spoke at the Surrogacy Australia conference. Here is the paper I prepared for the conference:
SURROGACY AUSTRALIA NATIONAL CONFERENCE
27 MAY 2012
AN OVERVIEW OF SURROGACY LEGAL DRAMAS
By Stephen Page
Harrington Family Lawyers
I was asked to present today about State by State issues. In further discussions with the convenor, Mr Sam Everingham, I was asked to cover some further issues that are burning issues for intended parents. I use the term “intended parents’ because it is the internationally recognised term, although it is not in use in Australia. I will start therefore with the current legal position throughout Australia by way of overview. In the extremely limited time that I have, I will also talk about international issues. I will conclude with matters concerning current international developments.
In Australia there are essentially now four models of surrogacy regulation.
Model 1: no regulation: Northern Territory
The Northern Territory has no laws whatsoever concerning surrogacy. On face value this means that both traditional and gestational surrogacy is possible as is commercial and altruistic surrogacy.
It is perfectly legal to engage in any of these in the Northern Territory.
Unfortunately because there are no laws enabling parentage orders to be made, it is not possible to obtain a parentage order in the Northern Territory.
One ART clinic operates in the Northern Territory. It is bound by the National Health and Medical Research Council ethical guidelines which prohibit the clinic from engaging in commercial surrogacy.
The effect of that prohibition is that, bizarrely, commercial surrogacy can take place in the Northern Territory if it is a traditional surrogacy, but not if it is gestational surrogacy. In other words, the form of surrogacy that generally is seen as more risky and with added complications can be undertaken in the Northern Territory, but that in which the surrogate is paid and there would be protections offered through the clinic, such as counselling, and legal advice, is not allowed.
Model 2: The light touch regulation model: Qld, NSW, ACT, SA
The model adopted in Queensland, New South Wales, ACT and South Australia requires a written surrogacy arrangement to be in place. Strictly speaking there does not need to be a written arrangement in Queensland, NSW or the ACT, but in reality one ought to occur. In South Australia not to have a written arrangement is, curiously, illegal, but not an offence.
Under this model the intended parents and the surrogate and her partner (if any) are required to have counselling and legal advice before they enter into the arrangement.
Depending on the model there may be a requirement for post-birth counselling, and a report obtained post-birth as to whether the proposed parentage orders would be in the best interests of the child.
Each State has its own peculiarities with its legislation. There are differences, for example, about how old intended parents or the surrogate need to be. There are slight differences as to how soon the application can be made and what happens if the cut off period (in Queensland, for example, it is six months) has expired.
There is not necessarily a requirement for a surrogacy arrangement to be signed up. However, without it doctors will not treat and without it a parentage order cannot be obtained.
In my view the model adopted in Queensland, New South Wales, ACT and South Australia is certainly the preferable model. It has the least amount of red tape, delay and cost and if there is to be a model adopted across Australia at some time in the future it should, in my opinion, be this model.
Model 3: Pre-approval model: Victoria, WA
This is the model adopted in both Victoria and Western Australia. The model requires, in addition to there being a surrogacy arrangement, legal advice and counselling advice, and that there is pre-approval from a State government regulator, in Victoria the Patient Review Panel, in WA the Western Australian Reproductive Technology Council, before treatment can commence.
After the child is born there is still the need to obtain an order.
There are additional checks in Victoria requiring criminal history and child protection histories to be cleared.
The consistent views that have been expressed to me by clients and the owners of IVF clinics are that this model is cumbersome, costly and slow.
Model 4: prohibition: Tasmania
Tasmania’s legislation prohibits surrogacy. There have been since last year two Bills before the Tasmanian Parliament, one of which is to allow a scheme for surrogacy and the other for incidental changes. Last August the Independent Chair of the relevant Upper House Committee, Ruth Forrest MLC, stated that new laws might take some years.
The Bills envisaged that Tasmania will take a similar approach to that in Queensland, NSW, ACT and South Australia, but when I gave evidence to the Upper House Committee in July last year, at least one committee member appeared to be keen on requiring yet another model of regulation, namely pre-approval checks to be undertaken by magistrates. This is not a model that has been adopted anywhere else in Australia and it is not to say it would not be effective but it certainly would be more expensive than the model seen in Queensland, NSW, ACT and South Australia.
Traditional v gestational surrogacy
As you have already heard, both can occur in the Northern Territory, but neither can occur in Tasmania. In the other States and Territories, gestational surrogacy can occur. Queensland and NSW allow traditional surrogacy. The other States and the ACT ban it.
Donor egg and sperm
The ACT and WA ban surrogacy when there is no genetic connection to either intended parent. SA also does so, but allows an exception for medical grounds. The other States do not have this exclusion.
Victoria and in most cases, WA, require the surrogate to have had a previous child. The other States do not. However, some clinics nevertheless have this requirement. For example, the ACT does not require it, but the only clinic offering surrogacy services in the ACT, Canberra Fertility Clinic has had this requirement.
Gay and lesbian and single clients
Although the Commonwealth and the States have congratulated themselves on coming up with a marvellous model of surrogacy regulation, in my view the current model is deeply flawed simply because there are many anomalies between the different regimes in each State and Territory. An example of this is how gay and lesbian and single people are treated.
In Queensland, New South Wales and Victoria singles and couples (whether straight, gay or lesbian) can be intended parents. In the ACT, the sexuality of the intended parents is irrelevant but their relationship status is relevant. They must be a couple. A single person cannot be an intended parent in the ACT.
In South Australia intended parents must be a couple and must be married or in a heterosexual de facto relationship. Gay and lesbian couples are excluded as are singles. Western Australia allows married or de facto heterosexual couples and single women to be intended parents. Single men are excluded, as are gay and lesbian couples.
Marriage status of the surrogate
In Queensland, NSW, Victoria, SA and WA the surrogate can be married, in a de facto relationship or single. There is no discrimination if the surrogate is in a lesbian relationship. Therefore in Western Australia for example, a lesbian couple cannot be intended parents but a single woman (who could be a lesbian) can obtain the assistance of a woman in a lesbian relationship to be her surrogate!
In the ACT the sexuality of the surrogate is irrelevant, but the surrogate cannot be single. The surrogate must be in a couple relationship.
Remembering that there are no offences in the Northern Territory, each State and Territory otherwise has different offences. These include:
- Advertising (Qld, NSW, ACT, Victoria, Tasmania, SA, WA – but not in NSW if the advertising is for altruistic surrogacy and is for free)
- Entering or offering to enter into commercial surrogacy arrangements (Qld, NSW, ACT; but WA entering into only, SA entering/inducing; Tasmania- it also covers altruistic surrogacy arrangements).
- Payment of various kinds to a commercial surrogate(Qld, Victoria [but only the surrogate mother not to receive material benefit or advantage], Tasmania and WA [about receiving consideration]).
- Providing technical professional or medical services to a commercial surrogate before pregnancy (Qld, ACT, WA- in Tasmania the offence is to provide to any surrogate).
- Procuring or engaging a brokerage of commercial surrogacy (ACT and WA; Tasmania- for any form of surrogacy).
When Parliament passes legislation, it is presumed, unless there is a clear intention to the contrary, in respect of criminal offences that those criminal offences will only apply to acts that have occurred within the jurisdiction. So far as entering into a commercial surrogacy arrangement, for example, unless the legislation states otherwise, it will be presumed that the entry into the commercial surrogacy arrangement must have occurred in that jurisdiction. If entry into the commercial surrogacy arrangement occurred outside that jurisdiction, ordinarily it will not be an offence in the first jurisdiction.
In three jurisdictions, namely Queensland, NSW and the ACT, not only are the offences in those jurisdictions liable to be committed there, but also outside those jurisdictions if committed by someone who is “ordinarily resident” (Queensland, NSW and the ACT) or “domiciled” (NSW only). Therefore, by way of example a person who ordinarily lives in Sydney and enters into a commercial surrogacy arrangement in Los Angeles, where it is perfectly legal to do so, nevertheless commits an offence in NSW.
Those from NSW who signed up an agency contract with an overseas surrogacy agency before 1 March 2011 may be exempt from prosecution, although this will depend on the terms of the agency agreement. It is essential to get good legal advice on this point.
Moving State: overseas commercial surrogacies
Sometimes there are clear advantages to moving from one State to another. This can certainly apply to those engaged in commercial surrogacy overseas. By moving from, say, NSW to Victoria, intended parents may seek to ensure that they are not committing any offences.
The difficulty for those undertaking commercial surrogacy overseas who move interstate is to ensure that they do not remain “ordinarily resident”  or “domiciled” in their previous State at the time they undertake an act which, in their previous State, would constitute an offence.
“Ordinarily resident” is not a term of law or a work of art. It is a common sense test of fact. Was the person at the relevant time ordinarily resident in that jurisdiction? If the answer is “yes” and the elements of an offence otherwise made out, then they will have committed an offence. If the answer is “no”, then the answer is no, they have not committed an offence.
I am often asked by clients as to what timeframe they ought to move to another State. In my view there is no right answer. Certainly it is a question of degree. If an intended parent were to fly from Sydney to Melbourne on a Friday afternoon and later on that Friday night sign a surrogacy contract with an agency in India and then return to Sydney on the Monday, there is no question that she was “ordinarily resident” in New South Wales at the time and therefore committed the offence.
If, however, she were to fly to Melbourne on the Friday afternoon and sign on the Friday night having at that time formed the intention and acted to move residence to Victoria, which is evidenced by staying there for a number of months (say, six or twelve) then even though the act of entering into the surrogacy arrangement occurred within hours of moving, it would in my view be the case that at that relevant time she was ordinarily resident as was demonstrated by latter events. It is really a question of degree and each case is different.
It is more problematic for those moving from Queensland because of the offence of making or giving consideration. With a commercial surrogacy contract typically a number of payments will be made during the course of the contract, the first being at signing and the last being when the baby is handed over. Each of these events constitutes a separate offence. Therefore intended parents need to stay away from Queensland for a longer period.
The difficulty with staying away from the home jurisdiction for, say, six months is that there can be delays in the surrogate becoming pregnant and then upon her becoming pregnant there is a risk of something going wrong, such as a miscarriage. If at that point you have moved back to the home jurisdiction, you may have to repeat the move all over again with inevitable chaos arising from such a further move.
It is not sufficient in my view to create an artificial residence in the other State. They must as a matter of fact have changed their home to move interstate, where they ordinarily live or are domiciled. When clients have put that to me that they will have a pretend move, so creating some documentation to show that they have moved but in reality not move at all, aside from my counselling against it, I point out that although the prosecution are required to prove each and every element of the offence beyond reasonable doubt including that they were ordinarily resident in the relevant State at the time of the committing of the offence, if their defence were that they were living in another State they will have an evidentiary onus to prove that. I often say words such as:
“Good luck when you’re before a magistrate with that one!”
There can be significant issues if one intended parent moves interstate but the other does not. While this might, just might, fix the problem of prosecution (it might not- each case needs to be carefully checked), it can make the process of overseas surrogacy impossible or difficult to proceed.
This just shows, yet again, that each step of the process should not be looked at in isolation, but as part of the whole. Each step needs to be seen as part of the whole, because each false step could lead to the whole process failing.
Moving State: Australian altruistic surrogacies
Moving State has its challenges for those undertaking altruistic surrogacy within Australia. The difficulty for intended parents is that they are seeking two things:
- A baby;
- A parentage order.
For intended parents a move may feel necessary. For example, a single man in Western Australia, knowing that he cannot undertake altruistic surrogacy there, might move to Queensland to undertake altruistic surrogacy, where it is legal for him to do so. At least one of the major clinics will not provide treatment (because he is not a resident of Queensland). However, he should be able to obtain treatment and will need a surrogacy arrangement, but because the requirements of a parentage order are based on the residence of the intended parents and because he was resident in Western Australia, he would not be able to obtain a parentage order in Queensland. Because he was unable to obtain surrogacy in Western Australia, he is not able to obtain a parentage order there either. It may be necessary for him to move interstate during the period preparatory to the surrogacy arrangement being signed and until after the child is handed over and the matter is heard by the court. Depending on how many cycles of IVF are required, the need for the six month exclusion period for any STI’s, and the length of the pregnancy, with associated legal steps, the period living interstate could quite be for two years.
Consideration may also need to be given as to whether or not the surrogate moves. There is a presumption that there is some interstate scheme to enable a birth certificate in one State to be able to be altered by a court in another State. That at least is the theory. We know already, however, that that does not apply for a child who is born in the Northern Territory (which has no laws regarding surrogacy) or Tasmania (which bans surrogacy).
An example of interstate red tape
I act for intended parents who live in Queensland. The birth mother lives in New South Wales, where the children were born.
At the time that the New South Wales legislation was foreshadowed, the then Attorney-General John Hatzistergos said that he would be adopting the Queensland model.
What was apparent at the time that the Surrogacy Act 2010 (NSW) was enacted was that although in broad compass it was similar to that in Queensland, there were some significant differences.
One of those key differences was as to the payment of expenses to the surrogate. The last thing that ought to happen in any altruistic surrogacy arrangement is by inadvertence to turn it into a commercial surrogacy arrangement.
One might have thought, as I did, that if the Queensland legislation were to be adopted, it would in essence be copied word for word to provide for some consistency between the States. It was not so. On this point, before the drafting of the surrogacy arrangement could be settled, I attempted to read the provisions of both the Queensland and the New South Wales Surrogacy Acts to work out how they were different. After I had read them my head spun and I simply had no idea whether they were identical or different. Words were in different order and it was hard to tell without getting two people to sit down and read them out side by side. I did so with two clerks in my office. The upshot? Aside from extra cost to my clients it appears that the New South Wales and Queensland provisions are largely the same on the point.
In this case the surrogate, who lives in Sydney, gave birth in Sydney. My clients as I said live in Brisbane. Because of the national scheme my clients have to apply for a parentage order in Queensland.
Because the children were born in New South Wales, therefore the birth certificate which is required to be altered is in New South Wales. The New South Wales legislation allows the Registrar of Births, Deaths and Marriages to alter the birth certificate, if supplied with the relevant details by the equivalent Registrar of Births, Deaths and Marriages interstate, in this case Queensland. Here we hit a snag. In Queensland the Children’s Court is the court required to make the order. Normally after the Children’s Court makes an order the intended parents can apply to the Registrar of Births, Deaths and Marriages in Queensland to alter the records in Queensland. However, the Queensland Registrar of Births, Deaths and Marriages will be doing nothing. The advice I received from the Registrar’s office was that they looked at their legislation. Their legislation only concerns children born in Queensland. These children were born in New South Wales and therefore the Queensland Registrar will do nothing. However, the New South Wales legislation requires the Queensland Registrar to do something, namely to transmit the documents. The New South Wales legislation does not allow for the transmission of documents from someone else, such as the court.
I hope to overcome this problem by obtaining an order from the court to enable the material to be transmitted to New South Wales.
The problem might have been solved at some level by the Queensland court acting as a New South Wales court. There is what is called a cross-vesting scheme between the various Supreme Courts of each State so that, for example as in this case, the Queensland Supreme Court could exercise the power of the New South Wales Supreme Court. If that were the case then that might possibly be a way of solving the problem with the New South Wales Registrar of Births, Deaths and Marriages. However, the Surrogacy Act 2010 (Qld) makes plain that the only court exercising jurisdiction under that Act is the Children’s Court, not the Supreme Court of Queensland. The Childrens Court does not have the ability to cross vest- matters from the Supreme Court of New South Wales.
In the meantime, I have crossed my fingers!
This case illustrates the need for national laws regarding surrogacy. There need in my view to be uniform laws. Each State has developed its own approach dealing with surrogacy on the assumption that people seeking altruistic surrogacy will only seek altruistic surrogacy from surrogates in their State. While each approach (save Tasmania and the Northern Territory) is broadly similar, taken as a whole the laws concerning surrogacy in Australia are a mess.
Many intended parents, frustrated with the inability to find a surrogate or find an egg donor or wanting to avoid the bureaucracy that is involved in surrogacy within Australia, have decided that it is much easier and simpler just to pay some money and go overseas.
It must be noted at this point that it is perfectly legal for Australians to head off overseas and undertake altruistic surrogacy overseas (provided altruistic surrogacy is legal in the overseas jurisdiction).
As I have stated above, however, it is an offence for those from Queensland, New South and the ACT to engage in commercial surrogacy overseas.
Where do Australians go?
Primarily Australians from my experience have headed to California, and more recently India has been growing in importance. The feedback that has been provided to me by my clients who were heading to India but have considered the United States was that they have chosen India either because others they know have undertaken surrogacy there or because it is cheaper than the US.
However, clients of mine have undertaken surrogacy in other places:
- Ukraine (considered)
I have certain views about which of those jurisdictions I would avoid.
Risks with bringing your baby home
Australia is a party to two relevant conventions: the Hague Convention on Intercountry Adoption and the Hague International Convention on the Civil Aspects of International Child Abduction. The former regulates how children are to be adopted between member nations. The latter contains a summary means for recovery of children from a second jurisdiction when they improperly remain there or are improperly removed from the first jurisdiction.
Officials of the Department of Immigration and Citizenship are usually at pains to ensure that Australia complies with both conventions.
The Department of Immigration and Citizenship requires Australians to tell it when seeking to bring a child to Australia that the child has been conceived through surrogacy. I do not want to focus on migration matters as I am not a migration agent, and therefore cannot give advice on those matters. However, there is no legal requirement to tell the Department that you are engaged in a surrogacy matter. The consequences of not telling the Department, again subject to any migration agency advice that you have received, is that officers of the Department may perceive that the arrangement you have entered into might be a criminal offence of child stealing, or a breach of the Hague Intercountry Adoption Convention or a breach of the Hague International Convention on the Civil Aspects of International Child Abduction. Often it is wiser to tell the Department that you have engaged in surrogacy.
Will departmental officers tell Queensland/NSW/ACT authorities?
In theory if you tell the Department of Immigration and Citizenship that you have engaged in a surrogacy matter then an officer of that Department can tell Queensland, NSW or ACT authorities that you have done so, which may then lend evidence to you being prosecuted. In practice it has never happened to my knowledge, but that does not mean that it could not happen.
Section 16 of the Australian Citizenship Act 2007 (Cwth) provides relevantly that a person born outside Australia is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.
The terms “parent” and “child” are very poorly defined in that Act. The position of the Department of Immigration and Citizenship is that obtaining citizenship this way, ie citizenship by descent, means that a potential citizen must be descended from an Australian parent, which means that they must share the same DNA. There is no such requirement under the Australian Citizenship Act 2007. There is no regulation that requires the Department to do so. The approach taken by the Department is merely by way of administrative guideline, which being outside of parliamentary approval (as it is merely an administrative step), could change tomorrow.
In my view there is not a requirement, in certain circumstances to establish DNA and nor is there a legal requirement to undertake a DNA test. However, there could be great difficulties in obtaining citizenship if the approach of the Department is not followed and I strongly urge anyone looking at this process to obtain specific advice covering the case, including the advice of a good migration agent.
The Federal Court in two cases in 2010 considered this question of citizenship by descent. In both cases the court determined that the approach by the Department of a DNA test and/or using the definition of “parent” under the Family Law Act 1975 (Cwth) was incorrect. The case was H –v- Minister for Immigration and Citizenship.
H v Minister for Immigration and Citizenship  FCAFC 119
This was a decision of the Full Court of the Federal Court of Australia (Moore, Kenny and Tracey JJ). At issues was whether or not two children were Australian citizens by descent.
H was a two year old child. His mother was a citizen of China. The man shown on his birth certificate, Mr H, an Australian citizen, had met and married the mother when she was pregnant to another man. The Department had rejected the application for Australian citizenship by descent as Mr H was not genetically the father.
Vanessa McMullen was born to a Fijian mother, Ms Dilagi. At the time of Vanessa’s conception her mother had two intimate relationships, one with Mr Frederick McMullen, an Australian citizen, and the other with Mr Bill Davidson, now deceased, who was in all likelihood an Australian citizen. Mr McMullen was shown as the child’s father on the birth certificate. As the mother had doubts about paternity, blood testing was then undertaken, showing that the child had the same blood type as Mr McMullen.
Before the birth, Mr McMullen purchased a house for Ms Dilagi and Ms McMullen. He provided monetary support for Ms McMullen throughout her childhood. When she was three years old, Vanessa McMullen and her mother visited Mr McMullen in Australia. Mr McMullen has had regular telephone contact with Ms McMullen and has visited her in Fiji at least once a year. In sum, Mr McMullen “has provided both material and emotional support to [Ms McMullen] over the years and assumed as best he could . . . a father role to [her]”. Ms McMullen regarded Mr McMullen as her father and he, after his initial doubts, regarded her as his daughter. Ms Dilagi too regarded Mr McMullen and Ms McMullen as father and daughter. In addition, Mr McMullen’s wife and the three children of his marriage also accepted Ms McMullen as Mr McMullen’s daughter. Mrs McMullen referred to herself as Ms McMullen’s step-mother.
The Department had rejected the application for Australian citizenship by descent as Mr McMullen was not genetically the father.
In early 2009, after the receiving the results of the second DNA testing, Ms Dilagi told Mr McMullen and Ms McMullen for the first time that Mr Davidson was Vanessa’s biological father. Ms Dilagi’s statement “has not resulted in a change to the existence or closeness of the long established father/daughter relationship enjoyed between Mr McMullen and [Ms McMullen]”.
Based on these facts, the Tribunal ultimately concluded that Ms McMullen had “a biological father in the late Mr Davidson and an accepted father in Mr McMullen”. The Tribunal concluded that Ms McMullen’s relationship with Mr McMullen satisfied s 16(2)(a) of the Citizenship Act. In reaching this conclusion, the Tribunal had regard to the expert evidence from a forensic psychologist, who gave evidence “that a person who is not a biological parent may assume the role of a parent for a child by virtue of the strength of attachment arising between the child and that other person” and that “such a high quality well [-]established relationship of the type which arose where there was physical separation had occurred in the case of Mr McMullen and [Ms McMullen]”. The psychologist said that “regular telephone contact combined with irregular one to one contact had resulted in a very sound father/daughter relationship arising”.
The Tribunal also observed that the notion of parenthood was flexible and subject to change “as science and the community changes”. The Tribunal rejected the submission that the term “parent” should be limited to biological parentage. Describing the facts as “unusual”, the Tribunal found that there was a “father/daughter relationship” between Mr McMullen and the Ms McMullen, on the basis that he had believed on reasonable grounds that he was her father, and had assumed that role over an extended period. Considering the nature of the relationship over time between Mr McMullen and Ms McMullen, the Tribunal was of the view that “it would be unduly restrictive, unfair and unreasonable to determine in an administrative sense [that the relationship] was anything else other than a father/daughter relationship”.
In the alternative, the Tribunal concluded that Ms McMullen’s citizenship should be approved if her biological father, Mr Davidson, was an Australian citizen. The Tribunal stated: “While there is nothing raised by the [Minister] to suggest otherwise than Mr Davidson was at the time of [Ms McMullen’s] birth an Australian citizen the Tribunal accepts that this is something which should be formally confirmed”. The Tribunal remitted the matter with instructions:
to undertake the following procedure (if it becomes necessary to rely on ground (b)) in the order stated:
(a) determine if Mr Davidson was an Australian citizen at the date of birth of the applicant and if so accept him as being the applicant’s father, or if it transpires Mr Davidson is not an Australian citizen as at the date of Vanessa’s birth, then
(b) accept Mr McMullen, an Australian citizen at the time of Vanessa’s birth, as the applicant’s father.
The question in each case was whether “a parent of a person in s 16(2) of the Citizenship Act mean[s] only a natural or biological parent of the person?”
The position of the Minister for Immigration and Citizenship was as follows:
“The Minister’s contention in both appeals was that “parent” in s 16(2)(a) of the Citizenship Act meant only biological parent, although the Minister acknowledged in argument that, in the special case of artificial conception, parenthood might not be biological parenthood. Counsel for the Minister defined biological parent during oral submissions as ‘a person who supplied the biological material, either the sperm or the ovum that produces the child’.”
The submissions of counsel were extensive, focussing on this issue of “parent”:
“25. In the McMullen appeal, the Minister argued that, in so far as the Tribunal found that Mr McMullen was Ms McMullen’s parent because he was her accepted father, the Tribunal misconstrued s 16(2)(a) of the Citizenship Act, it being common ground that he was not her biological father. The Minister’s argument was essentially the same in the H appeal, it having been conceded by NWH’s mother that Mr H was not his biological father.
26. The Minister’s argument focussed in the first place on the ordinary meaning of “parent”, which the Minister said meant biological parent as reflected in the Oxford English Dictionary. Opposing counsel submitted that the ordinary meaning of the word “parent” was not so limited, but neither counsel sought to set out the precise boundaries of any broader meaning. Indeed, counsel for Ms McMullen submitted that the word “parent” in s 16(2)(a) had “an ambulatory meaning adapting to the realities of Australian families” and, on this basis, both Mr McMullen and Mr Davidson could properly be considered “parents” of Ms McMullen within the meaning of the Citizenship Act.
27. Counsel for Ms McMullen and for NWH relied on particular definitions in the Citizenship Act itself, including definitions of “responsible parent” and of “child”, as supporting a broader meaning of the word “parent” than the Minister would allow. The Minister, on the other hand, submitted that “responsible parent” was intended to be wider in scope than “parent”, and that to read “parent” in s 16(2)(a) as encompassing notions of parental responsibility would be to improperly read the definition of “responsible parent” into the provision. Similarly, the Minister argued that the definition of “child” did not operate to extend the meaning of parent beyond biological parent.
28. The parties also addressed their attention to timing considerations in s 16(2)(a); the structure of Division 2, Part 2 of the Act, including the structure of Subdivision A; and the effect of provisions outside Subdivision A of Division 2, Part 2. We address these arguments in detail below.
29. The parties relied on a variety of other interpretive aids in support of their positions, including legislative history. Essentially, the Minister’s contention based on legislative history was that provisions of the Nationality and Citizenship Act 1948 (Cth), later renamed the Australian Citizenship Act 1948 (Cth) (‘the 1948 Act’) from which s 16(2) derived were “generally concerned with the status of a person’s biological parents at the time of his or her birth”, and that there were no extrinsic material indicating a legislative intent to depart from this approach. The Minister contended that the 1948 Act should be understood as adopting a combination of the international law principles of jus soli, under which nationality was determined by place of birth, and jus sanguinis, under which nationality was determined by the nationality of one’s parents: see generally Singh v The Commonwealth  HCA 43; (2004) 222 CLR 322 (‘Singh’). The effect of the original language of the 1948 Act was not, however, explored in any real depth; and, as Singh itself demonstrates, Parliament no longer treats either of these principles as immutable.
30. In discussing the legislative history of s 16 of the Citizenship Act, counsel for NWH made a number of points, but it suffices to note only two. Counsel particularly referred to the use of “natural mother” and “natural parent” in the 1990 and 1991 amendments to the 1984 Act, which is discussed in detail below. Counsel argued that the subsequent omission of the qualifying word “natural” showed that Parliament had not intended to limit “parent” in s 16(2)(a) to biological parents. The Minister argued, on the other hand, that the use of “natural parent” in s 10C favoured the Minister’s construction of s 10B (both discussed below). The Minister argued that since s 10C (introduced in 1991) was intended as a remedy for individuals who had missed the opportunity to register as citizens under s 10B, if “natural parent” in s 10C were narrower in scope than “parent” in s 10B, then s 10C would not have had its intended remedial effect.
31. Both the Minister and counsel for NWH emphasised the importance of s 10B, introduced by amendment in 1984 (discussed below). The Minister relied on the Revised Explanatory Memorandum for the Australian Citizenship Bill 2005 (Cth), which stated that Subdivision A in Division 2, Part 2 (of what is now the Citizenship Act) “mirrors the provisions of the old Act” and that s 16(2) “combines the descent sections 10B and 10C of the old Act”. Thus, so the Minister argued, s 16(2) should be understood as having the same meaning as the equivalent provisions of the former Act, which, so the Minister submitted, were limited to biological parents. The Minister argued that, if the legislature had intended to expand the definition of “parent” for the purposes of citizenship by descent, this intent would have been reflected in the extrinsic material, and that there was no evidence of such an intent in this material.
32. Opposing counsel contended that there was no biological limitation in “parent” evident in the legislative history of s 16(2) of the Citizenship Act. We discuss this in more detail below. Counsel for NWH also made particular reference to the Explanatory Memorandum to the Australian Citizenship Amendment Bill 1983-84, stating that the 1984 amendments (see below) were designed, among other things, “to remove all discriminations from the Australian Citizenship Act 1948”, to support an argument that the 1984 amendments were intended to remove discrimination against children such as NWH. Since this argument distracts attention from the principal competing considerations, we discuss it briefly at this point in order to put it aside.
33. As noted below, the discrimination with which the 1984 amendments were concerned was discrimination on the basis of sex and marital status. In his second reading speech on the Australian Citizenship Bill 1983 (Cth), the Minister said (see Parliamentary Debates, House of Representatives, p 3369):
The existing Act discriminates on the basis of sex and marital status. Mothers, for example, do not have the same rights as fathers in determining their children’s citizenship. It has been decided to amend the Act to place mothers and fathers on an equal footing for all purposes related to citizenship, and the citizenships of their children. All other discrimination on the grounds of gender and marital status will be removed.
34. The new s 10B reflected this purpose. Prior to the 1984 amendment, the citizenship of a child born overseas and out of wedlock could be based on a citizen mother but not a citizen father. This was so notwithstanding that, following the 1976 amendment the citizenship of a child born overseas to a married woman could be based on a citizen mother or citizen father. The new provision referred to “a person, being a parent of the relevant person at the time of the birth of the relevant person”, without reference to gender or marital status, thus eliminating these distinctions. One object of the amendment appears to have been to enable illegitimate children to obtain citizenship through their “parents” – whatever the word meant – to the same extent as legitimate children. The fact that the amendment was concerned with discrimination against illegitimate children does not say anything about the meaning of the word “parent”. That is, the discrimination with which the 1984 amendments were concerned did not include discrimination as between biological or non-biological parents. Indeed, apart from removing gender and martial status as distinctions, these amendments did not mention biological connection at all.
35. The parties also relied on the Family Law Act 1975 (Cth) (‘the Family Law Act’) and certain state legislation, especially the Status of Children Act 1974 (Vic), to support their competing arguments.
36. The Minister relied particularly on the presumptions contained in the Family Law Act (particularly, as to parentage arising from marriage (s 69P), as to paternity arising from cohabitation (s 69Q), and as to parentage arising from registration of birth (s 69R)) as well as the presumptions in the Status of Children Act 1974 (Vic) (ss 5, 8) and at common law, to support the contention that the need for genetic testing would generally not arise if “parent” in s 16(2) were limited to biological parent (although the Minister acknowledged that s 19A of the Citizenship Act might present difficulties for individuals in particular cases if this construction were preferred). In this context too, the Minister argued that the same interpretative analysis should apply to s 12(1)(a) (citizenship by birth). Reference in this connection was also made to ss 17(4B), 19D(7), 24(4B) and 30(6).
37. In this context too, the Minister cited In the Marriage of CV and SL Tobin  FamCA 446; (1999) 24 Fam LR 635, in support of the submission that “parent” in s 16(2) of the Citizenship Act meant biological parent. In that case, the Full Court of the Family Court held (at 645 ) that “[w]hile the term may be capable of being used in different contexts to include broader categories ... the natural meaning of the word [parent] in context in Pt VII Div 7 [of the Family Law Act] . . . is the biological mother or father of the child and not a person who stands in loco parentis”. It is, however, apparent from the discussion in that case that the Court reached this conclusion because of the specific provisions in the Family Law Act and the child support legislation. Thus, the decision does not particularly assist in resolving the present question.
38. Counsel for Ms McMullen also relied on the attribution in the Family Law Act of parental status to persons who were not biological parents. Reference was made to numerous provisions, including s 64C (permitting a parenting order in favour of parents or other persons), s 65C (setting out who may apply for a parenting order), s 69R (see above), and s 69S (presumption of parentage arising from findings of courts). Reference was also made to s 60F (certain children to be children of a marriage) and s 60H (children born as a result of artificial conception procedures). Counsel argued that the Citizenship Act and the Family Law Act were essentially in pari materia, citing Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 at 509-10 (Lee J) (affirmed on appeal).”
The Full Court rejected the linking of the Family Law Act and the Australian Citizenship Act on this point:
“It is convenient to note briefly that we reject the submission that the two statutes are appropriately described in this way since they do not in truth deal with the same subject matter. The subjects with which these statutes are concerned are essentially different, although at times certain discrete issues arise that are the same or similar under both. Generally, in the latter case, Parliament has expressly stated when the provisions of the Family Law Act are to operate in the context of the Citizenship Act. The fact that the Citizenship Act expressly picks up and adopts provisions in the Family Law Act does not diminish the difference between the two subject matters. The Citizenship Act picks up certain provisions of the Family Law Act for its own purposes, and generally where it does so, it does so expressly.
Ultimately, the parties did not really explain how the provisions of the Family Law Act that were not expressly picked up by the Citizenship Act could in law inform the interpretation of s 16(2) of the Citizenship Act and, unless indicated to the contrary in what follows, we would not consider that they assist with the present question.”
The Full Court rejected a reliance on State legislation:
“Counsel for NWH also noted examples of state legislation in which the State Parliament had not limited the word “parent” to biological parent, referring particularly to the Children, Youth and Families Act 2005 (Vic), s 3; Family Violence Protection Act 2008 (Vic), s 4; and Victims of Crime Assistance Act 1996 (Vic), s 3. These do no more than illustrate that a legislature may choose to accord the word “parent” a wide meaning; but it is apparent that in each case the relevant legislature has specifically defined “parent” having regard to the legislative contexts in which the word is to be used. These contexts are different from the present. These specific legislative definitions provide no guidance on the present question.”
The Full Court rejected an approach of considering the legislation to have a beneficial approach:
“Finally, both the Minister and the opposing parties relied on competing policy considerations. We refer to the most significant of them hereafter. However, we mention one here because it seems to us that it may be put to one side speedily. Counsel for Ms McMullen relied on the principle that beneficial legislation should be interpreted widely rather than narrowly, referring to VFAY v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 14; (2004) 134 FCR 402 at 409  and Bortolazzo v Comcare  FCA 515; (1997) 75 FCR 385 at 388. Counsel argued that the Citizenship Act was “intended to benefit those people who seek to be Australian citizens”, and that any ambiguity in the Act should be resolved in favour of such beneficiaries. The present question is not, however, about resolving an ambiguity, which is a common application of this principle. Nor is it remedial in the usual sense. It is true that s 16 of the Citizenship Act renders a person who falls within its terms eligible for citizenship and that this is a benefit to him or her, the citizen parent or parents, and also presumably to the Australian community (see the preamble to the Citizenship Act). Equally, however, the provision is not intended to benefit a person who does not fall within s 16 and, if a person does not have a citizen parent within the meaning of the provision, then the benefit of the provision does not extend to him or her. That is, so far as the present question is concerned, the principle to which counsel referred has no useful application.”
Who is a “parent”?
The Full Court stated:
“The contest about the ordinary meaning of “parent” is not at all straightforward. In her preface to the scholarly publication Parenthood in Modern Society: Legal and Social Issues for the Twenty-first Century (Martinus Nijhoff Publishers, 1993), edited by John Eekelaar and Petar Sarcevic, Marie-Therese Meulders described the legal basis and social significance of parenthood as “one of the major and most complex issues throughout the history of mankind”. As Professor Meulders noted, looked at superficially, the basis of parenthood might appear to be “blood ties resulting from procreation”. Considered more carefully, however, as Meulders and other scholars acknowledge, it is clear that, over the ages and in different places, the status of being a parent has been socially defined in a great variety of ways that do not always reflect the biological facts. Certain socially recognized facts have come to define the social status of a “parent” in relation to another person. Modern ethnology and anthropology recognize as much. Historians have shown that family structures and notions of parent and child, marriage and descent have differed widely over time and within a range of demographic, economic and cultural frameworks distinctive for each society: see, for example, Lawrence Stone, The Family, Sex and Marriage in England 1500-1800 (Penguin, abridged version, 1979, reprinted 1990), pp 22-29, 48, 80-86, 109; Rosemary O’Day, The Family and Family Relationships, 1500-1900 (Macmillan 1994) pp 29, 127, 134; Martine Segalen, Historical Anthropology of the Family (translated by JC Whitehouse and Sarah Matthews; Cambridge University Press, 1986), pp 32-36, 173; Michael Anderson, Approaches to the History of the Western Family 1500-1914 (Macmillan, 1980), pp 14, 41-2, 60; and Philippe Aries, Centuries of Childhood (Jonathan Cape London, 1962). In essence, the status of being a parent may imply physical procreation, the social assumption of a specific relationship to another (as the child of the parent) or both. Comparatively recent developments in the biological sciences, especially in genetics, and the introduction of DNA testing, has highlighted the differences between understanding “parent” as a biologically defined status and as a socially-defined one.
Today, perhaps, one assumes that when a person speaks of a “parent”, the speaker is referring to a biological parent. If, however, it is plain from the context or from one’s knowledge of the speaker that the reference is not to a genetic relation but to someone who, for the speaker, performs the role that society typically expects a parent to fulfil, then one accepts the reference to “parent” as apposite. Thus, in ordinary usage, the word “parent” may be used without modifier to signify a genetic or non-genetic connection with another: compare Black’s Law Dictionary (8th ed, 2004). Whilst often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.
Whether or not this exposition of the current ordinary meaning of the word “parent” is accepted is, however, beside the point on these appeals. This is because, as already noted, a question as to the ordinary meaning of a word such as this is a question of fact, which cannot be dealt with on these statutory appeals. No-one has suggested, however, that this Court lacks jurisdiction in the appeals because there is no question of law. How therefore is the question to be understood, having regard to s 44(1)? If the question raised by the appeals is not one about the ordinary meaning of “parent”, it must be about some particular meaning of “parent” in s 16(2) of the Citizenship Act. That is, the point at issue on these appeals must be whether, in the specific context of s 16(2), the word “parent” can only mean biological parent, irrespective of the ordinary meaning of the word. The Minister would have the Court answer this question in the affirmative. The argument for the opposing parties is that the word “parent” in s 16(2) is not to be so limited.” (emphasis added)
The Full Court stated that a “rational” and fact based approach needed to be taken:
“The concept of citizenship, though not constitutionally defined, is therefore central to the idea of the Australian body politic; and to the way the Australian community defines itself for the present and the foreseeable future. As the legislative history (discussed below) shows, just as “[c]onstitutional notions of membership of the Australian community” have changed with “international and national realities”, so too legislative notions of membership of the Australian community have altered to keep pace with changing social or cultural realities: compare Singh 222 CLR at 417 - (Kirby J). Unsurprisingly, the ancient principles of jus soli and jus sanguinis to which the Minister referred no longer much guide Parliament in determining membership of the Australian community. Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the “common bond” mentioned in the preamble. Within this framework, there is, however, little contextual support for the proposition that the word “parent” has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word. Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community. A claimant for citizenship under 16(1), with a biological at-birth citizen parent, can have no more connection with the country than a claimant for citizenship also born outside Australia, with an at-birth citizen parent who holds out the person as his child from birth, treating the person as his child from that point on, though the genetic link is missing. Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word “parent” in s 16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage. Under the present jurisdictional arrangement, it would then be a matter for the Tribunal to determine whether, on the facts as found, either claimant for citizenship had, relevantly, a citizen “parent” within the ordinary meaning of the word, as at the time of their birth.”
The Full Court then dealt with the term “responsible parent” which appears in the Act:
57. “The word “parent” is not defined in the Citizenship Act, although the Citizenship Act defines other familial relationships, including “responsible parent”, “step-child”, “de facto partner” and “child”. Counsel for Ms McMullen and NWH relied on these definitions as explaining in some way what Parliament intended by the word “parent” in s 16(2)(a). For the reasons we are about to give, however, almost all these definitions of other familial and related relationships throw little light on the question raised by the appeals.
58. There was substantial debate about the effect of the definition of “responsible parent”. For this reason, we set the definition out in full below.
59. “Responsible parent” is defined in s 6 of the Citizenship Act in the following way:
(1) For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:
(a) the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or
(b) under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or
(c) under a parenting order the person has parental responsibility for the child’s long-term or day-to-day care, welfare and development (whether or not the person is a parent of the child); or
(d) the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.
(1A) In paragraph (1)(a):
parental responsibility has the same meaning as in Part VII of the Family Law Act 1975.
(2) Expressions used in paragraphs (1)(b) and (c) have the same meaning as in the Family Law Act 1975.
60. For present purposes, two points regarding this definition are worth remembering. First, within the definition in s 6(1) above, the expression “responsible parent” is evidently wider that the word “parent”: that is, a person can be a responsible parent within this definition, whether or not a “parent” of the child: see, for example, s 6(1)(c). Secondly, the term “responsible parent” appears in two specific contexts: in a fairly specific group of provisions (ss 25, 28, 36); and again in a separate provision (s 46). Sections 25, 28 and 36 are not related in any direct way to s 16. Section 25(4) concerns Ministerial cancellation of an approval of citizenship by conferral (applied for under s 21) in circumstances where a child and his or her responsible parent(s) made application at the same time. Under s 25(4), if the Minister cancels approval of a child’s responsible parents’ applications for citizenship by conferral, the Minister must cancel approval of the child’s application for citizenship by conferral. Section 28(3)-(4) deals with the day upon which citizenship by conferral begins in the case of a child who has sought citizenship at the same time as the responsible parent(s). Broadly speaking, under s 28, a child’s citizenship by conferral commences on the day a responsible parent of the child obtains citizenship by conferral. Section 36 concerns the loss of citizenship by children of responsible parents ceasing to be citizens by virtue of ss 33, 34 or 35. Again, broadly speaking, under s 36, a child ceases to be an Australian citizen if the Minister revokes the citizenship of a responsible parent of the child under ss 33, 34 or 35, unless another responsible parent of the child remains an Australian citizen, or the revocation would cause the child to become stateless. In the context of these provisions, the use of the expression “responsible parent”, as opposed to “parent”, whether used in its ordinary sense or in some special way, is explicable by reference to the matter with which the provisions deal, especially their relation to “citizenship by conferral”. This use does not really assist in construing “parent” in s 16(2).”
Who is a child?
Counsel for Ms McMullen also relied on the definition of “child” in the Citizenship Act, and then sought to rely upon various provisions of the Family Law Act, including the presumption:
“referr(ing) to the presumption of parentage in s 69P, which, broadly speaking, provides that a child born to a married woman is presumed to be a child of the woman and her husband. Reference was also made to the presumption of paternity arising from cohabitation (s 69Q), the presumption of parentage arising from registration of birth (s 69R), the presumption of parentage arising from court findings (s 69S), and presumption of paternity arising from acknowledgments (s 69T).
Counsel for Ms McMullen submitted that because ‘parent’ and ‘child (of a person)’ describe two sides of the same relationship, ‘parent’ should be understood as having the same broad and inclusive scope as the statutory definition of ‘child’.”
The Full Court held:
“We accept that, where a child is said to be a child of a person, then that person is ordinarily described as a parent of the child. Where Parliament states in an Act that a child is a child of a person, then, absent any contrary indication, it is reasonable to assume that Parliament intended that that person has the status of parent of the child, if that status is relevant for the operation of the Act. We also accept that, having regard to the definition of “child” in the Citizenship Act, the Act clearly contemplates that, at least for some purposes (including where the word ‘child’ is expressly used), the status of being a parent is not limited to a biological parent. However, the use of the words ‘parent’ and ‘child’ in a correlative sense may weaken, depending on the context in which the words ‘child’ (in the sense ‘child of a person’) or ‘parent’ are used. Having regard to the absence of the word ‘child’ from s 16(2), the definition of that term in s 3 does not greatly assist in answering the present question.”
The Minister submitted that the timing of parentage was all important:
“(T)he Minister maintained that s 16(2)(a) requires that the citizen parent is a parent of the applicant ‘at the time of the [applicant’s] birth’. In other words, the Minister argued that, for purposes of s 16(2)(a), parenthood must be established as at the time of the birth. That is, on this construction of s 16(1)(a), ‘at the time of birth’ qualifies both the status of being a parent and the parent’s citizenship. This was said to be the natural effect of s 16(2)(a). If this were the correct construction, then, so the Minister argued, his argument as to the meaning of ‘parent’ in s 16(1)(a) was strengthened.”
The Full Court stated:
“As it happens, we accept the Minister’s submission as to timing, although we reject the latter submission as to its consequential support for his case. Whilst commonly one may assume that a person accepting the status of a parent at the time of a birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship: see, for example, Magill v Magill  HCA 51; (2006) 226 CLR 551. Indeed, the appeal in McMullen provides a further example. Accepting that the Minister is correct on the timing issue, this does not favour the limitation of parent to biological parent only. Even on this construction s 16(2)(a) does not in terms preclude attributing parent status to a person identified as a parent at the time of birth even though not a biological parent.
The Minster’s construction as to timing might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret “at the time of the birth” as applying only to “was an Australian citizen” and not to “a parent of the person”. If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a “parent” of the applicant at some point after the applicant’s birth. Such a situation could only occur, of course, if the Minister’s submissions as to the meaning of parent were rejected.
Having regard to the legislative history of s 16 (which is discussed in detail below), however, the construction as to timing advanced by the Minister is to be preferred. Having regard to that legislative history, the clear better view is that s 16(2)(a) requires that an applicant for citizenship have, at the time of birth, a parent with Australian citizenship. The legislative history of s 16 shows that eligibility for citizenship under predecessor provisions has always required a citizen parent at the time of birth. As the Minister submitted, there is no indication in the extrinsic materials that Parliament intended to change this basic test. This construction is also consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that “a parent ... is an Australian citizen ... at the time the person is born”. Other provisions that support the Minister’s position on timing include ss 17(4) – (4B), which address the national security exceptions to the Minister’s non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. Similar language appears in the context of national security exceptions to other routes to citizenship: see ss 19D(7) (adoption under the Hague Convention), 21(6) (citizenship by conferral) and 24(4B) (resumption of citizenship).
As we have explained, however, acceptance of this aspect of the construction of s 16(2) still leaves open the question raised by the appeals.” (Emphasis added.)
The Minister then submitted that the structure of the Act, with its reference to descent” connotes a biological connection:
“The Minister properly drew attention to the structure of Part 2 of the Citizenship Act and, in particular, to the heading of Subdivision A of Division 2. The Minister relied on the heading to Subdivision A of Division 2, Part 2 – “Citizenship by descent” – as indicating a biological limitation for parenthood. A heading such as this is deemed by s 13(1) of the Acts Interpretation Act 1901 (Cth) to be part of the Citizenship Act, and, in the process of construction, can be taken into consideration in determining the meaning of a provision or its scope, although it cannot limit the operation of a provision if its meaning is clear: see Silk Bros Pty v State Electricity Commission (Vic)  HCA 2; (1943) 67 CLR 1 at 16 (Latham CJ). Citing The Macquarie Dictionary definition of “descent” as “derivation from an ancestor; extraction; lineage”, the Minister argued that this heading to Subdivision A evinced an intent that “parent” be understood as biological parent. In response, it was said that “[d]escent can apply to non-biological steps on a family tree”, and that the use of descent in the heading was ‘meant to distinguish between those born in Australia and those not born in Australia’ ”.
The Full Court rejected this approach:
“Not much can be gleaned from the heading to Subdivision A of Division 2 of Part 2. Like the word “parent”, the meaning of the word “descent” depends on the context in which it is used. A family tree, which is designed to describe the familial relationships of members of a family or families, including descent, will ordinarily include biologically and non-biologically related individuals. The significance of a heading will, in any event, depend a good deal on the provisions that it covers and the weight of other factors. Thus, in Chalmers v Thompson (1913) 30 WN (NSW) 161, Harvey J was required to decide whether or not a non-adoptive father of a child could be charged with breach of a provision relating to ill-treatment of children, even though the provision was headed “Adoption of children”. Harvey J had regard to the form of the Act prior to its consolidation when it had no headings upon the basis that there was an “ambiguity”, and decided that the provision was intended to apply to the parents of children generally and was not limited by the heading. See also K & Lake City Freighters Pty Ltd v Gordon & Gotch Ltd  HCA 48; (1985) 157 CLR 309 and Bevanere Pty Ltd v Lubidineuse  FCA 134; (1985) 7 FCR 325 at 332. In these appeals, the significance of the heading “Citizenship by descent” may perhaps be garnered from the provisions covered by it or the legislative history of the Citizenship Act (discussed in further detail below).
Today, the heading to Subdivision A of Division 2 of Part 2 encompasses related provisions that concern the eligibility for citizenship of persons born outside Australia claiming through a citizen parent. The reference to “descent” in the heading is a reference to the fact that the claim for eligibility relies upon a citizen parent. However, there is nothing here to indicate whether descent and parenthood are exclusively biological. Moreover, the fact that (save perhaps for s 13) Division 1 of Part 2, headed “Automatic acquisition of Australian citizenship”, is very largely directed to the eligibility for citizenship of persons born in Australia or Australian territory (see especially s 12), whilst the remainder of Division 2 of Part 2, headed “Acquisition of Australian citizenship by application” deals almost entirely with the eligibility for citizenship of persons born outside Australian (as well as the resumption of citizenship) indicates that the principal discrimination between Division 1 and Division 2 of Part 2 is between persons born in Australia and persons born outside Australia.
This is in part confirmed by the legislative history of the provisions providing for persons born outside Australia, discussed below. Presently, it suffices to observe that a heading of this kind first appeared in the Nationality and Citizenship Act 1948 (Cth) as originally enacted, which divided the Act into five parts, Part III dealing with “Australian Citizenship”. Division 1 of Part III was entitled “Citizenship by Birth or Descent”, the other Divisions being “Citizenship by Registration”, “Citizenship by Naturalization” and “Loss of Citizenship”.
Broadly speaking, this skeletal structure has remained the same though the body of provisions has grown, with the result that today Part 2 of the Citizenship Act concerns Australian citizenship. Speaking very generally, as changes in circumstances calling for a legislative response have arisen, the legislature has responded within a structure conceived under the 1948 Act. Part 2 now provides various ways in which persons may acquire Australian citizenship – some being automatic and others requiring application to the Minister – generally depending on whether an applicant was born within or outside Australia. Division 1 of Part 2 is now entitled “Automatic acquisition of Australian citizenship” and contains within it provisions for citizenship by birth (s 12), as well as modern provisions for citizenship by adoption (s 13), citizenship by incorporation of Territory (s 15) and citizenship in circumstances where a person “is found abandoned in Australia as a child” (s 14). Division 2 of Part 2 is entitled now “Acquisition of citizenship by application”. As noted, Subdivision A is headed “Citizenship by descent” and includes s 16. Subdivision AA is headed “Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption” and contains provisions reflecting Australia’s legislative implementation of international obligations under this Convention, which Australia ratified on 25 August 1998. Subdivision B of Part 2 is headed “Citizenship by conferral”, and Subdivision C, “Resuming citizenship”. It is true that other Divisions in Part 2 are not so greatly concerned with the distinction between persons born in Australia and persons born outside Australia, but these Divisions relate to matters of concern for persons in both classes. Division 3 of Part 2 now deals with “Cessation of Australian citizenship”, Division 4, with “Evidence of Australian citizenship”, and Division 5, with “Personal identifiers”.
Before leaving Subdivision A of Division 2 of Part 2, it is important to consider the manner in which the provisions within it operate together, particularly the effect of s 19A.
The Minister’s decision to approve or refuse to approve a person becoming an Australian citizen under Subdivision A, Division 2 of Part 2 of the Citizenship Act is essentially non-discretionary. Once an application for citizenship is made under s 16(1), the Minister is required by s 17(1) to approve, or refuse to approve, the person becoming an Australian citizen. The Minister must not approve an application under s 16(1) if the person is not eligible under s 16(2) or 16(3): see s 17(1A). Conversely, the Minister “must approve the person becoming an Australian citizen” if the person is eligible to become an Australian citizen under s 16(2) or 16(3)” unless the Minister is not satisfied of the person’s identity or certain national security exceptions apply: ss 17(2)-(4A). Citizenship begins for a person on the day on which the Minister approves the person becoming an Australian citizen: see s 19. Section 19A further provides that:
Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:
(a) if the person was born on or after 26 January 1949—a parent of the person was an Australian citizen at the time of the person’s birth; or
(b) if the person was born before 26 January 1949—a parent of the person became an Australian citizen on 26 January 1949.
Section 19A may give rise to particular and possibly unintended difficulties for certain individuals if the Minister’s construction is preferred. Let it be assumed that “parent” in s 16(2) is limited to a biological parent. Let it also be assumed that, acting under s 17(2), the Minister approved an applicant becoming a citizen, on the basis that the applicant was eligible under s 16(2), in circumstances that did not involve DNA testing. Typically, so counsel for the Minister said, there would be no DNA testing in circumstances falling within a presumption of parentage in the Family Law Act or State legislation (as, for example, s 5 of the Status of Children Act 1974 (Vic)). Let it also be assumed that the Minister so approved the applicant in his infancy. The applicant grew up in Australia and subsequently fulfilled the obligations of citizenship. If, for some reason (medical or familial perhaps), such a person in later life were to be the subject of DNA testing from which it appeared that his supposed citizen parent was not in fact his biological parent, then, on the Minister’s construction, such a person would never have become an Australian citizen. (In some circumstances a similar difficulty might arise under s 12(1).) Further, without a visa, such a person would be an unlawful non-citizen liable to deportation under the Migration Act 1958 (Cth). Perhaps, he might be eligible for a visa under s 35 of that Act, but eligibility for such a visa is limited and it would not permit re-entry to Australia.
These difficulties would be unlikely to arise if “parent” in s 16(2) were not limited to biological parent in the way the Minister contends.
It will be seen from the foregoing that the Minister’s argument relied heavily on the presumptions as to parentage in the Family Law Act and in State legislation. These presumptions lay at the heart of the Minister’s argument that his proposed construction meant that s 16 of the Citizenship Act operated fairly and efficiently, whilst the opposing parties’ construction would operate inefficiently. There is, however, no provision in the Citizenship Act that permits the Minister to pick up and apply the specific presumptions in the Family Law Act in a general inquiry under s 16. On the contrary, where the Citizenship Act picks up provisions of the Family Law Act (and through the Family Law Act, State legislative provisions), it does so expressly: see, for example, Citizenship Act, s 8 and the definition of “child” in s 3. There is moreover nothing in the Family Law Act that indicates that its provisions are generally applicable in other Commonwealth legislation (absent express provision). It follows therefore that these statutory presumptions have no legal operation in settling a question of parenthood under s 16(2) of the Citizenship Act. Further, one may doubt whether the common law presumption of legitimacy can properly be applied in determining a matter arising under a statute that no longer treats marriage as a relevant criterion in determining eligibility for citizenship. If these presumptions have no part to play in a Ministerial decision under s 17, then a decision under s 17 must be made in the ordinary way, including by having regard to all the circumstances of the case that are disclosed to the decision-maker and by reference to the ordinary experience of a member of the Australian community. In this case, none of the constructions favoured by the parties would appear to have any particular advantage so far as efficiency and fairness are concerned.” (emphasis added)
The Full Court then rejected references to the law of legitimacy:
“It is convenient to note at this stage that both the Minister and the opposing parties directed argument to the common law presumption of legitimacy, under which a child born in wedlock was presumed legitimate: see Cocks v Juncken  HCA 16; (1947) 74 CLR 277 at 285, 288 (Latham CJ), 292-93 (Starke J), 294 (Dixon J), 309, 311 (Williams J); also Magill v Magill  HCA 51; (2006) 226 CLR 551 at 572-73 , 885 - (Gummow, Kirby and Crennan JJ). In Cocks v Juncken Dixon J said (at 294):
The law of to-day appears to me to provide a simple presumption of legitimacy which applies to children born during a marriage, whether conceived before or after the marriage took place, and to children conceived during the marriage, whether born before or after the marriage is dissolved by the husband’s death or otherwise.
The presumption is rebuttable in all these cases by proof that sexual intercourse between the husband and the mother could not have taken place or did not take place at a time which would account for the pregnancy, having regard to the date of the child’s birth.
Rebutting the presumption required clear and convincing evidence that, in the natural order of things, the husband could not have fathered the child: compare Cocks v Juncken at 284, 288 (Latham CJ), 290 (Rich J), 292 (Starke J), 294, 307 (Dixon J), and 311-312 (Williams J). Therefore, in ordinary circumstances, if a child was born to a married woman, then her husband was presumed the father of the child.
The function of the presumption can only be understood be reference to its historical origins. Historically, a biological connection was insufficient to establish parentage since at common law a child born outside wedlock was filius nullius. In that instance, the biological father owed no legal duties to his biological offspring. Nor had he any parental rights. Before the introduction of modern legislation designed to ensure that the legal rights of children were not adversely affected by their biological parents’ marital status, the common law presumption of legitimacy was important in protecting children’s rights, particularly property rights of inheritance: see Magill v Magill at 572-73 ; compare Status of Children Act 1974 (Vic), Status of Children Act 1974 (Tas), Family Relationships Act 1975 (SA), Children (Equality of Status) Act 1976 (NSW), repealed and replaced by Status of Children Act 1996 (NSW), Status of Children Act 1978 (Qld), Status of Children Act 1979 (NT), and Parentage Act 2004 (ACT). Whilst biological considerations might operate to rebut the presumption, the presumption generally operated by reference to the social institution of marriage. This may be considered illustrative of the proposition that in human societies over time parentage is what society understands it to be.
An incident of the protection afforded by the presumption was that the presumption would generally have operated so as to ensure that a child born to a married woman outside Australia (and earlier the British Dominions) would ordinarily acquire the status of her husband as an Australian citizen (or earlier, British subject): see the legislative history of the Nationality and Citizenship Act 1948 (Cth), discussed below, especially at . As counsel for Ms McMullen noted, at a time before DNA testing to establish paternity, a person might thereby acquire citizenship, whether or not the child was, genetically speaking, the offspring of the husband.
Counsel for the Minister then submitted that section 8, concerning surrogacy and a similar provision concerning adoption meant that only a biological connection could be construed. The Full Court rejected this approach:
Counsel for the Minister argued that a separate section addressing surrogacy and artificial conception procedures would be unnecessary if s 16(2) encompassed a conception of parenthood broader than the biological. We reject this submission. The issues that may arise from surrogacy arrangements and artificial conception procedures are especially complex. Moreover, they are new issues in the sense that they are the consequences of comparatively recent major developments in science and technology and have required clear and specific responses from Parliament to protect the rights of persons, particularly children born under these regimes. It is therefore unsurprising that Parliament has addressed these circumstances separately.
At most one might observe that Parliament’s reference to “biological child” in s 8(1)(b)(ii) indicates that Parliament has turned its mind in this instance to the need to qualify a familial relationship in biological terms. It has not done so in the case of “parent” in s 16(2)(a). This may lend support to the contention that Parliament intended the word “parent” in s 16(2)(a) to be understood in its ordinary sense (what ever that may be), without any specific limitation of the kind for which the Minister contends.” (emphasis added)
The Full Court then set out a new principle for those born outside Australia:
“For the purposes of statutory eligibility, in relation to persons born outside Australia, there is little, if anything, to warrant the conclusion that the citizen parent (through whom the citizenship claim is made) can only be a person having a genetic connection with the claimant.
Opening the floodgates?
The Minister argued that a reading of “parent” as extending beyond biological parentage would create “anomalous and indeterminate” and “arbitrary” results. We doubt that this would be the case. First, as emphasized already, s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. For example, even infant adoptees would be unable to satisfy this requirement. Secondly, judicial acceptance that parentage is not limited to a biological relationship in analogous provisions in citizenship statutes elsewhere has not had the consequences described by the Minister.
In the case of a child not born out of wedlock, the law in the United States does not require a blood relationship between a child born outside the country and the child’s citizen parent in order for that parent to pass US citizenship to the child: see Scales v Immigration and Naturalization Service,  USCA9 602; 232 F.3d 1159 at 1161, 1166 (9th Cir. 2000) (‘Scales’); and Solis-Espinoza v Gonzales, 401 F.3d 1090 at 1093 (9th Cir. 2005) (‘Solis-Espinoza’). Only where a child is born out of wedlock and relies on the citizenship of his father does the law expressly require a “blood relationship” in order for a child born outside the country to obtain US citizenship through the child’s citizen parent: see 8 U.S.C. s 1409(a)(1). In the absence of a similar requirement in the provisions applicable to children born of legally married parents (see 8 U.S.C. s 1401(c)-(e), (g)), courts in the United States have not read the term “parent” as limited to biological parent, and there is no requirement of a blood relationship between the child and the parent.
In Scales, the petitioner was born in the Philippines and his mother was a Philippine citizen. The man whom the petitioner knew as his father was a US citizen-serviceman stationed in the Philippines. He met and married the petitioner’s mother while she was pregnant with the petitioner. This man had sworn an affidavit in which he stated that, although he was not the petitioner’s biological father, he accepted him as his “own son in every legal sense permissible”. The family moved to Texas together when the petitioner was two years old, and the court noted that there was “nothing in the record to indicate that [the man the petitioner knew as his father] ha[d] ever treated [the] [p]etitioner as other than his own son”: Scales at 1162. Looking to state-law presumptions of legitimacy, the court found that the petitioner was not born “out of wedlock”, and the provision requiring a “blood relationship” therefore did not apply. Under the applicable statute, the petitioner was a US citizen if he was “born . . . of parents one of whom . . . [was] a citizen of the United States” who met the applicable physical presence requirements: Scales at 1163. The petitioner thus acquired citizenship through his parent although that parent was not his biological father.
The situation in Solis-Espinoza was similar, with the difference that the non-biological citizen-parent was the mother, rather than the father, of a child born outside the United States. The facts as described by the court were as follows (Solis-Espinoza at 1091-92):
Solis-Espinoza was born in Tijuana, Mexico in 1967. He was raised in the United States by his biological father, Refugio Solis, a Mexican citizen and lawful permanent resident of the United States, and his father’s wife, Stella Cruz-Dominguez, a natural-born United States citizen. Solis and Cruz-Dominguez were married at the time of Solis-Espinoza’s birth. Solis-Espinoza's biological mother was Maria Luisa Cardoza, a Mexican citizen, who abandoned him. Cruz-Dominguez accepted the infant as her own child, and the couple raised him to adulthood as part of their family. Indeed, Cruz-Dominguez is listed as Solis-Espinoza’s mother on his birth certificate, although petitioner concedes that she is not his biological mother.
The court found that Ms Cruz-Dominguez, although not Mr Solis-Espinoza’s biological mother, was his mother for purposes of the applicable citizenship provision, observing that “[the] result is logical. In every practical sense, Cruz-Dominguez was petitioner’s mother and he was her son. There is no good reason to treat petitioner otherwise. Public policy supports recognition and maintenance of a family unit”: Solis-Espinoza at 1094.
Bringing the threads together
There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the court to conclude that, in the specific context of s 16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.
The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way: see, e.g., s 8 of the Citizenship Act; H v J  FamCA 1398; (2006) 205 FLR 464 at 466, citing Re Patrick  FamCA 193; (2002) 168 FLR 6 at ,  (Guest J). This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.
Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The Minister has not shown any relevant error in the Tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.
We can discern no relevant justification for holding, as the Tribunal did in NWH’s case, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the Minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do not consider that Parliament would have intended the likely unfortunate results of the Minister’s construction (see ). The practical effect of this construction would be to accord the science of genetics a status that Parliament has not given it.” (emphasis added)
Not surprisingly, both H and Ms McMullen were successful.
Family Court cases
The three main overseas jurisdictions that Australians have gone to for surrogacy, namely the US, India and Thailand, have different legal regimes concerning surrogacy, meaning that the approach taken by the Department of Immigration and Citizenship is different between each jurisdiction.
Because of issues to do with the legal regime in Thailand, the Department of Immigration and Citizenship has insisted, until recently, that a court order as to parenting (such as a Family Court order or a similar order in Thailand) be obtained by the intended parents.
Those orders have been obtained in numerous matters. Set out below are the cases dealing with surrogacy that have been decided in the Family Court.
Re Mark (2003)
Mr X and Mr Y sought and obtained parentage orders from the Family Court of Australia. Mr X was the genetic parent. Mr X and Mr Y had engaged in commercial surrogacy in California. To do so in Victoria at that time was illegal. Brown J stated:
“Mr. X provided his genetic material with the express intention of fathering (begetting) a child he would parent. He is not a sperm donor (known or anonymous) as that term is commonly understood. The fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of Mark.
60. I am satisfied that the ordinary meaning of the word ‘parent’ encompasses a person in Mr. X’s position.”
Her Honour then queried whether Mr X would be a “parent” within the meaning of the Family Law Act.
Her Honour was clearly not interested in referring the matter for investigation as to possible prosecution:
“It is the Family Law Act which governs this case, not the provisions of the surrogate agreement. The fact that such an agreement would be illegal in Victoria, by virtue of the provisions of the Infertility Treatment Act 1995 (Vic), is not a relevant consideration.”
Cadet and Scribe (2007)
Mr Cadet and Mr Camden, a couple from Victoria, undertook a commercial surrogacy arrangement with Ms Scribe and her husband in Ohio. It was a gestational surrogacy. Pursuant to an order of an Ohio court the child’s birth certificate showed his father to be Mr Cadet, who was his biological father. The child obtained Australian citizenship by descent. The child had both an Australian passport and United States passport on which he travelled with his co-fathers to Australia. Brown J made a parenting order in favour of the co-father. Her Honour stated:
“Ms Scribe seeks no parental responsibility. To do so would no doubt be in breach of her contractual obligations in the USA but that is not a relevant consideration in this court, surrogacy agreements having no legal status in Victoria.”
At the time, it was an offence in Victoria for Mr Cadet and Mr Camden to have entered into the arrangement in Ohio.
Wilkie and Mirkja (2010)
Mr Wilkie and his partner Mr Edmore, from Victoria, sought and obtained parentage orders from the Family Court. They had undertaken a commercial surrogacy in Mumbai. At the time they did so, it was illegal to do so in Victoria. Mr Wilkie was the genetic father.
Cronin J stated:
“It is clear in this case that neither Mr Edmore or Mr Wilkie technically may be seen as a parent of the child because there is no evidence to establish that. In this case, it does not matter because what I have is two people who are applying for parental responsibility and the parental responsibility will continue until the two girls are 18 years of age. A parenting order confers parental responsibility under section 61D on a person but only to the extent to which the order confers on that person duties, powers, responsibilities or authority in relation to the child. A parenting order in relation to a child does not take away or diminish any aspect of parental responsibility except where the order provides for it….
In this case, the children do not have the benefit of a mother but they have the good fortune of having two fathers. There is no definition of parent in the Act other than in relation to an adoption application. As such, whilst it is clear that the Act talks about a parent as a mother and a father, it is more important to look at the benefits that children receive from the parenting responsibilities that the people who care for them undertake and in this case, there is little point in pursuing a definition of a parent.”
Collins and Tangtoi (2010)
Mr and Mrs Collins, from NSW, underwent a commercial surrogacy in Thailand, in which Mr Collins was the genetic father and shown on the birth certificate as the father. Justice Loughnan stated:
“(I)t seems to me that Mr Collins is the father of the children. He is recorded on the birth certificate. He is acknowledged by the person who, under Thai law is the mother of the children. We have scientific evidence that the children are his. In those circumstances I am comfortable that Mr Collins is the father of these children.”
O’Connor and Kamesarn (2010)
Mr O’Connor, a single man from NSW underwent a commercial surrogacy in Thailand. At the time that he did so, there was no extra-territorial ban in NSW. Mr O’Connor sought orders from the court, in effect to establish that he was the parent.
Ainslie-Wallace J, following Collins and Tangtoi, stated:
“What is clear beyond doubt in this case is that the applicant provided his genetic material through IVF and is the biological father of the children. I am satisfied that he is a parent in the sense of having “begotten” the children.”
Ronalds and Victor (2011)
Mr Ronalds and Mr Victor, a gay couple from Victoria, had engaged in commercial surrogacy in Mumbai. Mr Ronalds was the genetic parent. They sought and obtained orders from the Family Court that they share parental responsibility. Dessau J stated:
“It would be to the detriment of the girls if only Mr Ronalds could make the major decisions for them, particularly in the context of Mr Victor attending to their daily care. While Mr Ronalds is in paid work, if urgent major decisions are needed it is particularly important and in the children’s interests that Mr Victor is able to act, sign documents, and give instructions on their behalves, just as Mr Ronalds can.”
Dennis and Pradchapet (2011)
Poor Mr and Mrs Dennis (following the Family Court pseudonym naming system) are the same as Mr and Mrs Dudley below. Mr and Mrs Dennis entered into a commercial surrogacy arrangement in Thailand in which Mr Dudley was the genetic father and named on the birth certificate as the father. Mr and Mrs Dennis sought and obtained orders from the court to share parental responsibility for a child. Stevenson J stated:
“I am satisfied and I find, that the father is a “parent” of the child L for the following reasons:
· He and the surrogate mother both say on their oath that he provided his genetic material to fertilise the anonymously donated egg in the IVF process;
· DNA testing has established that he is the child’s biological father;
· He is registered as the father on the child’s Thai birth certificate and “House Registration” document;
· He assumed the role of father to the child almost immediately on his birth;
· He intends, jointly with his wife, to provide ongoing care and support for the child;
· The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the child’s life.”
Dudley and Chedi (2011)
This is when Mr and Mrs Dennis (or Dudley) struck trouble. The intended parents, from Queensland, applied to the Family Court for an order for joint parental responsibility for twins born through a commercial surrogacy arrangement in Thailand. The twins were born on the same day as the child in Dennis and Pradchapet. Mr Dudley was an Australian citizen. Mrs Dudley was an Australian permanent resident. Justice Watts ordered that they have parental responsibility, but referred the matter to prosecutors for investigation due to the extra-territorial provisions of Queensland’s legislation.
His Honour also noted that although Mr Dudley was genetically the father, his Honour questioned as to whether Mr Dudley was a “parent” as a matter of law:
“32.1. Applicable State law made what he did illegal;
32.2. There was at that time no provision in State law that would allow the recognition of any relationship between the twins and Mr Dudley;
32.3. Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;
32.4. Mr Dudley may seek a remedy through adoption legislation; and
32.5. The orders that are sought in this case can be made without recognising Mr Dudley as the father of the twins.”
His Honour went on to say:
“There is a general policy question as to whether or not I should make the requested orders, which could be perceived in some sense to sanction acts which were illegal in Queensland at the relevant time and which were against public policy (such public policy now being recognised by way of legislation through virtually the whole of Australia in making those acts illegal, with possible severe penalties).
However, the paramount consideration for my decision about the orders sought is the best interests of the twins (s 60CA Family law Act).]
Given that I am considering whether to make an order with the consent of all the parties to the proceedings, I may, but I am not required to, have regard to all or any of the matters set out in ss 60CC(2) and (3) Family Law Act.
At the end of the day when focusing upon the best interests of L1 and L2, there are a number of undisputed facts:
40.1. They are living with the applicants in Queensland;
40.2. They have been brought up with their other sibling, in respect of whom orders of the nature sought in these proceedings have already been made; and
40.3. They need to live with someone and be looked after by someone.”
Hubert and Juntasa (2011)
A gay couple from NSW, Mr Hubert and Mr Peralta, undertook commercial surrogacy in Thailand. Mr Hubert was the genetic parent and shown on the Thai birth certificate as the father. Mr Hubert and Mr Peralta applied to the Family Court for an order that they have shared parental responsibility. Watts J made the order.
His Honour stated:
“The applicants entered into their surrogacy arrangements prior to 1 March 2011. The relevant law regulating surrogacy in operation when the applicants entered their surrogacy arrangement and when the child was born, was s 42 to 45 of the Assisted Reproductive Technology Act 2007 (NSW) (“ARTA (NSW)”). Section 43 ARTA (NSW) prohibits entering into, arranging or receiving benefits under a commercial surrogacy arrangement in New South Wales. The penalty is 100 penalty units ($11,000 as per s17 Crimes (Sentencing Procedure) Act 1999 (NSW)) or two years imprisonment. Section 45 renders surrogacy agreements void.
I infer that the birth mother was paid some type of fee, either directly by the applicants or by the Thai clinic (which then passed those costs onto the applicants). I suspect, but I do not know, that the fee was an amount more than the birth mother’s costs.
I refer to my judgment in the case of Dudley and Anor & Chedi  FamCA 502 regarding the rationale behind the illegality of commercial surrogacy .
I have no evidence as to what, if any, safeguards were in place to protect the surrogate mother from emotional or financial harm. I do acknowledge that the surrogate mother:
12.1. Spoke to the parties with the aid of an interpreter before she entered into a surrogacy agreement with them;
12.2. Had the content of Thai law in the area of surrogacy explained to her by a Thai lawyer;
12.3. Had the content of Australian law in the area of parenting explained to her by an interpreter;
12.4. Had the Parenting Plan read to her in her own language before she signed it; and
12.5. Was read the Australian court documents in her own language before signing them.
LACK OF GEOGRAPHICAL NEXIS
Although s 43 ARTA (NSW) created an offence had the applicants done what they had done entirely in New South Wales, before 1 March 2011 it was not illegal for a person ordinarily resident or domiciled in New South Wales to enter into a commercial surrogacy arrangement outside Australia. The offence created by s 43 ARTA (NSW) was subject to Part 1A Crimes Act 1900 (NSW) (“CA (1900)”) and in particular, s 10C CA (1900). It is not clear that it could be said that the offence has an effect in the State of New South Wales. Part 1A CA (1900) and in particularly s 10C CA (1900) would mean that the applicants are unlikely to be guilty of a criminal offence….
I refer to my reasons in the case of Dudley and Anor & Chedi for further discussion of the applicable law regarding the assessment of ‘parent’ for the purpose of the FLA.
In relation to the current state law regarding parentage, the applicants are not assisted. A parentage order may be made under the Surrogacy Act 2010 (NSW) even if the surrogacy agreement was entered into before the commencement of the act (s15). However, a number of sections in the Surrogacy Act 2010 (NSW) preclude a State parenting order in the applicants’ favour including the requirements that: all parties undertake counselling (s35); and most importantly, it is mandatory that the agreement is not a commercial surrogacy agreement (s23). The Status of Children Act 1996 (NSW) also does not assist, with an irrebuttable presumption (s14(4)) that the surrogate mother is the parent (s14(3)), and the first applicant, being a sperm donor, is not (s14(2)). I note that Status of Children acts are generally more applicable to the protection of a sperm or egg donor in more conventionally assisted reproductive procedures.
The applicants have not yet sought to gain parental status by seeking leave to adopt the child.
As in Dudley and Anor & Chedi despite the uncertain parentage under state law, I note that I do not need to make an assessment of the child’s parentage to make the orders sought in this case, and so decline to do so because of the public policy concerns behind how current surrogacy laws have been framed in New South Wales and consistently with other places in Australia.”(emphasis added)
Findlay and Punyawong (2011)
This is the third of the decisions delivered by Watts J. Mr and Mrs Findlay, a Queensland couple, undertook commercial surrogacy in Thailand. Mr Findlay was shown on the birth certificate as the father, and was the genetic father. Parenting orders were made.
His Honour referred this matter to Queensland prosecuting authorities, too. The child was born in January, 2011.
Johnson and Anor & Chompunut (2011)
This is the fourth of the decisions by Watts J. Mr and Mrs Johnson from NSW undertook commercial surrogacy in Thailand. His Honour declined to find that Mr Johnson was a “parent” of the child. His Honour stated:
“The child is not eligible for an Australian visa on the basis of descent of an Australian citizen, failing the production of a Thai court order that the surrogate mother has relinquished her right as a parent. I am told it is not possible to obtain such an order in Thailand against an unwed mother until the child has reached the ‘age of reason’ at about seven or eight years. A sub-class 101 visa has not yet been granted permitting the child to travel to Australia with the father. At the time of the hearing before me, the evidence was that it was expected that that visa would be granted soon. The applicants openly indicate that the application for the orders from this court is partly to strengthen their application for Australian citizenship for the child.”
Lowe & Barry and Anor (2011)
Mr and Mrs Lowe sought an order from the Family Court for parental responsibility for the child L. L had lived with them since birth, and they acted in every respect as if they were L’s parents. Mr and Mrs Lowe had a child, M, aged 13 who had spina bifida and other disabilities and used a wheelchair. Mrs Lowe was aged 47 and Mr Lowe was aged 61. Mr and Mrs Lowe were residents of Tasmania.
Mrs Lowe’s nephew, aged 21 at the time of court, and his partner, aged 19, already had a child, aged 2 at the time of court. They were residents of New South Wales. They offered to have a child for Mr and Mrs Lowe, which was accepted. The nephew and his partner were the biological parents. After the nephew’s partner became pregnant, she moved to Tasmania, where she gave birth.
Benjamin J noted that the current Tasmanian Act would make such an arrangement illegal as it would be a surrogacy contract. However, his Honour declined to send the matter for investigation, and found that the arrangement “may” be illegal because:
“ In this case it is not clear in which State the contract was entered into and/or whether it is the parties to the agreement who may be in breach of the law, or whether it is directed at third parties who facilitate such agreements. Either way that is not a matter for me.”(emphasis added)
His Honour also noted that there was a surrogacy bill currently before the Tasmanian Parliament which:
“If enacted the Bill would provide a legal mechanism for the parentage of a child born as the result of a surrogacy arrangement to be transferred from the biological mother to the intended parents.”
Despite a “sense of unease”, his Honour made the intended parenting orders (that the child live with and be cared for Mr and Mrs Lowe) as he was “satisfied that the child is safe, well cared for and loved”.
A test case has proceeded before Ryan J in Sydney last year and earlier this year. It concerned a Queensland couple who undertook commercial surrogacy in Thailand. Human Rights Commission has intervened. An independent children’s lawyer to represent the child the subject of the proceedings has been appointed. My understanding is that the trial has completed but her Honour’s reasons for judgment have not been delivered.
Gough and Kaur (2012)
Macmillan J had no hesitation in making parenting orders in favour of the Victorian intended parents, who had undertaken surrogacy in Thailand. There was no discussion of who was a “parent”. The child had already obtained Australian citizenship.
Certainty in wills
It is essential that all intended parents have a will. The decisions by Watts J have highlighted the need to ensure that the wills of intended parents are very carefully drawn, because of the risk that the children may not be recognised as children of the deceased, as a matter of law. The decisions by Watts J have highlighted issues as to who is a “parent”. His Honour’s reasons, in which his Honour questions as to who is a “parent”, provide food for thought. The points that might be drawn from what his Honour stated are:
· Who is a “parent” at law may be inconsistent across legislation. For example, an intended parent might be recognised as a “parent” overseas and under the Australian Citizenship Act, but not recognised as a “parent” under the Family Law Act nor under the Status of Children Act.
· If intended parents have engaged in illegal acts, for example, those from Queensland, NSW or the ACT engaging in commercial surrogacy overseas, then they may not be “parents” as a matter of public policy.
· If, as his Honour has speculated, the Status of Children Act (NSW) [I note that there is similar legislation in most States] applies, it presumes that the surrogate is the “parent” and that neither of the intended parents is a “parent”. If this Act applies, then it would also flow:
· that if the surrogate were married her husband or male de facto partner would be a parent;
· that in those States that recognise lesbian co-parenting, if her partner were a lesbian, then the surrogate’s partner would be a parent.
· If the Status of Children Act does apply to define who is a “parent”, then this would mean under State laws there are immediate issues in case either of the intended parents dies. It is always wise to have a will. For those intended parents who:
· have children born through surrogacy where an adoption order has not been obtained in Australia; or
· where a parentage order has not been obtained in Australia;
it is essential, in my view, that they have wills, and that these wills refer to their children by name, (which if they have children by successive surrogacies means continuing to update wills) and also have statutory declarations accompanying the wills, in case their named children are not their “children” as a matter of law.
· For those intended parents I have just described (pretty well anyone undergoing overseas surrogacy, and some who have undertaken surrogacy in Australia), a will that provides for a child of that person named in a generic way (such as “any child of mine”) may not provide for the child if the “child” is not a “child” as a matter of law the child of that person.
Uncertainty in India
Just after Easter the government in India and its various embassies and high commissions throughout the world including the High Commission in Canberra issued the following notice:
“Any person seeking a visa to India for the purpose of entering into a surrogacy arrangement must ascertain beforehand whether the law of that country (Australia) permits surrogacy and will provide appropriate travel documents to the child for accompanying the surrogate parents. Entering into a surrogacy arrangement under any other visa not sought for surrogacy is punishable under the Indian Law.”
This notice is most concerning. The effect of the notice currently is unknown. I have been advised by an Indian lawyer that the legislative basis for the notice is not known.
In 2008 a draft Bill, the Assisted Reproductive Technologies (Regulation) Bill was circulated. The Bill was never passed by the Indian Parliament. In 2010 a replacement Bill: the Assisted Reproductive Technologies (Regulation) Bill 2010 was also circulated. That Bill has not been passed and the information that I have received from an Indian colleague is that it is bogged down in committee. However, it appears that the notice is based on the draft Bill.
It has been suggested to me that that Bill will prevent gay couples from proceeding to surrogacy. The answer is that I do not know whether that is the case. Section 32(1) of the draft Bill provides:
“Subject to the provisions of this Act and the rules and regulations made thereunder, assisted reproductive technology shall be available to all persons including single persons, married couples and unmarried couples.”
Whilst there are draft rules, the draft regulations have not been made available. It is not clear whether “unmarried couples” need to be heterosexual or could be either heterosexual or homosexual.
Section 34 which deals with rights and duties in relation to surrogacy contains this subsection (19):
“A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy as per clause 34.2, till the child/children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy or the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country from its surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/ individual) that the party would be able to take the child/children born through surrogacy, including whether embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child within one months of the birth of the child. During the transition period, the local guardian shall be responsible for the well-being of the child. In case of adoption or the legal guardian having to bring up the child, the child will be given Indian citizenship.” (emphasis added)
This long clause illustrates an expectation that there would be a letter from the Australian government (either the High Commission or the Department of Foreign Affairs and Trade) clearly and unambiguously stating that Australia permits surrogacy and that the child born through surrogacy in India will be permitted entry in Australia as a biological child of the intended parents.
It is unknown at this stage as to whether Australian government officials will ever write such a letter. If Australian government officials are required to write such a letter (and the form of the notice from the Indian government is quite uncertain as to what is required at this stage, let alone what might be required if the 2010 draft Bill becomes law), what will Australia say? What can Australia say about Australia permitting surrogacy? Commercial surrogacy is illegal in every State and Territory other than the Northern Territory. Is there going to be a fine tuned letter setting out that surrogacy is illegal in Australia but permitted outside of Australia (for those who come from anywhere other than Queensland, New South Wales and the ACT)? Is the letter going to give a commitment that the child will be able to come to Australia without a DNA test being undertaken? These are simply unknown waters we are sailing in and I have the gravest concerns about how the Indian government will deal with the matter in the interim.
Sam Everingham has advised me that in Western Australia the Indian consular office is processing intended parents travelling to India via medical visas while in South Wales and Victoria tourist visas are being awarded and that attempts by a few members in Victoria to apply for the entry visa have been unsuccessful so far. Sam has advised that until any new Bill passes the recommendation is for Australians continuing to travel to India on tourist visas as there remains no work or process in place by which the entry visa is granted for surrogacy.
The notice ought to be of extreme concern to any Australian contemplating surrogacy in India.
The Hague conference on private international law is a standing body based at The Hague in the Netherlands which writes international conventions to do with, not surprisingly, private international law.
Currently there are moves within The Hague to have an international convention concerning international surrogacy. Some reputed features about such a convention include:
(a) That surrogacy will be treated akin to adoption.
(b) The best interests of the child are the paramount concern.
(c) There will be the ability to determine the suitability of intended parents prior to them undertaking any intended action.
(d) That, as with adoptions and international child abduction, there would be a central authority for each country. In Australia this would be no doubt run by the Attorney-General’s Department and delegated to the States and Territories.
(e) Commercial surrogacy would not be included in the convention to be permitted, without there being side agreements between the respective countries.
To put it bluntly, my view about the convention is that it would be a disaster in its current proposed form. It will in my view largely stop international surrogacy and will deny the fundamental human right of people to be able to procreate.
There are a number of legal organisations seeking to lobby about the convention. I am told from an overseas colleague that the Australian and New Zealand governments are keen to have the convention in place. I do not know what it means if Australia is a signatory to the convention but if another country, such as India, is not when intended parents seek to go to that other country. I suspect that Australia will enforce the standards of the convention.
I am part of a committee with the American Bar Association currently in the process of drafting a position for the American bar Association about the proposed convention.
The timeframe for the convention to come in place is relatively short. It is expected that the convention will be in place in two to three years.
I see that the convention is by far and away the biggest danger facing those who wish to achieve their dream of having their own children.
Commercial surrogacy in Australia
Australian politicians, for reasons best known to themselves, have decided as a group that commercial surrogacy is anathema because it necessarily involves the exploitation of women and treats both women and children as commodities. Amongst all the inquiries about surrogacy not one included the possibility of commercial surrogacy. Without there being an inquiry, we as a nation have failed to consider all the evidence as to whether or not it is appropriate to have commercial surrogacy.
If Australian politicians were seriously concerned about the exploitation of women and children, as has been claimed, there would be a blanket prohibition on Australians attending overseas surrogacy clinics. The Italian approach is to have such a blanket prohibition, and if the intended parents return to Italy with a child obtained through surrogacy, to then use the police to remove the child and give the child to a childless couple to raise as their own.
A reality, known to politicians, is that the laws in Queensland, NSW and the ACT that seek to ban residents of those jurisdictions from accessing commercial surrogacy overseas is that those laws are not well known, are difficult to enforce, and are not enforced by actions taken by the Federal Government. Those laws are in effect a token effort, a fig leaf, to discourage residents of those jurisdictions from accessing overseas clinics.
Prosecutions for overseas offences are rare, if non-existent, in Queensland, New South Wales and the ACT. I am not aware of any prosecution under the relevant current legislation in any of those jurisdictions.
All the empirical evidence demonstrates that infertility rates are going to increase. Demand therefore for all forms of surrogacy is likely to increase. With relatively few altruistic surrogates being available, the demand for commercial surrogacy in particular is likely to increase rapidly.
In a number of surrogacy matters that I have had recently, the continuing theme that has been made by surrogates has been that they feel that they are not properly valued. These surrogates typically are long-time friends of the intended parents and willingly entered into the surrogacy arrangements with their eyes wide open.
If we are to be consistent about our approach to surrogacy, why is it necessary for Australian intended parents to travel overseas when they should be able to undertake commercial surrogacy within Australia? What are the inherent benefits that exist from regulating surrogacy in India, Thailand or Idaho, for example, that would not be available in Australia?
If we as a country are of the view that commercial surrogacy is not as evil as it has been cracked up to be, because we as Australians recognise a fundamental human right to procreate, and that the reality is that human beings who wish to procreate will out of desperation use every available approach to do so, and that there are ways of ensuring that commercial surrogacy can be properly regulated (as has been successfully demonstrated in various States of the US for example), then:
• Commercial surrogacy should be allowed in Australia; and
• In order to prevent a free for all, and to prevent commodification and victimisation of women and children, it should be properly regulated.
Harrington Family Lawyers
27 May 2012
(07) 3221 9544
Stephen Page’s short CV
Stephen is a partner of Harrington Family Lawyers, Brisbane. Admitted in 1987, Stephen specialised in family law in 1988. Stephen has been an accredited family law specialist since 1996.
Stephen is author of the Australian Surrogacy and Adoption Blog http://surrogacyandadoption.blogspot.com.au and of the Australian Gay and Lesbian Law Blog http://lgbtlawblog.blogspot.com.au.
Stephen’s first surrogacy client was in 1989. Stephen has advised clients from:
· New South Wales
· Australian Capital Territory
· South Australia, and
· Western Australia about surrogacy laws in those States,
and for those living in:
- United Kingdom
- Hong Kong
about surrogacy law issues in Australia.
He has also acted for clients who have undertaken or considered surrogacy arrangements in:
- Arizona and
Stephen is a member of the following professional associations:
- Queensland Law Society
- Family Law Practitioners Association of Qld
- Family Law Section of the Law Council of Australia
- Fertility Society of Australia
- Association of Family and Conciliation Courts
- American Bar Association, Assisted Reproductive Technology Committee (Associate)
Stephen has presented at numerous conferences and seminars about surrogacy, including:
- American Bar Association international surrogacy conference, Las Vegas (2011)
- Westmead Foundation Fertility Symposium, Melbourne (2011)
- World Congress of Reproductive Medicine, Melbourne (2011)
- Fertility Nurses of Australasia Conference, Gold Coast (2011)
- Queensland Family Law Residential, Gold Coast (2011)
- LexisNexis 12th family law summit, Brisbane (2011)
Stephen was the principal researcher, and co-author with Alexandra Harland of State by State Comparison of Surrogacy Laws in Australia (2011).
 Stephen Page is a partner of Harrington Family Lawyers. His relevant CV is attached.
 The closest we currently have in legislation is in Queensland : “intending parents”. Tasmania’s Bill uses the term “intended parents”.
 except, so far, Tasmania and the Northern Territory
 Clients who were living in China, US and UK
 Mandatory in Qld, NSW, ACT, discretionary in SA.
 In Queensland, NSW or the ACT.
 FamCA 822 viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2003/822.html
 [2007 FamCA 1498; viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2007/1498.html
  FamCA 667 , viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2010/667.html
  FamCA 878 viewable at http://www.austlii.edu.au/au/cases/cth/FamCA/2010/878.html
  FamCA 987, viewable at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2010/987.html
  FamCA 389, viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/389.html.
  FamCA 123, viewable at http://www.austlii.edu.au/au/cases/cth/FamCA/2011/123.html .
  FamCA 502; viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/502.html
  FamCA 504, viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/504.html
  FamCA 503, viewable at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/503.html
  FamCA 505, viewable at http://www.austlii.edu.au/au/cases/cth/FamCA/2011/505.html
  FamCA 625, viewable at http://www.austlii.edu.au/au/cases/cth/FamCA/2011/625.html
  FamCA 79