Monday, September 11, 2017

Family Court: couple who went overseas for surrogacy are NOT the parents

In a recent decision, three judges of the Family Court have ruled that an Australian couple who went lawfully overseas for surrogacy are not the parents of the child that was conceived and born through surrogacy.
 The impact of the decision is that many intended parents who go overseas for surrogacy are NOT the parents of their children. A possible impact is that children may not be able to obtain citizenship. 
It is an outrage that we now likely have thousands of children who live in Australia whose parents conceived them through surrogacy overseas who do not have a legal parent/child relationship – which could lead to the disinheritance of the children concerned as well as other significant unintended impacts.

This surely was not and should not be the intention of Parliament.

It is an absurdity to say that we now do not know who the child's parents are.  A child ordinarily has one or two parents. What is clear is that the intended parents are unlikely to be the parents. The court did not then say who the parents of the child were. It is unclear if the surrogate and her partner are the child's parents as a matter of Australian law- although not recognised as the child's parents under Indian law.

Where does this leave the child?

The trial judge, Justice Berman, called for urgent legislative change. Now, two years since his call for change, nothing has happened. 

This child-  and the thousands of children born overseas through surrogacy- deserves, in accordance with Australia's international obligations under the International Convention on the Rights of the Child, to have his identity protected- including the parent-child relationship that in reality he or she has with Mr and Mrs Bernieres. Children should not be left hanging about, waiting to discover who are or are not their legal parents.
The case

In the case, called Bernieres and Dhopal, Mr and Mrs Bernieres had a child through surrogacy in India.  They first went before Justice David Berman of the Family Court seeking orders that they had parental responsibility for the child and that the child live with them – and declarations or findings under the Family Law Act that they were the child’s parents.
His Honour made the orders that they had parental responsibility and that the child live with them, but declined to make the parentage declaration.
Mr Bernieres was the biological father of the child.  An egg donor was the biological mother.
The couple, who lived in Victoria, had not undertaken surrogacy in compliance with the law of Victoria :
·         Because the surrogacy was commercial, as oppose to altruistic;
·         Was not commissioned with the assistance of a Victorian registered ART provider;
·         The procedure was not carried out in Victoria.
Therefore, according to Justice Berman,  section 60HB of the Family Law Act did not apply to the case.  Section 60HB provides:
“(1)     If a court has made an order under a prescribed law of the State or Territory to the effect that:
(a)               A child is the child of one or more persons; or
(b)               Each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
(2)        In this section: “this Act” includes:
(a)               The standard Rules of Court; and
(b)               The related Federal Circuit Court Rules.”
Furthermore, Mr and Mrs Bernieres sought a declaration under section 69VA of the Family Law Act that they were the parents of the child.  His Honour was of the view that he could not do so because that section was not a “stand alone power but rather requires ‘parentage’ of a child to be an issue in proceedings in respect to another matter”.  His Honour further went to say that the Family Court despite being a superior court of record, did not have an inherent power to grant a parentage declaration “other than those authorised by the Act and its inherent power extends only to administer justice and prevent abuse of process”. 
His Honour noted that the circumstances surrounding the birth of the child were “not dealt with directly either by the relevant state legislation or by reference to section 60HB” and that this may be unsatisfactory.  However “the definition of a parent should [not] be extrapolated because of a legislative vacuum.”  He went on to say that the category of persons who satisfy the definition of parent while not necessary closed pursuant to section 60H of the Family Law Act and section 60HB “any perceived hiatus is a matter for legislation and not judicial interpretation”.  Therefore as the Victorian legislation did not provide for the circumstances of the child’s birth, Mr and Mrs Bernieres were not the parents of the child for the purposes of Victorian law.  His Honour said that he could “well understand the dismay of [Mr and Mrs Bernieres] that they are not able to secure for all purposes that which they fervently seek namely, recognition and a declaration of parentage”.  His Honour therefore noted the need for “urgent legislative change”. 
Quite simply, since that decision by his Honour two years ago in September 2015, there has been no legislative change nor any proposed legislative change.
The Full Court decision
The Full Court was comprised of Chief Justice Diana Bryant, Justice Stephen Strickland and Justice Judy Ryan.
Their Honours accepted the approach taken by Chief Judge Thackray in Farnell and Chambua (the Baby Gammy case) that sections 60H and 60HB of the Family Law Act overrode the general parenting presumption under the Family Law Act. 
Furthermore, their Honours agreed with the tentative position taken by Justice Ryan in Mason and Mason (2013) where her Honour said in effect that there is a scheme between State and Federal law as to who is and who is not a parent and that therefore a person is or is not a parent determined by State and Territory status of children legislation.
Therefore, the approach taken by Justice Johns in Green-Wilson and Bishop that someone is a parent under general provisions of the Family Law Act even if not a parent under the equivalent Status of Children Act is the wrong approach.
Their Honours went on to note that section 60H(1) by which the birth mother and de facto partner or husband are the parents of a child conceived through artificial conception procedure, did not apply to surrogacy situations:
            “On its plain meaning, if section 60H(1) is applied to a surrogacy arrangement…it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material.  Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.”
Their Honours did not consider sections 60H(2) and (3) of the Family Law Act.  As their Honours noted “judicial opinion is divided as to whether those subsections impliedly exclude” any donor or genetic material from recognition as a parent.
If the approach taken by Justice Ryan in Mason and Mason were correct, then on the face of it a donor would not be a parent under those sections.  However, in the decision of Groth and Banks, a known donor could be a parent. The parentage of known donors is therefore still unclear.
Whilst it might be thought that section 60HB only applies to domestic surrogacy arrangements, their Honours said:

            “Thus, it is plain that s60HB now specifically addresses the position of children born under surrogacy arrangements, leaving  s60H to address the status of children born by means of conventional artificial conception procedures.  Further, the plain intention of section 60HB is to leave to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act.  In other words, section 60HB covers that field, leaving, as we say, section 60H to address conventional artificial conception procedures.”
As their Honours said:
            “The unfortunate result of that conclusion is that the parentage of the child here is in doubt.  There is no order made under the relevant State legislation (and nor could there be…).
            There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act.  Further, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.
Because of the effect of section 60HB (and perhaps section 60H) therefore a parentage declaration could not be made.
Mr and Mrs Bernieres sought to have the child considered to be a “child of the marriage” but from similar reasoning the Full Court found that the child was not a child of the marriage, in part because of the specific provision namely section 60HB.
Effect of the decision
It has been estimated that approximately 250 children a year are born to Australian intended parents via overseas surrogacy arrangements.  It is clear now that because of this decision, many Australian intended parents are not the parents of any child born overseas through surrogacy.  It is really irrelevant as to whether the surrogacy is commercial or altruistic.  Because the Family Court referred to the relevant State legislation (which is fairly consistent on this point), the effect is clear – intended parents are not parents of children born through surrogacy overseas.  It seems clear that earlier decisions that have said otherwise under the Family Law Act were incorrectly decided.
Will there be any impact on citizenship?
It is unclear as to what impact there will be on the citizenship of children conceived in the future through international surrogacy.  The Department of Immigration has taken the view that section 60HB of the Family Law Act applies only to domestic surrogacy arrangements and not international surrogacy arrangements.  This is important because section 8 of the Australian Citizenship Act says that where a person has been conceived through an artificial conception procedure, who is a parent for the purposes of Australian citizenship is determined by sections 60H and 60HB.  If the Department of Immigration and Border Protection takes the view, consistent with the Family Court, that section 60HB of the Family Law Act covers the field – then many children born outside Australia through surrogacy (with limited exceptions) would not be recognised as the child of a parent for the purposes of Australian citizenship.  Therefore the child would not be entitled to Australian citizenship and would therefore not be entitled to live in Australia.
For quite some time the Immigration Department has said that section 60HB does not apply to international surrogacy arrangements, in which case the usual test as to who is a parent, of who in society generally someone as a parent.  This is consistent with the decision in H v. Minister for Immigration (2010), a Federal Court decision – which was quite clear in saying it didn’t apply to surrogacy.
For quite some time now there has been a variance of opinion by judges of the Family Court as to whether some is or is not a parent when they have undertaken overseas surrogacy.  The Immigration Department has largely ignored the approaches taken by Family Court judges.  Whether it does so now may have significant impact on any Australian who wishes to undertake surrogacy overseas.
Are there any exceptions to the ruling as to who is a parent under the Family Law Act?
Yes, there would appear to be four exceptions in which someone can still be a parent under the Family Law Act when surrogacy is undertaken overseas.
Exception 1 – comity cases
If someone is living overseas and has undertaken surrogacy lawfully there, and is recognised as a parent there, then the general parenting presumptions under the Family Law Act do not apply and that  person should be recognised as a parent under the Family Law Act: Justice Ryan in Carlton and Bissett (2013). 
Exception 2 – a second parent adoption
Now we come to the truly Kafkaesque situation where a biological parent may not be a parent but the second (either biological or non-biological) parent will be a parent under Australian law.  In some parts of the United States, surrogacy is governed by post birth parenting orders, typically granting custody to one of the intended parents, then terminating the parental rights of the surrogate and her partner, and then a second order making the other intended parent a parent.  This second order is typically a second parent adoption order (sometimes called a stepparent adoption order). 
It is unclear from the decision in Bernieres and Dhopal whether the first parent will be recognised as a parent under Australian law.  After all, they won’t have complied with relevant State and Territory status of children legislation.  Whether the overseas order concerning the first parent will be recognised is uncertain.
However, it would appear reasonably clear that the second parent adoption order which recognises the second parent as a parent of the child, would recognise that person as a parent under the Family Law Act.  Why this is so is fairly technical.  One of the definitions of “child” under section 4 of the Family Law Act (the definition section) says:
“(a)     In Part VII [that part of the Family Law Act that deals with children and parental responsibility] includes an adopted child and a stillborn child; and
  (b)      In Subdivision E of Division 6 of that Part [the part of the Family Law Act that deals with taking children overseas improperly], means a person who is under 18 (including a person who is an adopted child).”
Further, under that section “parent” is defined as:
                        “When used in Part VIII in relation to a child who has been adopted, means an adoptive parent of the child.”
Furthermore, where there might be legitimate concern about whether the adoption needs to have occurred in Australia or needs to have occurred in accordance with example with the Hague Intercountry Adoption Convention, the definition of “adopted” in that section is much wider:
            “In relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.”
Exception 3 – registration of US surrogacy orders
It is possible in limited circumstances (and has occurred twice) where US surrogacy orders are able to be registered under the Family Law Act.  In those cases, the order of the US court that declares the intended parents to be the parents of the child will therefore make the parents under Australian law, if the order is registered, the parents of the child in Australia.
In the two decisions, Justice Forrest of the Family Court made plain the Court’s reluctance to register US surrogacy orders when there has been commercial surrogacy.  This may be a very limited option.
Exception 4 – South Australia
Under the Family Relationships Act 1975 (SA) those intending to undertake surrogacy overseas from South Australia can obtain the approval of the South Australian Attorney-General before undergoing their journey.  The South Australian Attorney General in turn has to be guided by the State Framework for Altruistic Surrogacy and the Family Relationships Regulations – neither of which at this stage have been written even though the law has been in place since July 2015. 
If a couple (and it would only apply to couples) is able to obtain the Attorney-General’s consent, and they then pursue surrogacy successfully overseas, they can be recognised under South Australian law as the parents by obtaining a parentage declaration in the Youth Court of South Australia (which would therefore be sufficient for the purposes of section 60HB of the Family Law Act.
Historical impact of not being a parent
Before the decision in Bernieres and Dhopal, very few intended parents would go to the Family Court seeking orders declaring them to be the parents of children born overseas through surrogacy.  The reasons were simple:
·         It costs approximately $20,000 to bring such an application and depending on which part of Australia they are in, might take 6 months to resolve. If they were seen as breaking the law, the judge might refer them to authorities for investigation of commission of a criminal offence;
·         Chances were the Court would not make a declaration of parentage in their favour;
·         Given changes to passport rules in 2015, for those who underwent surrogacy in the US or Canada, then they may not need the surrogate’s written consent to any passport for the child;
·         There are usually no real impediments to the child obtaining citizenship, Medicare entitlement, Centrelink entitlements, going to hospital or the doctor or being enrolled in childcare or school;
·         There were issues in relation to wills and inheritances, superannuation and child support issues.  However, intact families generally (aside from planning their Wills) did not have an obvious imperative to go to Court to seek a declaration or orders concerning their child. 
The unknown factor as a result of this decision is the approach that will be taken by the Department of Immigration.
The call by Justice Berman for urgent legislative change is an obvious one.  The sooner it happens, the better. 

I will be discussing the impact of this decision further in a free webinar I'm speaking in this Saturday. All welcome!


  1. This decision of the court changed the lives of many parents who had kids through surrogacy. I think if the court has given this judgement they should also give solution to existing parents.

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  2. So there are thousands of children without a legal parent in Australia. The Family Court says Parliament must Act, but has the Family Court told Parliament to ACT - No. Parliament has said the Family Court can apply Declarations of Parent but the Family Court doesn't. My advice - get all Family Court lawyers to act Pro bono for the judges to know their decision is incorrect.

  3. Okay, I feel that even with the original case back in 2015,

    Of which this case is an appeal we are not being told 100% of the story.

    The judgement was from the Applicants request for an order for the "parental responsibility in relation to the long term and day to day care, welfare and development of Q”. They also seek an order that Q live with them."

    Excuse me, Why on earth did they go to court to see an order for that, something is not right there.

    I, am the Biological (Genetic) father of twins, born through Surragacy, in India, born in Mumbai in February 2013.

    To date, they are approaching 5 years old. To this day, I have applied for their passports, enrolled them with Centrelink for Family Tax Benefit, and the general day to day parental responsibility dealt with. So why do the applicants need an order, for something I have managed with my wife and I for the last (Nearly) 5 years ? We certainly did not need an order for our Child/(Ren) to stay with us.

    Again, why the need for an order ?

    Just get on with bringing them up, enrolling them in Pre / Kindy / School etc.

  4. This comment has been removed by the author.

    1. Brian, unfortunately when applying for a Declaration of Parentage, the Family Court Registrar will also ask that you apply for a Parenting Order. That's the reason why Bernieres also had a Parenting Order. Yet those parents who are not legal parents may have difficulties involving Wills, hospitalisation of the child, possibly registering some childrens schools etc.

  5. Hmmmm right, so even though the FEDERAL government decided I was biologically the father (DNA proven), issued citizenship and a passport to enter Australia. Then issue Family tax benefits for the children, issue benefits of Medicare, and in our experience, just registered them for Launching in to Learning and Kinder at the local Government school with no issues. Nobody has asked me at any stage for any orders, except Centrelink after arriving back in Australia, asked for Birth Certificate and Citizenship.. Done.

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