The main points he distilled from this significant case are summarised below.
1. The court looked at the reality of who is a parent. If a person can be the genetic parent of a child, recognised on the child's birth certificate as the parent, the mother and her husband having relinquished parenting by virtue of the surrogacy contract, with the father and his partner having undertaking the parenting for the children since their birth for two years, why would the court not recognise the reality?
2. The provisions of the Artificial Conception Act are much like the Status of Children Act (NSW) to which Justice Watts of the Family Court questioned whether or not a father would be a "parent" of a child conceived through a surrogacy arrangement. His Honour then went on to say: "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."
3. By looking at the reality of the situaiton, her Honour has possibly opened the door for more cases in which an intended father may be considered to be the father of a child.
4. It was only because of the position of the WA Department for Child Protection that there was no investigation of the views of the surrogate or her husband. Otherwise it is likely that in line with the decision in Ellison such a costly and slow procedure would have occurred. Mr B and Mr M got lucky.
5. This case is an illustration of how the law can cater for unintended cases. The Adoption Act was intended to apply to homegrown adoptions. Accordingly there would be an adoption plan. Her Honour saw that in light of the surrogacy contract there was no need for that.
6. This case is also an illustration of how in other States such a step might not be taken. In Queensland, for example, adoption by same sex couples is banned, which also means that a decision like this could never occur under current laws in Queensland.
7. Finally, this case is yet another illustration about why there needs to be reform about who is or who is not a parent through a surrogacy arrnagement, and some common sense, as seen in this case, is welcome. There have been a series of cases in the Family Court in which different approaches were taken about who is or is not a parent. To have a clear legislative framework to acknowledge that if someone is recognised by the Department of Immigration and Citizenship as a "parent" that they are also recognised as being parents under the Family Law Act and relevant State legislation such as the Artifical Conception Act, would seem a commonsense and long overdue step.
Read Stephen Page's full article here.
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