Australian Gay and Lesbian Law Blog –“Surrogacy: Family Court Guide” by Stephen Page

Stephen Page, who is one of the best GLBTI legal bloggers around continues his excellent series of posts relating to  Surrogacy in Australia (and for Aussies heading overseas for Surrogacy).  This posting by Stephen relates to the Family Court cases relating to Surrogacy in Australia, and is a great read (albeit full of legal aspects).  Stephen’s blog can be found here (http://lgbtlawblog.blogspot.com)

In 2008 there were amendments to the Family Law Act to recognise children born in Australia as children of the parties under the Family Law Act, but only if there were State or Territory laws allowing a parenting order, and that order had been made. It should be noted at this point that different rules may apply in Western Australia to the rest of Australia. As seen below, there have been some nightmare cases involving surrogacy.
As Justice Crisford stated in the Family Court of Western Australia:

In recent years the use of artificial insemination procedures has risen dramatically, both here and overseas. They were once procedures of last resort for infertile heterosexual married couples. They have now become a mainstream solution for various reproductive challenges including absence of a heterosexual partner. New groups such as single women seeking to raise a child alone, same sex couples and gay men who have arranged for a mother to carry their child have used these procedures.

Whilst technology has grown and the ambit of artificial insemination procedures has expanded the legal system lags behind. This can lead to complicated child custody disputes between the parties.

Some of the cases refer to leave to adopt. Getting leave to adopt is a first step in the adoption process. Leave can only be obtained form the Family Court.

The cases I have written about are from the Family Court. I was unable to find any Federal Magistrate Court cases.

Re Evelyn (1998) - the nightmare case, where two couples agreed that the wife in one couple would be the surrogate for their friends. One couple lived in South Australia, where surrogacy was illegal. The other couple lived in Queensland, where it was also illegal. Re Evelyn is the classic demonstration as to the benefits of extensive regulation and counselling with surrogacy. This is because the surrogate mother decided to keep the child, and not hand her over. Ultimately the Family Court considered that this was in the best interests of Evelyn.

Re Mark(2003)
In 2003, Mr X and Mr Y approached the Family Court for orders concerning their child, Mark. They were a gay couple who lived in Victoria. At the time, it was illegal in Victoria to engage in commercial surrogacy, and the ban extended outside Victoria (including overseas).
This ban didn't stop Mr X and Mr Y. They went to a commercial surrogacy clinic in California, and ultimately Mark was conceived and born. It was gestational surrogacy agreement: the sperm was Mr X's, but the egg was not the surrogate's but that of an anonymous donor.
In accordance with Californian law, the surrogate relinquished all rights, and Mr X and Mr Y were deemed to be the parents. A court order was made in California that Mr X was the father. By virtue of that order, and Mr X's DNA, Mark was an Australian citizen by descent, and therefore able to migrate and live, as an Australian citizen here.
Mr X and Mr Y were granted joint parenting orders by the Family Court. Justice Brown said that the fact that the surrogacy agreement would be  illegal in Victoria was "irrelevant".

Cadet and Scribe (2007)
A gay couple, Mr Cadet and Mr Camden, again apparently from Victoria, where it was an offence to enter into surrogacy, including outside Victoria, went to a clinic in Ohio. A child was born through a surrogacy agreement. An order was made in an Ohio court that the child was that of Mr Cadet. The child was considered to be an Australian citizen by descent.
The matter came before Justice Brown, who made an order for joint parental responsibility.

Raines and Curtin (2007)
Mr Raines and Ms Banner had a child through an altruistic surrogacy arrnagement with Ms Curtin. The arrangment was illegal in Victoria. The child was conceived from the sperm of Mr Raines and the egg of Ms Curtin. Justice Brown made an interim order granting parental responsibility to Mr Curtain and Ms Banner. Her Honour also indicated that she would make final orders to allow them leave to adopt.

Justice Brown stated:
The court has an obligation to make it clear that surrogacy agreements are not able to be enforced pursuant to the laws of Victoria. That is a matter within State law. I say nothing further on that subject. The court’s jurisdiction is to make parenting orders in respect of children, on application by a parent, grand parent or other interested party. I am satisfied the applicants have the status to bring the application and the court the jurisdiction to make the orders sought....On the evidence now before me, there is no reason to doubt the bona fides of all the parties to this application. No doubt each will understand that the court must ensure it is not being used to “rubber stamp” inappropriate arrangements, which may not be in the best interests of the children involved.

G and G (2007)
This was strictly a surrogacy case, but shows some of the complications that can arise when mixing IVF and family breakdown. Mr and Mrs G had split up. Before they split up, Mrs G's embryos had been stored at an IVF clinic. By the time they got to the Family Court of Western Australia, Mr G sought ownership of the eggs. He wanted them to be donated to an infertile couple or used in a surrogacy. At the time, surrogacy was illegal in Western Australia. Mrs G wanted them discarded. The dispute got ugly:

Mrs G] says that ...she had a telephone conversation with [Mr G] in which he told her words to the effect that he will agree to the destruction of the embryos if she agreed to give him 80% of the assets. [Mr G] denies this.
[Mr G] was also cross-examined on several remarks he has made in relation to the embryos. He admits that at a barbeque he told one female, in response to her offer to be surrogate, that he preferred her other friend because she had big hips and would be able to carry triplets. He inferred that for this purpose all six embryos should be implanted in the woman. This comment shows [Mr G] ignorance in relation to issues surrounding implantation of the embryos. [Dr P] gave evidence that in a woman under 35 years only one embryo would be implanted at a time. In a woman over that age two embryos would be implanted. He also admits that he left a message on [Mrs G]’s phone threatening that he would send the “right to lifers” over to her work in attempt to change her mind about allowing the embryos to succumb.
In my opinion [Mr G] has enjoyed the notoriety which has arisen as a result of the dispute over the embryos. I have serious doubts about his motives in seeking, at all costs, that the embryos not be destroyed.
In cross-examination [Mrs G] admits that she did at one point reluctantly agree with [Mr G] that she would donate the embryos but only because [Mr G] threatened her that he would take the matter to the Supreme Court. [Mrs G] says that after reading the donation form and the conditions she did not want to go through with donation.

The effect of the agreement with the IVF clinic was to ensure that Mrs G became pregnant. Mrs G did not want to become pregnant. Justice Penny ordered that the embryos were not property, and that sole decision making about the embryos was vested in the wife.

King and Tamsin (2008) involved the Family Court making an order for joint parental responsibility for a child born by a friend acting as a surrogate. The case was decided in Melbourne, where surrogacy was illegal, but it is unclear if the parties came from Victoria, or whether the child was born in Victoria.

Re Michael (2009) - another nightmare case, which demonstrated that an altruistic surrogacy in NSW did not lead to an adoption, due to the failure of NSW to properly regulate altruistic surrogacy. (It would not have prevented a Re Mark type order, if that had been sought, but apparently it wasn't.)

Rusken and Jenner (2009) was the first case of a couple who had had a child by surrogacy, and had then split up. Mr Rusken and Ms Jenner were married and lived in South Africa. They entered into a commerical surrogacy agreement with Ms Woedene, paying her 50,000 to 60,000 Rand. It was unclear, ultimately (and it appears no one did a DNA test) as to whether the egg that was fertilised that resulted in the birth of the child was Ms Jenner's or Ms Woedene's. Mr Rusken and Ms Jenner were shown on the birth certificate.
Mr Rusken, Ms Jenner and the child subsequently migrated to Australia, and later split up. Ms Woedene had contacted South African authorities to ensure that the birth certificate was altered to ensure that the father was changed to "unknown" and that she was shown as the mother. Justice Bell had to determine whether Mr Rusken was the father. He had no doubt that he was. He treated Ms Jenner as the mother.
Justice Bell stated:

 

It is not Ms Woedene’s rights which may be fair under the South African law. It is not here. We have jurisdiction. We apply our laws. It has been set as long ago as 1979 in Gronow that being a mother does not give you a preferential position. It is a factor, an important factor but it does not give the mother a preferential position. The Court has to consider all matters, an important factor which is the mother. That leads me then on to Ms Woedene.
Ms Woedene was paid to become pregnant. She indicated to me she received some 50,000 to 60,000 rand. I have not been informed of the exchange rate but it is something like 6 or 5 rand to the Australian dollar. That is on the bank rate. She was paid something like nine to $10,000. She indicates that, as a result of that, as a result of her being the birth mother, the child should return to South Africa, should be wrenched away from his father, should be wrenched away from the environment which he has known since 2002, even though he was only a baby at the time, be wrenched away from his emotional mother, his emotional father, be wrenched away from his school, from whatever friends he has, and returned to South Africa where Ms Woedene has four children of her own, all of whom are adult and has fostered two other children. She runs a shop.
She has not put before me one jot of evidence which would convince me that the child’s welfare would be advanced by his being wrenched away, not from Australia but from his present environment and I cannot, for one moment, accept that that would be to his benefit. In fact, I reject her claim totally. It may be I might be persuaded to allow her to be able to contact the child when he is with his mother but not otherwise.

Justice Bell made an order for the child to live with Ms Rusken, spend time with Ms Jenner, and that a copy of the orders be sent to South African authorities.

Hutchens and Franz (2009)
Mr and Mrs Hutchens entered into an altruistic surrogacy agreement with Ms Franz, resulting in the birth of a child. The child was conceived by Mr Hutchens' sperm, and Ms Franz' egg. All parties lived in South Australia, where altruistic surrogacy was illegal and void. Justice Strickland ordered that Mr and Mrs Hutchens, who had cared for the child since it was 2 days old have leave to start adoption proceedings. An order had previously been made giving Mr and Mrs Hutchens parental responsibility.

[Source: Original  Article]