Submissions to Family Law Council Review of Parentage Laws Concerning Surrogacy and Family

NEW SOUTH WALES BAR ASSOCIATION

SUBMISSIONS TO FAMILY LAW COUNCIL REVIEW OF PARENTAGE LAWS CONCERNING SURROGACY AND FAMILY FORMATION

Introduction

1. Parentage of a child is a fact but it may be a fact in issue. The presumption of paternity developed in the common law to overcome difficulties in proof but has always been rebuttable by facts which either establish or disprove paternity, depending on the issue involved.

2. There has apparently never been a presumption of maternity at common law. Although, there have been disputes as to maternity which previously resolved by examination of the facts surrounding the birth of the child: see e.g. R v Jenkins; ex parte Morrison [1949] VLR 277.

3. The definition of a “child” in s4(1) of the Family Law Act 1975 1is:

“child :

(a) in Part VII, includes an adopted child and a stillborn child; and

(b) in Subdivision E of Division 6 of that Part, means a person who is under 18 (including a person who is an adopted child).

child : Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.”

4. The definition of “child of a marriage” in s 4(1):

“includes a child who is, under subsection 60F(1) or (2), a child of a marriage, but does not include a child who has, under subsection 60F(3), ceased to be a child of a marriage.”

5. Section 60F(1) defines “child of a marriage” to include:

“(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

(b) a child of the husband and wife born before the marriage;

(c) a child who is, under subsection 60H(1) or section 60HB, the child of the husband and wife.”

1 All references to legislative provisions from this point will be references to the Family Law Act 1975 unless otherwise stated.

1 6. Section 60HB(1) states:

“If a court has made an order under a prescribed law of a State or Territory2 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.”

7. Section 60H(1) refers to children born as a result of certain artificial conception procedures. It is specifically provided that if “under a prescribed law of the Commonwealth or of a State or Territory3, the child is a child of the woman and of the other intended parent; then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act”.

8. Section 60F(2) extends the definition of “a child of a marriage” to a child of “(a) a marriage that has been dissolved or annulled, in Australia or elsewhere, or (b) a marriage that has been terminated by the death of one party to the marriage.”

9. A “child of a de facto relationship” under s 90SF(1)(b)(i) is defined in s 90RB as a child of both the parties to the de facto relationship. Unlike the definition “child of a marriage” it is unclear whether this includes a child born after the end of a de facto relationship.

10. Section 60HA(1) is similarly worded to s 60F(1) but covers children of de facto couples.

11. The definition of “parent” in s4 (1) is “when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.” The term parent is not otherwise defined.

12. If the definitions referred to do not assist in determining parentage it is necessary to consider the presumptions and declarations of parentage contained in:

 Part VII Division 1 Subdivision D which operate to irrebuttably deem the child for the purposes of the Act, in those circumstances, the child of designated people;

 Part VII Division 12 Subdivision D create rebuttable presumptions for the purposes the Act;

 Part VII Division 12 Subdivision E which empowers a court to issue a declaration of parentage that is conclusive for all laws of the Commonwealth.

2 See clauses 12C, 12CA, 12CAA of the Family Law Regulations 1984. 3 See clauses 12C, 12CA, 12CAA of the Family Law Regulations 1984.

2 13. In addition, sections 69W, 69ZB and s69ZC provide a mechanism for the admission of DNA evidence of parentage testing. This evidence considers scientific probabilities within the limits of the testing procedures, verification of collection and chain of custody procedures, and tends to establish to a high degree of probability biological or genetic parentage.

14. In DNA paternity testing, the testing laboratories generally advise that no man will ever be 100% included as the biological father because there is always the slight possibility that the DNA profile of the alleged father matches the DNA profile of the child by mere chance. The likelihood of this happening is usually well below 0.001% (1 in 100,000), but it depends in large part on the ethnic origin of the individuals involved.4

15. In cases of uncertainty a maternity test can provide an answer as to parentage. Maternity testing uses mitochondrial DNA (mtDNA) which children receive from their mothers, but men cannot pass it on to their children. Mothers pass copies of their own mtDNA to each of their sons and daughters, but only their daughters can pass it on to their children. This test is used to establish maternity or maternal connections and identity when a mother is deceased, the child can have mtDNA testing to ensure there is a biological relationship.5

16. Due to the scientific nature and relative certainty of paternity and maternity testing using samples of DNA it may be thought that the common law presumptions and those contained in the Act are likely to pass into history in much the same way as presumptions of legitimacy have been rendered largely anachronistic6.

17. It is not made this explicit in the Family Law Act 1975 whether the statutory presumptions of Div 12 exclude the operation of presumptions of parentage arising under State or Territorial law, and whether they exclude the common law presumption of paternity. The presumptions of parentage in Div 12 appear to cover the field, or at least the field of the statutory presumptions of paternity and maternity contained in the State and Territory legislation. However, there is no clear indication in Div 12, or elsewhere in the Act, that these presumptions are to be exclusive.

18. The presumptions of parentage in Div 12 are stated to be exclusive in both the Explanatory Memorandum on the Family Law Amendment Bill 1987 (1987), p 37, para 132, and in the Second Reading Speech concerning the Bill by Mr Lionel Bowen to the House of Representatives on 29 October 1987 (H Rep Debates, p 1716).

19. The presumptions of parentage in Div 12 are presumably intended to apply for all purposes of the Act and throughout Australia including Western Australia. The reference in s 69U(2)(a) to two or more presumptions arising “in any proceedings” and also in the statement in the Explanatory Memorandum on the Family Law Amendment Bill 1987

4 See for example http://www.dna-geneticconnections.com/dna_accuracy.html 5 See for example http://www.dna-geneticconnections.com/dna_testing.html#mtDNA 6 At least in NSW since 1 July 1977.

3 (1987), p 37, para 132, that these presumptions will determine the issue of parentage in “issues under the Principal Act” supports the exclusive nature of the provisions.

20. As referred to earlier, the provisions of s60F, s60H, s60HA and s60HB clearly incorporate the prescribed State and Territory laws into the fabric of the parentage provisions. This can be seen to be another indication that the provisions in the Act are intended by the legislature to cover the entire field.

21. The State and Territory legislation that provides for the legal recognition of parentage of children relevantly under discussion in these terms of reference are those prescribed by clauses 12C, 12CA, 12CAA of the Family Law Regulations 1984.7 The State legislation provides for presumptions as to parentage, and declarations as to parentage. For example, Status of Children Act 1996 (NSW) s14 irrebuttable presumptions considered by Windeyer J in PJ V DOCS [1999] NSWSC 340 (surrogacy arrangement); Re an application; Births Deaths and Marriages Registration Act 1997 (2000) FLC ¶93-021, (surrogacy arrangement, irrebuttable presumption); AP & anor v RD & anor [2011] NSWSC 1389 (surrogacy arrangement); Application of MM & KF re FM [2012] NSWSC 445 (same sex surrogacy arrangement); C v B [2013] NSWSC 254 (surrogacy arrangement where 2 different States’ laws are involved).

22. The biological technology is now widely available for artificial conception procedures and surrogacy arrangements to occur without the approval or sanction of a court administering the Act.

23. As observed by Bryson J in an adoption case Application of D and E [2000] NSWSC 646; (2000) 26 Fam LR 310 at par [21] :

“...I see no way in which the welfare and interests of the child, which are the paramount consideration, would be served by modifying what would otherwise be an appropriate disposal of this case to accommodate broad public policy considerations relating to whether surrogate parenthood arrangements should be made, or should be encouraged.”

Adoption was available as a means to legitimise the reality of the care arrangements for a child born in a surrogacy arrangement. Surrogacy and artificial conception procedures are used as an alternative to adoption.

7 Status of Children Act 1996 (NSW); Status of Children Act 1974 (Vic), sections 10A, 10B, 10C, 10D, 10E, 13, 14, 15,16, 22; Status of Children Act 1978 (Qld), sections 17, 18, 19, 19C, 19D, 19E, 23; Artificial Conception Act 1985 (WA); Family Relationships Act 1975 (SA), sections 10A, 10B, 10C, 10D and 10E; Status of Children Act 1974 (Tas), Part III; Parentage Act 2004 (ACT), section 11; Status of Children Act (NT), sections 5A, 5B, 5C, 5D, 5DA, 5E and 5F; Surrogacy Act 2010 (Qld), section 22; Surrogacy Act 2008 (WA), section 21; Parentage Act 2004 (ACT), section 26; Family Relationships Act 1975 (SA), section 10HB; Surrogacy Act 2010 (NSW), section 12.

4 24. In Australia the statistics are that during 2010-11 there were 384 finalised adoptions across Australia which was then the lowest annual number on record. Of these adoptions 56% were intercountry, 12% were local and 32% were 'known' child adoptions; 62% of adopted children were under 5 years of age; the majority of intercountry adoptees came from Asia (80%). The three most common countries of origin in Asia were China (24%), the Philippines (17%), and Taiwan (12%). Ethiopia was the most common country of origin outside the Asian region (19%).8 During 2011-12 there were 333 finalised adoptions across Australia which is now the lowest annual number on record. Of these adoptions 45% were intercountry, 17% were local and 39% were `known' child adoptions; 58% of adopted children were aged under 5 years of age. It is noteworthy that 86% of intercountry adoptees came from Asia and 54% of `known' adoptions were by carers, such as foster parents.9

25. Official statistics for surrogacy arrangements and artificial conception procedures are not readily publicly available. However, the following has been stated in the press (Sydney Morning Herald 3 June 2012):

“ According to Surrogacy Australia, a Melbourne-based advocacy group for parents using surrogacy, a survey of 14 surrogacy agencies overseas this year found the number of babies born on behalf of Australians jumped from 97 in 2009 to 269 last year. Already, 254 Australian surrogate babies have been born this year, the group says.

Official figures show only 19 children were born in Australia last year under regulated altruistic surrogacy arrangements, in which the surrogate mother offers her services free but the intended parents pay medical costs....”10

“ Many childless couples are seeking surrogacy deals in India, where the number of Australian babies born to surrogates leapt from 47 in 2009 to 179 last year, according to the survey.

But the figure may be even higher. Immigration Department statistics obtained under freedom-of-information laws show the number of babies being born to Australian citizens in India jumped from 170 in 2008 to 394 last year. While no one knows exactly how many of those children were born via surrogacy, the number of Australians living in India has not risen significantly in the past four years.”11

26. The website of Surrogacy Australia states:

“It has been suggested that one of the major motivations for turning to this method of reproduction is the difficulties associated with adoption in contemporary Australian

8 Adoptions Australia 2010-11, Australian Institute of Health and Welfare, http://www.aihw.gov.au/publication-detail/? id=10737420776 9 Adoptions Australia 2011-2012, Australian Institute of Health and Welfare, http://www.aihw.gov.au/publication-detail/? id=60129542371 10 http://www.smh.com.au/opinion/political-news/hundreds-pay-for-overseas-surrogacy-20120602- 1zp1u.html 11 Ibid.

5 society. These include the fact that changes in social attitudes and legislation have led to fewer women placing their children up for adoption, and couples may wish to avoid being asked to adopt a child of a different race or having to go through the difficulties of international adoption. Adoption in Australia, with the exceptions of certain states, is currently not an option available to gay male couples.”12

27. In reference to surrogacy and artificial conception procedures the provisions of the legislation do not contain the word “parent” but deem the child who is born as a result of those arrangements to be a child of a man or a woman for the purposes of the Act.

Terms of Reference i. Whether the provisions in Part VII of the Family Law Act that deal with the parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent for children.

28. The provisions regrettably lead to outcomes that are to differing degrees not appropriate, discriminatory and inconsistent for children.

29. In Ellison v Karnchanit [2012] FamCA 602; (2012) 48 FamLR 33, per Ryan J, it was determined that twin children brought from Thailand to Australia by their biological father and who were conceived by a commercial surrogacy arrangement, should receive a declaration of parentage and be the subject of parental responsibility orders under the Family Law Act 1975. The commercial surrogacy arrangement is an illegal arrangement relevantly under the laws of Queensland (and also in other parts of Australia). Such an arrangement is apparently not illegal in Thailand. The applicants were granted a certificate under section 128 of the Evidence Act 1995, in order to enable them to speak freely and so their evidence could not be used against them in criminal proceedings. It appears that no orders were sought from any court in Thailand to legitimise the surrogacy arrangement, and no DNA testing complying with the Regulations was undertaken to facilitate proof of parentage in an admissible form: at pars [27], [29]. Her Honour Justice Ryan recorded at paragraph [33] that the Australian Law Reform Commission in its report “Essentially Yours: The protection of Human Genetic Information in Australia” (ALRC Report 96) recommended that the Act be amended to provide that parentage testing reports which do not comply with the Regulations should not be admissible. That recommendation is consistent with the decisions of Re C (No 1) (1991) 15 FamLR 350, per Fogarty J, and McK v O (2001) FLC ¶93-089, per Mullane J. It is consistent also with strict compliance with the current Act and Regulations. Her Honour Justice Ryan, however, admitted evidence of DNA sampling, after it was determined that the chain of custody was reliable enough to be satisfied that the samples were from Mr Ellison and the children by hearing evidence, both affidavit and oral, and receiving subpoena material from the pathologist at the Institute which performed the testing, which evidence resolved technical difficulties in admitting the reports and also satisfied the

12 http://www.surrogacyaustralia.org/about-us/general-info-on-overseas-surrogacy

6 Court to the requisite standard concerning the totality of the evidence that Mr Ellison was the biological father: at par [32]. Without that evidence it is difficult to see how the matter could have progressed further.

30. In C v B [2013] NSWSC 254, per White J, the court considered a surrogacy arrangement made before the commencement of the Surrogacy Act 2010 (NSW) between a woman and her husband, and the sister of the woman (who was the “surrogate” birth mother) where treatment was provided from a doctor specialising in reproductive medicine in Albury. A provision of the Surrogacy Act 2010 (NSW) (s32) permitted the application to be brought within 2 years at the commencement of the Surrogacy Act 2010 (NSW). It was a requirement that the applicants for the order be resident in New South Wales. They were not. The child was born in a hospital in Wodonga and the parties all reside in Victoria. Under the Victorian legislation13 an order can only be sought if the procedures were carried out in Victoria and the commissioning parents live in Victoria at the time of the making of the application. His Honour held that there was an exceptional circumstance which justified the making of the parentage order despite the precondition of residence in New South Wales not having been met: at par [7]. His Honour did not refer to section 3 of the Surrogacy Act 2010 (NSW) which provides that it is the guiding principle that “in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.” It is arguably in the best interests of the child that there be a parentage order as sought, pursuant to the surrogacy arrangement.

31. In an earlier decision PJ V DOCS [1999] NSWSC 340 His Honour Justice Windeyer determined that a parentage order should not be granted under a surrogacy arrangement in favour of the applicants Mr and Mrs J due to an irrebuttable presumption contained in the relevant State legislation. The child was born as the result of a surrogacy arrangement under which it was arranged that Mrs W, who is the mother of Mrs J, would bear the child, Mrs J being unable to do so, having not developed any uterus. An ovum from Mrs J and fertilised by the sperm of Mr J was inserted in the uterus of Mrs W and as a result of this having been successful, the child was born. His Honour held: “Mrs W, having undergone a fertilisation procedure, is presumed to be the mother of the child. As she underwent or became pregnant by means of a fertilisation procedure, using the sperm obtained from Mr. J who is not her husband, then Mr. J is presumed not to be the father; and as she became pregnant by means of a fertilisation procedure, using ovum obtained from another woman, namely her daughter, then her daughter is presumed not to be the mother of the child. Those presumptions are irrebuttable.” (At par [10]).

32. In a decision of His Honour Justice Bryson, dated 7 July 2000, Application of D and E [2000] NSWSC 646; (2000) 26 Fam LR 310 , His Honour stated, in determining to grant an adoption order in favour of the applicants:

13 Status of Children Act 1974 (Vic).

7 “[21] Surrogacy adoptions raise public policy and other general considerations which I discussed in another judgment published today and will not now repeat: see Application of A and B [2000] NSWSC 640. I do not regard surrogacy arrangements as an institution which should be encouraged by the law even where, as in this case, there is no commercial aspect of the arrangement. Consideration of the welfare and interests of the child in this case outweighs, in an overwhelming way, any consideration that in order to serve public policy and discourage surrogacy arrangements an adoption order should be withheld or the Court’s response to the application should be modified to accommodate the view that surrogacy arrangements should not be encouraged, or should be discouraged. The applicants, the birth mother and the child have no real interest in the attainment of public policy objectives of that kind. I see no way in which the welfare and interests of the child, which are the paramount consideration, would be served by modifying what would otherwise be an appropriate disposal of this case to accommodate broad public policy considerations relating to whether surrogate parenthood arrangements should be made, or should be encouraged.”

33. In AP & anor v RD & anor [2011] NSWSC 1389, His Honour Justice Brereton considered the provisions of the New South Wales Surrogacy Act 2010 which commenced on 1 March 2011. Before making an order of parentage under the act the first mandatory precondition is that the court must be satisfied the making of the parentage order is in the best interests of the child: section 22, par [10]. There are a number of other mandatory preconditions which His Honour sets out in the judgment and observes that those which are stated to be mandatory cannot be waived by the court, but others can be waived in exceptional circumstances: at par [9], section 18 Surrogacy Act 2010.

34. In Application of MM & KF re FM [2012] NSWSC 445, His Honour Justice Brereton considered an application for a parentage order under the Surrogacy Act 2010 (NSW) by a male same-sex couple. His Honour observed that this was the first application by such a couple under the legislation. His Honour in granting the application was satisfied of the legislative mandatory preconditions and determined that the application was in the best interests of the child.

35. Returning to the decision in Ellison v Karnchanit [2012] FamCA 602; (2012) 48 FamLR 33, per Ryan J, it is observed that the decision of the High Court in G v H (1994) 181 CLR 387; 124 ALR 353; 18 Fam LR 180, discussed parenting presumptions and declarations of parentage made under the Act. In particular their Honours Deane, Dawson and Gaudron JJ (at CLR 400; ALR 362-363; Fam LR 190) and then Brennan and McHugh JJ, were quoted by Ryan J at pars [36] and [37]. Significantly, attention is drawn to the fact that those judges of the High Court considered that a determination of parentage under the Act is not to “be regarded as a declaration of paternity in the traditional sense” but rather the presumptions are to “operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless

8 and until proof to the contrary is forthcoming”(per Deane, Dawson and Gaudron JJ). Her Honour also refers (at [37]) to a passage in the decision of Brennan and McHugh JJ (at CLR 391; ALR 356; FamLR 184) which is now reproduced:

“We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity...”

36. Her Honour Justice Ryan referred to in her judgment to submissions by the intervener Australian Human Rights Commission concerning geographical limitations of section 60H and 60HB, to the effect that it was submitted s60HB does not apply to surrogacy arrangements entered into overseas and s60H applies to couples who use artificial conception procedures or surrogacy arrangements occurring under a prescribed law of an Australian state or territory: at pars [38]-[49]. Her Honour considered that such an interpretation would not be consistent with s69E and investiture of powers to the court reliant upon the constitutional external affairs power (s51 (xxix) Constitution) and the territories power (s 122 Constitution), and the plain words of the sections themselves: at pars [48]-[49].

37. It was necessary for Her Honour Justice Ryan to determine whether the birth mother was in a de facto relationship at the time of the carrying out of the artificial conception procedure because, if she was, s 60H(1) deems the children to be her and her de facto partner’s children, to the exclusion of Mr Ellison: par [53]. The evidence satisfied Her Honour that the birth mother was in a de facto relationship when she was interviewed later at the embassy (after the birth of the children), but not when the artificial conception procedure was performed: par [56]. Her Honour respectfully disagreed with the decision of Macmillan J in Gough v Kaur [2012] FamCA 79, which interpreted s60H(1) to exclude the applicant father in that case from being a parent because he was not the husband or de facto partner of the respondent in that case. Her Honour Ryan J respectfully agreed with decisions of Brown J in Re Mark (an application relating to parental responsibilities) (2003) 31 Fam LR 162; [2003] FamCA 822, and Faulks J (as he then was) in Stone v Bowman [2000] FamCA 1280, to the effect that s60H is an extending definition and not exhaustive so it does not operate to exclude a person as a parent if his or her circumstances do not coincide with those identified in the section: at pars [57]-[61].

38. Her Honour Justice Ryan refers to a decision of Justice Watts in a case with similar facts, Dudley v Chedi [2011] FamCA 502, where he considers the effect and application of section 60HB. Her Honour observes that because the surrogacy arrangement is a

9 commercial one, an application for a parentage order cannot be made under the State surrogacy legislation (which only applies to altruistic surrogacy). His Honour Justice Watts in Dudley v Chedi stated at par [29] that s60HB provides that State law will govern the determination of parentage and that State law will be recognised by Federal law. Her Honour Justice Ryan decides that s60HB only applies where there has been an order made under State or territory law: par [68]. Implicitly, Her Honour disagrees with the interpretation contained in Justice Watts’ decision.

39. In Ellison v Karnchanit none of the presumptions of parentage applied and therefore Her Honour Justice Ryan had to consider whether to make a declaration of parentage pursuant to section 69VA. Firstly, it was determined that the word “parentage” in s 69VA is concerned with whether a declaration can be made in favour of a biological parent: Tobin v Tobin (1999) 24 Fam LR 635; FLC 92-848; [1999] FamCA 446. Secondly, as observed by Ryan J “at an appellate level there is disquiet as to whether a declaration pursuant to s 69VA is a parenting order”: Brianna v Brianna (2010) 43 FamLR 309; [2010] FamCAFC 97: Tryon v Clutterbuck (no 2) (2009) FLC 93-412; (2009) 42 FamLR 118; [2009] FamCAFC 176. Because the court accepted that the biological father was Mr Ellison from the totality of the evidence, a declaration of parentage could only be made in his favour.

40. Since those decisions it has been made abundantly clear by amendment so that Section 64B now provides:

“64B(1) A parenting order is:

(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

However, a declaration or order under Subdivision E of Division 12 is not a parenting order.”

41. The declaration under s69VA, since the section is located in Subdivision E of Division 12, therefore does not require the children’s best interests to be considered as the paramount consideration because it is not a parenting order: s60CA.

42. The court has a discretion under s69VA whether to issue a declaration of parentage which is conclusive evidence of parentage for the purpose of all laws of the Commonwealth. While the children’s best interests is not the paramount consideration, it remains a consideration in addition to other considerations in the exercise of the court’s

10 discretion. The considerations which are required to be taken into account in the exercise of the discretion are not stated in the Act.

43. Justice Watts in Dudley v Chedi [2011] FamCA 502, declined to make a declaration of parentage in that matter in the exercise of his discretion but in doing so chose not to have regard to the child’s best interests, and did not have regard to the United Nations Convention on the Rights of the Child (UNCROC). His Honour had regard to public policy considerations, because the surrogacy arrangement was a commercial one and illegal under state law, His Honour considered adoption legislation would provide an adequate remedy, and also that parenting orders could be sought without necessarily recognising the applicant as the father of the children.

44. It is suggested that the conclusion drawn from the cases referred to in the previous paragraphs identifies that the provisions in Part VII of the Family Law Act 1975 that deal with the parentage of children lead to outcomes that are not always appropriate, discriminatory and inconsistent for children. ii. Whether there are any amendments that could be made to the Family Law Act that will clarify the operation, interaction and effect of the relevant provisions.

45. There are 5 presumptions of parentage contained in the Act; s69P, s69Q, s69R , s69S, s69T. These presumptions of parentage rely upon an assumption that being married to a man, living with a man, recording the name of the man on a birth certificate, a previous finding by a court, or an acknowledgement by a man that he is the father are sufficiently accurate methods of determining parentage.

46. It is emphasised that the High Court in G v H (1994) 181 CLR 387; 124 ALR 353; 18 Fam LR 180, considered that a determination of parentage under the Act is not to “be regarded as a declaration of paternity in the traditional sense” (per Deane, Dawson and Gaudron JJ at CLR 400; ALR 362-363; Fam LR 190), and “a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity” (per Brennan and McHugh JJ at CLR 391; ALR 356; FamLR 184). Parentage provisions in the Act are not subject to the principle that the best interests of children are paramount. This is a significant shortcoming.

47. The relevant provisions are not defined as parenting orders pursuant to section 64B. In fact, the legislation provides that a declaration or order under Subdivision E of Division 12 is not a parenting order: 64B(1). By contrast s3 of the Surrogacy Act 2010 (NSW) provides that when making a parentage order it is the guiding principle that “in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.”

48. It is considered that in making a determination of parentage under the Act should also require that the children’s best interests are the paramount consideration.

49. The most accurate method of determining biological parentage should be expressed to be the preferred method. The most accurate method to date is DNA sampling. The most

11 accurate method of determination should be the preferred method, that is DNA sampling, and it should take precedence over other presumptions based on assumptions which are not necessarily valid.

50. The reliance on rebuttable presumptions or irrebuttable presumptions has led to results in the cases referred to which are patently not in the interests of the subject children: e.g. PJ V DOCS [1999] NSWSC 340. The use of language which identifies rebuttable or irrebuttable presumptions is not preferred.

51. Where surrogacy arrangements or artificial conception procedures are utilised and there is no biological or genetic connection between the proposed parents and the child born as a result of such arrangements, the consent of the relevant participants to those procedures is the relevant determinant. The relevant provisions of the Act attempt to address this situation. Regrettably the provisions have not been uniformly applied.

52. Specification of the types of matters which should be considered in the exercise of the court’s discretion may include:

(i) the paramountcy of the children’s best interests both in childhood and later life,

(ii) that children born of surrogacy arrangements should not be disadvantaged or suffer any detriment as a result of the legal status conferred on their parents or guardians,

(iii) any disability that the child has,

(iv) any wishes expressed by either or both of the biological or surrogate parents of the child,

(v) the alternatives to the making of an order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by the making of an order, so that the order is determined meet the needs of the child.

53. The implications for the child’s rights caused by the making or failure to make an order for parentage is highlighted by the recognition that the United Nations Convention on the Rights of the Child 1989 (UNCROC), to which Australia is a signatory, has received in Australian case law and legislation14. The considerations identified by the High Court upon a child’s long term identity arising from a parentage determination are clearly also relevant: G v H (1994) 181 CLR 387; 124 ALR 353; 18 Fam LR 180.

54. The legislation may be amended to specify the matters referred to by Her Honour Justice Ryan in Ellison v Karnchanit [2012] FamCA 602; (2012) 48 FamLR 33, at pages 64-65, pars [134] to [139], as appropriate matters to clarify the operation and interaction of the legislative provisions.

14 Re Tracey [2011] NSWCA 43;, per Spigelman CJ (as he then was), with whom Beazley JA agreed; Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 ("Re Thomas "); Donnell & Dovey [2010] FamCAFC 15; (2010) FLC ¶93-428; and the amendments commenced on 7 June 2012 to section 60B of the Family Law Act 1975 which now provides in sub-section (4) that an additional object of Part VII of the Act “is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.” The text of the convention is available at http://www.unicef.org.au/Discover/What-We-Do/Convention-on-the-Rights-of-the-Child/fulltextcrc.aspx

12 iii. Whether there are any amendments that should be made to make the Family Law Act more consistent with State and Territory legislation that provides for the legal parentage of children.

55. The State and Territory legislation that provides for the legal parentage of children relevantly under discussion in these terms of reference are those provisions prescribed by clauses 12C, 12CA, 12CAA of the Family Law Regulations 1984. The State legislation provides for presumptions as to parentage. For example, Status of Children Act 1996 (NSW) s14 considered by Windeyer J in PJ V DOCS [1999] NSWSC 340. In that decision His Honour applied strictly an irrebuttable presumption. If the Act was made more consistent with this legislation, it would appear to not serve the children’s best interests.

56. Legislation in 3 states does not recognise commercial surrogacy arrangements. It is regrettable that this is the case, particularly when there are a large number of children who do not choose how they are conceived or where they are born but may be subject to these considerations based upon the status of their parent. This policy decision does not assist the children who are born resulting from such arrangements. A policy decision as to which state or territory laws and which parts of those laws should be consistent with the Act may also not assist such children.

57. The prescription of the provisions for the purposes of the Act is not comprehensive, but selective, and as can be seen by the decision in C v B [2013] NSWSC 254, the State provisions are not consistent or uniform in application, and Federal provisions would be of assistance to child in the same situation. To make the Act more consistent with State provisions would help uniformity of approach. The Commonwealth legislation should however also be capable of consistent application. iv. Are there any amendments that would assist the family courts to determine the parentage of children born as a result of assisted reproductive technology, including surrogacy, where the State and Territory Acts do not apply?

58. There are amendments which are suggested in response to the previous parts of the terms of reference.

59. The State and Territory Acts do not apply in circumstances of commercial surrogacy. In New South Wales, the ACT and Queensland it is a criminal offence to engage in commercial surrogacy arrangements.

60. In Ellison v Karnchanit [2012] FamCA 602; (2012) 48 FamLR 33, per Ryan J, it was determined that twin children brought from Thailand to Australia by their biological father and who were conceived by a commercial surrogacy arrangement, should receive a declaration of parentage and be the subject of parental responsibility orders under the Family Law Act 1975. The commercial surrogacy arrangement is an illegal arrangement relevantly under the laws of Queensland. These circumstances complicated a determination of parentage of the children. It may be considered more appropriate to

13 specify that the parentage provisions of the Act apply to both commercial surrogacy arrangements and altruistic surrogacy arrangements. v. Are there any amendments to the Family Law Act that could be made to assist other Commonwealth agencies, such as those responsible for immigration, citizenship and passports, to identify who the parents of a child are for the purposes of Commonwealth laws?

61. There are a number of provisions which could assist identification of who the parents of a child are for the purposes of Commonwealth laws. In the decision of Ellison referred to previously Her Honour Justice Ryan refers to section 8 of the Australian Citizenship Act 2007, and the Department of Immigration and Citizenship Policy Advisory Manual (No 3) which was tendered in evidence before the court by the intervener: see par [47]. It was observed that section 8 of the Australian Citizenship Act 2007 essentially incorporates ss 60H and 60HB of the Act: par [47]. Interpretation of section 8 of that act is contained in the manual. It would appear that the interpretation of the manual is contrary to the interpretation determined by Justice Ryan in Ellison. Clarification of the situation may assist those responsible for identifying who the parents of a child are for the purposes of Commonwealth laws.

30 April 2013