Legal parentage and surrogacy – more inconsistency?

Confusion around legal parentage and surrogacy arrangements is continuing to cause conflict between Australian domestic public policy in relation to ‘commercial surrogacy’ and the child’s best interests. UWS law lecturer Dr Cressida Limon explores recent developments.

A recent Family Court case, Sigley & Sigley [2018] FamCA 3 (10 January 2018), has highlighted the ongoing inconsistency in relation to legal parentage and surrogacy arrangements. The facts are reasonably straightforward. The law is not. Mr and Ms Sigley (not their real names) met and married in the United States in 2015, were they are currently working. As Ms Sigley was unable to maintain a pregnany, they entered into a commercial gestational surrogacy agreement in the US.

As is possible in some US States the Sigleys obtained court orders in 2017 that validated the surrogacy agreement and declared the Sigleys the parents of the twin children born. The Sigleys intend to return to their home state of Victoria and so they applied to the Family Court of Australia to have the US orders registered as an ‘overseas child order’. The effect of such registration in Australia is to give the orders the ‘same force and effect as if it were an order made by [the Family Court]’ (section 70H Family Law Act 1975).

Forrest J found that the US orders were clearly of the kind that could be registered – but that is not the main issue. The power to register such orders is discretionary.

The discretionary nature of the power raises the ongoing question of the conflict between Australian domestic public policy in relation to ‘commercial surrogacy’ and the child’s best interests. Commercial surrogacy (variously defined as payment beyond reimbursable expenses) is prohibited in Australia.

It is also a criminal offence for residents of NSW, Qld and the ACT to engage in commercial surrogacy offshore. The Sigleys did nothing illegal. That is the case even if they had been resident in Victoria (their usual State of residence) and had travelled to the US. For these (and other reasons) Forrest J decided that the commercial nature of the arrangement was no reason to not register the Orders.

A second consideration arose from the new Family Law Rules introduced on 1 January 2016 specifically to deal with international surrogacy and the evidence that should be given to the Court when parents return to Australia and apply for parenting orders.

The Sigleys had not provided all the evidence required so that was also raised as a possible ground for not exercising the discretion to register the orders. On this point Forrest J held that those Rules didn’t apply in this case because of the nature of the application – again, the application was to register the overseas orders. As Forrest J noted, the Sigleys had already been through all the required legal proceedings in the US.

All this sounds emininently reasonable. So what is the problem? There are quite a few but for a start consider the inconsistencies between local and international, so-called altruistic and commercial arrangements and, in addition, inconsistency based on where the surrogacy arrangement takes place. Compare the Sigleys case with another case from just a few months earlier: Bernieres & Dhopal [2017] FamCAFC 180.

Bernieres was the first decision of the Full Court of the Family Court which considered whether it is legally possible for the Court to make a declaration of parentage in international surrogacy cases. The unanimous answer to that question was ‘no’, the Family Law Court has no power to make a declaration of parentage in international surrogacy cases. This is the case even when there is clear evidence that the Australian ‘intending parent’ is genetically the parent of the child and the woman who worked as the surrogate has no genetic link to the child.

So, why the difference? Basically in the two cases two different applications were being made. In Bernieres the application was for parenting orders and a declaration of parentage in favour of the biological father. The Bernieres were not applying to register overseas court orders but relying on the general provisions of the Family Law Act.

It should be noted that in Bernieres it was not specified which country the surrogacy arrangement took place. In other words, surrogacy arrangements are treated differently in other countries and don’t always involve a court order as to parentage – hence no orders to register in Australia. So, there may be ‘good’ reasons for the difference.

The problem is that there is no consistent outcome for children. To emphasise the point, had the Sigley’s done exactly the same thing in Australia, they would not be considered legal parents for the purposes of Australian law. And, given the discretionary nature of the power to register overseas Court orders, Forrest J explicitly indicated that a different set of circumstances could lead to a different outcome.

What does it all mean? In short, many intending parents of children born from international surrogacy arrangements are not the legal parents of the child/ren for the purposes of the Family Law Act (and for other Commonwealth laws and State laws).

In 2013 the Family Law Council made a number of recommendations to clarify the parentage provisions in the Family Law Act and to provide some mechanism to deal with international surrogacy arrangements. The Family Law Council also recommended that the Australian Law Reform Commission conduct an inquiry into all the legal issues raised by international surrogacy arrangements.

To date, little has happened apart from further inquiries and reviews. The Federal Government has requested that the Australian Law Reform Commission review the entire Family Law system. It is unclear whether the parentage provisions and surrogacy arrangements will be re-considered in that inquiry given the broad scope of the terms of reference.

The Western Australian government has also commissioned an independent review of its surrogacy law, which currently discriminates against same sex couples by providing that only opposite sex couples and single women are eligible to apply for a parentage order (see Surrogacy Act 2008 (WA), s 9). Regardless of the outcome of that review, the inconsistencies will remain without State, Territory and Federal harmonisation (something everyone says is a good idea) and which also considers the interaction with the Family Law Act and international surrogacy.