Green-Wilson v Bishop [2014] FamCa 1031
October 10, 2016

Mason & Mason And Anor [2013] FamCA 424

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Facts

The applicant in this matter sought parenting orders and a declaration of parentage in relation to a twins born as a result of commercial surrogacy arrangement commissioned in India.   An anonymous donor’s egg and the applicant’s sperm were used to create an embryo.  The embryo was implanted into surrogate mother under a contract that she had entered into with the applicant.  At the time of birth, the surrogate mother was neither married nor in a de facto relationship.

Reasoning

Ryan J found that the applicant could not be named the father of the twins pursuant to a declaration of parentage issued under the Family Law Act 1975.  Only State legislation can determine the parentage of children born as a result of an overseas commercial surrogacy arrangement.  The basis for this finding is Ryan J’s interpretation of ss 60H and 60HB of the Act.

The inclusion of ss60H and 60HB in 2008 evinces the following parliamentary intention.  Namely, that the parentage of children born as a result of an artificial conception procedure or a surrogacy arrangement, respectively, should be determined by reference to ss60H and 6HB and not by the scheme set out in the Act.  Sections 60H and 60HB were inserted into the Act by virtue of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.  Those amendments commenced on 21 November 2008 – after the commencement of the general scheme set out in the Act.  It is presumed that where specific provisions are passed after the general provision, then specific provision must be applied and the general provision displaced.  There was no evidence in support of the inference that this presumption should be rebutted.  Accordingly, the ss60H and 60HB were found to prevail over the Act’s general scheme for determining parentage.

Sections 60H and 60HB of the Act provide:

CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION

PROCEDURES

(1) If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

(b) either:

(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

(ii) under a prescribed law of the Commonwealth or of a State or Territory, 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:

(c) the child is the child of the woman and of the other intended parent; and FamCA Reasons Page 6

(d) if a person other than the woman and the other intended parent

provided genetic material—the child is not the child of that person.

(2) If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

(3) If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out

unless it is proved, on the balance of probabilities, that the person did not consent.

(6) In this section:

this Act includes:

(a) the standard Rules of Court; and

(b) the related Federal Magistrates Rules.

Children born under surrogacy arrangements

(1)  If a court has made an order under a prescribed law of a 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.

For the purpose of s60H(1)(b)(ii), reg 12C of the Family Law Regulations 1984 specifies  that Status of Children Act 1996 (NSW) as the relevant prescribed law.  Regulation 12CA of the Regulations prescribes s 12 of the Status of Children Act for the purpose of s 60H(2).  The Regulations do not prescribe any laws for the purpose of s 60H(3) Regulation 12CAA of the Regulations prescribes s 12 of the Surrogacy Act 2010 (NSW).  Accordingly, Ryan J found that unless the applicant can obtain an order for parentage under the Surrogacy Act, the court cannot issue a declaration of parentage under the Family Law Act 1975.