Surrogacy – when another woman carries and gives birth to a child for another person and then gives that child over – started thousands of years ago when infertile women offered their handmaids to childless husbands.  Since then, the technology has advanced quite a bit and now includes many variations of the traditional surrogate.   These scientific developments – including IVF and the ability to freeze sperm and eggs – have necessitated legal changes throughout the world.  Questions abound regarding the ethics of surrogacy, the legal status of the surrogate and the parents and the ability of nontraditional families (same sex couples, singles) to use surrogates to have children.

There are two types of surrogacy.  In traditional surrogacy, also known as genetic contracted surrogacy, the egg is from the surrogate and the sperm is donated by the father.  This links the fetus genetically to the surrogate.  Gestational surrogacy involves both an egg and sperm donation (one or both may come from the intended parents) and involves In Vitro Fertilization (IVF), in which the egg is fertilized in a petri dish, and the embryo is then implanted into the surrogate.  The surrogate has no genetic connection to the fetus with gestational surrogacy.  This distinction is important for determining who are the legal parents of the child and what citizenship the child obtains.

The laws surrounding surrogacy in Australia are somewhat complex.  Commercial surrogacy, where a woman is actually paid to carry the child, is illegal in all states in Australia.  Overseas commercial surrogacy – primarily in India, the United States and Thailand is against the law in New South Wales, Queensland and the Australian Capital Territory.  Altruistic surrogacy, in which a woman has no financial gain from carrying the child (although reasonable expenses, such as medical costs, travel, work lost, are covered by the parents) is legal in all states in Australia.  The Assisted Reproductive Treatment Act 2008 (ART Act) came into force in Victoria in 2010, and opened more doors for surrogacy.

Some Important Laws on Surrogacy in Victoria in the ART Act

1. The woman serving as s surrogate must be at least 25 years old, previously gave birth to a live child and is NOT using her own eggs in the surrogate pregnancy (gestational surrogacy).
2. Everyone involved in the surrogacy arrangement must be approved by a Patient Review Panel.  The Panel will make sure that all of the requirements in (1) are met and, in addition, that all those involved received legal advice and counseling.
3. The Patient Review Panel may approve a surrogacy plan, even if all of the conditions in (1) and (2) above have not been met, in exceptional circumstances.
4. Those involved may also have to undergo a police check (to determine if there is a criminal record) and a child protection order check.
5. No advertising!  Nobody may “publish” any type of notice or advertisement regarding a person’s willingness to be a surrogate or a person’s search for a surrogate.

In Victoria, the Assisted Reproductive Treatment Act 2008, which came into effect in Victoria in 2010, provides greater rights for same-sex couples in the area of surrogacy.  Currently the law in Victoria permits only gestational surrogacy (link to page on surrogacy in Australia) and requires the involvement of two different women for the purpose of surrogacy – the woman who will carry the child and another woman to donate her eggs.  Neither woman may be paid for her services.  The law prohibits any advertising or notification for surrogacy services (to be one or to hire one), but advertising for an egg donor is permitted.  Men who have limited fertility may use a sperm donor.

Becoming the Legal Parents

1.    The Birth Certificate

The surrogate will automatically be listed as the child’s mother on the birth certificate, and her partner (if she has one) as the other parent.  The commissioning parents must turn to the courts for a Substitute Parentage Order  to be legally registered as the child’s parent(s).

2.     Importance of Location

Commissioning parents can apply for a Substitute Parentage Order only if: (1) the child was conceived as a result of a procedure that took place in Victoria AND; (2) the commissioning parents live in Victoria at the time the application for a parentage order is submitted.

3.    Time is of the Essence

Commissioning parents must apply for the Substitute Parentage Order no less than 28 days after the birth and not more than 6 months after the child is born.  The court may make exceptions.

4.    When the Court will give the Order

A court will give a Substitute Parentage Order when ALL of the following requirements have been met or proven to be true:

• Making the order is in the best interests of the child
• A Patient Review Panel approved the arrangement (if a registered ART provider assisted in the process)
• The child was living with the commissioning parents when the application for the order was made
• The surrogate mother and her partner (if she has one) did not receive any material benefit or advantage from the surrogacy arrangement
• The surrogate mother freely consents to the order

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Wilson & Wilson – [2013] FamCAFC 43

This is an appeal on parenting orders granted by the Federal Magistrate Court.  The father appealed orders by the court granting the mother permission to relocate their child from Sydney to Newcastle.  The appeal was accepted and remanded for a rehearing.

The father, aged 57 and the mother, aged 52, had one child together, born in 2001.  The parents bought a home together in Sydney in 2004 and separated in the summer of 2007.  At that time, the mother worked from home as a bookkeeper and the father worked as a contractor for a consultancy company.

Initially, the parents were able to work out parenting arrangements.  From the time they separated, the child lived with the mother and spent time with the father from Friday afternoon until Sunday morning.  When, however, the mother asked the father’s permission to relocate with the child to Newcastle, some 118 kilometers from Sydney, the father refused.  The mother turned to the court for parenting orders and permission to relocate and the father sought orders restricting the mother to the Sydney area.

The mother had several reasons for relocating.  The parents agreed to sell the family home and the mother believed she would not be able to find affordable housing in Sydney.  She also wanted to reduce her work hours in order to spend more time with the child.  Her final reason for requesting relocation was to be closer to good friends in Newcastle since she was isolated in Sydney.  She asked for shared responsibility, that the child live with her and spend every second weekend (Friday afternoon through Sunday) and half the school holidays with the father.  The father asked the court to give them share parental responsibility, that the child live with the mother within a 15 km radius of Sydney and that he have the child three out of four weekends a month for three nights.

The child in question was 11 years old at the time of the divorce, suffered from ADHD which manifested itself in difficulties in school work and making friends.  The child was close to both parents, but had a stronger relationship with his mother.  An expert witness during the initial trial in the Federal Magistrate court stated that the move to Newcastle could potentially harm the child since change was difficult for him.  The expert also said the move would impact negatively on his relationship with his father since the drive to Sydney would be tiring and the child might want to stop making the visits.  Additionally, he would be seeing his father less frequently.

While the Federal Magistrate noted these claims, she considered the mother’s reasons in the equation as well.  She held that in order to provide the child with close to the same standard of living, the mother would, at the very least, need to move to the outskirts of Sydney, further from the father, or she would have to downsize to a small apartment to stay close by.  She would also be required to work her current hours, or longer, in a place where she felt isolated.  The father, on the other hand, was not required to make any changes.  The Federal Magistrate felt that placing the mother in this situation, when she is the primary caregiver for a child with special needs, might result in the child “not receiving the level of parenting he has hitherto enjoyed from his mother”.  The Federal Magistrate ruled in favor of the mother and allowed her to move to Newcastle.

Lower Court did not Weigh Evidence Correctly

The Family Court accepted the father’s claims on appeal, taking into consideration the testimony of the expert witness.  Overall, the court found that the lower court had not given appropriate weight and consideration to the expert witness, who expressed her concerns that the move itself could be damaging to the child.  In particular, the Family Court ruled that the Federal Magistrate was mistaken when she found: (1) the child’s relationship with the father would not be negatively affected by a change in the quantity or nature of the time they spent together; (2) that a move to Newcastle would not negatively impact on the quality of time the father and child spend together; (3) the child was okay with change he was prepared for and; (4) that the best interests of the child were met by the mother having an “unencumbered property with a backyard”.  The court found that the lower court did not appropriately weigh the evidence in considering the best interests of the child.  The case was sent back to the lower court.

Yamada & Cain – [2013] FamCAFC 64

This is a case involving the “best interests of the child”.  The mother appealed orders placing the child in the care of the paternal great aunt.

The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010.  The parents did not return the child after this visit, although it was supposed to last only four weeks.  Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana.  They lived a transient lifestyle, moving around a good deal, and switching schools for their other children.  The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him.  The aunt lived in Melbourne.

After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt.   In January 2011, the aunt brought Z to the airport to return her to her mother.  There she observed the mother being arrested by Australian Federal Police.  The aunt did not transfer Z and Z continued to live with her.   A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact.   The mother appealed.

Is Parenthood an Overriding Factor?

The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent.   The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order.  The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.”   The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at [121] that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child.  The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.

The Family Court disagreed, also basing its position on Donnell.  There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent.  Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”  Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”

Ultimately, the Family Court held that the law “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”  The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest.  The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.

The mother’s appeal was rejected.

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If there is a concern about a child potentially being wrongfully removed from Australia, it is necessary to file an Application and then present the Order authorising a PACE Alert to the Federal Police. This Alert prevents the departure of the child from Australia with the child’s details be placed on an Airport Watch list.

If a child has been wrongfully removed from Australia, the return process depends on which country the child has been taken to.

If the child has been taken to a country that is a signatory to the Hague Convention, an Application may be made for the child’s return usually through the State or Commonwealth Attorney General Central Authority.

If the child has been taken to a country that not a party to the Hague Convention it may still be possible to have the child returned to Australia, but in most cases a lawyer in the overseas country will be required to start proceedings in that country to have the child returned.

It might be prudent to prevent the issue of an Australian or foreign passport for the child. This can be achieved by contacting the Australian Passport Office or the relevant embassy.

The lawyers at Mathews Family Law & Mediation Services Melbourne have significant experience and expertise with regard to issues that affect children. If you are concerned about your children being removed within Australia or overseas, then you should contact us urgently. If you are considering moving your child interstate or overseas then contact us for advice about the possible consequences of such a move.

Mathews Family Law is an Australian law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

[Case: Emily avoids being returned to the USA]