Recognition of Parentage in Surrogacy Arrangements in Australia

Chapter 8
Recognition of Parentage in Surrogacy Arrangements in Australia

Alexandra Harland* and Cressida Limon**

I. Introduction

Recognition of legal parentage, and the implications of recognition for the rights of the child, has presented particular challenges for Australian families and Australian courts. As the phenomenon of overseas commercial surrogacy continues to flourish, Australian legal frameworks are increasingly ill-equipped formally to recognise the reality of new family structures. This chapter puts these challenges in context, examines some particular case examples from the Australian Family Courts,¹ and outlines some recommendations for reform.

Australians who cannot have children without the assistance of reproductive technology look increasingly to international surrogacy as a way of creating a family. For some Australian couples and individuals, adoption and IVF are not options that are available to them. Fertility clinics in Thailand and India promote themselves as attractive options.² For Australians, part of the attraction of commercial surrogacy in these countries is the affordability of airfares and surrogacy fees (as compared to the United States) and the lack of regulation.³ Australians have continued to travel overseas for surrogacy regardless of whether or not it is illegal in Australia.⁴

However, the lack of regulation is a double-edged sword, and particularly so when it comes to the rights of all the parties involved. It means that couples can access surrogacy services with relative ease, but there can be problems after the child is born. One such hazard is the potential for children to be stateless and/or parentless because of conflicting laws in the country where the surrogacy has taken place and the home country of the intending parents. Australian legal frameworks for the regulation of surrogacy and the legal recognition of parentage are currently uncertain and inconsistent, which compounds the problems of a lack of regulation overseas.

The significance of the questions raised by international surrogacy arrangements is illustrated by the fact that the Hague Conference on Private International Law (HCCH) is currently investigating the issue of international surrogacy. Similarly, the Family Law Council of Australia recently completed a broad inquiry into parentage and the Family Law Act which also highlighted a number of concerns in relation to international surrogacy.⁵ One of the issues of great concern identified by the HCCH is the status of children, and particularly the establishment or recognition of the child’s legal status, which has important consequences for the child including nationality, immigration status and parental responsibility.⁶ There have now been several international cases that have highlighted complex problems and consequences for children without a home state. The Baby Manji Case is often cited as an example.⁷ In that case, lack of regulation and recognition resulted in the child being stranded for two years in India while legal proceedings ensued. Unfortunately, the Baby Manji Case is not the only example of a child born through surrogacy being stranded and stateless.⁸

Even in less extreme cases, the difficulty with partial solutions is that children may be left with what has been called ‘limping’ legal parentage, where one parent may not be legally recognised as the child’s parent.⁹ This can have various impacts on parents and children as they may be confronted with situations where they are not recognised by institutions such as hospitals as being able to authorise treatment for their child, or to enrol their child in school. It may cause an individual to feel less of a parent than one who is legally recognised as a parent. One parent being recognised legally and the other not can cause tension in the relationship. This chapter shows how such issues are contentious in Australia.

The relevance of international human rights law to overseas commercial surrogacy arrangements is a relatively recent area of concern for policy makers in Australia.¹⁰ In part, this is because of the increased visibility of Australians who have travelled overseas for surrogacy arrangements and because of the growing number of cases that have come to the family courts. Overseas commercial surrogacy arrangements raise a range of legal and ethical issues.¹¹ The focus of this chapter is the legal recognition of parentage under the Family Law Act 1975 (Cth) (‘Family Law Act’) and why the current laws need to be reformed. It is within this context that we note that regardless of the regulatory regime in place (for example, the current prohibition of commercial surrogacy in domestic Australian law – and many other jurisdictions) this ‘does not provide sufficient justification for ignoring the basic needs of children born of [Australian citizens]’.¹² Richard Storrow, for instance, has highlighted a potential ‘new illegitimacy’ for children born as a result of international surrogacy arrangements.¹³ For this reason, a complete prohibition on commercial surrogacy does not address the human rights of the children born from such arrangements.¹⁴ In addition, a child’s right to genetic information and to know the identity of their gestational mothers is a separate question to the question of legal parentage.¹⁵

Part II of this chapter explains, as a first step, why legal recognition of parentage is important for the rights of the parties involved – not just to the adult acting in that role but also to the child who is parented. As discussed in Part III, some intended parents of children born as a result of surrogacy arrangements outside Australia opt for informal recognition of parentage, or for no recognition at all. These options carry significant attendant risks and costs. To obtain any legal status in relation to their children, the best that can be achieved for Australian intended parents who have entered into commercial surrogacy arrangements (or who have entered into altruistic arrangements but are unable to comply with the state and territory requirements) is to apply to the family courts for parental responsibility orders. Part IV of this chapter uses several case studies to highlight some of the challenges in doing so. Even where they can be obtained, parental responsibility orders do not provide the same level of protection to a child as having legal parents. Part V draws on comparative approaches in the United Kingdom that have considered the competing public policy issues in relation to commercial surrogacy arrangements and the best interests of the child when determining issues of legal parentage. In the UK, and more recently in Australia, there is a tension between the legal frameworks that make commercial surrogacy unlawful and the need for courts to consider the best interests of the child. In the UK this tension is somewhat alleviated by the exercise of judicial discretion to grant parental orders. There is no similar provision in Australian law. The chapter concludes with a brief exploration of some options and recommendations for reform at the federal level to address some of these problems, including changing the law regarding parentage to ensure that children are not disadvantaged.

II. Why is Legal Parentage Important?

The Hague Convention on Private International Law has recently emphasised that the question of legal parentage ‘is not a mere legal nicety for children. It is the gateway, today, through which many of the obligations owed by adults to children flow, and it is therefore a legal status from which children derive many important rights, including rights established in international law.’¹⁶ Legal parentage involves a range of obligations and responsibilities (‘parental responsibility’) that parents have in relation to children.¹⁷ The significance of legal parentage is that it makes a difference to the ability of children to obtain various rights and protections, including:

• citizenship;

• access to Medicare and medical benefits;

• access to medical treatment;

• applications for passports and anything requiring a birth certificate;

• inheritance rights;

• rights to workers compensation entitlements upon the death of a parent;

• access to child support; and

• identity.

Many of these rights are reflected in the United Nations Convention on the Rights of the Child (‘CRC’).¹⁸ Article 7 states:

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Since 2012, the Family Law Act has included a specific object to give effect to the CRC to ensure that the best interests of children are met in decisions that affect them.¹⁹ Crucially, the CRC does not define ‘what is a parent’, nor does it include any specific articles in relation to assisted reproduction.²⁰ It is important to note that there is nothing in the CRC that would support the argument that ‘parents’ means biological parents.²¹ The non-discrimination principles enshrined in the CRC (for example, Article 2) further recognise that children should enjoy rights ‘without discrimination of any kind irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.

As the discussion below demonstrates, the right to a birth certificate and a nationality are also fundamental issues. The Baby Manji Case referred to above, and a number of Australian cases discussed below, illustrate that some children born via surrogacy arrangements are being denied these rights and have been rendered stateless because of clashes between the laws of the country where the surrogacy took place and the intended parents’ country of residence. These children are not entitled to the nationality of either the intended parents or the surrogate mother.²² It is in a child’s best interests for the reality of the child’s family life to be legally recognised, and to recognise that children’s human rights are inextricably entwined with the human rights of their parents.²³

Given the significance of legal parentage the way the law defines ‘what is a parent’ is obviously crucial. Australian law is complicated in this matter. Although parentage (and birth certificates) are largely a matter for the states and territories, there is also a complex set of provisions in the Family Law Act. The Family Law Act provisions have become relevant as intending parents have turned to the family courts seeking orders in relation to children born overseas as a result of surrogacy arrangements. In order to appreciate the difficult legal issues involved, it is helpful to understand the current framework. There is no single, general definition of a parent in the Family Law Act. Instead there are provisions that ‘deem’ certain people to be parents in certain circumstances for the purposes of the Act. For instance, s 60H deals with children born from ‘artificial conception procedures’ and s 60HB deals with children born from surrogacy arrangements in certain situations. These provisions are irrebuttable. On the other hand there are a number of rebuttable presumptions of parentage – such as s 69R – which is a presumption based on being named as a parent on a prescribed register of births. In the case of overseas surrogacy arrangements it is possible that a number of provisions might apply and judicial officers have had to work through a range of competing options. The current uncertainty and inconsistency in the application of different provisions is a cause for concern in itself.

There is a hierarchy of options available to parents coming home from overseas with a baby born as a result of a commercial surrogacy arrangement. The first option is to seek no formal recognition at all. If the parents have been able to obtain citizenship for the child they may decide not to seek formal recognition from the courts. It is impossible to know how many parents have chosen this option. As the discussions of Australian cases below demonstrate, going to court may only result in an order for parental responsibility and not legal parentage. In addition, there is a risk of being referred for prosecution.²⁴ Furthermore, the legal costs may be significant.²⁵ However, not seeking formal recognition from the courts is risky, because, in the future, the lack of formal recognition may disadvantage the child, for example, child support obligations are generally only imposed on legal parents.

The second option is for parents to rely on informal recognition such as a foreign birth certificate which records at least one intended parent on the child’s birth certificate. This is also risky because foreign birth certificates are not recognised as conferring parental status for the purpose of Australian laws.²⁶ These parents may experience the same difficulties as the parents in the first option. Conversely parents may find that some institutions will accept a foreign birth certificate as evidence of parentage. Parents using options one or two may not encounter any parentage problems for many years. However, if they subsequently find themselves in a situation where they need to approach the court for a parental responsibility order they may face evidentiary difficulties. For example, it may not be possible to find and serve the surrogate mother should the court require it.

The third option is to seek parental responsibility orders from the family courts. A parental responsibility order is a type of parenting order.²⁷ Anyone who has an interest in the care, welfare and development of a child may apply for parenting orders.²⁸ Parental responsibility orders do not provide the same level of protection to a child as having legal parents. Parental responsibility gives a person decision-making responsibility for the welfare of the child until the child turns 18.²⁹ A parental responsibility order at least allows an adult to deal with health, educational and travel issues but it does not address the more fundamental issues discussed in Part VI.

A fourth possibility is to seek a declaration of parentage from the family courts.³⁰ However, the availability of this option is currently uncertain and has limited application. Obtaining a declaration of parentage is not available to intended mothers as there is no parentage presumption in the Family Law Act which applies to intended mothers who have entered into a surrogacy arrangement. The same is true of intended fathers who do not have a biological connection to the child. It is not possible to seek a parentage order from any state or territory courts as the state and territory surrogacy legislation only provides for parentage orders arising out of altruistic surrogacy arrangements.³¹ These orders effectively transfer legal parentage from the surrogate mother (and her partner) to the intending parents. In Ellison and Anor & Karnchanit³² Ryan J declared the male applicant to be a parent pursuant to s 69VA of the Family Law Act. Section 69VA states that the court may make a declaration of parentage after receiving evidence. In that case the evidence relied on by the court was a DNA test showing the male applicant was the biological father of the children. The surrogate mother was single. If she had been married or in a de facto relationship her partner would have been presumed to be the father.³³ However, in a more recent case, Mason & Mason and Anor³⁴ Ryan J came to the conclusion that the Family Law Act did not permit a declaration of parentage to be made in cases involving surrogacy arrangements that fall outside state and territory laws. The implications of this recent decision are discussed in the next part.

One of the great challenges for people engaging in overseas surrogacy is the differing levels of regulation and, in some countries, lack of regulation. This makes it possible for people to engage in surrogacy arrangements, but the same lack of regulation also results in a denial of legal status to their children. To obtain any legal status in relation to their children, the only option for Australian intended parents who have entered into commercial surrogacy arrangements (or who have entered into altruistic arrangements but are unable to comply with the state and territory requirements), is to apply to the Family Courts for parental responsibility orders. Some couples may be compelled to seek orders because of problems with the immigration status of their children. However, a large majority of parents do not seek formal recognition of their legal status. It has been estimated that over 300 children are now born each year as a result of overseas surrogacy arrangements.³⁵ However, to date, there have only been 20 reported cases of applications to the family courts.³⁶ This means that the vast majority of these children do not have a legally recognised parent in Australia.

Analysis of the following cases shows that making an application to the family courts is risky and uncertain. These cases have been selected because each illustrates a number of the more general difficulties involved; namely, the legal gaps leading to inconsistent decision-making, the uncertainties in the definition of what is a parent, and the challenges of balancing the rights of the various parties including, most critically, the rights of the child.

A. Dennis & Pradchaphet and Dudley & Chedi: Same facts, legal gaps

The cases of Dennis & Pradchaphet³⁷ and Dudley & Chedi³⁸involved the same couple. They had three children born on the same day to two different mothers in Thailand. They brought separate applications with respect to the children of the surrogate mothers. In both cases the intended parents sought consent orders providing for the intended parents to have parental responsibility and for the child/ren to live with them. As these applications were for parenting orders, s 60CA of the Family Law Act applied. Section 60CA states that the best interests of the child is the paramount consideration. These two cases are of interest because of the different approaches judicial officers took when faced with the same facts.

Dennis & Pradchaphet was heard by Stevenson J. The application before her was in relation to one of the children. She noted that the birth of each of the three children was registered in Thailand with the details of the male applicant and the relevant surrogate mother on the birth certificate. The male applicant commenced proceedings in Thailand seeking orders that the surrogate mother relinquish her parental rights. This was unsuccessful because under Thai law the mother is not able to relinquish her parental rights until the child reaches the ‘age of reason at 7 or 8 years old’.³⁹ The applicants filed an affidavit by the surrogate mother which was translated by a Thai translator which dealt with the consent documents and an advice she had received about Australian and Thai legislation. Her Thai lawyer also gave evidence to the effect that under Thai law the birth mother is the only parent with any parental rights when the parents are unmarried. In this case the birth mother was not the biological mother as anonymous donor eggs were used. He also deposed that there is no Thai law addressing surrogacy.

Stevenson J made orders for the applicants to have equal shared parental responsibility and for the child to live with them. She found that the male applicant was the father in circumstances where there was a positive DNA test and he was named on the birth certificate. The father had provided his genetic material which was used for IVF and, as noted above, he was named on the birth certificate. Stevenson J explicitly stated that her finding was not to have wider implications for other cases.⁴⁰ She was satisfied on the evidence before her that the applicants would provide the child with a high standard of care and that it was in the child’s best interests to make the orders sought by the applicants. The applicants also gave evidence that they would ensure the child grew up with an awareness of his Thai culture.

Dudley & Chedi was heard by Watts J. This application concerned the twins born on the same day as their brother. Watts J referred to Stevenson J’s judgment. Watts J also noted that the applicants were resident in Queensland and that it was illegal for Queensland residents to engage in surrogacy arrangements.⁴¹ At the time of the surrogacy arrangement the Surrogate Parenthood Act 1988(Qld) was in force. That Act banned all forms of surrogacy and made it illegal for Queensland residents to enter into surrogacy arrangements regardless of whether those arrangements took place in Queensland, interstate or overseas.⁴² Watts J commented that the material before him was ‘starkly deficient’⁴³ and lacked any details as to the nature of the surrogacy arrangement and any financial provisions. There was no evidence as to any safeguards which may have been in place to protect the surrogate mother. He declined to make a finding that the male applicant was the father for several reasons, discussed further below. While Watts J found it was in the children’s best interests to make the orders, as the children needed to be cared for by someone and the evidence was that the applicants could do so very well including addressing the children’s need for cultural identity, he referred the matter to the Queensland Director of Prosecutions as the surrogacy arrangement was illegal. Presumably the evidence presented to the Court in both cases was similar, as the same law firm prepared the applications. It is significant that two judges took such different courses of action on the same facts. In both cases it was noted that the applicants had unsuccessfully applied for citizenship by descent for all three children but had obtained visas for the children after a DNA test confirmed that the male applicant was the biological father of the children.⁴⁴ The issue of citizenship is considered briefly in the next part.

B. H v Minister for Immigration and Citizenship: The Need for Citizenship and Who is a Parent?

Securing Australian citizenship for a child born as a result of an overseas surrogacy arrangement is a significant incentive for seeking parental responsibility orders in relation to that child, as this can assist with the citizenship application.⁴⁵ However, the definition of ‘parent’ in one piece of federal legislation does not automatically apply to other pieces of federal legislation since the purposes of the legislation are often different. The Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’) provides that Australian citizenship by descent is derived by a ‘child’ from a ‘parent’ who is an Australian citizen.⁴⁶