Jane Johnson | Senior Associate | Kim Wilson & Co Family Lawyers
On 14 April 2016 the Chief Judge of the Family Court of Western Australia handed down his decision in the matter of Farnell & Anor and Chanbua ( FCWA 17 – see link to the full text of the Judgment).
The proceedings arose from a surrogacy arrangement between a couple from Western Australia and a surrogacy agency in Thailand. Two children were born of the arrangement, one of whom lives with the WA couple and the other of whom lives with the Mother and her family in Thailand. Only the child in WA was the subject of the proceedings.
The case was unique by virtue of the active involvement in the case by the Mother of the children, a distinction drawn by the Court when discussing other cases of international surrogacy heard in Western Australia.
In addition to making Orders for the welfare of the child who was the subject of the proceedings, the Decision dealt with a number of other issues that can arise in the context of international surrogacy arrangements.
Of significance was the Court’s determination that:
- The surrogate is the Mother of the child, by virtue of the provisions of the Artificial Conception Act 1985 (WA) and her partner (now husband) is the Father of the child.
- The Applicants not the parents of the child in their care, by virtue of the provisions of the Family Court Act and the Artificial Conception Act 1985 (WA).
- A Declaration that the male Applicant is a “parent” of the child could not be made because the Court cannot declare something to be the case when the law provides to the contrary.
- The Court could make an Order that the Applicants have Parental Responsibility for the child, to the exclusion of the Mother and that the child live with the Applicants.
The case is also of interest for the comments made by the Court as to the nature of the arrangement and the public policy considerations in respect to international surrogacy arrangements.
The Court considered the public policy considerations that have influenced the current legal position, namely that commercial surrogacy is unlawful in every State and Territory in Australia.
It was noted that altruistic surrogacy (or surrogacy pursuant to the relevant State legislation) is subject to counselling, assessment (of all parties) and informed consent, an indication that the public policy considerations are driven by a desire to protect the vulnerable.
The Court considered this policy against the position under the citizenship laws, described by the Court as anomalous.
The way in which Australian citizenship laws are interpreted allows the conferral of Australian citizenship by descent on a child born as a result of a surrogacy arrangement (including a commercial arrangement entered into outside Australia) provided there is a biological link between the child and the commissioning parent or where an Australian citizen is a “parent” as that word is understood in ordinary usage.
This interpretation of the law arises from an Immigration case that did not arise from a surrogacy arrangement, but which is binding on the Citizenship department.
The Court in this case went on to say that although there were strong public policy considerations against commercial surrogacy, these could only be taken into account in deciding whether to make (or in refusing to make) parenting orders if doing so would not adversely affect the child’s best interests.
His Honour adopted the words of an English case on commercial surrogacy and highlighted that “the point of admission to this country is in some ways the final opportunity in reality to prevent the effective implementation of a commercial surrogacy agreement”.
At paragraph 759 of the decision, the Court recorded that
“The arrangement that lead to the births of Pipah and Gammy would never have been put in place had it not been for the fact that a department of the Australian Government provided assurances that the children would receive citizenship and automatic entry to this country. Such assurances could not be provided if the citizenship laws were harmonised with the all the other laws of this country…..”
Finally, the case served to draw attention to the fact that surrogate mothers are not baby-growing machines or “gestational carriers”. Many of them are motivated by genuine altruism but an equal number are vulnerable due to their economic position.