Surrogacy, parentage and the unborn child

In New South Wales, the Surrogacy Act 2010 provides that a surrogacy arrangement must not be commercial and payment may only be made to cover the expenses related to the pregnancy: s 5. The surrogate must not be genetically related to the child and intended parents and surrogates are permitted to advertise so long as they have not paid a fee for the advertising.

Section 12(1) of the Surrogacy Act empowers the Court, following an application made under Pt 3 of the Act, to

‘make a parentage order in relation to a child of a surrogacy arrangement.’

Section 12(2) of the Surrogacy Act states that the purpose of a parentage order

‘is to transfer the parentage of a child of a surrogacy arrangement’,

Section 5 of the Surrogacy Act defines surrogacy arrangement.

The case

In A v X; Re Z [2022] NSWSC 971 A is the proposed mother and B, is the proposed father under the parentage orders. They were married in 2016.

Background

The plaintiffs are the biological parents of Z, having provided the egg and sperm used to create the embryo implanted into X in February 2021. X is the birth mother of Z and Y is the birth mother’s partner. They were married in 2014.

In June 2020 the parties executed a pre-conception surrogacy agreement under s 24 of the Surrogacy Act. Before that, each of A, B, X and Y, underwent counselling and received independent legal advice under s 35 and s 36 of the Surrogacy Act.

The implantation procedure took place in February 2021. X was informed the procedure had been successful, and that she was pregnant with Z. The 26-week ultrasound showed that there was a complication.

Having discussed Z’s prognosis and anticipated quality of life, A, B, X and Y jointly decided to medically terminate the pregnancy. Z was delivered stillborn on 6 September 2021 and registered by X and Y on 22 November 2021, under s 12(3)(b) and s 13(1) of the Births, Deaths and Marriages Registration Act 1996 (Vic).

Although the embryonic implantation procedure occurred in New South Wales, X and Y’s usual place of residence is Victoria with Z’s stillbirth occurring there.

Unlike, the Births, Deaths and Marriages Registration Act 1995 or the Family Law Act 1975 which extend the definition of child to encompass a stillborn child the Surrogacy Act does not provide a standalone definition of the term child. Instead, the phrase child of a surrogacy arrangement is:

a reference to a child born as a result of a surrogacy arrangement or who is the subject of a surrogacy arrangement.

S4(2) Surrogacy Act

A deposed that it was always the parties’ intention that Z was to be her and B’s child, and that this has not changed in light of her death. Similar sentiments were conveyed by B, X and Y. The parties requested that the Court make the parentage order sought by the plaintiffs, notwithstanding that several statutory preconditions to doing so have not been complied with.

The decision

As this case was novel the court held that at common law, legal rights and personality are predicated upon a live birth:

live birth, aside from catalysing the child’s legal rights and personhood, is the marker of a child’s independent existence in the eyes of the law

Z was not a child born as a result of a surrogacy arrangement as born does not permit judicial reading-in of the term stillborn which is enough to conclude in this case that Z, does not fit the description of a child who is the subject of a surrogacy arrangement.

Further, the Court held that in exercising its discretion to make parentage orders A and B could not satisfy the mandatory precondition in s 22(1) of the Surrogacy Act that a parentage order

is in the best interests of the child.

Additionally, there was arguably no parental responsibility left to transfer from X and Y to A and B concerning Z under s 39(2)(b) of the Surrogacy Act.

X and Y as Z’s birth parents were entitled and obliged to choose how to bury Z’s body following her stillbirth. X and Y arranged in consultation with A and B for Z to be buried in NSW, close to where A and B live.

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