Surrogacy involves a woman agreeing to bear a child on behalf of a couple

Surrogacy, in human reproduction, involves a woman agreeing to bear a child in behalf of a couple. Total surrogacy involves implanting an embryo into the surrogate mother which means that the surrogate mother is not genetically related to the child. Partial surrogacy is fertilizing the surrogate’s own ovum with the sperm of the commissioning father or from a donor.

The case of Re Evelyn (1998) FLC 92 – 107 involves two couples who are long-time friends and agreed to enter into an altruistic surrogacy arrangement. Mr and Mrs Q (from Queensland) were unable to bear a child because Mrs Q had a total hysterectomy after ovarian cancer. In 1995, Mrs S (from South Australia) after much deliberation with Mr. S, offered to conceive and carry a child for Couple Q. The agreement was the child would be given to Couple Q. So, Mrs S was inseminated with Mr Q’s sperm, and she got pregnant. After giving birth, the child (Evelyn) was taken by Couple Q home to Queensland.

However, on July 11, 1997, Mrs. S. removed Evelyn from Couple Q’s home and brought the child to South Australia.

The following legal presumptions concerning artificial insemination apply in their case:

• Irrebuttable presumption: Mrs S was the mother of the child.
• Irrebuttable presumption: Mr S, being the husband of Mrs S, was the father of Evelyn.
• certificate of Evelyn is rebuttable.

At the interim hearing, orders were issued that the child is placed with Couple Q pending the hearing. Couple S was allowed contact with Evelyn. Despite finding that Evelyn has formed a primary attachment to Mrs Q and a secondary attachment to Mr Q, Jordan J concluded that Evelyn should be placed permanently with Couple S.

Some of the reasons of Jordan J were that Evelyn would suffer problems relating to abandonment and identity and the loss to Evelyn of not growing up with her biological half-sibling outweighed the loss of her relationship with her adopted brother (adopted son of Couple Q).

Couple Q appealed the decision to the Full Court of the Family Court which dismissed all the grounds of appeal raised by Couple Q. Their Honours concluded that the trial judge had already weighed the qualities of the contesting couples and considered the benefit to Evelyn of being placed with either couple.

Hence, the paramount consideration in the case was the best interest of the child instead of the legal parentage or the effect of the decision on the adults.

Couple Q sought leave to appeal to the High Court the decision of the Family Court, but it was to no avail. The High Court rejected the application, affirmed the decision of the Family Court and ordered that Evelyn is handed over to Mrs S.

On November 21, 2008 Section 60 HB was inserted in the Family Law Act 1975 which provides that if a court of a Territory or State has declared through an order that a child is a child of a person or persons then for Family Law Act purposes that child is the child of the same person or persons. At present, there are only three states which have prescribed laws.

The case of Re Michael: Surrogacy Arrangements (2009) FamCA 691 illustrates the application of Section 60HB. Sharon and Paul was a married couple who could not produce children. Sharon had cervical cancer but before her treatment, her eggs were harvested. Her mother Lauren, who was in a de facto relationship with Clive, consented to be implanted with an embryo produced from Sharon’s egg using Paul’s sperm. Watts J found that, at law, Lauren was the child’s mother while Clive was his father. Section 60HB has no application because New South Wales did not have a prescribed law that applies to the situation.

However, Section 60H applies which provides for a child born as a result of artificial conception. Section 60H did not expressly exclude cases wherein Section 60HB would apply.

Watts J had to point out that if New South Wales had a prescribed law which would make Section 60 HB operative this could produce irreconcilable results with Section 60H.

He further found that the intention of Section 60HB was to give providers of genetic material in surrogacy arrangements the status of parents provided that this would be consistent with State law.

If there is no State law, the legislative then does not intend for them to become parents. Hence, in this case, the rebuttable presumption that Paul was the father because his name so appears in the birth certificate is successfully rebutted by the irrefutable presumption under Section 14 of the Status of Children Act 1996 (NSW).