I have been asked to post this letter online, about my views of the recent decision of the High Court in Masson v Parsons, to assist ANZICA members.
Implications of Masson v. Parsons
I refer to the recent High Court decision in Masson v. Parsons – and as a result I am writing this letter for the benefit of ANZICA members. If deemed suitable, I ask that it be circulated widely.
The case – Masson v. Parsons  HCA 21
Mr Masson was a long-time friend of the first Ms Parsons. He agreed with her to supply her at home with a quantity of his sperm, with the result that she became pregnant and gave birth to a daughter. Ms Parsons was later found by the trial judge to have formed a relationship with a second woman whom she later married, the second Ms Parsons. The second Ms Parsons helped the first Ms Parsons with the at-home insemination.
The critical question in the case (for which I understand Mr Masson spent $2,000,000 in legal costs overall so far) was who were the parents of the child.
At trial, the judge found that the two Ms Parsons were not living in a de facto relationship at the time of the artificial conception procedure and therefore the second Ms Parsons was not a parent. The parents for the child were therefore either the birth mother, the first Ms Parsons alone, or she and Mr Masson.
Both Ms Parsons urged the court on that occasion that Mr Masson not be recognised as a parent.
The trial judge found that Mr Masson was a parent under the Family Law Act 1975 (Cth). Even though he didn’t fit a category of parent listed under that Act, as a matter of fact he was a parent because in that case:
The child had always called Mr Masson “daddy”. The child was aged almost 10 at the time of trial. Mr Masson was recorded on the birth certificate as the father.
The first appeal
The Parsons appealed that judgment. The Full Court of the Family Court of Australia found that Mr Masson was nota parent. It said that previous cases decided in the Family Court that looked at the question of intention had not been considered by the Full Court of the Family Court – which rejected that idea.
The Full Court said that someone was a parent under the Family Law Actonly if they were specifically listed under one of the categories of the Family Law Act. Furthermore, there was a cooperative Federal State scheme between the Family Law Actand State and Territory Status of Children Acts. Therefore, if someone were not listed under the Family Law Actas a parent, they could only be a parent at law if they were recognised under their State or Territory Status of Children Act.
Because Mr Masson was not recognised as a category of parent under the Family Law Act and was not recognised under the Status of Children Act 1996 (NSW), he was not a parent.
Furthermore, it was therefore irrelevant as to:
as to the determination as to whether or not Mr Masson was a parent.
High Court appeal
Mr Masson in turn sought special leave to appeal to the High Court. That special leave was granted by Chief Justice Kiefel in December. The appeal was heard by the full seven member bench of the High Court just before Easter.
Supporting Mr Masson in his submissions were the Independent Children’s Lawyer and the Attorney-General for the Commonwealth. Supporting the Parsons was the State of Victoria.
The Commonwealth argued that the Family Law Act reigned supreme over the State and Territory Status of Children Acts. It argued that the Full Court had got it wrong and that who was a parent under that Act could be determined on a case by case basis and was not limited to the listed categories under that Act, but was a question of fact.
Victoria argued that there was a scheme between the Family Law Act and the State and Territory Status of Children Acts, that Mr Masson was not a parent and that there was a conflict between the Family Law Actand the Child Support (Assessment) Act1989 (Cth) as to who was a parent.
High Court found that Mr Masson was a parent
Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle and Gordon gave a joint judgment. Justice Edelman agreed with the outcome, but gave a separate judgment as to a constitutional point.
Their Honours clarified the definition of who was a parent. They said:
“There is no basis in the text, structure or purpose of the [Family Law Act] to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning and the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”
Their Honours accepted in essence the submissions of the Commonwealth even if one is not within the specific provisions of the Family Law Actspecifying who might be a parent:
“The question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”…That is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”
The majority rejected the argument that the ordinary, accepted English meaning of “parent” excludes a “sperm donor”:
“To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – [Mr Masson] provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly to characterise [Mr Masson] as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.”
What role for State and Territory Status of Children Acts?
As the majority said:
“If a person does qualify as a child’s parent either under section 60G by reason of adoption, or according to section 60H [an artificial conception procedure], or according to ordinary acceptation of the word “parent”, it is beside the point that a State or Territory provision like section 14(2) of the Status of Children Act otherwise provides…[A]s is a parent from its text, context and history, div[ision] 1 of P[ar]t VII of the Family Law Act leaves no room for the operation of contrary State or Territory provisions.”
In other words, if there is a conflict between the relevant provision of the Status of Children Act and the Family Law Act, the latter prevails and the former is “beside the point”.
Implications of the decision
1. Clearly men who are in the same position as Mr Masson are now parents. There has been a conflict in decisions from the Family Court for many years. There is now clarity.
2. Therefore these men have parental responsibility under the Family Law Actand under the Australian Passports Act, the child being entitled to citizenship from them (if they happen to be Australian citizens). The men may now have a liability to pay child support and the child may be able to inherit from them.
3. When the men thought that they might be sperm donors but wanted an ongoing relationship with the child, they may be characterised as parents despite their thinking otherwise.
4. For the single mothers who wanted a known sperm donor to play an uncle style role, they are now stuck with another parent.
5. The High Court made plain in another passage that it is not certain whether there is a limitation of two parents under the Family Law Act. There may be the possibility of having three or more.
6. A transman who is giving birth and is single becoming pregnant with donor sperm is in the same position as a single birth mother.
7. Each case is to be decided on its own merits. It will likely be many years before we have certainty about who is and who is not a parent. There are likely to be cases that have not yet been imagined that will need to be tested through the prism of Masson v Parsons as to who is and who is not a parent.
8. Mr Masson reportedly spent $2 million in his legal fees up to the High Court hearing. It is likely that if these cases reach court, there may be lengthy trials about intention – at significant cost to the party and burden to the taxpayer.
9. It is likely that men who have donated to lesbian couples will have seen the judgment and will want their rights recognised as parents.
10. It is likely that people who go overseas for surrogacy but had previously not been recognised by the Family Court as parents will now be recognised as parents.
11. It is uncertain in domestic surrogacy cases where there is a single surrogate whether the intended father is named on the birth certificate as a parent before the order is obtained.
Prevention is better than cure
1. Intended parents who have a known sperm, egg or embryo donor or donors should alwayshave a properly drafted donor agreement. It is not certain that these are legally binding but they set out intention clearly. Intended parents who have a clinic recruited donor, i.e. one who is not known to the intended parents, do not hold the same legal risks.
2. Intended parents who have a known donor should always obtain legal advice and fertility counselling with the donor and the donor’s partner.
3. It is not clear if a known egg donor to a single woman may be the other or indeed the only parent. It will depend on intention.
4. It is advisable for clinics to obtain a copy of any written agreement reached between the parties and any report of a fertility counsellor.
5. It is advisable for clinics to review their consent forms. Just because someone is not the partner of the birth mother does not mean they are a donor.
At this stage, the decision in Masson v. Parsons has limited application in Western Australia, because the Family Law Act only applies in Western Australia to children of married couples. However, the provisions of the Family Court Act 1997 (WA) are very similar in relevant respects to the Family Law Act1975 (Cth). The outcome in Western Australia is uncertain.
Payment and advertising
There is no change to the laws concerning payment and advertising for donors.
Change of intention
A person may enter into an arrangement to provide gametes or embryos with the intention of being or not being a parent. That intention may be critical as to whether or not that person or that couple is/are parents under the Family Law Act. If a clinic becomes aware of a change of intention, that should be recorded and consents by all concerned are executed accordingly.
In one week and one day from now, if not sooner, my baby daughter will be born. I say my, but of course, I mean our- a baby girl to my husband Mitchell and me. We are both over the Moon with excitement.
Our surrogacy journey has occurred from beginning to end in Brisbane. Unlike many of my clients, we have not had to trek overseas for an egg donor or a surrogate or both, but had the luxury of being able to take all our steps in our home town.
We have been supported by many people- but importantly two extraordinary women. Our egg donor is a friend. I'll call her Fiona. Fiona values her privacy. She willingly and kindly donated eggs- and endured daily injections, followed by minor surgery, to give us the gift of life. On top of all that, Fiona and we had to take part in counselling, to make sure that she was donating for all the right reasons, and that we were accepting her donation for all the rights reason as well. The other woman - of course- is our amazing surrogate. I will call her Jo. Jo values her privacy, too.
One might think that Jo's journey is extraordinary enough- being prepared to endure nine months' pregnancy, followed by the pain of giving birth, all with the aim of generously giving the gift of life- but this particular journey has been even the more extraordinary than most. When Jo told us that she wanted to be our surrogate, it brought tears of joy to both of us. We were so grateful for such an extraordinary gift. At the very same time, I had another emotion swirling around in my brain- much like watching a top loading washing machine at work. I thought: "This is what happens to my clients."
To get pregnant wasn't as simple as rocking up to the clinic and asking to get pregnant straight away. There were so many checks and balances in the surrogacy process that at times the process can seem overwhelming. Aside from the medical and ethical checks from the clinic, there is the surrogacy arrangement to be signed, counselling to be gone through, checks about the hospital, and such mundane but vital issues such as insurance.
The three of us sitting together at an antenatal class will forever be a cherished memory for me. The three of us- together- were going to make a baby.
This pregnancy then resulted. It has largely been a smooth journey, although with any pregnancy it has had its ups and downs.
And so in one week and one day, if our daughter is not born sooner, she will then be born. She will be surrounded by love. Our lives will be changed forever. Our daughter will be, in the words of a judge: "a long awaited and precious gift, much loved by (her) family and a miracle of modern medicine."
I never expected to be undertaking my own surrogacy journey. When I saw my first surrogacy client back in 1988, surrogacy of any kind in Queensland was illegal- commercial, altruistic, gestational or traditional, whether in Queensland or outside if carried out by Queenslanders. It didn't matter. It was illegal. The idea that I might be having a child later on through surrogacy was simply unimaginable. Since that time I have advised in over 1500 surrogacy journeys. Of course, I could not advise in ours.
My associate of 15 years Karen Gough advised us on the legal process. I could not advise myself about my own surrogacy journey!
A known sperm donor to a single woman is a parent, not a sperm donr, according to the High Court. The High Court today in Masson v. Parsons held unanimously that Mr Masson was a parent. Some years ago, Mr Masson had agreed with his friend of many years, Ms Parsons to become a parent. He supplied a quantity of sperm to achieve an at home insemination. A child was conceived and born.
They later fell out. At trial, the question was whether Mr Masson was a parent. The trial judge, Justice Cleary, found that Mr Masson was a parent because even though he was not specifically named in categories under the Family Law Act as a parent, as a matter of fact he was a parent because in his circumstances due to biology, intention and parenting.
Ms Parsons and her wife, the second Ms Parsons then appealed that decision to the Full Court of the Family Court, which in turn upheld the appeal, saying that the trial judge was incorrect. The reasoning of the Full Court of the Family Court was that there was a scheme of legislation between the Family Law Act and the various State and Territory Status of Children Acts and that – as part of that scheme, if there weren’t specific characterisation of someone in the place of Mr Masson under the Family Law Act, then whether he was or was not a parent was determined by the Status of Children Act. Under the New South Wales Status of Children Act, Mr Masson was not a parent – and therefore the Full Court held, he was not a parent.
High Court decision
Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle and Gordon held in a joint judgment that Mr Masson was a parent. Justice Edelman gave a separate judgment, but agreed with the outcome.
In the joint judgment. their Honours said:
“Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning.”
Their Honours said:
“So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or otherwise defined in the Family Law Act as parents. And it does not mean that the only persons who may seek parenting orders under section 61D are parents according to ordinary acceptation or otherwise defined as parents. The range of permissible applicants is broader than that. But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds in the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.”
Their Honours noted an English case in which according to English contemporary conceptions of parenthood:
“There are at least three ways in which a person may be or become a natural parent of a child”depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue…Just as the question of parentage under the legislation with which [the English judge] was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person applies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.
[The parenting provisions] of the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning. In some respects, most notably in section 60H, the Family Law Act may be seen as expanding the conception of “parent” beyond ordinary acceptation by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures.
Additionally, under section 60G, a person may qualify as a parent of a child born of an artificial conception procedure by reason of the persons’ adoption of the child under the law of a State or Territory. But ss60H and 60G are not exhaustive of the classes of persons who may qualify as parents of children born of artificial conception procedures. It remains that, apart from these specific provisions, the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”. And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.”
Their Honours said:
“The evident purpose of Div 1 of Pt VII of the Family Law Act is that the Commonwealth is to have sole control of the provisions that will be determinative parentage under the Act.”
Their Honours went on to say:
“Such as this structure and evident purpose of the provisions of [Division 1 of Part VII of the Family Law Act, i.e. the parentage provisions] that although ss60G and 60H are not exhaustive of the persons who may qualify under the Family Law Act as parents of children born of artificial conception procedures, if a person qualifies as the child’s parent either under s60G by reason of adoption or under s60H, or according to ordinary acceptation of the word parent, State provisions like ss14(2) and 14(4) of the Status of Children Act are irrelevant.”
The Court rejected the submission that the ordinary accepted English meaning of “parent” excludes a sperm donor:
“As has been explained, the ordinary accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.
It is unnecessary to decide whether a man who relevantly does know more than provide his sperm to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”. In the circumstances of this case, no reason has been shown to doubt the primary judge’s conclusion that the appellant is a parent of his daughter.”
How does this case impact on others?
It is clear:
· That if a sperm donor provides sperm and wishes to be a parent, but provides it to a couple, then ordinarily the couple will be the parents and the sperm donor will not.
· If the sperm donor provides sperm to a single woman with the intention of his being a father, then ordinarily he will be a father.
What is unclear is what if the intended father is intended to be a parent through surrogacy. A decision of the Family Court in 2017, using a similar line of reasoning to that of the Full Court of the Family Court decision in Masson and Parsons said that there was a national scheme between the Family Law Act and the State and Territory Status of Children legislation and that one could only be a parent if one came within the State and Territory legislation unless in terms of surrogacy there was a State and Territory parentage order in favour of the intended parents.
It would have to be said that that decision now appears to be doubtful. However, the High Court did not specifically deal with that decision in its judgment. Intended parents who undertake surrogacy overseas may still not be recognised as parents under Australian law given that decision of the Family Court.
What if there is a single surrogate?
If there is a single surrogate with an intended father who supplies his sperm in a domestic surrogacy arrangement, under State and Territory law generally he will not be accepted as the parent.
It remains uncertain whether the intended father in that circumstance will be a parent. Following the reasoning of the High Court, he will be a parent under the Family Law Act. Whether this will prevent a transfer of parentage is not clear.
There will need to be legislative reform of surrogacy legislation so that those who undertake surrogacy will have it clearly set out who is a parent – consistent with this ruling.
Following the recent ART interim review report last year into ART regulation in surrogacy, the regulator of surrogacy in Victoria, the Patient Review Panel, has scrapped all its previous guidance and said there will be new guidance come 1 July 2019. Currently there is no information about what guidance the Patient Review Panel provides- as to whether surrogacy can or cannot happen in Victoria. In the meantime Victorians just have to guess at what might be approved or not approved.
The new guidance is not known, saved that I have been told by a reliable source that the Patient Review Panel will not approve a surrogate who is 45 years or older. Other States do not have such a hard and fast rule.
The ART review was not given the task to role of the Patient Review Panel. Instead, it was made quite plain that the Patient Review Panel was outside its terms of reference. Nevertheless, the review seems to have touched a raw nerve with those who have deal with the Panel. The review felt compelled to respond and put in a separate section about the Panel. While the review said that it had not investigated the claims as they were outside its terms of reference, nevertheless "the perceptions described are common".
The PRP was seen as being slow:
"There is a perception among some respondents to the consultation, including both those who have had matters determined by the Panel and providers, that Panel processes are slow. This can be frustrating and distressing for people.
"The panel put us off the first time as they wanted to find out more information about my prognosis ... this felt totally out of line. Our fertility specialist, lawyer and oncologist professionally expressed why this wasn’t ok. This put our progress back over a month.
The panel is busy, and has huge delays. I am turning 40 next month. My chances are getting lower every day as I age."
The workload of the PRP seems to increase year by year. Ways were suggesting of easing up that workload, so that vital business could still be done in a timely manner.
As one surrogate said:
"[There should be] more information about what to expect from the PRP process in Surrogacy. I didn’t mind the PRP experience but the anxiety of not knowing what exactly we were walking into and how much pressure was put on was hard to cope with."
In the words of the report:
"Others, including individuals who have had matters heard by the Panel, report that the experience itself can be confronting and difficult. One clinic relayed feedback from patients that ‘the meetings are intimidating, daunting, unpredictable and that they feel the system is punitive’.
A number of individuals told the Review they found the conduct of Panel hearings to be overly formal and legalistic. Some said they were asked questions they found intrusive, insensitive or rude. This was particularly the perception of some from the LGBTQI+ community."
"Some stakeholders, including clinics, recipients of treatment and their representatives, have made claims that the Patient Review Panel is not consistent in the information it seeks from clinics or from parties to surrogacy arrangements.
They change the 'rules' for different people, allowing some flexibility while being difficult and unyielding with others about the same issues.
Survey response – recipient of assisted reproductive treatment
Others stated that there is a lack of transparency surrounding Panel processes and decision making, or that the Panel may seek information or set requirements that go beyond what is required to make determinations under the Act. For example:
• A number of clinic representatives commented there is a lack of clarity as to what constitutes acceptable evidence to demonstrate a deceased partner’s consent for the posthumous use of gametes. One clinic proposed that the Patient review guidance note on this matter requires review.
• People involved in surrogacy arrangements stated that the guidance note regarding the approval of surrogacy arrangements required review to accurately reflect the role of the Panel in these cases.
• A clinic reported that, in relation to surrogacy matters, the Panel is ‘requesting multiple legal opinions and comparing the contents, rather than ensuring the patient has sought legal advice and understands the advice provided’.
• A surrogate understood that the PRP requires all parties, including donors, to attend hearings in person, even where parties reside interstate and travel has significant impact on health, employment and child care.
I think the Patient Review Panel should be more transparent, approachable, and less dogmatic in its approach and processes.
Survey response – surrogate"
The only other regulator of surrogacy in Australia that needs to give approval before a surrogacy journey begin is the Reproductive Technology Council in Western Australia. A government review there has recommended the abolition of the Council. No other state or territory has a state regulator which needs to approve a surrogacy journey before it can begin.
A government body in the UK has suggested a complete overhaul of that country’s surrogacy law.
The Law Commission of England and Wales and the Scottish Law Commission, the equivalents of the Australian Law Reform Commission, have suggested that that country’s surrogacy laws be overhauled so that in most cases there is no longer a need to go to court. Instead, there will be a pathway through agencies so that, if all the boxes are ticked for the surrogacy journey, then the intended parents will automatically be recognised as the parents upon the birth of the child and the surrogate will no longer be a parent.
For agreements that tick all the boxes, this is an absolutely revolutionary change.
Australian surrogacy law is based on the UK model.
The Commissioners said:
“The most pressing areas of the law in need of reform raised with us by stakeholders included…The problems caused by the attribution of legal parenthood in surrogacy arrangements, the lack of clarity in the law on payments, and the international surrogacy arrangements.
In relation to the attribution of parenthood, many stakeholders argue that the current law does not reflect the intentions of any of the participants in the surrogacy arrangement, that the intended parents be the legal parents of the child from birth. They argue that the law does not operate in the best interests of the child. Concerns were expressed that the intended parents may be prevented from taking important medical decisions in the days after the child’s birth as, not being the legal parents of the child, they also lack parental responsibility. Surrogates also expressed concern at being legally responsible for the child, which they do not consider to be theirs, unless and until a parental order is granted.”
In most Australian States the amount that can be paid to a surrogate is a reasonable cost. In the UK, unlike Australia, the court authorises overseas surrogacy arrangements.
The Law Commission has said:
“On the issue of payments, stakeholders express the view that the current law, which permits intended parents to pay surrogates “expenses reasonably incurred”, is unclear and uncertain. It has been suggested the provision is out to mislead, and provides little guidance on what payments can be made in practice. We have seen payments being made to surrogates for which appear beyond the everyday understanding of an “expense”, with no challenge from the court. Moreover, the court now regularly authorises payments in excess of reasonable expenses made in relation to overseas commercial surrogacy arrangements, further adding to the confused nature of the law. Stakeholders also express strongly opposing views on whether a woman who provides the service of a surrogate to intended parents should be able to receive payment beyond expenses (however widely the term “expenses” is understood).”
In the words of the Commissioners:
“Reform is clearly needed.”
The Commissioners said:
“There is a strong case for reform to the law. We believe that the current law is out of date, unclear and not fit for purpose. We think that the law needs to be updated to make it workable and to bring it up to date, and ensure that it protects the welfare of all the participants to the arrangement including, most importantly, the welfare of the child.”
Differences between surrogacy and adoption
The Commissioners said:
“We take the view that surrogacy offers and different, and distinct, pathway to parenthood from adoption. The context in which a surrogacy arrangement is made, and the circumstances in which the child is conceived, are both very different from that of adoption.
One salient difference is that the adoption process begins only after a child already exists, whilst in surrogacy the intended parents and the surrogate begin the process of reproduction together. Surrogacy can, therefore, be seen as a medical solution to infertility as well as a method of reproduction, in a way that adoption cannot. [The Law Commissioners here cite the American Bar Association policy as to a proposed Hague Convention on Surrogacy, which I co-authored].
We think that the other crucial distinguishing feature in a surrogacy arrangement is the intentions of all the parties. As the authors of surrogacy, law, practice and policy in England and Wales explain:
“The key difference between surrogacy and adoption lies in the circumstances of the conception. A surrogate becomes pregnant with the intention of conceiving and carrying a child that will belong to someone else…The child’s conception was brought about at the behest of the intended parents, and on the basis that the surrogate agreed, at the time, to hand the child over to the intended parents to raise as their own child…””
The Law Commissioners then noted a court case in which it was said:
“Intention is one of the reasons why a parental order is better suited to surrogacy situations than an adoption order. [The judge] explained that a parental order “reflects the reality of what was intended”. In adoption, the genetic parents do not conceive a child with the intention of that child being adopted, and third parties are unlikely to be involved until after the birth. In surrogacy, by contrast, the intention of all the parties to the arrangement that the surrogate will have a child which the intended parents will then raise as their own is the very core of what a surrogacy arrangement is.”
Commodification v. Autonomy
The Law Commissioners note that the ethical debate around surrogacy reflects attention between autonomy and paternalism:
“Those who support surrogacy on an ethical basis highlight that a woman may be capable freely to decide to become a surrogate, and can be empowered by the freedom to participate in a surrogacy arrangement. Those who oppose surrogacy argue that it might constitute exploitation from which women need to be protected.”
The Commissioners said:
“We consider that law reform in respect of domestic surrogacy arrangements can alleviate, if not eliminate, these concerns by providing more effective regulation of surrogacy arrangements, and revised eligibility requirements and safeguards.”
Problems with surrogacy arrangements
In the UK:
“…not all surrogacy journeys proceed without problems.
We have been told about situations in which a breakdown of the relationship between the surrogate and intended parents during the pregnancy has led to the surrogate refusing to allow the intended parents to take care of the child, or to give the necessary consent to the making of the parental order. [There have been similar cases in Australia.] There have also been cases where a surrogate has faked a pregnancy or falsely reported a miscarriage. Nearly everyone that we have spoken to has emphasised that such cases are rare, although one lawyer did tell us that, during 2018, she had dealt with two cases where, during the pregnancy, the surrogate had changed her mind about giving up the child.”
Any moves for surrogacy reform in Australia
There are no moves at this stage for a model along the lines proposed by the UK Law Commissioners. Any proposed change to have national model laws looks like the medium to long term, not in the short term. Currently:
· The Federal Government proposes to work with the States and Territories about surrogacy law reform. It took the Federal Government over two years to respond to the House of Representatives inquiry into surrogacy, which in itself might indicate a glacial pace of reform.
· A review into ART and surrogacy law remains under way in Victoria.
· A draft bill concerning surrogacy was put before the South Australian Parliament last year. It has yet to be debated.
· The WA ART and surrogacy review has been undertaken. The WA Government has yet to provide a response to that review. Nevertheless there is a bill before the WA Parliament to remove discrimination against single men and gay couples in surrogacy. That bill is currently before an Upper House Committee following a filibuster by an opposition MP in the Upper House lasting 22 hours.
· The Northern Territory Government is taking soundings from the community currently as to a proposed surrogacy bill.
The Australian is reporting that a Sydney woman has asked the Family Court to order the destruction of 12 embryos – even though she has no genetic link to them – in a case against her ex-wife, believed to be a first under Australian law.
The couple have three children. The disputed embryos were created using a second woman’s eggs. The second woman wants to have another baby. However, the first woman has asked the court to order the destruction of the embryos as part of a wider dispute.
Significantly, the couple signed a form at an IVF clinic which stated that if they separated, the embryos would be discarded. However, the form apparently also stated that in the event of a dispute, the embryos would be retained, according to the second woman. It is likely that there will be a final hearing early next year. The second woman told The Australian it was “cruel” for a person to seek to destroy embryos not from their genetic material:
“It’s horrifying that someone would try to prevent someone else from having children that are not in any way related to them.”
The woman said she believed new clear legislation was needed to give people certainly about what could happen to their embryos. She said:
“I think if people believed that they wouldn’t have ultimate control over their genetic material then they might be more hesitant to go through the process.”
There have been three cases so far in Australia where this issue has arisen. The first was in 2007 in Western Australia when the Family Court there ordered the destruction of embryos, in part because the husband and wife had signed forms saying that in the event that they were to separate, the embryos were to succumb.
The second case was in about 2014 when following a lesbian couple separating, the woman who had created embryos with her eggs wanted to use the eggs in the future but that was opposed by her former partner. The Federal Circuit Court judge in an unreported case refused to deal with the matter, ruling that she did not have jurisdiction.
The third case was in 2017 in Western Australia in a case called Piccolo and Piccolo. A husband and wife had undertaken surrogacy in Canada using the husband’s sperm and eggs from a donor. A child had been conceived and born. Subsequently the husband wanted to have another child, either through surrogacy or with his new partner (a relative of the wife). The wife was opposed and wanted the embryos to succumb.
The form signed with the clinic in effect gave the discretion as to what was to happen with the embryos to the court to decide. Because the husband was the only recognised donor under Canadian law, and he wished to proceed, then he was allowed by the court to do so.
In a scathing piece in which two kids were interviewed, the ABC says that the Family Court does not listen to kids' lived experiences in cases of violence and abuse.
The story illustrates that the limitations of the Family Court system rely on family report writers, and officers of child protection services who may get it wrong, and then ultimately on judges who might get it wrong.
The case also illustrates the basic point that Family Court cases where there are allegations of domestic and family violence or allegations of child sexual, physical or emotional abuse are no walks in the park. Any party who prepares for cases of this kind must do so extremely thoroughly- so that the truth can be properly put before the court, and the court can then come to the right result.
Since my first complex parenting litigation - back in the 1980's, while there have been changes in how the system operates, the Family Law Courts system operates in a fairly similar way to the way it did back then. I cannot emphasise enough the need for thorough preparation in the search for truth. Anything less fails the children.
The aim of the exercise is to talk about how people are conceived and normalise the many ways that families can look.
Long gone is the “traditional” family structure of mum, dad and 2.4 children. Today, with the help of fertility treatments, families can look quite different.
With at least one student in each classroom born through fertility treatments, Fertility Matters aims to talk about, and normalize, the many ways families can look.
This “Diversity of Families” component will be presented in a short 5-minute maximum film with teaching notes to introduce and conclude. The film will focus on 4-5 teenagers from a range of family structures.
The intention is for the film to be short, sharp and in narrative style of the focus teenagers. Essentially a minute snapshot each, filmed on a hand held device and cut together in a fast paced segment.
Fertility Matters wants to illustrate a range of the family structures such as;
- Donor conceived child with mother and father
- Donor conceived child with same sex parents
- Surrogate conceived child
- IVF conceived child with solo parent
- Frozen embryo conceived child
With written consent from the identified and willing focus teenagers, Fertility Matters will give them some guidance on direction, but teenagers would film a short clip to camera (selfie style) where they can talk about their childhood and family. Family members who consent to be on camera are welcome to be part of the process, but the story is the teenagers’ narrative.
Points to cover in clip
- Who they are and age
- If they have siblings and if those siblings were conceived differently to them
- Who they live with
- Who biological parents are / how they were conceived
- What it feels like for them growing up
Fertility Matters is asking for help shaping this part of the package. Identifying teenagers from diverse backgrounds and family structures is a key part of making this component fun, engaging and relevant to other Year 10 students. Any help you can give in suggesting possible focus teenagers to be a part of the project would be welcomed.
Yesterday I presented to the Legalwise seminar in Sydney on legal issues and the LGBTI community about who is a parent in family law. Quite simply, some people who think that they are the parents of a child are not as a matter of law, and others who think they are not the parents are the parents.
“It is a simple reality that in this day and age children can be and are conceived in a variety of ways starting with but not limited to heterosexual vaginal intercourse. It is not the act of intercourse, however, which leads to conception or “begetting”. Intercourse can occur without conception (through use of birth control or contraception) or infertility. Heterosexual vaginal intercourse is simply one of many mechanical means of or catalysts to the act of conception.
Medical science has moved well beyond such methods of conception. Children have, for well over 35 years, been born as a consequence of artificial conception procedures. More recently conception and child birth via surrogacy has become more common.
Having the means to do something and the advisability of doing it, as Oppenheimer realised after atomic bombs were dropped on Japan, are entirely different propositions. The advisability of and a consideration of the consequences of that which can be are separate and distinct from the capacity to do.”
A common feature of family law has been that society is changing before our eyes. Family law has struggled to keep up. Nowhere is this more true than in the realm of in vitro fertilisation and assisted reproductive treatment. Currently we are witnessing in Australia transgender men becoming pregnant and giving birth. As recent research stated:
“A transgender man is a person who identifies as male, but whose sex may have been designated female at birth. As such, transgender (trans) men are commonly born with a reproductive anatomy that allows them to become pregnant and give birth…with the recent cultural shifts in community and legal attitudes around the trans community, the openness of transmen desiring parenthood and becoming parents through gestational pregnancy may be more a reality now than ever before.”
Introduction: Getting pregnant
Welcome to the wonderful world of making babies!
There are only three ways to get pregnant:
· The old fashioned way- by heterosexual vaginal intercourse;
· By artificial insemination- when sperm is injected into the uterus by use of some device, such as a catheter, a syringe or a turkey baster;
· By implantation of an embryo created somewhere else.
Such is the jargon that comes with the territory, a decoding of the jargon at this point might be helpful:
ART is the process of getting pregnant with the help of doctors. It is commonly called assisted reproductive treatment, but can also be called artificial reproductive treatment or artificial reproductive technology. It can cover artificial insemination, IVF and other techniques. Confusingly, the Family Law Act 1975 refers to artificial conception procedure, but the Status ofChildren Act1996 (NSW) refers to fertilisation procedure.
Blastocyst is a developed embryo, typically 5 days old. An embryo can be seen by the human eye, although it is smaller than the ball on a ball point pen.
Conception is the act of creation of a person. It could be the fertilisation of the egg, but has been held to be at the time of pregnancy, i.e., with ART after the implantation of the embryo.
Embryo is a fertilised egg.
Implantation is the act of placing an embryo (which is microscopic) via a very fine catheter into the uterus of a woman.
ICSI is intracytoplasmic sperm injection-where a catheter or tube is used to place one sperm into an unfertilised egg. The tail of the sperm is cut off before the head (which contains the DNA) is placed into the egg. It is typically used when the man has low fertility.
IVF or in vitro fertilisation is the act of having an egg fertilised by a sperm outside the body, typically in a petri dish, hence in glass or in vitro.
Oocyte (pronounced oh-a site) is a human egg.
Who is a parent?
Ryan J stated in Ellison & Karnchanit FamCA 602:
“Spread across different divisions in Part VII there are a number of provisions that deal with parentage, presumptions and declarations of parentage. Those in Division 1 operate to irrebuttably deem the child for the purposes of the Act, in the circumstances there identified, the child of designated people. Those in division 12 create rebuttable presumptions for the purpose of the Act. Notably by s69U it is acknowledged that two or more presumptions under that subdivision may apply, in which case (excluding s69(1)). It is for the Court to determine which presumption should prevail. Then in division 12 subdivision B, the Court is empowered to issue a declaration of parentage that is conclusive for the purposes of all laws of the Commonwealth. In essence there is a scheme which operates so that, for the purposes of the Act or Federal law, children may variously be deemed, presumed or declared the child of a person.”
G v H (1994)
A good starting point in discussing the issue of who is a parent is G v. H (1994) HCA 48. H sought that G, her former de facto partner, undertake a DNA parentage test, to determine if he were the father of her child. H refused, on the basis that G was a prostitute.
Deane, Dawson & Gaudon JJ stated as to the parenting presumptions:
“The presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and a responsibility unless and until proved to the contrary is forthcoming.”
Their Honours stated:
“While a determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense.”
The High Court held that an adverse inference could be drawn against G for his refusal to submit to parentage testing therefore it could be inferred that he was the father.
“When the question of paternity arises and the evidence discloses that one of two or men must be the father but it is uncertain which of those men is the father, a slight preponderance of evidence tending to show that a particular man is the father may be sufficient to establish paternity if that man fails without reasonable excuse to comply with the parentage testing order. That is because, first, paternity is an issue that, as between two or more men, is inherently difficult to prove without proper parentage testing, so that a slight preponderance of evidence may be all that can be offered in proof and, secondly, the testing procedures now available have been demonstrated to be so accurate that the results will almost inevitably conclude the issue.
“We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a means of a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of a greater significance to the child in establishing his or her life time identity but, when a court is deciding whether a party on whom rest the burden of proving an issue on the balance of probability says discharge that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response. …
In order that justice be done so far as the nature of the subject permits, the burden of proof of paternity in proceedings for the maintenance of a child born to an unmarried mother must be discharged when the party on whom it rests adduces the evidence available to her or him and that evidence tilts the balance of probability in favour of the paternity alleged and the punitive father, having the sole capacity to provide conclusive evidence by submitting to a parentage testing order, fails or refuses to do so.” (emphasis added)
Not only did H use condoms but also spermicide and a diaphragm when with clients.
“Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should none the less depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrong doing.”
Their Honours did some numbers about statistics, in particular G’s combination of 3 contraceptive methods:
“If, on a given occasion, there were one chance in ten of any one of the measures failing (in the sense of not offering complete protection against the possibility of conception) and the reasons for the failure of any one measure were unrelated to the others, there would only be one chance in a thousand of all three failing at the same time. Then on that statistical basis, if one assumes that H had intercourse with 250 clients during the period in which conception could have occurred (a figure towards the upper end of the range postulated by the trial judge, there would only be less than one chance in four that all three contraceptive methods would fail on at least one occasion.) (If the probability of the combined contraceptive methods not failing on any given occasion is assumed to be 999 chances in 1000, or .999, then the probability of their failing at least once on 250 independent occasions is 1-(.999), or about .22.) whereas the evidence indicated that she had actually had unprotected sex with H on a number of occasions during the relevant period. Of course that, says nothing about the statistical probability of conception either during unprotected voluntary intercourse with G or in the event of such a failure of contraceptive methods during intercourse with a client. Moreover, there is a difference between statistical and legal probability.”
These presumptions are rebuttable: section 24(5) Status of Children Act1978 (Qld), section 69U Family Law Act.
Who is the mother?
The mother is always certain: Mater semper certa est
Since the time of the Emperor Justinian, in the 7th Century, a fundamental principle of our law has been that the woman who gives birth is the mother. This remains true for both naturally conceived children, and those conceived through assisted reproductive treatment, such as artificial insemination.
US courts have considered that there have been three potential bases for who is a parent, namely:
The approach in Australia so far as the mother is concerned is clear- to determine who is the parent is based on the principle that the mother is the woman who gave birth. There have been some exceptions to this, but in general this principle remains true.
Where there has been a fertilisation procedure, or as described under the Family Law Act, an artificial conception procedure, the woman who gave birth remains the mother of the child. What is clear when there has been an artificial insemination of a woman who is married to a man that it is assumed that the woman who gave birth is the mother: see sections 14(1)(b) Status of Children Act1996 (NSW).
Where a donor ovum is used then that married woman shall be presumed to be the mother and the woman who produced the ovum shall be presumed, not to be the mother of any child born as the result of the pregnancy, which presumption is irrebuttable: section 14 (3), (4) Status of Children Act. Similarly the woman who gave birth will be presumed to be the mother under section 60H Family Law Act.
If the woman had a female wife or partner and donor semen has been used, then the woman who gave birth is the mother: section 14(1A)(b) Status of Children Act 1996 (NSW). Where a donor ovum has been used then she is the mother and the donor is not: section 14(3),(5) Status of Children Act. The wife or female partner however is a parent: s.14(1A)(a), 14(3). Similarly in those last two examples the woman who gave birth is the parent: section 60H Family Law Act. The presumption as to the husband, female wife or female partner’s consent is rebuttable: s.14(5), (5A).
When is the woman who gave birth not the mother?
The woman who gave birth is the mother in all circumstances except when her role as a parent is removed from her:
· An adoption order; or
· A surrogacy order of some kind.
Even if the woman might be considered overseas to be the parent or not the parent, consideration has to be given to what Australian or the relevant State law might determine about whether or not she is the parent: cf. Farnell and Chambua [the Baby Gammy case].
A woman who did not give birth to but intends to be a parent is not automatically a parent. She can only be a parent if:
· There is an adoption order in her favour; or
· There is a surrogacy order in her favour; or
· By operation of law, e.g., s.60H of the Family Law Act 1975, or a situation akin to that in Masson and Parsons, depending on the view of the High Court. (see below).
Transmen becoming pregnant. Is a transman a mother?
Charter et al. undertook research of 25 transmen. They say:
“The participants in our study chose to pursue pregnancy for a variety of reasons. Some participants had cisgender female partners whose fertility was affected by medical issues as Sam (32) describes:
(My partner’s) endometriosis was really severe…when we started talking about a family I just knew it wasn’t going to be possible for her (to get pregnant) so I decided that I’d do it. It wasn’t an altogether happy decision but I knew it was the right one for us and I feel, actually, very grateful that I could do that for us.
For other participants, being able to have a child that was biologically related to them was positioned as important and valuable: “It just seemed like a huge privilege to be able to have a child that shared by DNA” (Justin, 30). Equally, Bill (31) commented:
We’d had some close friends who had really struggled with not being genetically related to their kids…it really made an impression on me and (my partner)…so we decided we’d take turns having a baby.
The researchers then say:
“As 18 of the 25 participants in this study were partnered cisgender women at the time of conceiving children, they would not be able to conceive their children without accessing some form of external support, such as pursuing formal or informal assisted fertility, including the acquisition and insemination of donor sperm, and, in some cases, in vitro fertilisation… Whilst transpeople are protected legally in Australia from discrimination by [healthcare providers]…these protections are not necessarily borne out in their actual experiences. No participant in this study who attempted to access a fertility clinic was actually granted treatment. This type of rejection and discrimination is reported to be pervasive in the trans community, and has a very significant impact on mental health and wellbeing…As such, like many in the broader LGBTQI community, transmen turn to informal networks and methods, indicated in the above accounts of using known donors and at home insemination, to assist them in achieving their goal to conceive.”
The obvious question to pose is that if a transman gives birth through the use of assisted reproductive treatment, whether at home or through IVF, is the transman the mother or a parent at law?
Who is the father?
If the man had sexual intercourse with the mother; that resulted in the conception of the child, he will be the father.
If ever there were any doubt, G v. Hmakes that plain. No matter the intent of the parties, or their relationship status, genetics triumph.
Occasionally I am told of the intention for a man to be a known sperm donor by having sex with a woman. A recent call was from a man where a lesbian couple suggested this course of conduct. No matter the intentions, if the man had sex with the woman, resulting in the conception and birth of the child, he is a parent.
What if there has been an artificial conception procedure?
Is the husband or de facto partner of the birth mother a parent?
The answer is, ordinarily, yes.
Where there is an artificial conception procedure the man may be presumed to be the father, by way of rebuttable presumptions, as follows: