Determining the parents of surrogate children

In Australia, each State and Territory (except the Northern Territory which has no law on the topic) has different laws governing surrogacy. Common to all is that they permit ‘altruistic’ arrangements but not commercial arrangements in Australia. New South Wales, the ACT and Queensland have made it an offence for those in their jurisdiction to enter into international commercial surrogacy arrangements. This means it is not a crime for those from other jurisdictions to enter international commercial surrogacy arrangements, but it can be difficult to obtain the sought after ‘parenting orders’ available in some jurisdictions to transfer the parentage from the surrogate to the parties who commission the surrogacy. But the Family Court of Western Australia has reiterated that the persons who commission a child born as a result of artificial conception procedures where the birth is the result of surrogate arrangements are not deemed the children of the persons who commissioned the surrogacy.

The primary issue for consideration in Farnell & Anor and Chanbua (2016) FLC 93-700; [2016] FWCA 17 was whether ‘Pipha’, who was born to a surrogate mother in Thailand in 2012 having been commissioned by Mr and Mrs Farnell and who has lived with the Farnell’s in Western Australia since months after her birth, could be ordered to live with her surrogate mother Mrs Chanbua and her husband. The court held that whilst Pipha could not be considered the Farnell’s child under federal law because she was a surrogate child and that Mr and Mrs Chanbua were under state law the parents of Pipha, that she should not be removed from the Farnell’s since they are the only family she has even known. In coming to this conclusion, the judge gave consideration to the fact that Pipha has strong attachments to the Farnell’s and has received quality care from them.

In judgment that tackles a myriad of issues from the jurisdiction of the court, law reform, complex statutory schemes relating to adoption, naming of children, surrogacy, marriage and family, the Family Court of Western Australia gave consideration to the submissions of Mrs Chanbua as well as the DPP, Human Rights Commission, and the Independent Children’s Lawyer. Despite the fact that some of these submissions highlighted that Mr Farnell was a convicted sex offender, and that the Farnell’s may be prosecuted for perjury (for statements made un-related to what was being determined in this case), the court ultimately held that evidence suggested that Mr Farnell had led an exemplary life since leaving prison some 17 years ago, and that Pipha was happy, had grown to love the Farnell’s and regarded them as her parents (at 377).

In commenting on commercial surrogacy, the court noted that they had approached this dispute from the perspective of what would be best for Pipha and that it doesn’t indicate its approval of commercial surrogacy, but that it is for others to decide whether the ‘manifest evils associated with overseas commercial surrogacy can be overcome by importing the problem into Australia’.

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