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Commercial Surrogacy Confusion
19 January 2015
Welcome to the strange world of commercial surrogacy. The Family Court recently had to deal with a case where two men in their thirties, de facto partners, were applying for orders that one of the men was the father of a child, that both the men had equal shared parental responsibility for the child, and that the child live with them.
The couple moved from NSW to Victoria because Victoria, unlike NSW, does not outlaw overseas commercial surrogacy arrangements.
The couple hired a commercial surrogacy agency operating out of New Delhi, and the agency and the couple obtained a donor egg using an anonymous egg donor in the Ukraine. One of the men, Mr X, signed the surrogacy agreement with a couple whereby the woman of that couple was to act as the surrogate mother but she would have no rights in relation to the child at all. The mother and her partner were resident in India. It is not many children that rack up so many frequent flyer miles before they are even in existence.
The agreement is in English, but there was no evidence that it was ever translated into Hindi for the benefit of the mother and her partner.
After the agreement was signed an embryo was created using Mr X's sperm, and the anonymous donor source egg, which was then transferred to the surrogate mother. The mother then gave birth to the child in New Delhi and DNA testing confirmed that Mr X was the child's biological father. The child was given an Indian birth certificate naming Mr X as the father and mother "Nil". That's an odd twist on the saying that it is a wise child that knows its own father. Mr X then applied for Australian citizenship for the child, and that was granted and the child and Mr X and his partner arrived in Melbourne from New Delhi and applied to the court for the orders referred to.
There are real problems in the law relating to uniformity of approach to commercial surrogacy among the Australian states but, however, there are also problems in the Family Law Act in relation to defining what a parent is. Several judges in previous cases have commented on these problems.
In this case, the judge decided that the criterion for decision was the welfare of the child and that it was a matter of reality that Mr X was the father, and should be declared to be so. The judge observed that the reality of the child's circumstance is that the only parents she has ever known are the applicant couple, and therefore it was appropriate and in the child's best interest to confirm that Mr X was a parent, and that the child should live with Mr X and his partner and have parental responsibility for the child. The only recognition afforded to the Indian couple was that the judge ordered that the orders she made be translated into Hindi and provided to the Indian couple so they had an opportunity to be heard if they wished to do so.
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