Findlay & Punyawong [2011] FamCA 503

FAMILY COURT OF AUSTRALIA

FINDLAY AND ANOR & PUNYAWONG

[2011] FamCA 503

FAMILY LAW - CHILDREN - overseas surrogacy arrangement - where the male applicant provided the sperm - where the applicants are resident in Queensland and the arrangement was illegal in that State - where Australia granted a visa for the children to live in Australia - whether it is appropriate to make a finding that the sperm donor was a parent - children to live with the applicants - the applicants to have equal shared parental responsibility of the children - referral of the judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld)

Family Law Act 1975 (Cth) Surrogate Parenthood Act 1988 (Qld)Surrogacy Act 2010 (Qld)

Dudley and Anor & Chedi [2011] FamCA 502

1st APPLICANT: Mr Findlay

2nd APPLICANT: Ms Adrei

RESPONDENT: Ms Punyawong

FILE NUMBER: SYC 1788 of 2011

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lewis Law

FamCA Coversheet and Orders

ORDERS

1. The children W and M, both born … January 2011 (“the children”) live with the applicants, Mr Findlay and Ms Adrei.

2. The applicants have equal shared parental responsibility for making decisions about long term issues and day to day issues in respect of the children.

3. The Registrar provide a copy of this judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld) and, if requested, provide a copy of any document on the court file to the Office of the Director of Public Prosecutions, Queensland.

It is noted that publication of this judgment under the pseudonym Findlay and Anor & Punyawong is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

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FamCA Coversheet and Orders

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7188 of 2011

Mr Findlay and Ms Adrei Applicants

And

Ms Punyawong Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The twins, W and M were born by a surrogacy arrangement in Bangkok, Thailand in January 2011. This was overseen by a fertility centre in Bangkok. Mr Findlay, the first applicant, provided his sperm to be used in an artificial conception procedure with donated eggs. The anonymous egg donor is not a party to these proceedings. The surrogate mother, the respondent in these proceedings, was not the egg donor and was impregnated with the fertilised eggs.

2. The children’s birth mother consents to the applicants having orders made in their favour under the Family Law Act 1975 (Cth) (“FLA”) for parental responsibility and for the children to live with them at their home in Queensland.

3. The surrogate mother placed the children into the sole care of the applicants almost immediately after their births. The children shortly thereafter travelled to Queensland, Australia with the applicants and have lived with them since that time.

4. Both the applicants are residents of Queensland.

BACKGROUND

5. The first applicant, Mr Findlay, was born in Australia in 1965 and is now 46 years of age. The second applicant, Ms Adrei, was born in Southeast Asia in 1962 and is now 48 years of age. Both parties are Australian citizens. They commenced cohabitation in 2001 and remain living in a de facto relationship. Mr Findlay has a 14 year old child, J, from a previous relationship. Ms Adrei has a 17 year old daughter, T, from a previous relationship.

FamCA Reasons Page 1

6. The applicants sought the assistance of doctors at a fertility clinic in Thailand in order to have children of their own through surrogacy. The applicants had for many years sought unsuccessfully to have children through IVF procedures.

7. The Thai birth certificates of the subject children show the first applicant and the surrogate mother as the parents of the children. Soon after the children’s births, DNA testing was undertaken, which concluded on 4 February 2011 that the first applicant was the biological father of the children.

8. The children were refused Australian visas on the basis of descent of an Australian citizen, failing the production of a Thai court order that the surrogate mother has relinquished her right as a parent. I am told it is not possible to obtain such an order in Thailand. On 17 February 2011 a sub-class 101 visa was granted permitting the children to travel to Australia with the father by the Australian Embassy in Bangkok. The parties wish me to make the orders sought to assist them to apply for Australian citizenship for the children.

DOCUMENTS RELIED UPON

9. The applicants read the following material:

9.1. Application for Consent Orders filed 23 March 2011;

9.2. Affidavit of Mr Findlay filed 23 March 2011;

9.3. Affidavit of Ms Adrei filed 23 March 2011;

9.4. Affidavit of Ms Punyawong (surrogate mother) filed 23 March 2011;

9.5. Affidavit of Mr B (former husband of surrogate mother) filed 23 March 2011;

9.6. Affidavit of T (Thai lawyer) filed 23 March 2011;

9.7. Affidavit of S (Interpreter) filed 23 March 2011;

9.8. Parenting Plan dated 9 March 2011; and

9.9. Case Outline Document (Exhibit 1).

THE ILLEGALITY OF THE AGREEMENT

10. At the time the children were conceived (a time prior to 1 June 2010), the Surrogate Parenthood Act 1988 (Qld) was in force. Section 3 of that Act prohibits the applicants doing what they have done and makes it a criminal offence.

11. By the time the children were born, the Surrogacy Act 2010 (Qld) (“SA Qld”) was in force. As from 1 June 2010, s 56 and 57 SA Qld prohibited commercial surrogacy agreements and made entering into one and providing commercial benefit to the surrogate illegal.


12. I refer to my judgment in the case of Dudley and Anor & Chedi [2011] FamCA 502 regarding the illegality of commercial surrogacy arrangements in Queensland and the public policy which led to that illegality.

13. I set out the text of Queensland’s Surrogate Parenthood Act 1988 (Qld) (“SPA Qld”).

Surrogate Parenthood Act 1988

1. This Act may be cited as the Surrogate Parenthood Act 1988.

2. In this Act—

“act as a surrogate parent” means to lend oneself as the bearer of a child to the performance of a prescribed contract that has been made or that is to be made.

“prescribed contract” means a contract, agreement or arrangement made between 2 or more persons, whether formally or informally and whether or not for payment or reward, under which it is agreed—

(a) that a person shall become or shall seek or attempt to become the bearer of a child and that a child delivered as the result thereof shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person firstmentioned in this paragraph; or

(b) that a child delivered from a person who is the bearer of any embryo, foetus or child at the time when the prescribed contract is made shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person firstmentioned in this paragraph.

3. (1) A person shall not—

(a) publish or cause to be published any advertisement, statement, notice or other document that—

(i) is intended or likely to induce a person to agree to act as a surrogate parent; or

(ii) seeks or purports to seek a person to agree to act as a surrogate parent; or

(iii) states or implies that a person is willing to agree to act as a surrogate parent; or

(iv) states or implies that a person is willing to enter into a prescribed contract; or

(b) make, give or receive or agree to make, give or receive a payment or reward for or in consideration of—

(i) entering into a prescribed contract; or

(ii) a person agreeing to act as a surrogate parent; or

(c) enter into or offer to enter into a prescribed contract.


Maximum penalty—100 penalty units or 3 years imprisonment.

(2) A person who does an act that is prohibited by subsection (1) commits an offence against this Act and is liable to be punished therefore if—

(a) the act occurs in Queensland, irrespective of the whereabouts of the offender at that time; or

(b) the offender is ordinarily resident in Queensland at that time, irrespective of where the act occurs.

4. (1) A prescribed contract made after the commencement of this Act is void.

(2) No action shall be maintained in a court of Queensland—

(a) for the enforcement of a prescribed contract made after the commencement of this Act; or

(b) for the recovery of any money or other thing paid or given in connection with a prescribed contract made after the commencement of this Act;

wherever the contract may be made and whatever law may be the proper law of the contract.

14. Section 3 of the SPA Qld prohibits the applicants in this case from doing what they have done and makes it a criminal offence. The extra territorial application of the SPA Qld is clear (see s 3(2)(b) SPA Qld).

15. The circumstances of this case are virtually identical with what happened in Dudley and Anor & Chedi. The evidence before me is starkly deficient in providing any detail of the financial arrangements entered into between the applicants and:

15.1. The surrogate mother;

15.2. The Thai clinic;

15.3. The donor of the eggs;

15.4. The surrogate mother’s independent lawyer; and

15.5. Their own lawyers.

16. I infer that the surrogate mother was paid some type of fee, either directly by the applicants or by the Thai clinic (which then passed those costs onto the applicants). I suspect that the fee was an amount more than the birth mother’s costs. I have no evidence as to what, if any, safeguards were in place to protect the surrogate mother from emotional or financial harm. I do acknowledge that the surrogate mother:

16.1. Spoke to the parties with the aid of an interpreter about the surrogacy agreement;


16.2. Had the content of Thai law in the area of surrogacy explained to her by a Thai lawyer;

16.3. Had the content of Australian law in the area of parenting explained to her by an interpreter;

16.4. Had the Parenting Plan read to her in her own language before she signed it; and

16.5. Was read the Australian court documents in her own language before signing them.

17. I note that Queensland has now passed the Surrogacy Act 2010 (Qld) which has repealed the previous Act as from 1 June 2010. It legalised altruistic surrogacy in Queensland, while maintaining the illegality of commercial arrangements. In doing so, protections have been put around the process, such as a surrogacy guidance report prepared by an independent and appropriately qualified counsellor (s 32). What the applicants did would still have been illegal under the new Queensland law. The penalties relating to commercial arrangements under the new law are the same as under the old.1

DEFINITION OF PARENT

18. The surrogate mother swore that while she and her husband were still married at the time of the procedure, they were divorced on 12 July 2010, before the birth of the children. The former husband of the surrogate mother also swore that they divorced on 12 July 2010. The surrogate mother and her former husband further deposed that the former husband did not consent to the artificial conception procedure in relation to the children in which the surrogate mother was involved. As in Dudley and Anor & Chedi, therefore, the provisions of s 60H FLA are not enlivened and the children are not precluded from being the children of the applicants.

19. I refer to my reasons in the case of Dudley and Anor & Chedi for further discussion of the applicable law regarding the assessment of ‘parent’ for the purpose of the FLA and state law.

20. As in Dudley and Anor & Chedi, I note that I do not need to make an assessment as to whether the applicants are “parents” of the twins to make the orders sought in this case, and I decline to do so for the following reasons:

20.1. Applicable State law made what he did illegal;

20.2. There was at that time no provision in State law that would allow the recognition of any relationship between the twins and the applicants;

1 Queensland has the largest penalty (at least in terms of imprisonment) of up to three years of imprisonment and/or a fine of 100 penalty points for an individual ($10,000 as per section 5 of Penalties and Sentences Act 1992 (Qld)).


20.3. Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;

20.4. The applicants may seek a remedy through adoption legislation; and

20.5. The orders that are sought in this case can be made without recognising the male applicant as the father of the twins.

THE STANDING OF THE APPLICANTS

21. I find that the two applicants are persons concerned with the care, welfare and development of the children under 65C(c) FLA and so may make an application for orders.

22. In relation to section 65G FLA, I find as I did in Dudley and Anor & Chedi that it would be futile for the parties to discuss any proposed orders with a family consultant. The surrogate mother lives in Thailand and has clearly indicated that she intended to relinquish all her rights and obligations in relation to the children and that she consents to the proposed orders. I am satisfied that I may make the orders sought by the applicants even though the ordinary conditions of s 65G FLA have not been complied with.

BEST INTERESTS

23. The orders that I am asked to make have to be made with the best interests of the children as my paramount consideration (section 60CA FLA).

24. Given that I am considering whether to make an order with the consent of all the parties to the proceedings, I may, but I am not required to, have regard to all or any of the matters set out in sections 60CC(2) and (3) FLA.

25. When focusing on the best interests of the children there are a number of undisputed facts:

25.1. They are living with the applicants in Queensland;

25.2. They need to live with someone and be looked after by someone.

26. In respect of the issue of parental responsibility, section 61DA FLA creates a presumption that a children’s parents have equal shared parental responsibility (s 61EA(1)). The presumption can be rebutted however if there is a finding that the application of the presumption would not be in the best interests of the children (s 61DA(4)). The surrogate mother proposed to play no role in the children’s lives. I find that as persons concerned with the care, welfare and development of the children, it is in the children’s best interests that the applicants have equal shared parental responsibility for the children.

27. The applicants seek an order that the children live with them. In an assessment of the children’s best interests I note it is undisputed that the children are currently living with the applicants in Queensland, the only parents they have known. The


applicants have always intended to care for the children as their own, an arrangement detailed in the Parenting Plan exhibited. It is undisputed that the surrogate mother does not intend to care for the children and wants no relationship with them. It is undisputed that the egg donor is unknown.

28. The applicants have shown they can more than adequately provide for the material needs of the children, which they have been doing since soon after their births. The applicants live in a more than adequate home within a convenient distance to all facilities they may require. They have secure employment. They have formulated an appropriate plan for the care of the children with flexibility, and the children are currently doing well.

29. Under the care of the applicants, the children will be able to develop a sibling relationship with their half-brother, who lives with the applicants each weekend and for half of every school holidays. They will also be able to develop a sibling-like relationship with the second applicant’s daughter, who lives with the applicants on a full time basis.

30. The applicants intend to preserve the children’s culture by travelling with them to Thailand. With the second applicant’s Southeast Asian heritage, there will be a strong multicultural element to the applicant’s household.

31. Accordingly, I find that the orders as sought are in the children’s best interests.

32. It appears that what the applicants have done in this case is illegal. I would direct the Registrar to send a copy of this judgment to the Office of the Director of Public Prosecutions, Queensland and if requested, the Registrar is to supply any document on the court file to the Office of the Director of Public Prosecutions, Queensland.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 June 2011.

Associate:

Date: 30.6.2011


Findlay & Punyawong [2011] FamCA 503

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Transcript of Findlay & Punyawong [2011] FamCA 503