In the recent case of Sigley & SIgley  FamCA 3 (10 January 2018), the Family Court of Australia held that Australian parents who had entered into a commercial surrogacy agreement in the USA, could register the American Court Order which gave them parenting rights over their child in an Australian Court.
The Applicants in this case were seeking to register Orders made by a Court in the United States of America. The Applicants were the biological parents of twin daughters, however the children were born as a result of a surrogacy agreement between the Applicants and a “gestational carrier”.
The Applicants are both Australian citizens, originally from Victoria. They met and married in the United States in 2015 and continued to reside there. The Applicant Mother suffers from a medical condition which prevents her from carrying a baby through pregnancy to full-term. As such, the Applicants’ twin daughters were conceived through assisted reproductive technology by the in vitro fertilisation of the Applicant Mother’s ova using the Applicant Father’s sperm, and with the help of another woman into whose womb the embryos were transferred. The children were born in 2017.
The birth of the twins was facilitated in the United States (the State is not identified on the Court record for privacy reasons) through what the Applicants conceded was a “commercial” surrogacy agreement between the Applicants and the woman who carried the baby through gestation to birth. A copy of this “commercial” gestational surrogacy agreement was adduced in evidence. It provided for payments by the Applicants to the gestational carrier at various stages during the pregnancy for various things, but it described them as “reimbursement for pregnancy-related expenses.” It expressly stated that the agreement was “not an agreement for payment for the children or payment for the relinquishment of parental rights to the children.” Nevertheless, the Judge observed that the Applicants and their solicitors described the surrogacy agreement as a “commercial” one.
A key consideration for the Court in this matter was whether the overseas child Order that came into existence as a consequence of a “commercial” surrogacy agreement might have difficulty attracting the favourable exercise of jurisdiction to register it in an Australian Court, on the basis of for public policy reasons. These included the fact that in Queensland, New South Wales and the Australian Capital Territory, to enter into “commercial” surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence.
In his reasons for judgment, the Judge identified that the Applicants resided in the USA and not one of those jurisdictions where the arrangement would be a criminal offence. He noted that whilst they intend to return to live in Australia sometime in the future, it is not to one of the three jurisdictions mentioned above, but rather the State of Victoria. The Applicants had entered into a “commercial” surrogacy agreement and they sought the registration by the Family Court in Australia of an American Court Order that gives them the parenting rights over their child. If they were residents of Queensland, New South Wales or the Australian Capital Territory, they would have, prima facie, committed a criminal offence.
As the solicitor for the Applicants pointed out in his submissions, however, Victoria allows intended parents to enter into “commercial” surrogacy arrangements overseas and has not sought to criminalise such behaviour. Entry by the Applicants into the “commercial” surrogacy agreement was lawful in the USA, particularly in the state where the twins were conceived. In addition, the Australian government has not determined to criminalise entry by Australian citizens or residents into commercial surrogacy agreements overseas as, arguably, it could do.
The judge decided that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the Applicants.
The judge was satisfied that the Order made in the American Court should be registered in Australia.