In the recent case of Adair & Anor and Bachchan [2017 FCWA 78 (22 June 2017) Duncan J of the Family Court of Western Australia heard an undefended parenting application in respect of twin children aged 4.
There were two applicants – Mr Adair and his former same sex de facto partner, Mr Bonfils – who sought an order for equal parental responsibility between them and an order that the children live with them. While their de facto relationship had ended before the children were born they remained close friends who lived together as “housemates”. The twins were born pursuant to an international commercial surrogacy arrangement, entered into by Mr Adair and the children’s birth mother.
The Court stated that in August 2012 the first applicant entered into a surrogacy arrangement with the birth mother via the Clinic in New Delhi, India. At the time the birth mother was 21 years of age and single (divorced). The agreement was documented by a Gestational Surrogacy Agreement and Terms and Conditions of Surrogacy. The children were conceived with sperm from the first applicant and an egg from an anonymous donor.
Both applicants were in India for the birth and spent three weeks there before bringing the children to Perth. The children were issued with birth certificates by the Government of the Nation Capital Territory of Delhi in 2013. The first applicant is named as the father. The name of the mother is ‘NIL’.
The children obtained citizenship by descent from the first applicant and became Australian citizens in 2013. Prior to the children obtaining Australian citizenship DNA testing was carried out by [Company A]. In terms of the percentage testing procedure report, the probability that the first applicant was the genetic father of the children exceeded 99.99%.
The first applicant obtained an opinion in January 2013 [Mr Patel], Advocate in New Delhi, as to the validity of the Gestational Surrogacy Agreement (‘the Agreement’). Mr Patel provided his opinion that the parties to the Agreement, namely the first applicant (referred to as the ‘Intended F ather’) and the birth mother (referred to as the ‘Surrogate Mother’) were legally competent to enter into the contract and thus the obligations under the Agreement were legally enforceable and binding upon them.
Mr Patel stated that the Agreement made it explicitly clear that the surrogate mother shall have no enforceable right of any nature after giving birth to the child under the Agreement whereas the intended father shall have the sole and exclusive legal title of fatherhood of the twin newborn children.
Mr Patel stated that the Declaration of Intent dated 31 May 2012 executed by the surrogate mother made it clear she shall have no right of any nature in relation to the twin children. The Terms and Conditions of Surrogacy document recorded that the parties are fully informed and aware of the risk involved in the procedure. The ‘total compensation’ arranged to be paid by the intended father for the services of the surrogate was expressed as follows:
‘In consideration of the services of the Surrogate the Intended Father has agreed to a total compensation of Rs 2,25,000 (Rupees Two Lakhs Twenty Five Thousand Only) payable to the Surrogate in case of normal birth and/or Rs. 2, 60,000 (Rupees Two Lakhs Sixty Thousand Only) in case of caesarean birth in its entirely …”
As at the time of the Agreement these amounts were equivalent to approximately $3,858 and $,458 respectively.
Of the ‘total compensation’, Rs 10,000 (approximately $171) was payable to the birth mother at the time of the embryo transfer.
After the pregnancy test and heart beat scan, if the scan showed a heartbeat the intended father was to pay the surrogate mother from the total compensation Rs 10,000 (monthly maintenance) every month for the pregnancy, and the balance was payable at the time of birth and successful handling over of the child to the intended father. The monthly maintenance was to cover all genuine expenses associated with the pregnancy. In addition, the intended father was to pay all medical expenses and costs of medication.
The first applicant was the primary carer of the children. The first applicant was diagnosed with a terminal illness. As a result, the first applicant wished to ensure that the children are cared for and loved by someone, as he had hoped to do. The second applicant is that person. The children had a close and loving relationship with both applicants.
The children see the second applicant as their father. The children call the first applicant ‘dad’ and the second applicant ‘[a pet name]’. The first applicant said the second applicant had the requisite resources, love and understanding. The second applicant said he treated the children as his own and loves and adores them.
The Legal Principles
The first applicant and the birth mother entered into the Agreement. The documents suggests she gave informed consent. The birth mother had not participated in these proceedings. A financial consideration was made to the birth mother, said to be for her maintenance and medical treatment during pregnancy.
According to the Court, its concerns included the potential for exploitation of vulnerable women and children in poorer countries. In Farnell & Anor and Chanbura (2016) FLC 93-700 Thackray CJ stated that there was a need for law reform in relation to cases of overseas commercial surrogacy.
Since then, there has been a dramatic increase in the number of people finding the ‘solution for their various reproductive challenges’ in commercial surrogacy arrangements utilising the services of poor women in a cluster of developing economies. According to the Court, there have been major public policy issues associated with this development. Indeed, the circumstances surrounding the present case have apparently been influential in the banning of international commercial surrogacy in Thailand, which was until then one of the major destinations for those who wanted to buy a baby.
In Ellison and Another & Karnchanit (2012) 48 Fam LR 33 Ryan J determined the best practice principle. In that case, the Court was satisfied upon the unchallenged evidence of the applicants that they are devoted carers of the children and that they have given truthful evidence regarding the circumstances of the children’s birth. The Court did not consider it necessary to request the appointment of an independent children’s lawyer to represent the children’s interests. The Court had an opportunity to make its own assessment of the applicants and to consider their parenting capacities and commitments to the long-term welfare of the children.
Court’s Analysis and Decision
The children were separated from the surrogate mother at birth and brought to Australia from India when three weeks old. Their primary carers sought orders to provide for their welfare both now and in the long-term.
These proceedings fall to be determined pursuant to Part 5 of the Family Court Act 1997(WA) (‘the Act’). Neither the first applicant nor the birth mother was married at the time of the surrogacy procedure.
In deciding whether to make a particular parenting order in relation to a child, the court considered the best interests of the child as the paramount consideration. Section 66C sets out how a court determines what is in a child’s best interests.
The Court considered the earlier decision of Yamada & Cain  FamCAFC 64, in which it was noted that the broad inquiry as to best interests contemplated by s 60CC recognises that it is not parenthood which is crucial to the best interests of the child, but parenting and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
The Court was satisfied that the orders sought by the applicants were in the best interests of the children.
The Court considered the terms of the Surrogacy Agreement and notwithstanding issues which can arise from such agreements, in the circumstances of the case the Court was satisfied that the orders sought were in the best interests of the children.
The applicants have equal shared parental responsibility and that the children live with them, the birth mother to be served with a copy of the order.