Sur­ro­gacy de­ci­sion leaves chil­dren with­out par­ents


Hun­dreds of Aus­tralian chil­dren born over­seas through com­mer­cial sur­ro­gacy ar­range­ments have been left with­out le­gal par­ents, fol­low­ing a de­ci­sion of the full Fam­ily Court.

The rul­ing has prompted calls for ur­gent leg­isla­tive change so that chil­dren are not left in a le­gal limbo — and po­ten­tially state­less.

The case in ques­tion in­volved an Aus­tralian cou­ple, known as “Mr and Mrs Bernieres” who trav­elled to “Coun­try T” and en­tered a com­mer­cial ar­range­ment with a sur­ro­gate mother.

In 2014, a girl was born — the prod­uct of Mr Bernieres’ sperm and an egg from an anony­mous donor. The fe­tus had been car­ried by the sur­ro­gate mother.

The cou­ple had been un­able to con­ceive nat­u­rally be­cause Mrs Bernieres suf­fered from poor egg qual­ity and low egg re­serve.

The cou­ple, who have been rais­ing the girl, now 3, in Mel­bourne, ap­plied to the Fam­ily Court for a dec­la­ra­tion that they were her le­gal par­ents.

In a de­ci­sion pub­lished last week, three judges of the court ruled the cou­ple were not her le­gal par­ents, de­spite Mr Bernieres be­ing her bi­o­log­i­cal fa­ther. This is be­cause the com­mon­wealth Fam­ily Law Act leaves it to state and ter­ri­tory leg­is­la­tion to de­ter­mine the sta­tus of chil­dren born un­der sur­ro­gacy ar­range­ments.

Mr and Mrs Bernieres were not recog­nised as par­ents un­der the Vic­to­rian leg­is­la­tion be­cause, like all states, it does not recog­nise chil­dren born via com­mer­cial sur­ro­gacy ar­range­ments.

“The un­for­tu­nate re­sult of that

con­clu­sion is that the parent­age of the child here is in doubt ...” the judg­ment says.

“There is no ques­tion that the fa­ther is the child’s bi­o­log­i­cal fa­ther, but that does not trans­late into him be­ing a par­ent for the pur­poses of the Act. Fur­ther, the mother is not even the bi­o­log­i­cal mother, and thus is even less likely to be the ‘le­gal par­ent’.”

Pre­vi­ously, there was in­con­sis­tency as to whether in­di­vid­ual judges would recog­nise the parent­age of chil­dren born via com­mer­cial sur­ro­gacy ar­range­ments.

This was the first time the full Fam­ily Court had ruled on the is­sue.

The three judges, Chief Jus­tice Diana Bryant, Steven Strickland and Ju­dith Ryan, said it was not open to the court to fill the “leg­isla­tive vacuum” that ex­isted for chil­dren born via over­seas com­mer­cial sur­ro­gacy ar­range­ments; this needed to be fixed by leg­is­la­tion.

In do­ing so, the judges up­held an ear­lier de­ci­sion of judge David Ber­man, who gave Mr and Mrs Bernieres re­spon­si­bil­ity for car­ing for the child but not a dec­la­ra­tion of parent­age.

Jus­tice Ber­man said he could well un­der­stand the cou­ple’s dis­may be­cause they were “not able to se­cure for all pur­poses that which they fer­vently seek, namely, recog­ni­tion and a dec­la­ra­tion of parent­age”.

“There is a clear need for ur­gent leg­isla­tive change,” he said in the 2015 judg­ment.

He had no doubt about the cou­ple’s “over­ar­ch­ing love” for the girl, and their “abil­ity, ca­pac­ity and in­ten­tion” to ful­fil her needs — but he had “sig­nif­i­cant mis­giv­ings” about the sur­ro­gacy process and the “dis­turb­ing” terms of the cou­ple’s con­trac­tual ar­range­ment with the sur­ro­gate mother.

Sur­ro­gacy Aus­tralia pres­i­dent Robert Reith said ur­gent change was needed to pro­vide cer­tainty to chil­dren and par­ents.

“The law ab­so­lutely needs a re­view and to be brought up to date with mod­ern stan­dards,” Mr Reith said. “It’s out­ra­geous.”

Bar­ris­ter Robin Smith, who acted for Mr and Mrs Bernieres, said the only op­tion for them was to ap­ply to adopt the child but this would be a very dif­fi­cult process. “Un­for­tu­nately they have now fallen through the cracks of the state and com­mon­wealth leg­is­la­tion, which means they re­ally don’t have any rem­edy,” he said.

Dr Smith said that while they could make key de­ci­sions for the girl, in­clud­ing those re­lat­ing to her med­i­cal care and school­ing, be­cause they had been given re­spon­si­bil­ity for her care, she would not nec­es­sar­ily be recog­nised as their child when it came to in­her­i­tance, and if they sep­a­rated or di­vorced, they might not be able to be forced to pro­vide child sup­port.

Fam­ily lawyer Stephen Page has also said the full Fam­ily Court de­ci­sion could im­pact on whether the Depart­ment of Im­mi­gra­tion will recog­nise chil­dren born via over­seas sur­ro­gacy ar­range­ments as Aus­tralian cit­i­zens.

In NSW, Queens­land and the ACT, it is il­le­gal for in­di­vid­u­als to en­ter into over­seas com­mer­cial sur­ro­gacy ar­range­ments.

It is es­ti­mated that about 250 ba­bies a year are born over­seas via sur­ro­gacy ar­range­ments to Aus­tralian cou­ples.

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