Overseas Compensated Surrogacy Arrangements and the Family Court of Australia What about the Children? Adiva Sifris*
i Introduction
Throughout Australia (save for the Northern Territory) legislation has been introduced recognising and regulating altruistic surrogacy arrangements and prohibiting compensated surrogacy arrangements.1 In three jurisdictions—the Australian Capital Territory, New South Wales, and Queensland—extraterritorial prohibitions placed on these arrangements make entering into an overseas compensated surrogacy arrangement an offence. 2 Nevertheless, couples who are desperate to raise children are entering into overseas compensated surrogacy arrangements. In circumstances where one or both of the couple are biologically related to the child, ‘citizenship by descent’ allows them to return with the child to live in Australia.3 While the regulation of surrogacy arrangements and legal parentage of children fall within the legislative powers of the states and territories, the determination of parentage for Commonwealth purposes is regulated through the Family Law Act 1975 (Cth) (‘FLA’). As compensated surrogacy arrangements are not recognised at a state or territory level and thus provisions transferring parentage from the surrogate to the intended parents are limited to altruistic surrogate arrangements, it is generally accepted that the provisions in the FLA recognising the transfer of legal parentage are confined to altruistic surrogacy arrangements and exclude compensated surrogacy arrangements.4 The question then arises: who are the legal parents of children born through compensated surrogacy arrangements? ii
The Full Court of the Family Court Has Its Say
Prior to the decision of Bernieres v Dhopal (‘Bernieres’),5 primary judges had adopted various approaches to this issue. In some instances, the intending biological father was declared a legal parent,6 in others, orders were made for the intending parents to have parental responsibility,7 and in still others, the matter was referred to the Director of Public Prosecutions.8 Mr and Ms Bernieres were a married couple who had entered into a compensated surrogacy arrangement in India. A child born as a result of this arrangement was conceived using Mr Bernieres’ sperm and the egg of an anonymous donor. The child was granted Australian Citizenship by descent and issued with an Australian passport. The Bernieres’ applied to the Family Court for declarations of parentage. The trial judge refused to make such an order and instead made orders for the parties to have parental responsibility for the child.9 Significantly, whilst making these orders, Berman J recognised the unsatisfactory predicament for all parties concerned and flagged ‘the clear need for … legislative change’.10
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Adiva Sifris, Overseas Compensated Surrogacy Arrangements and the Family Court of Australia
* Dr Adiva Sifris is an Associate Professor in the Faculty of Law at Monash University and Director of Clinical Units in the Faculty of Law. She researches and teaches across all areas of family law, family violence and legal education. 1 Parentage Act 2004 (ACT) s 41; Surrogacy Act 2010 (NSW) s 8; Surrogacy Act 2010 (Qld) s 56; Surrogacy Act 2019 (SA) s 11; Surrogacy Act 2012 (Tas) s 40; Assisted Reproductive Treatment Act 2008 (Vic) s 44(1); Surrogacy Act 2008 (WA) s 8. For a detailed description and comparison of the legislation in the various states and the Australian Capital Territory. See Ronli Sifris, Karinne Ludlow and Adiva Sifris ‘Commercial Surrogacy: What Role for Law in Australia?’ (2015) 23(2) Journal of Law and Medicine 275. 2 Parentage Act 2004 (ACT) s 45; Surrogacy Act 2010 (NSW) s 11; Surrogacy Act 2010 (Qld) s 54(b). 3 See Australian Government Department of Home Affairs, ‘International Surrogacy Arrangements’, Immigration and Citizenship (Web Page, 5 March 2020) <https://immi.homeaffairs.gov.au/citizenship/become-a-citizen/by-descent/ international-surrogacy-arrangements>. 4 See, eg, Ellison v Karnchanit [2012] FamCA 602; Bernieres v Dhopal [2017] FamCAFC 180 (‘Bernieres’). 5 Bernieres (n 4). 6 See Green-Wilson v Bishop [2014] FamCA 1031. 7 See Mason v Mason [2013] FamCA 424. 8 See Dudley v Chedi [2011] FamCA 502. 9 See below for discussion on parental responsibility. 10 Bernieres (n 4) [147] (Berman J).
