FAMILY COURT of Australiafile No. (P)SYC 1924 of 2011

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIAFile No. (P)SYC 1924 of 2011

AT SYDNEY

BETWEEN

MR ELLISON AND MS SOLANO

Applicants

MS KARNCHANIT

Respondent

AUSTRALIAN HUMAN RIGHTS COMMISSION

Intervener

SUMMARY OF ARGUMENT OF
AUSTRALIAN HUMAN RIGHTS COMMISSION

The Australian Human Rights Commission was granted leave to intervene in this proceeding on 29 August 2011 pursuant to s92(1) of the Family Law Act 1975 (Cth) (Family Law Act) and s11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
Pursuant to s11(1)(o) of the AHRC Act, the Commission has the function of intervening in proceedings that involve human rights issues, where the Commission considers it appropriate to do so and with the leave of the court hearing the proceedings, subject to any conditions imposed by the court.
The phrase ‘human rights’ is defined by s 3 of the AHRC Act to mean the rights and freedoms recognised in the International Covenant on Civil and Political Rights, declared by the three Declarations appearing at schedules 3 to 5 of the AHRC Act, or recognised or declared by any relevant international instrument.
A ‘relevant international instrument’ is one in respect of which a declaration under s47 of the AHRC Act is in force. On 22 October 1992, the Attorney General made a declaration under s47 that the Convention on the Rights of the Child (CRC)[1] is an international instrument relating to human rights and freedoms for the purposes of the AHRC Act.[2]
The Commission considers that this proceeding engages a number of rights under the CRC which are dealt with in more detail below. These include:
the rights of children to be protected against all forms of discrimination on the basis of the status of their parents, legal guardians or family members;
the rights of children to such protection and care as is necessary for their well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for them;
respect for the responsibilities, rights and duties of parents, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of their rights;
recognition of the principle that parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child;
particular substantive rights, including:
the right to acquire a nationality;
the right to enjoyment of the highest attainable standard of health and to facilities for the treatment of illness;
the right to maintenance from the child’s parents or other persons having financial responsibility for the child.
These submissions deal with:
the determination of the best interests of a child born as a result of a surrogacy arrangement;
how the rights of the surrogate mother should be addressed in the context of an application for parenting orders;
whether the Court should make findings about the identity of the children’s parents.
The submissions that the Commission seeks to make can be summarised as follows:
Where all parties to a surrogacy arrangement consent to particular parenting orders, the court may more confidently find that it is in the best interests of the child for such orders to be made.
In assessing evidence of the consent given by a surrogate mother to proceedings of this nature (particularly where the surrogate mother is not available to give evidence in person), the Commission submits that it is important for independent evidence (including, for example, from a family counsellor) to be obtained of her views so that the court can be satisfied that her expressed consent is free and informed consent.
Ideally, such evidence would include:
confirmation that legal advice and counselling were provided to the surrogate mother prior to entering into the surrogacy arrangement;
confirmation that the surrogacy arrangement was entered into before the children were conceived;
confirmation that the surrogacy arrangement was made with the consent of the surrogate mother;
evidence after the birth of the children of the views of the surrogate mother about the orders sought in the proceeding and what relationship, if any, she proposes with the children;
if the children have been granted visas to come to Australia, evidence of the participation by the surrogate mother in an interview with immigration officials prior to the grant of the visas, and the views expressed by her during this interview.
In the present circumstances, it appears open to the Court to find that Mr Ellison[3] is the father and a parent of the two children the subject of these proceedings.
Important rights would accrue to the children under Australian law, and as recognised in the CRC, if Mr Ellison is recognised as being their parent. These rights include rights relating to citizenship, migration, medical treatment, intestacy and child support. The Commission submits that it would be contrary to the rights of the children for Mr Ellisonnot to be recognised as a parentwhere the evidence supports such a finding.
It does not appear that the applicant parents have an alternative way in which their relationship with their children can be recognised under either the Surrogacy Act 2010 (Qld) or the Adoption Act 2009 (Qld), without a finding of parentage being made by this Court.
This Court should not refuse to recognise Mr Ellison as a parent only because the surrogacy arrangement entered into may have been unlawful under Queensland law.
The Commission submits that if the Court is satisfied that Mr Ellison is a parent, it should make this finding and that the question of what parenting orders are appropriate should be assessed in the light of this finding. However, if there is no finding that Mr Ellison is a parent, but that he is a person concerned with the care, welfare and development of the children, it would still be open to the Court to make parenting orders in the form sought by the applicants. There is no presumption that parenting orders should be made in favour of parents (as opposed to another person concerned with the care, welfare or development of the child).

Factual background[4]

The following factual background is taken from the parenting plan, the affidavits filed on behalf of the applicants and documents produced on subpoena […].
[…] Mr Ellison and Ms Solano are married and live together in Queensland.
[…] [T]he applicants travelled to Thailand for the purpose of investigating having children through a surrogate. They were assisted by IVF medical practitioners at [name of clinic] (the clinic).
Ms Karnchanit is a citizen of Thailand. She agreed to act as a surrogate mother for the applicants. In her affidavit sworn [date]she says that at the time she agreed to act as a surrogate, she was single and not living in a de facto relationship. However, in [an earlier document] it appears that Ms Karnchanit reported being in a de facto relationship […].
Mr Ellison provided sperm which was used to fertilise an egg provided by an egg donor chosen by the clinic in consultation with the applicants. Ms Karnchanit was implanted with the resulting embryo.
In January 2011, Ms Karnchanit gave birth to twins […]. The children were placed in the care of the applicants.
[…] [T]he children travelled to Australia and are now living with the applicants.

Orders sought

The applicants seek the following parenting orders in relation to the children:
The children live with the applicants.
The applicants have equal shared parental responsibility for making decisions on both day to day and long-term issues relating to the children.
A number of questions arise for determination by the Court in the context of this application. The primary question for the Court is whether it would be in the best interests of the children for the parenting orders to be made. In making this determination, the Commission submits that the circumstances of this case make it important for the Court to be satisfied that Ms Karnchanit has given her free and informed consent to these orders.
A subsidiary question, but one that is important for the rights of the children, is whether the Court should make a finding that Mr Ellison is a ‘parent’ of the children for the purposes of the Family Law Act.

Whether parenting orders should be made

Best interests of the child

In dealing with actions involving the interests of children, the Family Law Act and the CRC share a common underlying principle, namely that the best interests of the child shall be a primary consideration. This is evident in Art 3(1) of the CRC which provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

It is also evident in s60CA of the Family Law Act which applies in circumstances such as the present where an application is made for parenting orders, and which provides that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

It is well settled that, as a general proposition, legislative provisions that are ambiguous are to be interpreted by reference to the presumption that Parliament did not intend to violate Australia’s international obligations.[5]
The requirement of ambiguity has been interpreted broadly; as Mason CJ and Deane J observed in Teoh:[6]

there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.

The principle that legislation is to be construed so as to give effect to, and not to breach, Australia’s international obligations assists in minimising the risk of legislation inadvertently causing Australia to breach international law. Any breach of international law occasioned by an Act of Parliament ought to be the result of a deliberate decision by Parliament. To this end, where a construction that is consistent with international law is open, that construction is to be preferred over a construction that is inconsistent with international law.[7]
There are a number of articles of the CRC that are relevant to determining the best interests of the child in the present proceeding.
As a starting proposition, Art 2(2) of the CRC relevantly provides that State Parties shall take all appropriate measures to ensure that children are protected against all forms of discrimination on the basis of the status of their parents, legal guardians or family members. The Commission submits that children born of surrogacy arrangements should not be subjected to a disadvantage or detriment as a result of any difference in legal status conferred on their parents or guardians.
Secondly, there are a number of articles of the CRC that deal with particular rights that involve the relationship between children and their parents or guardians. For example:
States parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures (Art 3(2)).
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of their rights (Art 5).
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern (Art 18(1)).
These rights recognise the importance of parents in safeguarding the interests of children. However, the language used in the CRC is not limited to parents, and recognises that in some circumstances these responsibilities will also fall on other legal guardians.
Subdivision BA of Div 1 of Part VII of the Family Law Act sets out how the best interests of the child are to be determined for the purposes of the Family Law Act. There are a number of aspects of this subdivision that focus in particular on the relationship between children and their parents. For example:
As noted above, the Court must regard the best interests of the child as the paramount consideration in making a particular parenting order (s60CA). This reflects Australia’s obligations under Art 3(1) of the CRC.
In determining what is in the child’s best interests, one of the two primary considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents (s60CC(2)(a)).
Additional considerations in determining what is in the child’s best interests include:
the nature of the relationship of the child with each of its parents (s60CC(3)(b)(i)); and
the likely effect on the child of any separation from either of his or her parents (s60CC(3)(d)(i)).
When making a parenting order, the court must apply a (rebuttable) presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (s61DA(1)).
However, there is no general presumption that orders be made in favour of parents, and s65C (dealing with who may apply for a parenting order) does not prescribe a “hierarchy of applicants”.[8] In Aldridge v Keaton(2009) 42 Fam LR 369at [60], the Full Court referred with approval to comments of a previous Full Court in Re Evelyn (No 2) (1998) 23 Fam LR 73 that, while the fact of parenthood is an important and significant factor in deciding on an appropriate parenting order, there is no presumption in favour of a biological parent. Rather each case must be decided on its particular facts with the welfare of the child the paramount consideration. The Court stated:[9]

… the Act in its present form enables a court dealing with a parenting application the flexibility to recognise and accommodate “new” forms of family, including families with same-sex parents, when making orders which are in the best interests of a child who is part of such a family. …

Children who have been brought up in these new forms of family may be children who fall within s60H. … More commonly, they may have been conceived as the result of a private agreement with a known donor and without formal consent documentation. These children’s best interests are the paramount consideration to be taken into account, not the circumstances of their conception or the sex of their parents.

In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.

For the reasons set out later in these submissions, the Commission submits that Mr Ellison should be recognised as a parent and that the question of what parenting orders are appropriate should be assessed in the light of this finding. However, there is no presumption that parenting orders should be made in favour of parents (as opposed to another person concerned with the care, welfare or development of the child). Even if there is no finding that Mr Ellison is a parent, the applicants each have standing to make the current application for parenting orders as persons concerned with the care, welfare and development of the children.
The Family Report writer has filed a report indicating her view that:
[…].
[…].
[…].
[…].
Where all parties to a surrogacy arrangement consent to particular parenting orders the court may more confidently find that it is in the best interests of the child for such orders to be made. It is therefore important for the Court to have sufficient evidence before it to satisfy itself of the position of the surrogate mother.

Views of the surrogate mother

In all Australian jurisdictions, commercial surrogacy arrangements are prohibited. Some jurisdictions (including Queensland) purport to give this prohibition extraterritorial effect.[10] One reason for the prohibition of commercial arrangements appears to be a concern to ensure that surrogate mothers are not subject to coercion, undue influence or exploitation.[11]
A number of safeguards are provided by legislation in each Australian jurisdiction to ensure that the rights of the surrogate mother are adequately protected in surrogacy arrangements. Some of these safeguards include the following (with reference to the Surrogacy Act 2010 (Qld)):
the arrangement was made after the surrogate mother (and her spouse, if any) obtained independent legal advice about the surrogacy arrangement and its implications (s22(2)(e)(i));
the arrangement was made after the surrogate mother (and her spouse, if any) obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications (s22(2)(e)(ii));
the arrangement was made with the consent of the surrogate mother (and her spouse, if any) (s22(2)(e)(iii));
the arrangement was made before the child was conceived (s22(2)(e)(iv)).
Each of these matters is also contained in the list of draft surrogacy principles developed by the Standing Committee of Attorneys-General (SCAG).[12] The draft surrogacy principles were endorsed by the SCAG in November 2009 and referred to the Australian Health Ministers’ Conference and the Community Services Ministers’ Conference to consider. Discussion of the draft surrogacy principles by the Health and Community Services Ministers has been deferred until 2012.
To the extent that information is available about each of these matters, the Commission considers that it should be provided by applicants for parenting orders in proceedings such as the present.
The Commission considers that it is important to ensure that the consent given by a surrogate mother to a surrogacy arrangement and any subsequent parenting orders is a free and informed consent. There are a number of ways in which applicants can assist the Court to reach such a finding, and the Commission recommends that applicants be encouraged to use them all.

Affidavit evidence from the surrogate mother