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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
RBK & Anor v MMJ  QChC 42
RCE (Date of Birth: [Date Redacted 2018])
Application pursuant to s 22(1) of the Surrogacy Act 2010 (Qld)
20 December 2019
10 June 2019
Order as per draft ordered on 10 June 2019.
FAMILY LAW – SURROGACY – PARENTAGE ORDER – INTENDED PARENT – where parties entered into an altruistic surrogacy arrangement – where all parties consent to the order – where the first applicant is the sperm donor and biological parent of the child – where the Status of Children Act 1978 (Qld) presumes that sperm donors in births by fertilisation procedures have no rights or responsibilities relation to parenting – where the Births, Deaths and Marriages Registration Act 2003 (Qld) allows for only two people to be registered as parents on the birth certificate – where the High Court has held that the Family Law Act is a Commonwealth legislative scheme which is “complete upon its face” – whether a sperm donor is a birth parent
Surrogacy Act 2010 (Qld) ss 7, 8, 9, 17, 22
Status of Children Act 1978 (Qld)
Birth Deaths and Marriages Registration Act 2003 (Qld) s 10A
Family Law Act 1975 (Cth)
Lamb v Shaw  FamCA 629
Masson v Parsons  HCA 21
SR Page for the applicants
K Cherry for the respondent
SR Page of Page Proven for the applicants
K Cherry of Cherry Family Lawyers for the respondent
- On 10 June 2019 an application was heard pursuant to s 22(1) of the Surrogacy Act 2010 (Qld) (‘the Act’) for the transfer of parentage of the child from MMJ to RBK and CZK. On that day orders were made pursuant to the Act transferring the parentage and amending the birth certificate but at the time a question of law was raised in relation to the parentage of the child and accordingly I reserved my reasons.
- The application for parentage order related to RCE who was born on [Date Redacted] 2018 as a result of a surrogacy arrangement entered into between the parties on 19 March 2018. MMJ offered to have a baby for the applicants in this case, RBK and CZK. RCE has been in the care of RBK and CZK since birth. RCE’s biological mother is AFJ. Jane Miller was the surrogate who gave birth to the child and was named as her parent on RCE’s birth certificate. RBK was the sperm donor and therefore in reality her biological parent.
- Part 3 of the Act defines the key concepts of the Act, s 7 provides:
“7 Meaning of surrogacy arrangement
- (1)A surrogacy arrangement means an arrangement, agreement or understanding between a woman and another person or persons under which—
- (a)the woman agrees to become, or try to become, pregnant with the intention that—
- (i)a child born as a result of the pregnancy is to be treated as the child, not of the woman, but of the other person or persons; and
- (ii)the woman will relinquish to the other person or persons custody and guardianship of a child born as a result of the pregnancy; and
- (b)the other person or persons agree to become permanently responsible for the custody and guardianship of a child born as a result of the pregnancy.”
- A birth mother is defined pursuant to s 8(1) of the Act as:
“8 Meaning of birth mother, birth mother’s spouse and birth parents
- (1)The birth mother is the woman who agrees to the matters mentioned in section 7(1)(a) under a surrogacy arrangement.”
- A birth parent is defined under s 8(3) as:
“(3) A birth parent, of a child, means a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born.”
- Section 9 defines the meaning of intended parent namely “a person who agrees to the matters mentioned in s 7(1)(b) under a surrogacy arrangement”.
- Section 17 of the Act allows for the presumptions under the Status of Children Act 1978 (Qld) to otherwise apply:
“To remove any doubt, it is declared that, unless and until the parentage order is made under chapter 3 transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 apply to the child.”
- Part 3 of the Status of Children Act 1978 deals with presumptions of parenting where there are fertilisation procedures in place. In subdivision 2 the Act goes through the presumptions in relation to various fertilisation procedures. Section 17 deals with a married woman with husband’s consent. The presumption is that the husband is presumed for all purposes to have caused the pregnancy and to be the father of any child born as a result of the pregnancy and any man not being the husband of the woman who produced semen is presumed not to have a caused the pregnancy and not to be the father of any child born as a result of the pregnancy. This presumption of the law is irrefutable. A similar provision applies in relation to donor ovum. Subdivision 2A deals with women with female de facto partner’s consent. The man who produces the semen in that case is said to have no rights or responsibilities relating to the child born as a result of a pregnancy for which the semen has been used and the women’s de facto partner is presumed for all purposes to be a parent of any child born as a result of the pregnancy. This presumption is also irrefutable.
- Subdivision 3 relates to fertilisation procedures for married women who have undergone fertilisation procedure other than with their husbands or partners consent and unmarried women who do not have de facto partners or civil partners but who have undergone a fertilisation procedure. In those cases it is said that the man who produces the semen has no rights or liabilities in respect to a child born as a result of a pregnancy occurring by reason of the use of semen unless, at any time, he becomes the husband of the child’s mother.
- The different terminology in relation to these two sections has created difficulty in terms of interpretation of the Act particularly in light of a number of Family Court cases that have been decided in relation to surrogacy arrangements.
- Section 10A of the Birth Deaths and Marriages Registration Act 2003 provides:
“10A Limitation on registration of parentage details
- (1)In relation to the registration of a relevant event for a child—
- (a)the child’s parent, or 1 of the child’s parents, must be registered as the child’s mother or as the child’s father; and
- (b)not more than 1 person may be registered as the child’s mother or as the child’s father; and
- (c)not more than 2 people in total may be registered as the child’s parents (however described).”
- In Lamb v Shaw  FamCA 629, Tree J considered the provisions of the Surrogacy Act 2010 (Qld). He held at  and  that:
“It seems to me that the starting point in the construction and application of s 23(4) to this case, is a recognition that, as an incontrovertible matter of fact, the genetic father is indeed the contributor of one half of the genetic material of the child, and hence as a matter of fact, his father. There is no reason why, absent statutory intervention, the common law would not recognise that fact and, as a matter of law, recognise that the father is one of the child’s parents.
Therefore in order for the genetic father to lose the status of parent, there would need to be clear statutory removal of that status or right, but in the absence of such statutory destruction or modification, it will remain…”
- The High Court discussed the interplay between the State legislation on surrogacy and the Family Law Act 1975 under which Tree J was considering the provisions of the Queensland Act and artificial conception procedures in Masson v Parsons  HCA 21. In that case the court held that Division 1 of Part VII of the Family Law Act 1975 is a complete definition of parent under the Act and that there is no room for the operation of contrary State or Territory provisions. At  Kiefel CJ, Bell, Gageler, and Gordon JJ in a joint judgment held:
“It is also necessary to appreciate, as is explained later in these reasons, that the evident purpose of s 60H and more generally of Div 1 of Pt VII of the Family Law Act is that the range of persons who may qualify as a parent of a child born of an artificial conception procedure should be no more restricted than is provided for in Div 1 of Pt VII. Consequently, although ss 60G and 60H are not exhaustive of the persons who may qualify as parents of children born of artificial conception procedures, if a person does qualify as a child’s parent either under s 60G by reason of adoption, or according to s 60H, or according to ordinary acceptation of the word ‘parent’, it is beside the point that a State or Territory provision like s 14(2) of the Status of Children Act otherwise provides. Section 79(1) of the Judiciary Act does not operate to insert provisions of State law into a Commonwealth legislative scheme which is ‘complete upon its face’ or where, upon their proper construction, the provisions of the Commonwealth scheme can ‘be seen to have left no room’ for the operation of State provisions. And, as is apparent from its text, context and history, Div 1 of Pt VII of the Family Law Act leaves no room for the operation of contrary State or Territory provisions. In effect, it contains an implicit negative proposition that nothing other than what it provides with respect to parentage is to be the subject of legislation.”
- It follows from this that the interpretation of the Surrogacy Act by Tree J was unnecessary given that the Family Law Act provides a complete answer to the issue of who is a parent for the purposes of that jurisdiction.
- Tree J’s interpretation of the Status of Children Act and the Surrogacy Act in my view cannot be correct if it means that a sperm donor who wishes to be an intended parent is instead a birth parent because of the different terms used in s 21 of the Act. This is because the reference to the man who produced the semen having no rights or liabilities in respect of a child to be born as a result of pregnancy is also used in s 19C(2) in a situation where there has been artificial insemination and the female bearing the child has a female de facto partner or a female registered partner.
- If it is correct that a child who is born as a result of donor semen by a man intending to become the full-time parent of the child with his male partner becomes for the purposes of the Act a birth parent; then, on that basis, there will be different meanings assigned to the same phrase in ss 19C and 21 of the Act. This is because of the interplay between those sections and s 10A of the Births, Deaths and Marriages Registration Act which allows for only two people to be registered as parents in the birth certificate. In the case of s 19C of the Act that would be the mother of the child and her female partner.
- The better view then is that it cannot be that a semen donor in a case such as this is a birth parent within the meaning of the Surrogacy Act. The interpretation that fits both the Status of Children Act and the Births, Deaths and Marriages Registration Act is that a birth parent by definition is a person other than an intended parent. This means that once a person has entered into a surrogacy agreement as an intended parent they are excluded by the definition in s 8(3) of the Surrogacy Act from being a birth parent. This does not take away from the fact that they are a biological parent but accords with the provision that they have no rights or liabilities as a result of the donation of the sperm.
- Published Case Name:
RBK & Anor v MMJ
- Shortened Case Name:
RBK v MMJ
 QCHC 42
20 Dec 2019