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  • Unreported Judgment

KRB and BFH v RKH and BJH

 

[2020] QCHC 7

CHILDREN’S COURT OF QUEENSLAND

CITATION:

KRB and BFH v RKH and BJH [2020] QChC 7

PARTIES:

KRB and BFH

Applicant

v

RKH and BJH

Respondent

FILE NO:

4/2020

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Application pursuant to s 22(1) of the Surrogacy Act 2010 (Qld)

ORIGINATING COURT:

Children’s Court of Queensland at Townsville

DELIVERED ON:

27 February 2020

DELIVERED AT:

Townsville

HEARING DATE:

27 February 2020

JUDGE:

Coker DCJ

ORDER:

  1. That pursuant to section 22(1) of the Surrogacy Act 2010 (Qld) parentage of PDH born 1 August 2019 be transferred from RKH and BJH to KRB and BFH.
  2. That RKH and BJH relinquish to KRB and BFH custody and guardianship of PDH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order be declared inapplicable.
  3. That KRB and BFH become permanently responsible for the custody and guardianship of PDH.
  4. The following details are set out pursuant to section 34 of the Surrogacy Act 2010 (Qld). It is declared that:
  1. (i)
    The name of the child before the order was made was PDH;
  2. (ii)
    The name of the child on the making of the Order is PDH;
  3. (iii)
    The child, PDH, was born on 1 August 2019;
  4. (iv)
    The place of birth was at the Flinders Medical Centre, Bedford Park in the State of South Australia;
  5. (v)
    The applicant’s names, addresses and occupations are respectively KRB of Townsville in the State of Queensland, Emergency Medical Dispatcher and BFH of Townsville in the State of Queensland, Senior Field Technician;
  6. (vi)
    The respondent’s names, addresses and occupations are respectively RKH of Aberfoyle Park in the State of South Australia, Home Duties and BJH of Aberfoyle Park in the State of South Australia, I.T. Manager.
  1. That pursuant to section 41D of the Births, Deaths and Marriages Registration Act 2003 (Qld), that the applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of the child, PDH who has a South Australian Birth Certificate Registration Number registered in Adelaide on 25th October 2019.
  2. That the Applicants pay the costs of the respondent of the Application.

CATCHWORDS:

APPLICATION – SURROGACY ACT 2010 (QLD) – PARENTAGE ORDER – where there is an application for a parentage order pursuant to s22(1) of the Surrogacy Act 2010 (Qld) – where the applicants and the respondents entered into a surrogacy agreement prior to completion – where medical and social needs were identified so as to require surrogacy – where all statutory requirements had been addressed and met – where the surrogacy agreement was found to be altruistic and in no way to constitute a commercial surrogacy agreement – where circumstances existed to exercise the discretion available to make a parentage order – where a parentage order was made.

LEGISLATION:

Surrogacy Act 2010 (Qld) ss 5, 6, 7, 10, 11, 14, 19, 22, 25, 32

Surrogacy Act 2010 (NSW) ss 30

Family Relationships Act 1975 (SA)

CASES:

LWV & another v LMH [2012] QChC 26

COUNSEL:

 

SOLICITORS:

S Page of Page Proven for the applicants

M Redman-Lloyd of Adelta Legal for the respondents

  1. [1]
    Rarely, if ever, are the Courts of the land asked to make orders pursuant to an application that is described, as it is in the submissions that are before me, as a “good news story.”  This is one of those rare and wonderful occasions.  It has been described in another case of a similar nature by Judge Clare QC, when speaking of the child, as a precious gift, much loved by his family and a miracle of modern medicine.  The child the subject of these proceedings is exactly that. 
  1. [2]
    This is an application, pursuant to the provisions of section 22(1) of the Surrogacy Act 2010 Queensland.  The applicants are KRB and BFH.  The respondents are RKH and BJH.  On the 24th of January 2020, the application was filed in this Court seeking a parentage order relating to the child, PDH (“Baby P”). 
  1. [3]
    Baby P was born on the 1st of August 2019 at the Flinders Medical Centre, Bedford Park, Adelaide in South Australia.  However, it was the case, as required in relation to a determination of this nature, that the applicants and the respondents had previously entered into a surrogacy agreement on the 22nd of November 2017. 
  1. [4]
    The applicants are the intended parents, KRB and BFH, and they seek a parentage order.  KRB and BFH are Baby P’s biological parents.  RKH and BJH are named as his parents on Baby P’s birth certificate, which is registered in South Australia.
  1. [5]
    Both RKH and BJH support the parentage order application that is made. 
  1. [6]
    As is obvious, the purpose of these proceedings is not to change in any way the physical arrangements for the care of Baby P, but rather to obtain the Courts, and therefore the State’s, imprimatur to allow the intended parents KRB and BFH, to be recognised at law as Baby P’s parents. 
  1. [7]
    The applicant BFH does not have other children and, as I understand his affidavit material, indicates that he has wanted to have a child and to be a father.  KRB has two sons of a previous relationship.  Unfortunately, she had medical issues that stemmed from her previous pregnancies and she needed to have a partial hysterectomy some time ago.
  1. [8]
    Her desire, however, with her partner BFH, was to have another child, and they discussed how that might be arranged once their relationship became more established.  It is clear that it is incredibly important to them to have that child, and they have been delighted, as is obvious, with the arrival of their son Baby P and with him having come into their lives. 
  1. [9]
    Australia is a signatory to the International Convention on the Rights of a Child.  Article 8 of the convention is relevant here.  It relates to states entering into particular agreements with regard to the rights of children.  Article 8 in particular provides:

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law, without unlawful interference.

  1. [10]
    And secondly:

Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. 

  1. [11]
    These considerations are reflected in the Surrogacy Act 2010 Queensland, sections 5 and 6.  Section 5 relates to the objects of the Act and is in these terms:

5 Main objects of Act

The main objects of this Act are -

  1. (a)
    To regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and
  1. (b)
    In the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result:
  1. (i)
    to establish procedures to ensure parties to the arrangement understand its nature and implications, and
  1. (ii)
    to safeguard the child’s wellbeing and best interests. 
  1. [12]
    Section 6 then goes on to detail what are called the ‘Guiding Principles’, and I note in particular that they are as follows:

6 Guiding principles

  1. (1)
    This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount. 
  1. (2)
    Subject to subsection (1), this Act is to be administered according to the following principles: 
  1. (a)
    A child born as a result of a surrogacy arrangement should be cared for in a way that
  1. (i)
    ensures a safe, stable and nurturing family and home life; and
  1. (ii)
    promotes openness and honesty about the child’s birth parentage; and
  1. (iii)
    promotes the development of the child’s emotional, mental, physical and social wellbeing.
  1. (b)
    The same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of –
  1. (i)
    how the child was conceived under the arrangement; or
  1. (ii)
    whether there is a genetic relationship between the child and any of the parties to the arrangement; or
  1. (iii)
    the relationship status of the persons who become the child’s parents as the result of a transfer of parentage.
  1. (c)
    The long-term health and wellbeing of parties to a surrogacy arrangement and their family should be promoted, and
  1. (d)
    The autonomy of consenting adults in their private lives should be respected.
  1. [13]
    The parties to this application have been mindful of these guiding principles and have done all that they can to comply with the law, and they now seek that the law’s protection for Baby P be provided through the parentage order.
  1. [14]
    The Act sets out rigorous conditions for the protection of all involved, including the birth mother and the child.  Section 22(1) of the Surrogacy Act provides for the Court to have the power to make a parentage order for the transfer of parentage of a child to, in this case, the joint applicants.  Subsection (2), however, provides that the Court may make the parentage order only if it is satisfied of all of the matters that are detailed in section 22(2) of the Act.  Section 22 is in these terms:

22 Making a parentage order

  1. (1)
    On an application under this part, the court may make a parentage order for the transfer of parentage of a child to the applicant, or joint applicants.
  1. (2)
    The court may make the parentage order only if it is satisfied of all of the following matters—
  1. (a)
    the proposed order will be for the wellbeing, and in the best interests, of the child;
  1. (b)
    the child—
  1. (i)
    has resided with the applicant, or joint applicants, for at least 28 consecutive days before the day the application was made; and
  1. (ii)
    was residing with the applicant, or joint applicants, when the application was made; and
  1. (iii)
    is residing with the applicant, or joint applicants, at the time of the hearing;
  1. (c)
    the applicant, or joint applicants, were entitled to apply under section 21;
  1. (d)
    there is evidence of a medical or social need for the surrogacy arrangement;
  1. (e)
    the surrogacy arrangement—
  1. (i)
    was made after—
  1. (a)
    the birth mother and the birth mother’s spouse (if any), jointly or separately; and
  1. (b)
    the applicant, or joint applicants (jointly or separately); obtained independent legal advice about the surrogacy arrangement and its implications; and
  1. (ii)
    was made after each of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants, obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications; and
  1. (iii)
    was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants; and
  1. (iv)
    was made before the child was conceived; and
  1. (v)
    is in writing and signed by the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants; and
  1. (vi)
    is not a commercial surrogacy arrangement;
  1. (f)
    the birth mother and the birth mother’s spouse (if any) were at least 25 years when the surrogacy arrangement was made;
  1. (g)
    the applicant, or each of the joint applicants—
  1. (i)
    was at least 25 years when the surrogacy arrangement was made; and
  1. (ii)
    is resident in Queensland;
  1. (h)
    the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant, or joint applicants, consent to the making of the parentage order at the time of the hearing;
  1. (i)
    a surrogacy guidance report under section 32 supports the making of the proposed order.
  1. [15]
    As such, there is much to be addressed and much that the Court must be satisfied of.  As appropriately, and as quickly, as I am able I will address these matters.  The application for a parentage order ordinarily ought to be made not less than 28 days and not more than six months after the child’s birth.  That has been attended to here, the application having been filed on the 24th of January 2020, and the child the subject of the application, having been born on the 1st of August 2019. 
  1. [16]
    Secondly, on the date of the filing of the application, the child must have lived with the applicants for at least 28 consecutive days.  That has clearly been the case.  On the date of filing, the 24th of January 2020, Baby P had been living with the applicants since Tuesday, the 27th of August 2019.  Baby P was, in fact, originally discharged from the Flinders Medical Centre on the 2nd of August, however, there were some medical issues that needed to be dealt with, such that he was re-admitted on the 4th of August 2019.  What is clear, however, is that since the 27th of August 2019 and to the present, Baby P has remained permanently and properly in the care of the applicants.
  1. [17]
    Thirdly, the Court must be satisfied that at the time of filing the application, the child was residing with the applicants and that is the case, as I have already indicated in these reasons.  Additionally, at the time of the hearing, the child is residing with the applicants, and, again, that is abundantly clear, noting that both the applicants and the child are before the Court.
  1. [18]
    Additionally, the applicants must have made the application jointly if they are a couple, and the originating application refers to the two applicants herein, as a de facto couple. 
  1. [19]
    There must also be evidence of a medical or social need for the surrogacy arrangement.  In that respect, section 14 of the Surrogacy Act is relevant.  However, rather than detailing the entirety of the section I note the following.  Section 14 commences:

14 Meaning of medical or social need for a surrogacy arrangement and eligible woman

  1. (1)
    For an application for a parentage order-
  1. (b)
    if there are 2 intended parents under the surrogacy arrangement - there is a medical or social need for the surrogacy arrangement if the intended parents are
  1. (i)
    a man and an eligible woman.
  1. [20]
    And additionally, subsection (2), which provides:
  1. (2)
    An eligible woman is a woman who –
  1. (a)
    is unable to conceive. 
  1. [21]
    The medical and social needs are obviously addressed in the material that has been provided.  I note particularly the affidavit under the hand of Dr M where the doctor states:

KRB had a medical hysterectomy at 28 years of age due to ongoing bleeding issues.  Due to this, a surrogate was required to carry a pregnancy;  therefore, she should be an eligible woman within the meaning of section 30, subsection (3)(a) of the Surrogacy Act 2010 New South Wales to be in need of a surrogacy agreement.

  1. [22]
    Dr M goes on:

KRB underwent three IVF treatment cycles in October 2017, January 2018 -

  1. [23]
    although I think it says 2016 in the affidavit –

and May 2018. 

  1. [24]
    It then goes on:

Oocytes collected during these three cycles were fertilised using her partner BFH’s semen.  These embryos were genetically tested and then cryopreserved. 

  1. [25]
    I should note specifically, that Dr M referred to the Surrogacy Act (New South Wales) it being the case that the doctor practices in New South Wales, but it is in identical and reflective terms within the Surrogacy Act 2010 of Queensland.
  1. [26]
    The submission is therefore made that, in light of Dr Ms’ evidence, KRB, the applicant mother here, is an eligible woman because she is unable to conceive as defined pursuant to the provisions of section 14(2)(a) of the Surrogacy Act.  I find that to be the case.
  1. [27]
    It is also noted in the affidavit of the psychologist, Dr O, that the information referred to by Dr M has also been recounted to Dr O.  I do not need to recount that again here, other than to say that it clearly confirms and satisfies me as to the needs arising, in relation to this particular matter. 
  1. [28]
    There is also ample evidence before the Court to show a social need for the surrogacy arrangement.  In particular, reference is made in the submissions to the various statements contained within the affidavits under the hand of both the applicant, KRB, and the applicant, BFH.  What is referred to in the affidavit of KRB is the following:

In 2005 I had to have a partial hysterectomy due to complications from my last birth and some other medical complications.  I became aware about surrogacy when I had my hysterectomy but never got into much of the details until BFH and myself discussed having a child together. After looking into a uterine transplant that was a free trial in Australia BFH was not comfortable with me having a 40-hour operation that may or may not work.  It was only a new procedure, and he did not want anything happening to me in the process.  We then went into learning about surrogacy and gaining information about it and how it all worked and might work for us. 

  1. [29]
    She then continues:

I went through three rounds of IVF to gain eggs required for fertilisation.  We got six eggs in the first round, but we did not get any embryos due to the fertility clinic doing the wrong procedure on the eggs.  They were supposed to do ICSI, but there was an administrative error in the instructions that went to the lab, so we had to go for a second round of IVF. The second egg harvest provided 10 eggs, but none were viable after genetic testing as we only got one mosaic embryo that they did not wish to use.  We then went for a third round of IVF where we got 23 eggs, where 18 of those fertilised but only two embryos made it through genetic testing.  One of those embryos became our Baby P.

  1. [30]
    Similar statements are made by BFH where, in his affidavit, he says:

I had always thought that I would be a father and that having a family would naturally flow.  Both KRB and I wanted to have children together; however, when I knew that it would not be possible naturally, we then started to consider all the possibilities, including surrogacy, as a way of becoming parents.

  1. [31]
    And he continues:

KRB and I discussed surrogacy in depth over the course of a year, and decided to take a leap and begin our journey.

  1. [32]
    Similarly, Dr O, in the report provided, refers to the motivations of the respondent, RKH, in relation to this matter, and her journey to becoming a surrogate and the altruistic nature of her actions in relation to this matter. 
  1. [33]
    And finally, similar statements with regard to the obvious social needs arise from the statements contained within the affidavit under the hand of the counsellor, Ms E.  Ms E states in her report the following:

In my opinion, whilst this particular surrogacy has been challenging for the participants, to date, there has not been any adverse consequences for either Baby P, his parents or his surrogate mother or her family.  At interview, the adults told their story candidly and with good humour.  All being fundamentally well-adjusted, they simply accept the difficulties as part of the process.  They do not view them in terms of complaint or blame or otherwise personalise them.  Rather, any “problems” were simply a function of the circumstances at the time.  In this regard, all the adults appear to have found closure about the surrogacy.  In fact, all the assessment indicators are that this particular surrogacy has been successfully concluded with Baby P’s peaceful transition to his parents. 

  1. [34]
    It is clear that there has been a social need that arises as a result of the medical circumstances that face the applicants, KRB and BFH.  It is also clear that the social need was able to be met altruistically by RKH with the support of her husband BJH
  1. [35]
    It is necessary, obviously, to comment upon that, and I shall do so later in relation to the commercial aspects of the matter, but I do note that Dr O states, in relation to BFH and KRB at the conclusion of the report, the following:

KRB and BFH stated they are confident that RKH and BJH have completed their family and they have no concerns that RKH will change her mind with regards to being a surrogate. They reported that RKH had been very keen to advance the process.  Both KRB and BFH stated that they understand that the decision to proceed is up to RKH and BJH and that they cannot be forced to continue should they change their minds. 

  1. [36]
    Those were prophetic words.  It has been exactly that case which has arisen, and it clearly indicates and satisfies me as to the social needs that arose, specifically with regard to the birth of Baby P.
  1. [37]
    Additionally, I must then be satisfied that the surrogacy arrangement was made after the parties obtained independent legal advice about the surrogacy arrangements, and that clearly is addressed by the fact that each received surrogacy advice.  Affidavits by the respective legal representatives have been filed in relation to this matter.  And, in fact, it is clear that both the applicants and the respondents received that advice before entering into the surrogacy arrangement to which I have made reference.
  1. [38]
    Additionally, I must be satisfied that each of the parties obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement, and its social and psychological implications.  Appropriately qualified is defined in section 19 of the Surrogacy Act, and again, as is relevant here, provides:

19 Definitions for chapter

In this chapter —

Appropriately Qualified means —

  1. (a)
    For a counsellor swearing an affidavit verifying a report prepared by the counsellor, a person who
  1. (i)
    is one of the following —
  1. (C)
    a psychologist who is a member of the Australian Psychological Society.
  1. [39]
    The counselling that was provided in this matter was pursuant to the assistance provided by Dr O.  In her affidavit, she clearly demonstrates that she is appropriately qualified, noting, as her affidavit does, that she is:
  1. A psychologist with general registration, endorsement as a clinical psychologist;
  2. She is a member of the Australian Psychological Society; 
  3. She is a member of the Australian and New Zealand Infertility Counsellors Association;
  4. She is a member of the Fertility Society of Australia; and
  5. She has the necessary experience, skills and knowledge appropriate to prepare the report as clearly as it has been set out in her curriculum vitae. 
  1. [40]
    It is apparent, therefore, that she has those necessary skills to be properly recognised as appropriately qualified, and her extremely thorough report addresses the various issues that were examined and identified by her. 
  1. [41]
    Further, I need to be satisfied that the surrogacy arrangement was made with the consent of the birth mother and with the consent of the applicants.  Section 7 of the Surrogacy Act defines a surrogacy arrangement as meaning:

7 Meaning of surrogacy arrangement

  1. (1)
    A surrogacy arrangement means an arrangement, agreement or understanding between a woman and another person or persons under which—
  1. (a)
    the woman agrees to become, or try to become, pregnant with the intention that—
  1. (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
  1. (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
  1. (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.
  1. [42]
    There is perhaps little more that needs to be said than that, the proof is in the pudding.  That is exactly what is occurring in this time. 
  1. [43]
    It needs also to be clear that the surrogacy arrangement was made before the child was conceived, and I note in that regard specifically, reference to the decision of her Honour Judge Clare SC of this Court in LWV & another v LMH [2012] QChC 26, where her Honour specifically made reference to the requirements in relation to what conceived means.  She notes at paragraph 7 of her judgment the following:

The Act offers no definition.  This appears to be the first time a Court has been asked to interpret sections 2(e)(iv). Nonetheless, the answer seems straightforward.  Whatever approach to statutory interpretation is applied, whether it is to view “conceive” as a technical term, or in its everyday meaning, or the meaning that best advances the purposes of the Act, the result is the same.  The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body.

  1. [44]
    Again, that has clearly occurred here.  And the evidence, particularly under the hand of Dr M, notes the transfer being effected on the 29th of November 2018, where Dr M says:

RKH underwent frozen embryo replacement cycle in November 2018 where one of the cryopreserved embryos from KRB and BFH’s past treatment was transferred on the 29th of November 2018.  Pregnancy test performed on the 10th of December 2018 confirmed the pregnancy.  Her conception date was the 1st of December 2018 and this pregnancy resulted in the birth of Baby P on the 1st of August 2019. 

  1. [45]
    Clearly, Dr M’s view is consistent with that determination of Judge Clare SC with regard to conception being the act of the commencement of the pregnancy, and it is clear that the surrogacy arrangement predated that conception. 
  1. [46]
    Further, I must be satisfied that the surrogacy arrangement is in writing and is signed by the birth mother, the birth mother’s spouse and the applicants.  I need say no more than I have sighted the surrogacy agreement, and it is clear that that has occurred.
  1. [47]
    What is particularly relevant and required to be considered is the fact that the surrogacy arrangement is not a commercial surrogacy arrangement.  Commercial surrogacy arrangement is defined in section 10 and notes that:

10 Meaning of commercial surrogacy arrangement

A surrogacy arrangement is a commercial surrogacy arrangement if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person —

  1. (a)
    agreeing to enter into or entering into the surrogacy arrangement; or
  1. (b)
    permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
  1. (c)
    consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.
  1. [48]
    It is clear that the evidence of the parties in relation to the surrogacy arrangement here and, in fact, contained within the surrogacy arrangement is the agreement between the parties.  It is an arrangement made between them.  Not a commercial arrangement, but rather one that can and should properly be referred to as an altruistic arrangement.  It is to the benefit of all that it has occurred. 
  1. [49]
    It is also appropriate to note, in that regard, that the surrogacy arrangement states, that the purpose and intent of the arrangement is that it is a surrogacy arrangement within the meaning of the Surrogacy Act 2010 Queensland, and insofar as necessary, the Family Relationship Act 1975 South Australia. 
  1. [50]
    In the recitals, at recital M, it specifically notes that it is intended for this surrogacy arrangement to be an altruistic surrogacy arrangement, not a commercial surrogacy arrangement.  And as is contemplated by the Act, it specifically provides within the surrogacy arrangement that the surrogacy costs to be paid by the applicants, KRB and BFH, were clearly contemplated to only occur within the terms of section 11 of the Surrogacy Act, and that the surrogacy arrangement is therefore clearly not a commercial one. 
  1. [51]
    In fact, the affidavit under the hand of RKH specifically notes that the surrogacy arrangement is not a commercial surrogacy arrangement, but rather notes that she and her husband BJH have not received any payment, reward, or other material benefit or advantage, other than the surrogacy costs in consideration for entering into the surrogacy arrangement.  I am satisfied beyond any doubt that there is no commercial element whatsoever to the surrogacy arrangement that was entered into between the applicants and the respondents.
  1. [52]
    Further, I need to be satisfied that the birth mother and the birth mother’s spouse were at least 25 years of age when the surrogacy arrangement was made, and in that regard, the affidavit that has been provided to me, again, clearly details the information with regard to RKH and BJH dates of birth, noting that at the time of entry into the surrogacy arrangement, RKH was 31 years of age and BJH was 34 years of age. 
  1. [53]
    Similarly, the joint applicants must be able to satisfy me that when the surrogacy arrangement was made, they were at least 25 years of age.  And again, the affidavit material clearly indicates that KRB was 40 years of age when the surrogacy arrangement was entered into and BFH was 33 years of age.
  1. [54]
    Additionally, I need to be satisfied that at the time of hearing today, the applicants were resident in Queensland, and in that regard, I note leave having been granted to read and file the joint affidavit of KRB and BFH and note, of course, that they continue to reside at the address noted in the original application and accompanying material.  And that for that purpose, the requirement with regard to residency at the time of the hearing of the application is met.
  1. [55]
    Additionally, I need to be satisfied that all parties consent to the making of the parentage order, and in that regard, I need note no more than that the affidavits that have been filed all reflect that agreement as between the parties.  And of course the fact that those present here, again, through their legal representatives, confirm that the agreement of all continues and is present.
  1. [56]
    I need also, in relation to this matter, to be satisfied that a surrogacy guidance report, pursuant to the provisions of section 32 of the Act, has been provided and that it supports the making of the proposed order.  This is the report that has been prepared by Ms E, and that report clearly indicates that she is an appropriately qualified counsellor and that she has attended to the preparation of the report.  Ms E clearly has the experience, skills and knowledge appropriate to prepare the report, and has completed previous surrogacy guidance reports.  She notes in the report the following:

With Baby P’s birth and handover into the full-time care of his biological parents, KRB and BFH now request the Court make orders giving Baby P his full legal rights and entitlements consistent with his lived experience as a member of their family.  Both BJH (aged 36 years) and RKH reported they are in full agreement with this.  They, as well as KRB and BFH, want Baby P to have the same rights, privileges and legal entitlements as any other blood child in their family. 

Baby P’s conception comes after a long difficult journey and subsequent realisation for KRB that she would never be able to carry another child.  Having already had two older sons from a previous relationship, KRB said the stress of her unexpected health complications from these births undermined her relationship with those boys’ father and they separated. 

  1. [57]
    And Ms E continues:

Altogether, the baby’s health has caused the parents a lot of stress and worry. However, it was observed their excellent personal relationship is a constant source of strength to them.  They are warm and caring towards each other (and KRB’s youngest son), as well as towards their baby.  They appear to have the emotional and physical resources to cope with whatever the future brings.

  1. [58]
    And she concludes:

It is evident Baby P is a much wanted child who is well provided for now and into the future.  Baby P has been born into a happy, loving, nurturing home environment.

  1. [59]
    She makes similar comments in relation to RKH and BJH, and the circumstances upon which they entered into the surrogacy arrangement, noting the altruistic nature of their offer to provide the assistance that was so desperately needed on the part of KRB and BFH, as well as noting the clearly settled nature of the environment that exists.  She says in her report the following:

During the home visit, Baby P presented a normal, healthy six-week old baby boy.  He was observed to happily snuggle into his parents’ arms and did not make any fuss at all during the home visit.  He looked particularly contented and well cared for by his parents.  Whilst he has a primary attachment to his mother, it was also observed that his father spontaneously lovingly and gently assumed the parenting role as required.  He competently carried the baby about and tended to his needs.  Both parents appear competent and nurturing.  He is breastfed on demand and appears delightfully content, age and stage appropriate.  The child appears to have everything he needs, both emotionally and physically.

  1. [60]
    It is clear that the arrangements here have been an unmitigated success.  Ms E concludes her report by saying:

From assessment, all the participants came together out of altruism to make the KRB and BFH family grow.  This transaction does not appear to have been motivated by any financial interest.  On the contrary, the actions of the surrogate parents were driven and sustained by their Christian faith and their own fundamental beliefs about charity and suffering. 

  1. [61]
    And finally, I must obviously be satisfied in relation to issues with regard to the orders that are sought being for the wellbeing and in the best interest of the child, both through the child’s childhood and, in fact, for the rest of his life.  In submissions that are made in relation to this matter, it is emphasised, quite properly, that this is the paramount concern.  And it is submitted, and I accept, that it is plainly in Baby P’s best interest for KRB and BFH, with whom he has lived for all of his short life, to be recognised at law as his legal parents now and for the entirety of his life. 
  1. [62]
    It cannot be in his best interest, it is submitted, for RKH and BJH to retain any form of legal right or responsibility in relation to Baby P, noting, as I do, that Baby P is much loved and well cared for.  He is happy and settled in the care of KRB and BFH, and is much cherished by their family.  This is the position that is also supported by RKH and BJH, and is reflected in the report of Ms E.
  1. [63]
    It is clear that the reports that have been provided all point to the excellent quality of the care that has been provided for Baby P and which I have no doubt will continue, in relation to the parenting of the child.  It is submitted, and again I accept without hesitation, that to not make a parentage order would be to place Baby P in a place of great legal uncertainty as to discrimination issues, it being the case that his birth certificate would note his parents as being different to those who are providing care for him.
  1. [64]
    There are also a number of other issues that are identified, including issues with regard to possible concerns with regard to medical treatment and the health of the child.  Issues that might arise with regard to future education and even basic bureaucratic matters that might arise, for example, with regard to obtaining Medicare and other family care and provision for the child.
  1. [65]
    In the distant future there may also be issues that would arise in relation to succession and succession law, relating not only to the KRB and BFH family, but of course also, if the orders were not made, in relation to the RKH and BJH family.  Accordingly, if no order were made, Baby P would remain as exactly is the case now with KRB and BFH but would be living in a legal limbo.  As I have said, that comes with the potential for both day-to-day and long term difficulties in relation to the child.  It is particularly important that such issues therefore be addressed.  Adopting the submissions of Mr Page, for which I cannot give enough thanks, he specifically notes the following:

Section 22 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are.  It is central to his being, whether as an individual or as a member of his family.

  1. [66]
    That statement, of course, clearly reflects the article 8 considerations in the convention which has been adopted in Australia relating to the rights of the child.  Additionally, the submissions go on:

This case is fundamentally about Baby P’s identity and his relationship with the intended parents.  Fundamental as these matters may be to the intended patents they are, if anything, even more fundamental to the child.

  1. [67]
    A parentage order, it is submitted and I accept, has a transformative effect not just in its effect on the child’s legal relationships with the surrogate and intended parents, but also in relation to the practical and psychological realities of the child’s very identity.  A parentage order, like an adoption order, has an effect extending far beyond the merely legal.  It has the most profound personal, emotional, psychological, social and, maybe in some cases, cultural and religious consequence.  It creates the psychological relationship of parent and child with those far-reaching manifestations and consequences. 
  1. [68]
    The consequences are lifelong, and of course the Act requires that any determination by me in the exercise of my discretion, consider not only the child as a child, but the child for the rest and entirety of his life.  In considering an application for a parentage order, therefore, the Court is required to treat the child’s wellbeing and best interests through childhood and for the rest of his life as the paramount consideration.  There can be, in my assessment, little doubt that that is exactly what this matter is about and what is required. 
  1. [69]
    It is clearly in Baby P’s best interest to have a parentage order which will reflect the applicants, KRB and BFH, as his parents.  If a court order were not made, there would be no change in relation to the arrangements that are placed, but there would be significant further difficulties, as I have already identified.  The reality for this child is that KRB and BFH are Baby P’s parents. 
  1. [70]
    They are, in every respect, providing for and meeting his needs.  And even if it were to be the case that a parentage order was not made, they would continue providing the care, love and support that they do.  It would be, however, a more difficult passage for them and would give rise to further issues.  Perhaps applications to the Family Court, which in my assessment are, again, not focused on the needs of the child and his paramount best interest being to the fore.
  1. [71]
    It is clear in all the circumstances that the parties here have complied with the requirements of the Surrogacy Act, and that all necessary requirements have been met pursuant to the Act.  It is, in my finding, in the best interests and for the ongoing welfare of Baby P that a parentage order should be made, and I intend, without hesitation, to make such an order.
  1. [72]
    All of the statutory criteria have been met, and it is in his best interest that the parentage order should be made.  In fact, as submitted, and again, I could not agree more whole-heartedly, to not make such an order would be potentially harmful to the child.  Accordingly, I intend to exercise my discretion to make a parentage order in the terms of the draft of the order that has been provided to the Court, which I intend to sign and date, and to place with the court file.
  1. [73]
    Finally, I note that there is a specific requirement that I be satisfied as to compliance with the various matters contained within section 25 of the Act and the filing of the necessary documents.  Again, most helpfully, the submissions that have been provided specifically address the provisions of section 25, subsections (1)(a) through (i), as well as the provision of the affidavit from an appropriately qualified medical practitioner verifying the medical report, to which I have referred, which report is under the hand of Dr M.
  1. [74]
    I need say no more than I have been provided with and am satisfied that a copy of the child’s birth certificate has been filed.  A copy of the surrogacy arrangement has been provided.  Affidavits have been filed in relation to the application by each of the applicants.  There are affidavits filed and relied upon under the hands of both the birth mother, RKH and her spouse, BJH.
  1. [75]
    There is also before the Court affidavits under the hand of the applicant and respondents respective legal advisors, S Page and J Redman, addressing the issues with regard to legal advice that was required to be made.  And there are the affidavits, as I have previously made reference to, under the hand of Dr O, Ms E, and, as previously referred to, Dr M.
  1. [76]
    As I have indicated, I could not be more satisfied that it is appropriate that the orders that are sought in this matter, and I most happily make such orders.  I will direct that my reasons be published and anonymised in relation to this matter, and made available to the legal representatives.
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Editorial Notes

  • Published Case Name:

    KRB and BFH v RKH and BJH

  • Shortened Case Name:

    KRB and BFH v RKH and BJH

  • MNC:

    [2020] QCHC 7

  • Court:

    QChc

  • Judge(s):

    Coker DCJ

  • Date:

    27 Feb 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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