CDA & Anor v TRA[2024] QCHC 12

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for a parentage order under section 21 of the Surrogacy Act 2010 (Qld) (the Act) relating to OTL born on 13 March 2024 at the Women’s and Children’s Hospital in Adelaide, South Australia.  The child’s biological mother is TRA.
2. [2]
   The applicants (intended parents) CDA and JMB, had entered into a surrogacy agreement with TRA on 3 December 2021.  They submit that the requirements mandated by ss 22 and 25 of the Act have been complied with.
3. [3]
   Unfortunately, this matter is not without its complications.

Background

4. [4]
   CDA (wife) and JMB (husband) married on 7 June 2015.
5. [5]
   Due to several medical conditions linked to a stroke suffered in 2009, CDA is unable to carry a pregnancy.
6. [6]
   CDA and JMB first engaged with TRA on 24 September 2019 via the “Australian Surrogacy Community” Facebook Group and they quickly developed a close relationship.
7. [7]
   Knowing that CDA and JMB wanted to start a family, TRA offered to be their surrogate after their first in-person meeting in November 2019.  The original surrogacy agreement was signed by TRA on 29 September 2020 and by CDA and JMB on 8 October 2020.  At that time CDA and JMB were 31 and 30 years of age respectively.  TRA was 25 years of age and was a single parent to three children.  She was not in a relationship.
8. [8]
   Prior to signing the agreement, all had undertaken counselling and had obtained independent legal advice as required by s 22(2)(e)(ii) and s 22(2)(e)(i)(A) and (B) of the Act.
9. [9]
   That agreement provided that TRA would accept the implantation of an embryo from the egg and sperm of the intended parents or from a donor egg fertilised by the intended father’s sperm, with the intention that any child born of the pregnancy that followed from this implantation would be ‘relinquished to and treated as the child of the intended parents’.^[1]
10. [10]
    This agreement was made under the Act as the intended parents resided in Queensland.^[2]  It was also agreed that the parties intended for all procedures by which the embryo or embryos would be transferred to the birth mother would occur at a clinic in Brisbane.
11. [11]
    Unfortunately, many subsequent attempts consistent with the agreement failed to produce a pregnancy.
12. [12]
    The intended birth mother then offered to use her own eggs to create an embryo by fertilisation with JMB’s sperm.  Due to a series of unfortunate events, that also proved to be unsuccessful.
13. [13]
    CDA and JMB were then offered three donor embryos from friends.  Implantation occurred in respect of two of them.  The third was unviable.  Once again, these implantations failed to produce a successful pregnancy.  The first of these two implantations occurred on 6 December 2021.
14. [14]
    Three days before that, on 3 December 2021, the parties entered into a second surrogacy agreement.^[3]  That agreement expanded the manner in which a pregnancy may occur to include an implantation of one of TRA’s own harvested eggs fertilised with the sperm of JMB or of a donor embryo.  The other difference between the two agreements was that in the first, all procedures for the transfer of embryos would occur in Brisbane whereas in the second this was varied to ‘such other location as agreed between the parties’.  In all other respects the two agreements were identical.
15. [15]
    In somewhat of a contradiction, s 1.2 of the amended agreement defined “child” or “children” to mean:

• any child or children from the egg and semen of the intended parents; or
• from a donor egg and sperm of JMB; or
• from an egg harvested from the birth mother and the sperm of JMB; or
• from a donor embryo,

carried by the birth mother under this agreement.

16. [16]
    The agreement defined “embryo” to mean:

‘any egg from CDA, the birth mother or a donor that has been fertilised by JMB’s sperm under this agreement.’

17. [17]
    It is quite clear that this amended agreement was entered into to ensure that, at the very least, the procedure which was to occur three days later would, if successful, result in a pregnancy and birth under the agreement (as amended).
18. [18]
    Of course, under this amended agreement, a child from a donor egg fertilised by the semen from JMB has an identical definition to a child from a donor embryo.  That ambiguity and inconsistency is of no particular relevance to this matter however.
19. [19]
    The second attempt at pregnancy by implantation of a donor embryo occurred in July 2022.  After learning that it failed, CDA felt emotionally depleted and decided that she could not continue with these attempts and she advised her treating gynaecologist and fertility specialist that she and JMB were discontinuing treatment.^[4]
20. [20]
    After that failed attempt, they continued to be in contact with TRA but on a more limited basis, knowing that TRA intended to donate more of her eggs to others.^[5]
21. [21]
    As stated earlier, at the time of entering into the original and the amended surrogacy agreements, TRA was not in a relationship. 
22. [22]
    That changed on 26 February 2022 when she commenced a de facto relationship with NGE who was 31 years of age at the time.  NGE has two children from a previous relationship.  TRA advised CDA and JMB of this relationship at the time of its commencement.
23. [23]
    Then, on 10 June 2023, TRA and NGE naturally conceived OTL (the subject child).  They became aware of this pregnancy on approximately 10 July 2023 and advised CDA and JMB of it on 14 July 2023.  During that conversation TRA advised that she and NGE could not support another child and suggested that the amended surrogacy agreement continue to allow for the transfer of parentage to occur in respect of OTL.  After discussion between themselves and with family and friends, CDA and JMB accepted the offer two days later.
24. [24]
    From that point on, the parties acted pursuant to the requirements of the amended surrogacy agreement in all respects, including being present at the birth and having the fulltime responsibility for the care of OTL from that time on.

The Act

25. [25]
    Section 5 of the Act provides that its main objects are –

    1. 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
    2. 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. to establish procedures to ensure parties to the arrangement understand its nature and implications; and
       2. to safeguard the child’s wellbeing and best interests.
26. [26]
    Section 6 provides that the Act is to be administered according to the principle that the wellbeing and best interests of the child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
27. [27]
    Section 7 defines a surrogacy arrangement to relevantly mean an arrangement, agreement or undertaking between a woman and another person or persons under which:

    1. the woman agrees to become or try to become, pregnant with the intention that  –
       1. a child born as a result of the pregnancy is to be treated as a child, not of the woman, but of the other person or persons; and
       2. the woman will relinquish to the other person or persons custody and guardianship of a child born as a result of the pregnancy; and
    2. 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.
28. [28]
    Section 22(1) provides that the Childrens Court of Queensland may make a parentage order for the transfer of parentage of a child to the applicant or applicants, but only if it is satisfied that the provisions of s 22(2) have been complied with.  Section 22(2)(e)(iv) and (v) require, inter alia, that the surrogacy arrangement was made before the child was conceived and is in writing and signed  by the birth mother, the birth mother’s spouse (if any) and the applicant or joint applicants.
29. [29]
    Section 23(2)(a) and (b) provides that the Court may dispense with a requirement mentioned in s 22(2)(e)(v) only if satisfied that there are exceptional circumstances for giving the dispensation and the dispensation would be for the wellbeing, and in the best interests of, the child. 

Issues

30. [30]
    So, the issues in this matter are:

1. was the child born as a result of a pregnancy that arose under the surrogacy arrangement dated 3 December 2021;
2. if not, was there a verbal amendment to the arrangement agreed between the parties, prior to conception, such that the child was born as a result of a pregnancy that arose under that amendment;
3. if so, did exceptional circumstances such that the requirement that the amendment be in writing and signed by the parties ought to be dispensed with; and
4. was NGE a spouse of TRA at the time the effective surrogacy arrangement was entered into or did the existence of a surrogacy arrangement which was executed before TRA and NGE commenced a de facto relationship, mean that NGE ought be considered a “birth parent” of the child?

Submissions

31. [31]
    Submissions have only been made on behalf of the intended parents.  There is no opposition from the respondents to the Court making the orders sought.
32. [32]
    It has been submitted on behalf of the intended parents that:

1. the surrogacy arrangement dated 3 December 2021 fulfills the statutory requirements, such that there is no impediment to the Court making the order sought; or
2. alternatively, verbal amendment to the surrogacy arrangement occurred between TRA and CDA and JMB, before conception of OTL occurred; and
3. it would be appropriate for the Court to dispense with the requirement for that arrangement to be in writing and signed by the parties; and
4. that the Court would conclude that NGE fell within the definition of “birth parent” rather than “birth mother’s spouse” for the purposes of this application.

33. [33]
    In support of the submission that a verbal amendment to the surrogacy arrangement had been agreed upon by the parties, the applicants rely on the following:

    1. JMB attests that sometime in 2021, TRA asked if he and CDA would take the child if she conceived naturally and they agreed they would.^[6]
    2. JMB has also attested that he understood that TRA did not have any concerns about being the biological mother or whether she became pregnant from either assisted reproductive treatment of some kind or natural conception.  He developed this understanding when TRA said, after each of the failed attempts at pregnancy:

‘If I’m pregnant at any time, you can always try with me.’

3. CDA attests that at a time before NGE “came along”, TRA advised CDA that she was going out to a hen’s night.  CDA told her to not have too much of a wild night and TRA said in response:

‘I hope you would take and raise the baby however it came out of me and treat it as your own.’

CDA responded ‘Of course we would.’^[7]

4. CDA further attests, as does JMB, that during a different conversation, again before TRA commenced a relationship with NGE, TRA said words to the effect:

‘If I were ever to fall pregnant naturally, I would not be able to terminate the pregnancy as it goes against what I believe.  I would hope that you and JMB would raise the baby as your own’, to which CDA replied ‘Of course we would.’

5. At a time which has not been identified, when discussing matters regarding surrogacy, TRA said to CDA:

‘I am the surrogate and if I’m pregnant, you have to have the baby’, and CDA agreed.

6. JMB has attested that in December 2020, TRA said:

‘I promise you both that I am in this for the long haul and will continue this journey until I carry a baby for you even if that means I am the biological mother.’

She also said words to the following effect:

‘If I am able to donate to other people, why not to you as well, and carry also.’^[8]

34. [34]
    Both CDA and JMB attest that they were aware that the hormones that TRA was taking in 2022, to enable her to successfully donate eggs to another couple who could not conceive naturally, increased TRA’s fertility and would result in her being more likely to conceive naturally should she engage in intercourse at the time.^[9]
35. [35]
    The legal representative for the applicants (Mr Page) has submitted that accordingly, there was, before OTL was conceived, an oral agreement between the three parties that if and when TRA next became pregnant, however conceived, any resultant child would be relinquished by TRA in favour of CDA and JMB.  It is accepted, that such agreement was not in compliance with s 22(2)(e)(v) of the Act, which requires the surrogacy agreement to be in writing and signed.
36. [36]
    It is submitted that dispensation ought be given for such requirement to be in writing and signed, and that such an approach would be for the wellbeing and in the best interests of the child.  Mr Page has also submitted that in his assessment of the surrogacy arrangements, the Court is compelled by section 4(f) of the Human Rights Act 2019 (Qld) to adopt an interpretation that upholds the human rights of those concerned, particularly OTL.

Consideration

37. [37]
    Mr Page has argued that the ‘interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation’.  He then referred the Court to extrinsic material relating to such statutory interpretation including:

• the Report of the Committee for the Investigation into Altruistic Surrogacy;^[10]
• the explanatory note; and
• the second reading speech.

38. [38]
    This however, is not a matter that requires statutory interpretation.  The statutory requirements are clear and unambiguous.  One of the main objects of the Act is to provide for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement.^[11]  One of the guiding principles of the Act, pursuant to s 6(2)(b) is that the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of –

    1. how the child was conceived under the arrangement; or
    2. whether there is a genetic relationship between the child and any of the parties to the arrangement.

…

39. [39]
    Furthermore, s 6(2)(c) states that the long-term health and well-being of parties to a surrogacy arrangement and their families should be promoted.
40. [40]
    Section 6(2)(d) states that the autonomy of consenting adults in their private lives should be respected. 

Did the surrogacy arrangement include natural conception?

41. [41]
    There seems little doubt that the parties had discussed, prior to OTL’s conception, the proposition that if TRA conceived naturally, whether any child born of that pregnancy would be subject to the surrogacy arrangements.  I accept the evidence of CDA and JMB that they all agreed that would be the case, notwithstanding that TRA has provided no evidence on the topic.  The fact that TRA has acted in a way entirely consistent with the provisions of the surrogacy agreement from the time of learning of the pregnancy is strong evidence in support of that conclusion. 
42. [42]
    Such an agreement however was not reduced to writing and signed as legislatively required.  The question then is whether exceptional circumstances exist such that the Court should dispense with the requirement for the agreement to be in writing and signed.
43. [43]
    The Act itself provides an example of exceptional circumstances for dispensing with the requirement under s 22(2)(g)(ii) (that each joint applicant is resident in Queensland).  The example provided is:

One of the joint applicants is temporarily residing outside Queensland because of work commitments but is still in a spousal relationship with the other joint applicant who is resident in Queensland.

44. [44]
    Whilst the legal representative for the applicants has submitted that the dispensation sought ought to be granted, little attention was directed towards what may be considered to constitute exceptional circumstances.
45. [45]
    The Court therefore must identify for itself the potential circumstances and assess whether they are exceptional, bearing in mind that any dispensation, if given, should be for the wellbeing, and in the best interests, of the child. 
46. [46]
    Those matters which appear to be of relevance in that regard are:

    1. the written surrogacy agreements were executed at a time when TRA was not in a relationship, and therefore natural conception was not at the forefront of anyone’s minds;
    2. the oral agreement was not ambiguous and the applicants had made it clear to TRA that they did not require a genetic link between either of them and a child;
    3. TRA had clearly agreed to act as a surrogate even if the pregnancy arose out of the fertilisation of one of her own eggs;
    4. repeated previously unsuccessful attempts had been made to conceive a child:

1. by use of an egg of CDA fertilised by JMB’s sperm;
2. by use of donor eggs fertilised with JMB’s sperm;
3. by use of TRA’s eggs fertilised by JMB’s sperm; and
4. by use of donor embryos.

5. TRA and NGE conceived the child at a time when TRA had ceased contraception due to the requirements of in vitro fertilisation procedures required of her to allow harvesting of her eggs for another couple who were unable to conceive naturally.  Hormonal treatment for such a process increased TRA’s fertility, which TRA must have known;
6. NGE was aware from the start of his relationship with TRA that she wanted to act as a surrogate for CDA and JMB and he was supportive of her in that regard;^[12]
7. the overwhelming inference is that TRA and NGE engaged in sexual intercourse without contraception in the knowledge and belief that if a pregnancy occurred it would fall within the terms of the surrogacy agreement;
8. one of the nominated methods of conception in the surrogacy arrangement involved the use of an egg of the birth mother – albeit by in vitro fertilisation procedures;
9. all post conception requirements as per the surrogacy arrangement and in accordance with the Act were honoured; and
10. the failure to reduce to writing the potential for natural conception to be the cause of conception under the agreement was, inferentially, an oversight by well meaning non-lawyers who have demonstrated, on balance, that there was no misunderstanding, uncertainty or ambiguity as to what had been verbally agreed.

47. [47]
    The term “exceptional circumstances” is not legislatively defined.  It is a term which appears in other legislation however and has been the subject of judicial interpretation.  Section 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) provides that in sentencing a person for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation offence the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.   That Act also does not attempt to define or confine what amounts to exceptional circumstances. 
48. [48]
    In Baker v The Queen,^[13] Gleeson CJ said:

There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of a power.  This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition.  That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.^[14]

49. [49]
    Callinan J, in the same case, endorsed Lord Bingham of Cornhills’ description of the characteristics applicable to “extraordinary circumstances” as equally applicable where “special reasons” was the term under consideration.^[15]  He went on to observe:

It may be that it is only in combination, or in increasing degrees of relevance and importance that circumstances may come to be, or provide special reasons.^[16]

50. [50]
    After considering these statements, the Court of Appeal in R v Tootell; ex parte A-G (Qld)[17] said:

What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional.  Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.^[18]

51. [51]
    With that approach in mind, I am satisfied that the combination of matters as identified above, constitutes exceptional circumstances in this matter. In fact, Mr Page has informed the Court that his research has revealed that there is no other case worldwide that involves such circumstances.  Such a conclusion also sits well with the legislative objective of safeguarding the child’s well-being and best interests and allows for the Act to be administered pursuant to the mandatory requirements of section 6.
52. [52]
    In other words, I am satisfied that such a conclusion as to “exceptional circumstances” results in:

    1. the recognition of the principle that the wellbeing and best interests of OTL, both through childhood and for the rest of his life is paramount;
    2. recognition of the principles that:

1. OTL will be cared for in a way that ensures a safe and nurturing family and home life;^[19]
2. promotes openness and honesty about his parentage;^[20] and
3. promotes the development of his emotional, mental, physical and social wellbeing.^[21]
   3. promotion of the long-term health and wellbeing of the parties; and
   4. respects the autonomy of consenting adults in their private lives.

Is NGE a “birth parent” or “TRA’s spouse” under the Act?

53. [53]
    The final matter to be decided is whether NGE can be classified as a birth parent or the birth mother’s spouse.

“Birth mother’s spouse” means the birth mother’s spouse at the time the birth mother entered into the surrogacy arrangement.^[22]

“Birth parent” of a child, relevantly means a person who is recognised at law as being a parent of the child at the time the child is born.^[23]

54. [54]
    This is an important issue because the Act requires a birth mother’s spouse to obtain independent legal advice and counselling from an appropriately qualified counsellor about the surrogacy arrangement and its implications before entering into the surrogacy arrangement,^[24]  whereas, a birth parent merely needs to consent to the making of a parentage order.^[25]  NGE has not had independent legal advice or counselling.
55. [55]
    There is no doubt that NGE is OTL’s biological father.  His status in that regard is confirmed on OTL’s birth certificate.^[26]
56. [56]
    As I have already indicated, I am satisfied that the “verbal” agreement to include a child born as a result of natural conception in the surrogacy agreement occurred between CDA and JMB and TRA before TRA was living in a de facto relationship with NGE.  Therefore, at the time of entering into “the agreement”, NGE was not the “birth mother’s spouse”.
57. [57]
    It follows, that under the Act, NGE is a “birth parent” and is therefore under no obligation to receive legal advice or counselling.  He is required to consent to the making of a parentage order at the time of the hearing, which he has done by way of affidavit which is compliant with the requirements of s 29 of the Act.

Conclusion

58. [58]
    It follows that I am satisfied that all of the statutory preconditions to the making of a parentage order have been met.  I have not detailed all of those preconditions in the course of this judgment as it is unnecessary to do so.

Orders

1. The requirement, that the agreement between the parties that natural conception be included as part of the surrogacy arrangement, be in writing and signed, is dispensed with.
2. Orders as per draft.