Surrogacy and parentage in Western Australia — current perspectives Dr Andrew Lu OAM JARMAN MCKENNA “Things are seldom what they seem, skim milk masquerades as cream.”1 Introduction In 2014, a case involving twins born of a surrogacy arrangement between Mr and Mrs Farnell (the Farnells), a Western Australian couple, and Thai surrogate mother, Ms Pattaramon Chanbua, attracted significant international attention2 and debate about commercial surrogacy. The male twin, Nareubet Minjaroen, who has come to be known as “Gammy”, was diagnosed in utero with Down syndrome and suffered from a congenital heart defect. His twin sister, Pipah, suffered no congenital abnormalities but they were born prematurely and in a poor state and required intensive care management. After the twins were born and their condition stabilised, Pipah returned to Western Australia with the Farnells, but Gammy remained with his birth mother and her family in Thailand. Various reasons for this were reported. The Farnells applied to the Family Court of WA for an order that Pipah continue to live with them in Australia while Ms Chanbua sought an order that Pipah live with her in Thailand. In Farnell v Chanbua3 (Farnell), Thackray CJ held that the girl should continue to live with the Farnells in Western Australia. The case raised a plethora of issues including questions concerning the relevant jurisdiction, human rights, child protection and parentage and this is reflected by the involvement of three interveners and an independent children’s lawyer. For the purposes of this note, Thackray CJ’s general comments about surrogacy are of most interest. Surrogacy in Western Australia Surrogacy “for reward” and entering a commercial surrogacy arrangement is forbidden and an offence in Western Australia.4 However, a birth mother may be reimbursed for reasonable expenses associated with the pregnancy, such as reasonable medical expenses and leave taken for medical reasons.5 At the time the Farnells entered into the surrogacy arrangement with 78 Ms Chanbua, commercial surrogacy in Thailand was unregulated. International commercial surrogacy is now also forbidden in Thailand, partly as a result of the controversy of this case. One of the early surrogacy cases in Western Australia, W v C6, set the scene for the matters of public policy that fell to be considered in Farnell. Since W v C was decided, Thackray CJ observed that commercial surrogacy arrangements involving the services of poor women in developing economies have dramatically increased.7 Strong expressions of public policy against commercial surrogacy can be found in the imposition of criminal penalties for participation in such arrangements under the Criminal Code, including a term of imprisonment for giving or offering valuable consideration for the supply of a human egg.8 Notwithstanding the legal position with respect to surrogacy, Australian citizenship laws permit conferral of citizenship by descent on children born of surrogacy arrangements outside of Australia, provided there exists a “biological link between the child and the commissioning parent” or where “an Australian citizen is a parent as that word is understood in ordinary usage”.9 These are potentially irreconcilable conflicting concepts of, on the one hand, prohibiting and criminalising commercial surrogacy, and on the other hand, facilitating the completion of the surrogacy agreement by enabling the child to enter the country to assume citizenship.10 Facts Having tried and been unable to have a child of their own, the Farnells engaged the services of a business called Thailand Surrogacy to engage a surrogate. Ms Chanbua was a 20-year-old unmarried Thai woman with two children of her own, born when she was 14 and 17. She was told by her agent that she was too young to become a surrogate and assumed a false identity, using fake papers.11 She was in a de facto relationship with Mr Chanbua at the time of the surrogacy. The donor gametes for the surrogacy were from Mr Farnell and from an unidentified female donor. On australian health law bulletin June 2016 23 May 2013, Ms Chanbua was implanted with two embryos at a clinic operated by Dr Visut Suvithayasiri (Dr Visut), and on 3 June 2013, the Farnells were advised that Ms Chanbua was carrying twins. On 28 September 2013, they were advised by Thailand Surrogacy that a test had revealed a “risk of Down’s syndrome”.12 A further test was offered, and they asked for that to be undertaken. On 22 October 2013, the Farnells were advised that the further test confirmed the male foetus had Down syndrome.13 What occurred between 22 October 2013 and the birth of the twins on 23 December 2013, and subsequently, was the subject of some dispute. Ms Chanbua insisted she was told that the Farnells wanted to abort the male foetus, which the Farnells vehemently denied.14 Contrary to arrangements made between the Farnells and Thailand Surrogacy, the babies were born in a suburban hospital rather than at the Bangkok Christian Hospital, which had expertise with Down syndrome children. The twins arrived early, so the Farnells were not in Thailand for their birth. The Farnells did not see the twins until 30 December 2013 because Ms Chanbua had returned to her home town after the birth, leaving the twins in hospital. The Farnells could not see the twins without her permission.15 The twins were both very unwell and required intensive care, and the expectation was that the male twin would not survive. The Farnells and Ms Chanbua had met three times in hospital, on 3 January 2014 when the surrogacy agreement was belatedly signed, on 21 January 2014 when DNA samples were taken, and on 3 February 2014 during an interview at the Australian Embassy.16 The surrogacy agreement, signed on 3 January 2014 but backdated to 25 February 2013 on the advice of the proprietor of Thailand Surrogacy, Antonio Frattaroli, included a clause stating that the Farnells were aware of the risk of “genetic and/or congenital abnormalities or defects” but they would nevertheless “take immediate custody of the child at birth and shall assume full and absolute parental responsibility”.17 This did not occur, as Ms Chanbua had consulted a fortune teller who foretold that keeping the boy would bring her good luck18 and wished to keep the male twin. She handed over the female twin’s birth certificate, bearing the name chosen by the Farnells, but with Ms Chanbua’s surname (at that time) and did not identify Mr Farnell as the father. At the time, civil unrest was occurring in Thailand and the Australian Embassy recommended that Australians leave Thailand. The male twin continued to require intensive care and could not have travelled. The Farnells obtained an Australian passport for Pipah, who was well enough to travel, and returned to Western Australia where they attempted, without success, to regularise Pipah’s status. This was difficult because Mr Farnell was australian health law bulletin June 2016 not shown to be her father and she did not have his family name. They therefore required the consent of the birth mother.19 The Farnells applied to the Family Court of WA for equal shared parental responsibility and permission to change Pipah’s family name, but falsely deposed that Mrs Farnell was the egg donor.20 A further issue arose regarding the fact that Mr Farnell was a convicted child sex offender and was released from prison in 1999. In May 2014, the Department for Child Protection and Family Support (DCP) was informed that Mr Farnell had a child in his home. Mr Farnell did not appear on the DCP database as someone who may pose a risk to children.21 In August 2014, the information about Mr Farnell, together with a story that the Farnells had abandoned “baby Gammy” because he had Down syndrome (which was untrue), began to circulate.22 A further untrue assertion was made that the Farnells were trying to access, for their own benefit, a trust fund set up for Gammy. They had in fact donated to the fund. Ultimately, Ms Chanbua arranged for Gammy to become an Australian citizen. Discussion Thackray CJ accepted that Ms Chanbua believed that the Farnells did not want Gammy, and that she “wants Pipah to live with her because she is appalled at the thought of Pipah living with a paedophile”.23 This case was factually complex and emotionally fraught. As Thackray CJ observed:24 Mrs Chanbua saw parts of the drama, while the Farnells saw other parts. They did not share a common language, and were dependent on third parties to fill them in on what had happened when they were not personally involved in the action. One of the third parties, who had a clear conflict of interest, decided to keep part of the story to himself. Added to this muddle were not only cultural differences, but also differences in the levels of sophistication of the actors. Their ability to recall what happened, and in what order, has been impaired by the anxiety felt for the health of the babies, and by the tensions that arise when a woman’s body is rented for the benefit of others and where the unit of exchange is measured in the life of a new human being. The court found that:25 … Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though I accept they would love her and would do everything they could to care for all her needs. In doing so, Thackray CJ took into account the strong attachments that Pipah had formed with the Farnells and others in her community, as well as expert evidence that there was a low risk of harm if Pipah stayed with the Farnells, and a high risk of harm if she were removed. 79 The option chosen by the court was the option considered to be the “least unsatisfactory” for Pipah, with her best interests being the paramount consideration. Thackray CJ also held that, at the time of the surrogacy, Ms Chanbua was in a de facto relationship with Mr Chanbua. They were cohabiting fromAugust 2012.26 The evidence The first affidavit filed by the Farnells was “not accurate, or comprehensive”27 as it omitted reference to Gammy, to Mr Farnell’s historical offending, and referred to Mrs Farnell having been a gamete donor. A second affidavit was filed but it also contained an inaccuracy about Mr Farnell’s offences and the time he spent in jail. Thackray CJ observed that:28 … the fact that the Farnells were prepared to lie under oath, especially about Pipah’s genetic makeup, means that their evidence must be considered with even more than usual scepticism. This does not mean, however, that all of their evidence was false. On the contrary, I accept that their evidence on some of the most important matters was accurate … The legislative framework The reasons for the decision, from para [188] onwards, address the complex legislative framework for this action and for determining the parentage of children born of a surrogacy arrangement. The important statutory provisions were extracted in App 1 to the reasons for the decision.29 While there was a dispute as to whether the primary issue should be determined under state or federal law, the Family Court of WA exercises both state and federal jurisdiction. This enabled Thackray CJ to deal with the entirety of the dispute.30 The Farnells contended that federal law applied, while all other parties contended that state law applied. However, as Western Australia did not refer its powers over ex-nuptial children to the Commonwealth, in WA and by operation of s 69ZH(4) of the Family Law Act 1975 (Cth) (FLA), those provisions of the Family Law Act of primary relevance to this matter (ss 60F, 60H, 60HA and 60HB) do not come within the ambit of s 60ZH(2) and thus, all references to “a child” are not to be read as references to “child of a marriage” nor references to “parent” as “parties to the marriage”.31 Although Thackray CJ discussed the marriage power under the Constitution in some detail, it was not necessary for his Honour to reach a concluded view.32 The court considered the operation and application of both state and federal laws, in particular the presumptions of parentage in the FLA. Thackray CJ considered the rules of maternity and paternity in ss 60H and 60HB of the FLA to be non-rebuttable presumptions.33 Pursuant to s 8 of the Surrogacy Act 2008 (WA), as noted above, a person who enters into a surrogacy arrangement that is for reward commits an offence. By 80 operation of s 12 of the Criminal Code, an offence is committed if an act that makes up an element of the offence occurred in Western Australia.34 This underscores the public policy position against commercial surrogacy in WA. Thackray CJ considered the interaction of the FLA and whether the children are children of a marriage. In particular, his Honour looked at the effect of: • s 60F, which deems certain a child to be the child of a husband and wife if born from artificial conception or surrogacy; • s 60H, which applies to children born as a result of an artificial conception procedure;35 and • s 60HB, which applies to children born under surrogacy arrangements. Thackray CJ concluded that there was nothing in those sections to suggest that they do not apply to children born overseas, but they do not provide for the status of all children born of artificial conception or surrogacy.36 Ultimately, a court must have regard to ss 60H, 60HA and 60HB in determining whether a child, living in Western Australia, is a “child of a marriage”.37 Section 60H(1) extends to a de facto partner of the birth mother of a child born as a result of artificial conception. The Farnells sought to argue that s 60H(1) does not apply in determining whether a child is a “child of a marriage”. They cited W v C which held that s 60H did not apply in Western Australia, because as a nonreferring state, s 60H of the FLA does not apply to ex-nuptial children born as a result of artificial insemination procedures in WA.38 The Artificial Conception Act 1985 (WA) sets out the rules for determining the identity of the mother and father of a child born of an artificial fertilisation procedure.39 These rules apply for the purposes of the law of the state to children wherever born, and cannot be rebutted. The implantation of the embryos into Ms Chanbua was an “artificial fertilisation procedure” within the meaning of the Human Reproductive Technology Act 1991 (WA) and Artificial Conception Act. Mr and Ms Chanbua were in a de facto relationship at the time, and are Pipah’s father and mother by operation of ss 3, 5 and 6 of the Artificial Conception Act. A parentage order made under s 21 of the Surrogacy Act can modify the rules of parentage under the Artificial Conception Act, and the Family Court of WA may make an order transferring parentage of a child born of surrogacy from “birth parents” (that is, the persons recognised by the law as being, when the child is born, the parents of the child) to an “eligible couple” for the purposes of the Surrogacy Act. The Farnells were not australian health law bulletin June 2016 eligible for an order transferring parentage, for various reasons including because s 24 of the Surrogacy Act prohibits a parentage order about a child who is a twin unless an order is also made transferring parentage of the twin. The Adoption Act 1994 (WA) also enables the transfer of parentage of a child in Western Australia, and confirms that a birth parent retains the status of “parent” unless there is an adoption order.40 Pursuant to s 75 of the Adoption Act, the effect of an adoption order is to change the status of the adoptee and adoptive parent to that of parent and child. Section 4(1) of the Adoption Act defines a birth parent as the mother of the adoptee, the father of the adoptee, or parent under s 6A of the Artificial Conception Act. Is Pipah a “child of a marriage”? Pipah could not be a “child of a marriage” between the Farnells, because Mrs Farnell was not the birth mother or egg donor. To be a “child of a marriage”, Pipah must be a “child of the husband and of the wife in the marriage” pursuant to s 60F(4A) of the FLA.41 The obiter words of Murphy J were relied upon by the Farnells from the decision In the marriage of Cormick; Salmon42 (Cormick) that:43 No narrow view should be taken of parliament’s power to provide for children who become part of the family arising from the marriage, even if they are not strictly children of the marriage. Cormick was decided in 1984, prior to the Artificial Conception Act but after the FLA was amended to add s 5A, which provided that a child born to a woman as a result of a medical procedure, when the woman was married to a man, shall be deemed a child of that man if the medical procedure was carried out with that man’s consent, and under an Act or law of a state or territory, the child is deemed to be the child of that man.44 Thackray CJ observed that the judgment of Gibbs CJ in Cormick provides:45 … a basis for considering that a law would exceed Commonwealth legislative power if it purported to deem a class of children to be children of a marriage in circumstances where their married parents (who are not the biological parents) not only did not intend to treat the children “as their own” but instead had contracted to sell them to third parties. In my view, such a law would not be one “defining, regulating or modifying the incidents of the marriage relationship”. Indeed, the prospect that Parliament could seek to treat such children as being children of the marriage of the relinquishing parents might seem to be the antithesis of a law with respect to marriage. Thackray CJ observed that the position of children born of artificial conception and of surrogacy is analogous to the position of adopted children, as all are australian health law bulletin June 2016 regulated by state law. Adopted children can be treated as a child of a marriage because “they are placed by State law into the position of children of the marriage”.46 The relationship between the birth mother and her husband, and the children who were the product of a surrogacy, is not such an incident of the marriage of the husband and wife as to be the subject of a valid law supported by the marriage power.47 Thackray CJ went on to state:48 I can see no rational connection between the Chanbua marriage and a law purporting to regulate rights and responsibilities in relation to a child who would never have been born were it not for the fact that there was an agreement for her to be sold to strangers. His Honour concluded that s 60(H)(1) of the FLA does not apply to children born of surrogacy, and s 60F(1) of the FLA has no application, so Pipah is not a “child of a marriage”. Thus, state law applies.49 The court also held that Mr Chanbua was legally a “parent” of Pipah, and Thackray CJ joined him as a party,50 although he took only a limited part in the proceedings as a witness, and his Honour did not form an especially favourable impression of him.51 By application of state law, in particular the Artificial Conception Act, Thackray CJ held that Mr Farnell was neither a “father” nor a “parent” of Pipah within the meaning of the law. In so finding, his Honour declined to follow the reasoning of Crisford J in Blake52 where her Honour had expanded the meaning of “parent” to include a sperm donor in commercial surrogacy, so as to enable a sperm donor’s male de facto partner to apply to the Family Court of WA to adopt the resulting twins. Instead, Thackray CJ applied Crisford J’s reasoning in the earlier decision of W v C, where her Honour determined parentage by reference to the Artificial Conception Act and the Interpretation Act 1984 (WA) and concluded that the sperm donor was not a “parent” of the child. Any argument that Mr Farnell’s position is defined as Pipah’s “biological parent” pursuant to the Human Reproductive Technology Act is confined to that Act and has no wider application and does not assist.53 In addressing the contradictory positions in Blake and W v C, Thackray CJ observed:54 … any interpretation which makes the paternity of a child dependent upon the intention of the donor of the sperm would be a recipe for disaster … arrangements involving artificial fertilisation procedures come in a variety of forms. … If the intention of the sperm donor was to be determinative, the question would arise, at what point on the spectrum does the father’s intended involvement in the life of the child change his status from sperm donor to father? … In my view, the law in this area is already sufficiently fraught for it to be highly undesirable to introduce the 81 contestable element of “intention”. One need only look at the time and money expended on this litigation to see how difficult it can be to establish intention. By reference to the Second Reading speech of the Surrogacy Bill 2008, his Honour concluded that the Artificial Conception Act and the Surrogacy Act were intended to apply to children born of a surrogacy arrangement55 and in respect of the transfer of legal parentage:56 … in most cases the child should be registered in accordance with the Artificial Conception Act, with the birth mother recorded as the mother of the child and her consenting partner as a legal parent of the child. Due to the way in which this case was reported by the media, and the way in which Mr and Mrs Farnell were portrayed, Thackray CJ made a number of positive findings in favour of the Farnells. Those positive findings included that they did not abandon Gammy,57 and that they did not seek to access Gammy’s trust fund in order to meet Pipah’s welfare needs and never applied to the court for access to Gammy’s trust fund for any purpose.58 SurrogacyBestPracticePrinciplesandbioethics Thackray CJ’s description of surrogacy as “when a woman’s body is rented for the benefit of others and where the unit of exchange is measured in the life of a new human being”59 highlights the ethical dilemma posed by surrogacy, even if there is informed consent and an agreement between the parties. As Ms Chanbua falsified her identity to overcome the fact that she was too young to be a surrogate in Thailand under the laws in place when the surrogacy agreement was concluded, was a relatively unsophisticated person from a poor background when compared to the Farnells, and had an incomplete understanding of what the Farnells wanted, only serves to add another level of complexity to the transaction. In Ellison v Karnchanit60 (Ellison), Ryan J recognised the risk to surrogates and to children born of these arrangements, and proposed a set of Best Practice Principles for surrogacy, to be adapted to suit the circumstances of a case.61 They have been endorsed by the Family Law Council62 as principles of perfection for surrogacy cases and require a court to have details of the origin of a child to determine the child’s best interests. The principles from Ellison may be summarised as including: • the appointment of an independent children’s lawyer to represent their interests; • the provision of affidavits by the applicant and the birth mother setting out personal circumstances, the surrogacy agreement and details of the birth; 82 • independent evidence about identifying the child; • independent evidence about the surrogate and whether she has been counselled and whether she gave informed consent to act as a surrogate; • a family report on the relevant relationships; and • evidence of the law of the place of the surrogacy. The Surrogacy Best Practice Principles from Ellison, adopted to some extent in amendments to the Family Law Rules 2004 (Cth) that came into effect on 1 January 2016, are discussed at paragraphs [355] to [359] of the judgment. Even in the present case, with the parties represented at trial, all the Best Practice Principles outlined by Ryan J were not met. The appointment of an independent children’s lawyer was made possible in this case by a limited grant of Legal Aid and there was experienced representation and intervention by the Department of Child Protection, Human Rights Commission and State Attorney-General. However, even in such an extraordinary case as this, Thackray CJ observed that “there was by no means full compliance with the Best Practice Principles” and the principles set out a counsel of perfection in surrogacy cases.63 The extent of public and media interest in the case when it was first reported had diminished by the time of this judgment, to the extent that few are likely to read its 789 paragraphs and 190 pages. Nevertheless, apart from providing a most detailed discussion of the present state of the Western Australian law as it pertains to surrogacy and to parentage orders, the decision and Thackray CJ’s observations do reflect the considerable difficulties that may be encountered in international surrogacy cases. Dr Andrew Lu OAM Partner Jarman McKenna andrew.lu@jmck.com.au www.jmck.com.au Footnotes 1. This quote is particularly apt in a case where the reporting was sensational. See W S Gilbert H M S Pinafore Dover Publications, USA (2002). 2. See, for example ABC/Reuters “Baby Gammy: WA parents of girl born to Thai surrogate deny abandoning twin brother” (5 August 2014) www.abc.net.au/news/2014–08–04/wa-coupledenies-they-abandoned-baby-gammy/5644850; S Allan “Baby Gammy case reveals murky side of commercial surrogacy” (4 August 2014) http://theconversation.com/baby-gammy-casereveals-murky-side-of-commercial-surrogacy-30081; S Hawley “Baby Gammy case: Thai surrogate mother applies for baby australian health law bulletin June 2016 boy with Down syndrome to become Australian citizen” (21 November 2014) www.abc.net.au/news/2014–11–21/babygammy-to-become-australian-citizen/5908174. The Thai government has subsequently banned commercial surrogacy in that country. 3. Farnell v Chanbua [2016] FCWA 17. 4. Surrogacy Act 2008 (WA), s 8. 5. Surrogacy Act 2008 (WA), s 6. 6. W v C [2009] FCA 61; BC200901072. 7. Above n 3, at [342], referring to W v C above n 6, at [1] per Crisford J. 8. Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 21. 9. Thackray CJ explores the anomalous position of the surrogacy and citizenship laws. See above n 3, at [349]. 10. Above n 3, at [353] citing In re X & Y (Foreign Surrogacy) [2008] EWHC 3030. 11. Above n 3, at [9]. 12. Above n 3, at [10]–[12]. 13. Above n 3, at [13]. 14. Above n 3, at [14]. 15. Above n 3, at [19]–[20]. 16. Above n 3, at [24]. 17. Above n 3, at [25]. 18. Above n 3, at [15]. 19. Above n 3, at [47]. 20. As noted above n 3, at [48], Thackray CJ noted that “I accept that, in lying to the court, the Farnells were motivated by a desire to present Pipah to the world as if she was genetically their own child … had the Farnells sought advice, they would almost certainly have been informed that the origin of the eggs would make no difference to the outcome”. 21. Above n 3, at [49]. 22. Above n 3, at [50]. 23. Above n 3, at [56]. 24. Above n 3, at [57]. 25. Above n 3, at [66]. 26. Above n 3, at [87]. 27. Above n 3, at [163]. 28. 29. Above n 3, at [168]. Above n 3, at [188]. See also Farnell, App 1, p 191 and following. 30. This position is unique to Western Australia, as Western Australia is the only state to establish its own Family Court. All australian health law bulletin June 2016 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. states, other than Western Australia, referred to the Commonwealth power to make laws in respect of child custody, guardianship, access and maintenance. See above n 3, at [197] quoting French CJ. Above n 3, at [233]. As the issue did not constitute a matter arising under the Constitution or involving its interpretation, notices pursuant to the Judiciary Act 1903 (Cth) were not issued to all AttorneysGeneral. Above n 3, at [231]. Above n 3, at [199]. Above n 3, at [207]. Above n 3, at [211]. Section 60HB was inserted into the Family Law Act by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) to expand the definition of child to that of a child born under surrogacy. Above n 3, at [246]. Above n 3, at [248]–[249]. Above n 3, at [215]. Above n 3, at [223]. Above n 3, at [257] and fn 58. In the marriage of Cormick Salmon (1984) 56 ALR 245; (1984) 9 Fam LR 880; [1984] HCA 79; BC8400453. Above n 42, ALR 245 at 251. Above n 3, at [266]. Above n 3, at [270]. Above n 3, at [272]. Above n 3, at [273]. Above n 3, at [275]. Above n 3, at [309]. Above n 3, at [318]. Above n 3, at [177]. Blake [2013] FCWA 1. Above n 3, at [559], fn 127. Above n 3, at [381], [384]. Above n 3, at [392]. Above n 3, at [392], referring to the Parliamentary Debates. Above n 3, at [600]. Above n 3, at [625]. Above n 3, at [57]. Ellison v Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602; BC201250476. Above n 3, at [355]. Above, fn 89. Above n 3, at [360]. 83