Landmark case for Surrogacy

On 4 May 2012, the New South Wales Supreme Court found for the first time in Australia that a same-sex couple to be the parents of a baby that was born through a surrogate, with a court ruling it was in the child’s “best interests”. The case in particular is Application of MM and KF re FM [2012] NSWSC 445. The names of the parties have been removed in accordance with the guidelines given under the UCPR.

In transferring the guardianship of the child to the two men, Justice Paul Brereton was satisfied the pregnancy wasn’t the result of an illegal commercial agreement and that the woman who carried the baby wasn’t paid to do so. Justice Brereton noted that it was

“the first application under the Act of which I am aware in which in the intended parents are a same sex couple”.

The Surrogacy Act, brought into effect last year, is part of new legislation in NSW intended to make it easier and more acceptable for parentage to be transferred in surrogacy arrangements. It allows for altruistic surrogacy arrangements, where the birth mother is only reimbursed for costs associated with the pregnancy. The Surrogacy Act also imposes penalties for parties entering into commercial surrogacy arrangements.

The court heard the three had only an “oral arrangement” for the surrogacy but at the hearing, an affidavit from the birth mother was tendered indicating her consent to the two men being declared the parents. The child, born in April 2010, now has the two Sydney men as parents, with the birth mother agreeing to no longer be recognised on the birth certificate.

The Surrogacy Act also says that when the child turns 18 the child is entitled to receive their original birth certificate and their full birth history.

This is certainly a good start to the legislation and shows that despite the requirements of the Surrogacy Act, the judiciary is flexible in relation to interpreting the legislation and making decisions on its own. We look forwards to more successful applications in the future.