Application MJC and CSC; re EMC [2012] NSWSC 1626

Application MJC and CSC; re EMC [2012] NSWSC 1626

The Court was satisfied that the birth mother in fact consented, that the agreement to provide sperm to the birth mother's partner stood independently from the surrogacy arrangement and was not a reward or other benefit for entering into it, and that payments for lost earnings were within the permitted reasonable costs under s 7. The arrangement was therefore not a commercial surrogacy arrangement, and all relevant preconditions being satisfied, a parentage order could be made.

Jurisdiction
Australia
Judgment Date
13 December 2012
Procedural Posture
Application for Parentage Order Under (nsw) Surrogacy Act 2010 / Principal Judgment
Outcome
Parentage order made transferring parentage of the child from the birth mother to the first plaintiff as father and the second plaintiff as parent.
Legal Topics
['parentage Order' 'commercial Surrogacy Arrangement' "birth Mother's Consent" "birth Mother's Surrogacy Costs"]
['surrogacy' 'family Law' 'equity'] ['parentage Order' 'commercial Surrogacy Arrangement' "birth Mother's Consent" "birth Mother's Surrogacy Costs"]

Case Brief

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Procedural Posture

Application for Parentage Order Under (nsw) Surrogacy Act 2010 / Principal Judgment

Legal Issues

  1. 1 ['Whether the birth mother had given the requisite consent to the parentage order.' "Whether the agreement to provide sperm so that the birth mother's partner could try to become pregnant was a reward or other material benefit or advantage for entering into the surrogacy arrangement." "Whether reimbursements for the birth mother's lost earnings were reasonable birth mother's surrogacy costs permitted by the Act." 'Whether the parentage of the child should be transferred from the birth mother to the plaintiffs.']

Ratio Decidendi

The Court was satisfied that the birth mother in fact consented, that the agreement to provide sperm to the birth mother's partner stood independently from the surrogacy arrangement and was not a reward or other benefit for entering into it, and that payments for lost earnings were within the permitted reasonable costs under s 7. The arrangement was therefore not a commercial surrogacy arrangement, and all relevant preconditions being satisfied, a parentage order could be made.

Court Disposition

Parentage order made transferring parentage of the child from the birth mother to the first plaintiff as father and the second plaintiff as parent.

Orders

  • ['The parentage of the child EMC born 5 November 2010 be transferred from NAS to the first plaintiff as father, and the second plaintiff as parent.' 'The Court approve the name XXXX as the surname, and XXXX XXXX as the given names of the child.' 'The registrar give written notice of the parentage order to the...