A v X; Re Z [2022] NSWSC 971

A v X; Re Z [2022] NSWSC 971

The Court was not empowered to make a parentage order under s 12(1) of the Surrogacy Act 2010 (NSW) in relation to Z because Z was stillborn and was neither a child born as a result of a surrogacy arrangement nor a child who was the subject of a surrogacy arrangement. The extended definitions of birth and child in births, deaths and marriages legislation did not apply to the Surrogacy Act. Further, even assuming power existed, the applicants had not satisfied the mandatory precondition in s 22(1) that the order was in Z's best interests, and further counselling under s 35(2) had not been completed and would not be excused. The Summons was therefore dismissed.

Jurisdiction
Australia
Judgment Date
20 July 2022
Procedural Posture
Application for Parentage Order Under S 12(1) of the Surrogacy Act 2010 (nsw) / On the Papers
Outcome
The plaintiffs' Summons is dismissed.
Legal Topics
['parentage Order' 'stillborn Child' 'child of a Surrogacy Arrangement' 'best Interests of the Child' 'mandatory and Non Mandatory Preconditions Under the Surrogacy Act 2010 (nsw)' 'independent Counsellor Report']
['family Law and Child Welfare' 'surrogacy' 'statutory Interpretation'] ['parentage Order' 'stillborn Child' 'child of a Surrogacy Arrangement' 'best Interests of the Child' 'mandatory and Non Mandatory Preconditions Under the Surrogacy Act 2010 (nsw)' 'independent Counsellor Report']

Case Brief

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Procedural Posture

Application for Parentage Order Under S 12(1) of the Surrogacy Act 2010 (nsw) / On the Papers

Legal Issues

  1. 1 ['Whether the Court has power under s 12(1) of the Surrogacy Act 2010 (NSW) to make a parentage order in relation to a stillborn child.' 'Whether Z was a child born as a result of a surrogacy arrangement or a child who is the subject of a surrogacy arrangement within s 4(2) of the Surrogacy Act 2010 (NSW).' 'Whether the applicants satisfied the mandatory precondition in s 22(1) of the Surrogacy Act 2010 (NSW) that the proposed parentage order is in the best interests of the child.' 'Whether non-compliance with requirements including an independent counsellor report, further counselling after birth, and the child living with the applicants could be excused.']

Ratio Decidendi

The Court was not empowered to make a parentage order under s 12(1) of the Surrogacy Act 2010 (NSW) in relation to Z because Z was stillborn and was neither a child born as a result of a surrogacy arrangement nor a child who was the subject of a surrogacy arrangement. The extended definitions of birth and child in births, deaths and marriages legislation did not apply to the Surrogacy Act. Further, even assuming power existed, the applicants had not satisfied the mandatory precondition in s 22(1) that the order was in Z's best interests, and further counselling under s 35(2) had not been completed and would not be excused. The Summons was therefore dismissed.

Court Disposition

The plaintiffs' Summons is dismissed.

Orders

  • ["The plaintiffs' Summons is dismissed."]