Parental responsibility ordered for non-parents in surrogacy case

In the case of Adair & Anor and Bachan [2017] FCWA 78 the Family Court of WA made orders granting parental responsibility for twin children to the biological father and another person. The Children were born overseas under a surrogacy agreement.
The biological father, the First Applicant was not the legal father of the children because of express provisions of the Artificial Conception Act 1985 (WA). The Second Respondent was not a parent of the children. The First Applicant was terminally ill.
Her honour noted the Court generally takes a cautious approach in such cases (particulalry the risk of exploitation of vulnerable women in poorer countries) and noted Thackray CJ’s statement in what is popularly known as the Baby Gammy case about the need for law reform in cases of overseas commercial surrogacy.

In making orders that the children live with both applicants and both applicants have Equal Shared Parental Responsibility for the children Justice Duncanson  emphasised that under the bests interest principle the focus is  not on parenthood but on parenting  and noted the following:

  • [The Applicants] have standing to bring these proceedings for a parenting order in relation to the children as they are persons concerned with their care, welfare or development.
  • I have considered the terms of the Surrogacy Agreement and notwithstanding concerning issues which can arise from such agreements, in the circumstances of this case I am satisfied that the orders sought are in the best interests of the children. [72].
  • This is not a decision taken in haste because of the first applicant’s condition and the unusual circumstances of this case… I have approached this matter on the basis that the best interests of the children is the paramount consideration. [52,54].

Mr M Kavanagh of this firm acted as Counsel in this matter.