I. INTRODUCTION

3.1 Those who may wish to enter into a surrogacy arrangement in New South Wales today will receive no encouragement from the law. While there is no specific prohibition on surrogacy, there is also no special provision made for the regulation of these arrangements. The custody decision is likely to be made on general principles which have already been established for other purposes. Reference may be made to the arrangement in the course of the litigation, but only if it is thought to have a bearing on the suitability of the parties to have care of the child. In general the law may be described as indifferent to surrogate motherhood. It probably will not assist in the enforcement of an arrangement, but does not prohibit them either. There are, however, areas of the law in which the parties could be penalised for entering into a surrogacy arrangement. These have not been planned, but are merely principles and statutory provisions drawn from general family and contract law which have application to the circumstances of surrogate motherhood.

3.2 In this Chapter the legality of different types of surrogacy arrangements is assessed by reference to existing State law. A survey of the laws which may apply is set out first. This is followed by a more detailed exposition.

II. SURVEY OF APPLICABLE LAW

3.3 The issue of surrogacy may come before a court for several reasons. The adults involved may wish to contest custody, to determine rights to guardianship¹ or to establish the parentage of the child. There may be applications for adoption or fostering or for maintenance of the child. The child might come to the attention of the Department of Family and Community Services as in need of care or the Department may wish to intervene in decisions being taken in private custody proceedings.

3. 4 Procedures exist for all these things to happen. The task addressed in this Discussion Paper is to assess whether they are adequate. The following discussion attempts to explain the law by reference to the procedures which might be used to bring a surrogacy arrangement to court. This approach has been used for ease of explanation. There is no intention to suggest that all surrogacy arrangements should be subjected to judicial scrutiny, although this may be one of the options proposed.

III. CUSTODY, GUARDIANSHIP, WELFARE AND ADOPTION

A. Custody and Guardianship

3.5 With the commencement of the Family Law Amendment Act 1987 (Cth) on 1 April 1988, most private disputes in relation to the custody, guardianship, welfare of and access to children in New South Wales will be heard under the Family Law Act 1975 (Cth).² With limited exceptions, the State’s powers over custody, guardianship and maintenance of children and over arrangements made for access to them were transferred to the Commonwealth Parliament by the Commonwealth Powers (Family Law-Children) Act 1986. Those cases in relation to ex-nuptial and step children which previously were heard in State courts will now go to the Family Court of Australia or Local Courts exercising jurisdiction under the Family Law Act 1975 (Cth). This federal jurisdiction is vested in the Supreme Court under the cross-vesting 1988.³ Provision is made, however, for cases to be transferred to the Family Court and it is expected that this will be done in all but exceptional or emergency circumstances. The 1986 Act did not transfer powers in respect of adoption or child welfare.⁴ Accordingly, the State’s control over adoption and children in need of care continues, and these matters will be heard in the Supreme Court or the Children’s Court.

3.6 All applications for custody and guardianship in New South Wales are now regulated by the Family Law Act 1975 (Cth). Section 63C(1) allows the parents, the child and “any other person who has an interest in the welfare of the child” to institute proceedings. In a surrogacy case one can imagine that any of the following people may wish to commence proceedings:

• the social parents;
• the sperm and ova donors ( if they are different from the social parents);
• the surrogate mother; and
• any partner of the surrogate mother.

3.7 The issue of the parentage of children born by artificial conception is addressed in s60B of the Family Law Act 1975 (Cth). It assigns parentage by reference to the law of the State in which the child was born, although with some variations, so it is to the law of New South Wales that we must refer to assess who may apply for the care of child.

3.8 Where the surrogate mother is married and her husband consents to the procedure, the child is regarded as their child under the Family Law Act 1975 (Cth).⁵ As in State law, marriage includes a de facto relationship 1975 (Cth).⁶The Family Law Act appears to go further than State law statement as to the maternity of the child. The State Artificial Conception Act 1984 limits itself to raising presumptions in relation to the paternity of the child,⁷ but does not address the question of maternity. In its Report on In Vitro Fertilization, this Commission has recommended that maternity and paternity be assigned to those for whom the embryo was created, but at the time of writing the recommendation had not been debated in Parliament.⁸ By presuming the child to be “a child of the marriage”, the Children (Equality of Status) Act 1976 establishes a presumption of legitimacy for the child born within marriage, but, unlike the equivalent presumptions of paternity under the Artificial Conception Act 1984, the presumption is made rebuttable on the balance of probabilities.⁹ Section 15 of the Children (Equality of Status) Act 1976 permits the father to seek a declaration of maternity, but does not extend the same right to the mother. The conclusion must be that, under both federal and State law , the child born to a surrogate mother who is married or living in a de facto relationship will be presumed to be the child of her marriage. The social parents will not be regarded as the parents, whether or not one or both of them donated the gametes.

3.9 If the social parents or those who donated sperm and ova (if they are different people), wish to apply for custody or guardianship under s63C(1) they will have to satisfy the court that they have an interest in the welfare of the child. Alternatively, they could seek leave to intervene in proceedings commenced by the surrogate mother and her partner, without necessarily putting their parentage in issue.¹⁰

3.10 Where the surrogate mother is an unmarried woman, not living in a de facto relationship, the child is presumed to be hers alone. The Artificial Conception Act 1984 contains a conclusive presumption against the paternity of any semen donor¹¹ and makes and no reference to the maternity of a child born of a donor ovum.¹² The one situation in which the child of an unmarried woman is accorded a father by the legislation occurs when the mother can be shown to have been cohibiting with a man at the time of conception.¹³ Evidence of artificial conception having taken place will allow this presumption to be rebutted, but not so as to dislodge the presumption against the paternity of a donor.¹⁴

3.11 As the Family Law Act 1975 (Cth) adopts the law of the State in respect of children within its jurisdiction, the unmarried woman will also be presumed the mother of the child for the purposes of an application to the Family Court,¹⁵ “whether or not the child is biologically a child of woman”.¹⁶ Therefore, it is the surrogate mother who as the parent for the purposes of application for custody in the Family Court.¹⁷

3.12 There is very little guidance available on what constitutes a sufficient “interest in the welfare of the child” to justify the court in allowing an application for custody or intervention in proceedings already in progress between the parents of a child. To date the Family Court has not had to consider the issue. Those cases in the past in issues have been considered concern the rights of close relatives (who are not the parents) to intervene.

3.13 Foster parents and grandparents have been permitted to intervene in Family Court proceedings, but their applications are always considered special and not to be granted lightly.¹⁸ Two factors which have been suggested as valuable guides in assessing the weight of a claim to intervene are:

• whether the interveners are prima facie in a position to mount a viable claim for custody against the parents; and
• whether there has been a close relationship between the child and the interveners.¹⁹

3.14 The second of these factors has always been applied to cases where the parties allege long association with or emotional attachment to older children, but the first could be determinative of the right to intervene. On either basis, the commissioning parents would seem to have a strong claim to apply for custody or to intervene in proceedings between the surrogate mother and someone else.

3.15 As well as the commissioning parents, it may be that the Director-General of the Department of Family and Community Services will want to institute or intervene in proceedings in the Family Court when issues relating to surrogacy arise. it is likely that the Court would consider the Director -General to have an interest in the welfare of the child for the purposes of standing in the case.

3.16 This is not the place to attempt a definitive statement of the principles upon which the custody jurisdiction is exercised. It is sufficient for present purposes to state that the Family Law Act 1975 (Cth) requires the Court to regard the welfare of the child as the paramount consideration.²⁰ In deciding who can best serve the interests of the child, the Court will look not only at biological ties with the child, but also at the capacity of each of the applicants to provide for and nurture the child. Accordingly, the attributes, talents and abilities of all applicants will be assessed, possibly with the help of background reports prepared by the court counselling services or a welfare officer.²¹

3.17 It is clear from the case law that the Family Court has never adopted a view which would give pre-eminence to the biological parents in a custody dispute. The determination of what would be in the best interests of the child has always been guided by principles of “common sense” and “general experience”.²² Such common sense and general experience tend but not necessarily the biological parents. Indeed in one case a judge of the Family Court expressly discounted use of the phrase biological parent as “too clinical” and he thought it “too easily overlooks the relational aspects of the family”.²³

B. Welfare

3.18 The custody and guardianship jurisdiction of the Family Court is not the only way in which the parties to a surrogacy arrangement may contest their interests in the child. There is an ancient power in the Supreme Court to oversee the welfare of the child. This jurisdiction is variously called the wardship, parens patriae, inherent or prerogative jurisdiction. The jurisdiction is regularly invoked to permit emergency medical treatment to be given, but is said to be wide enough to allow the Court to do practically anything to secure the welfare of the child.²⁴ The jurisdiction is now vested in the Family Court and Local Courts having jurisdiction under the Family Law Act 1975 (Cth), although it may still be exercised by the Supreme Court under the cross-vesting legislation.

3.19 Since the transfer of powers to the Commonwealth it is unlikely that the wardship jurisdiction will be exercised in State courts on behalf of the parties to a surrogacy arrangement. Although the roles of the two courts have not been made clear in the transfer of powers Acts, it would seem consistent with their purpose that the Family Court should take over all jurisdiction between private individuals and the Supreme Court should be left with that part of the wardship jurisdiction which is used to assist the Department of Family and Community Services. Section 64 of the Family Law Act 1975 (Cth) allows this to happen as it gives the Family Court powers to be exercised in the interests of the welfare of the child.²⁵

3.20 Leaving aside questions of choice of proper forum, parties may wish to invoke these general powers to ensure the welfare of the child, instead of the custody jurisdiction, when they do not intend to seek custody of the child. They may wish the Court to investigate the arrangements being made for the child, without necessarily upsetting existing custody arrangements, or they may wish to alter the arrangements for custody without offering themselves as custodians. One could imagine such situations occurring where the commissioning couple had separated or divorced since entering into the arrangement or where relatives of either the surrogate or commissioning couple sought to intervene following their deaths.

3.21 The Department of Family and Community Services may also wish to invoke this jurisdiction or to interfere in wardship proceedings. Especially in the first cases of surrogacy coming before the court, the Department is likely to regard itself as having a public duty to test the enforceability of such arrangements. The equivalent public authority in England certainly regarded itself as having that function in the case of Re C (A Minor) (Wardship: Surrogacy).²⁶ The case involved no dispute between the commissioning couple and the surrogate mother. The surrogate mother had given up the child to the commissioning couple voluntarily and took no further part in the proceedings. The local authority invoked the wardship jurisdiction of the High Court. Upon satisfying itself of the commissioning couple’s suitability as the child’s custodians, Latey J gave care and control to them until a further order could be made. In the meantime the wardship was to continue as well.

3.22 The resolution of a case in the wardship jurisdiction is very similar to that in a custody dispute. Although the Court’s powers are said to be without limits to ensure the welfare of the child, in truth they are usually exercised by selecting a suitable guardian. This it will normally do from the parties before the Court, although it is technically open to the Court to search wider afield for someone more suitable. It is also open to the Court to prefer the Minister for Family and Community Services as guardian, but this would be rare unless the parties before the Court were shown to be likely to abuse or neglect the child.

C. Adoption

3.23 once the commitments under a surrogacy arrangement have been fulfilled, there will remain the question of the transfer of legal guardianship of the child. This is something that the parties to the agreement will want to finalise early, to vest all parental rights and obligations in the commissioning couple, particularly if one or both of them is not related to the child genetically.

3.24 Adoption transfers all parental rights and duties to the adopting parents and obliterates those biological parents.²⁷ Unless dispensed with by a court, adoption requires the consent of the mother and evidence to satisfy the court of the suitability of those applying to adopt. As it is one of the areas of State power reserved from the transfer to the Commonwealth, adoption applications will continue to be heard in the Supreme Court. It is possible for the unmarried father of a child to object to an adoption application, but unlikely in surrogacy cases since he is likely to be either the commissioning father or an unknown donor of sperm.

3.25 The Department of Family and Community Services may also intervene in private adoption proceedings as a matter of public interest. Indeed, in most circumstances the Court cannot proceed to make an adoption order without a report from the Department.²⁸

D. Care Proceedings

3.26 Another way in which a surrogacy arrangement may come under judicial scrutiny is through care proceedings brought by the Department of Family and Community Services in the Children’s Court.²⁹ Such proceedings are part of the Department’s statutory function to protect children from risks of physical and emotional harm or abuse. It is not uncommon for the Department to prevent a child from being removed from hospital by using these powers. The orders available to the Children’s Court to protect the child range from placement with the parents (the choice of which parents being a matter for a recommendation from the Department in the case of a surrogacy arrangement) with or without the supervision of a Departmental officer, to placement with some other suitable person.³⁰ if the court is seriously concerned about the risks to which the child is being exposed, it may remove the child from the parents’ care and place it with the Minister as a ward of State.³¹

IV. ANCILLARY PROCEEDINGS

3.27 The possibilities described here in Part IV are termed ancillary proceedings to indicate that none of them is likely to be used as the primary method by which questions of maternity or paternity will come before a court in a surrogacy arrangement. They are set out because they are legal technicalities which parties seeking to fulfil their obligations under a surrogacy arrangement may run foul of in attempting to settle their affairs. By definition, none is designed to accommodate the surrogacy arrangement. Rather, they are legal rules which exist for other purposes, but which may hinder anyone who wishes to enter into a surrogacy arrangement.

A. Offences under Adoption and Care and Protection Legislation

3.28 The Adoption of Children Act 1965 contains several offences designed to ensure its enforcement. The first makes it an offence to receive any payment or reward “in relation to transfer of possession or control of a child with a view to adoption of the child”.³² If the parties avoid this provision, by denying the intention to adopt, they may run foul of Part Ill of the Children (Care and Protection) Act 1987 which (when proclaimed to commence shortly) will penalise the placement of children with someone who is not a relative for a period in excess of 28 days in any 12 month period.³³ The offence is not the placement itself, but placement with someone who is not a relative and who does not have foster, where that person has care of the child (whether or not a ward) for a period.³⁴ The Children (Care and Protection)Amendment Act 1988 will also give the Department of Family and Community Services increased powers to intervene in cases where the care of a child has been transferred without approval. When it commences it will extend the definition of “child in need of care” in the Children (Care and Protection) Act 1987 to “any infant of less than six months of age in the unauthorised care of a person who is not the legal guardian of the child where the authorised care is likely to continue”.³⁵ There are further offences relating to the public advertising of a willingness to adopt or to place a child for adoption or offering to make arrangements for adoption.³⁶

3.29 There is recent English authority to suggest that the parties to a surrogacy arrangement may escape liability under the adoption legislation if they satisfy the court that they did not form the requisite intention until after placement. In Re an Adoption Application (Surrogacy)³⁷ Latey J decided that commissioning parents who had made payments to the surrogate mother were not guilty of any offence under the English adoption legislation since it was “only after the payments had been made and the baby was born that any of them began to turn their minds in any real sense to adoption and the legalities”.³⁸ Whilst the provisions of the Children (Care and Protection) Act 1987 are more specific than their English counterparts, they do not apply if the person in whose care the child is placed is a relative of the child. Thus, in the common situation where the commissioning husband is the father of the child there will be no contravention.³⁹

3.30 There also seems to be little reason to assume that intermediaries in Australia need offend against the advertising offences, the most likely sources of contact for surrogate mother and commissioning parties being medical practitioners or family planning clinics. Neither will advertise publicly. In any event, a conviction would be unlikely if the advertisement did not evince an intention to have the child adopted.

3.31 Nor is there reason to believe that many surrogacy arrangements will contravene the prohibition on unlicensed foster care, for in most cases one of the commissioning parents will be a biological parent. The only difficulty likely to be experienced is where the presumptions in the Artificial Conception Act deny paternity to the commissioning father. if the surrogate mother is a married woman who has been inseminated with the commissioning father’s sperm, with the consent of her husband, the husband will be presumed the father to the exclusion of the commissioning father.⁴⁰ The commissioning father and his spouse will therefore be unrelated to the child and therefore commit the unlicensed fostering offence.

B. Registration of Births

3.32 The Registration of Births, Deaths and Marriages Act 1973 makes it an offence to supply false or misleading information in an application to register a birth.⁴¹ Parties affected by presumptions of the Artificial Conception Act 1984 may contravene this provision although they are in fact the biological parents of the child. The only way the commissioning couple would be able to avoid this result would be to choose an unmarried woman who was not cohabiting as their surrogate mother. In that case the presumptions of the Artificial Conception Act 1984 would not operate so as to exclude the commissioning father from recognition.⁴²

C. Maintenance

3.33 The party who has custody of the child may be able to pursue proceedings for maintenance against other parties to the arrangement.⁴³ Since the transfer of powers legislation, these proceedings will be taken in the Family Court and the outcome will be enforceable under the recently announced Commonwealth scheme for child support.⁴⁴ Such proceedings will, of course, require proof of parentage and once again the Artificial Conception legislation could produce anomalous results in some cases meaning that even where parentage is openly acknowledged there may be no enforceable claim for maintenance.⁴⁵

D. Declarations and Acknowledgments of Parentage

3.34 The Children (Equality of Status) Act 1976 contains provisions allowing parents to seek declarations of parentage from the Supreme Court and the father to make a formal acknowledgment of paternity.⁴⁶ A declaration of maternity or paternity may be sought by one parent of the child against the other or by the Principal Registrar of Births, Deaths and Marriages. ⁴⁷ The Court may order the parties to submit to blood tests to assist in its determination,⁴⁸ and may draw the appropriate inferences on refusal or failure to comply with an order.⁴⁹ While in force the declaration is irrebuttable⁵⁰ and the details may be entered on the register of births.⁵¹

3.35 A man may assert paternity of a child by executing an acknowledgment under s11(1) of the Children (Equality of Status) Act 1976. If countersigned by the mother, or entered in the register of births, the acknowledgment will raise a presumption of paternity⁵² until it is annulled by the Supreme Court.⁵³ When the acknowledgment is not countersigned by the mother, the Principal Registrar will not register the man as father unless satisfied that the mother is dead or that she has not objected to the registration after having been given due notice.⁵⁴ The way of challenging an acknowledgment is by application to the Supreme Court for an annulment.⁵⁵ The application may be made by the man, the mother, the child or the Principal Registrar,⁵⁶ but the Court also has power to hear others “whose interests would, in the opinion of the Court, be affected by” the annulment. The legislation does not offer the opportunity of making an acknowledgment of maternity to the mother.

3.36 For the parties to a surrogacy arrangement the process of registering a child’s name could become quite complex. On the presumptions contained in the Artificial 1984 the surrogate mother, if married, and her be registered as the parents.⁵⁷ If unmarried, living in a de facto relationship, the surrogate mother is the only person entitled to register, unless she has a request to register or an acknowledgment of paternity with the father.⁵⁸ This means that the commissioning father, or other sperm donor, does not have the right to register the child’s birth, except in conjunction with the mother, unless he has obtained a declaration of paternity from the Supreme Court.

3.37 The commissioning mother whose ovum the pregnancy also has the right to apply for a declaration of maternity⁵⁹ and the declaration may be transmitted to the Principal Registrar for entry into the register.⁶⁰ There is no guarantee, however, that the making of a declaration will result in entry of a party’s name on the register, because the Principal Registrar is given a wide discretion to enter such particulars from the declaration “as he considers appropriate”.⁶¹

V. SURROGACY AGREEMENT

A. Introduction

3.38 The enforceability of a surrogacy agreement should be considered from two perspectives:

1. the enforceability of its provisions relating to custody of the child; and

2. the enforceability of other terms and conditions contained in it.

3.39 The Commission is of the view that, except in the very marginal way explained below, a surrogacy agreement will not be enforceable to the extent that it purports to determine the custody of the child. This matter will be settled by the court in accordance with the overriding principle that the welfare of the child is the paramount consideration, and not on the terms of any contract which the legal parents may have entered into. The only impact the terms of the agreement can have on the application of that principle is possibly as a guide to the applicants’ suitability as parents. The fact that the parties have entered into a surrogacy arrangement, or the terms of the agreement itself, could be taken into account when the court is assessing them as parents. Alternatively, the court could regard this information as irrelevant.

3.40 The topic has been the subject of comment in three reported cases in England. In the earliest, A v C,⁶² Comyn J of the Family Division of the High Court refused to pay any regard to the agreement between the parties. He regarded it as against public policy as “a purported contract for the sale and purchase of a child”.⁶³ Comyn J commented “none of them can rely upon it in any way or enforce the agreement in any way,⁶⁴ but said that he must take account of it “as a fact and circumstance which must be borne in mind when considering the case”.⁶⁵ The Court of Appeal may be taken to have endorsed this view of the enforceability of the agreement. When determining the appeal against Comyn J's order allowing access by the commissioning father, none of the members of the Court of Appeal sought guidance from the terms of the agreement.⁶⁶

3.41 Latey J confirmed this approach to the agreement in the later case of Re C (A Minor) (Wardship: Surrogacy).⁶⁷ He said “the commercial aspects of it raise difficult and delicate problems of ethics, morality and social desirability”.⁶⁸ Then he questioned whether they (the commercial aspects of the arrangement) were relevant to the decision before the court of “what now and, so far as one can tell, in the future is best for this child”.⁶⁹ He had no doubts on that question:

..[T]hey are not relevant. The baby is here. All that matters is what is best for her now that she is here and not how she arrived. If it be said (though it has not been said during these hearings) that because the father and his wife entered into these arrangements it is some indication of their unsuitability as parents, I should reject any such suggestion. If what they did was wrong (and I am not saying that it was) , they did it in total innocence.’⁷⁰

3.43 In the United States of America, two courts in New Jersey have had to deal with the question of the enforceability of the agreement in the now famous case of In re Baby M.⁷³ Judge Sorkow, who presided at the trial, concluded that the agreement was “valid and enforceable” and prima facie was specifically enforceable. However, he pointed out that as the remedy of specific performance is an equitable remedy, the Court has a discretion whether to grant it. In this case the exercise of the discretion depended upon whether the grant of specific performance would be in the child’s best interests.⁷⁴ In the event, Judge Sorkow found that the child would be better placed with the commissioning parents, but he did so on the basis of the principles applicable to custody and not by a simple enforcement of the contract.

3.44 On appeal in the Baby M case the Supreme Court of New Jersey was unanimous in disagreeing with this aspect of Judge Sorkow’s judgment.⁷⁵ The Supreme Court found the agreement to be in direct conflict with both the statute law and the public policies of New Jersey as expressed in its case law. It was therefore invalid and unenforceable.

3.45 Having decided that the agreement was not enforceable the Supreme Court went on to examine the custody issue independently of it. However, the court’s decision to disregard the terms of the agreement did not mean that “the existence of the contract and the circumstances under which it was entered may not be considered to the extent deemed relevant to the child’s best interests”.⁷⁶

3.46 The conclusion to be drawn from these cases is that, both in England and the United States, courts are highly unlikely to determine the custody issue by reference to the terms of the agreement. The fact that the agreement has been entered into and the circumstances of its making may, however, reflect on the suitability of the parties to the agreement as parents for the child.

C. Enforcement of Agreement for Other Purposes

3.47 The Supreme Court of New Jersey went much further than the English courts in one significant way. Whereas the English courts merely declined to make use of the surrogacy agreement for the purposes of the custody decision before them, the New Jersey Supreme Court pronounced the agreement illegal and unenforceable. This may mean that in New Jersey the agreement cannot be enforced for any purpose, whereas it is still open to an English court to enforce those provisions which do not relate to the transfer of custody.

3.48 Thus, in England (and in this State since no statutory or common law pronouncement has been made on the matter) an application could be made to a court to enforce terms of the agreement which relate to other matters. These may include, for instance, the health care of the surrogate mother, conditions imposed on the right to have an abortion, conditions as to her place of residence, and to the people with whom she may cohabit, and the terms under which she is to be paid.

3.49 The judicial attitude t o the enforceability of these ancillary terms has not been settled. Even in Baby M the decision of the Supreme Court that the agreement was illegal clearly rested on the fact that it was at odds with the adoption legislation, a view that was not confirmed by the only English authority on the point, Re an Adoption Application (Surrogacy), discussed in para 3.29 above. In the New Jersey Court’s view the arrangement breached “[a]lmost every evil that prompted the prohibition of the payment of money in connection with adoption”.⁷⁷ Although it had been drafted carefully to avoid breach of the specific provisions of the adoption legislation the effect of the agreement was the same as “a private placement adoption for money”.⁷⁸ The Court regarded the actions of the surrogate mother, the commissioning father and the intermediate agency as designed “to frustrate the goals of the statute”.

3.50 There is no Australian authority on the issue so the views of our courts are unknown. They could follow the approach adopted in the English courts and leave the decision of whether such agreements are illegal or contrary to public policy to the legislature, but a decision such as that of the Supreme Court in Baby M is not beyond the scope of this State’s courts either. There is a well established principle of contract law that a court will decline to enforce a contract which is against public policy. It may be unenforceable because it breaches an express statutory provision or because it is contrary to another concept of public policy to be found in “some definite and governing principle which the community as a whole has already adopted either formally by law or tacitly by its general course of corporate life, and which the courts of the country can therefore recognise and enforce”.⁷⁹ The point of departure between the New Jersey Court and courts in this country is likely to be the reluctance of our courts to identify a “definite and governing principle” which the community accepts without the aid of legislative intervention. To complete the quotation above: “The court is not a legislator: it cannot initiate the principle; it can only state or formulate it if it already exists”.⁸⁰ The reality in Australia is that ‘lover the last half century, there can be observed a marked decrease in the types of contracts which will be regarded as contrary to public policy”.⁸¹ There is another possibility open to the courts of this State as well. The courts may find themselves unable to disentangle those aspects of the contract which breach the adoption legislation, and those concerned with the transfer of custody and guardianship, from those which deal with the ancillary matters. Should this occur, they may find themselves unable to enforce any part of the contract because all parts are tainted by the same illegality or cannot be extricated from those parts which are considered to be contrary public policy.⁸²

D. Extent of Enforcement

3.51 The extent to which the ancillary features of the surrogacy contract will be enforced in New South is another question. The only way the parties to an agreement could require performance of certain aspects of the agreement would be to make use of the equitable remedies of specific performance and injunction. Those orders would direct the defaulting party to undertake the obligations imposed by the agreement or to desist from breaches of the terms of the agreement. These equitable remedies are almost never available to assist in enforcing the performance of personal obligations, however. It is very unlikely that specific performance would be ordered to require the surrogate mother to become pregnant or to require her to attend for ante natal treatment or screening provided for in the agreement. It is also highly unlikely that an injunction would be issued to prevent breaches of the agreement, for example to prevent an abortion or the use of drugs or other harmful substances during pregnancy.

3.52 The only remedy really available to assist the parties to enforce the agreement will therefore be an order for damages for its breach. Once again, there may be obstacles in the way of recovery for the party taking the action. In order to recover more than nominal damages the party taking the action will have to establish loss flowing from the breach of the agreement. The most obvious example of when loss could properly be established is when the commissioning couple fail to make the payments promised to the surrogate mother. In most other cases of breach the loss will be difficult to assess because it will be personal and emotional and therefore difficult to quantify. The losses involved would relate to the distress and loss of enjoyment suffered by the commissioning couple on the surrogate mother’s failure to hand over the child. Quantifying the loss to health and life expectancy caused through the surrogate mother’s failure to observe requirements for health care imposed by the agreement would also be difficult.

1. Guardianship describes the sum total of rights a parent has to direct the child’s education, religious upbringing, health care and other matters of fundamental importance to the child’s welfare.

2. Family Law Act 1975 (Cth) s63E(1) defines guardianship to include “all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child” other than those given to a person granted custody. Custody is defined in s63E(2) to cover the right to have “daily care and control” and the right to make decisions concerning daily care and control. As is stated in s63E(1), the distinction is that guardianship gives responsibility for “the long-term welfare of the child”.

3. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s4(1). See generally, K Mason and J Crawford “The Cross-Vesting Scheme” (1986) 62 Australian Law Journal 328.

4. Commonwealth Powers (Family Law Children) Act 1986 s3(2); Family Law Act 1975 (Cth) s60E.

5. Family Law Act 1975 (Cth) s60B(1).

6. Id s60B(4).

7. Artificial Conception Act 1984 ss5, 6.

8. New South Wales Law Reform Commission In Vitro Fertilization (LRC 58, July 1988) Recommendation 24 at 88.

9. Children (Equality of Status) Act 1976 s18(1); Artificial Conception Act 1984 ss5(3) and 6(2).

10. Family Law Act 1975 (Cth) s92(1A) makes specific reference to intervention by people subjected to tests of parentage under s66W.

11. Artificial Conception Act 1984 s6(2).

12. Although s6(1)(b) of the Artificial Conception Act 1984 contemplates that child birth by donor ovum could occur.

13. Children (Equality of Status) Act 1976 s10(3) refers to cohabitation “at any time during the period of 24 weeks commencing with the beginning of the forty-fourth week before the birth of the child”.

14. Id s18A(2)(c).

15. Family Law Act 1975 (Cth) s60B(2).

16. Ibid.

17. Id s63C(1)(a).

18. Pearn and Appleby (1977) FLC 90-231, 76,228.

19. Id 76,228 - 76,229, per Frederico J.

20. Family Law Act 1975 (Cth) s60D.

21. Id s62A(1).

22. Zoneff v Zoneff (1968) 12 FLR 415, 419, referred to with approval by Gee J in Obrenovic and McCauley (1985) FLC 91-655, 80,273.

23. Obrenovic and McCauley (1985) FLC 91-655, 80,275, per Gee J.

24. K v Minister for Youth and Community Services [1982] 1 NSWLR 311; Re X (a Minor) [1975] Fam 47.

25. See note 4 above.

26. [1985] FLR 846.

27. Adoption of Children Act 1965 s35.

28. Id s21, 21(1A)-(1C).

29. Children (Care and Protection) Act 1987 s57(1)(a).

30. Id s72(1)(c)(ii).

31. Id s72(1)(c)(iii).

32. Adoption of Children Act 1965 s50(1).

33. Children (Care and Protection) Act 1987 ss42, 44, as amended by Children (Care and Protection) Amendment Act 1988, Schedule 1(7).

34. Id s42(1).

35. The Hon Virginia Chadwick, Minister for Family and Community Services, New South Wales Parliamentary Debates (Hansard) 24 May 1988, 386 at 390.

36. Adoption of Children Act 1965 s52(1).

37. [1987] 2 All ER 826.

38. Id at 830.

39. Children (Care and Protection) Act 1987 s42(2)(c).

40. Artificial Conception Act 1984 s5.

41. Registration of Births, Deaths and Marriages Act 1973 s57(1).

42. Artificial Conception Act 1984 ss5 and 6.

43. Under the Family Law Act 1975 (Cth) s66B(1), both parents are liable to maintain the child.

44. Child Support Act 1988 (Cth).

45. Artificial Conception Act 1984 ss5, 6. The presumption in the Artificial Conception Act s6 in regard to the paternity of the donor is irrebuttable, except where the donor acknowledges paternity under s11(1) of the Children (Equality of Status) Act 1976. This is the effect of s18A(2)(d) of the Children (Equality of Status) Act 1976. Use of an acknowledgment to rebut the s6 presumption is only possible in cases where s5 of the Artificial Conception Act 1984 does not apply, ie. where the surrogate mother is unmarried (and not in a de facto relationship) or if married where her husband has not consented to the artificial conception procedure (s18A(2)(b)).

46. Children (Equality of Status) Act 1976 ss13, 11 respectively.

47. Id ss13(1) and 15(1).

48. Id s19.

49. Id s21.

50. Id ss13(4) and 15(4).

51. Id ss13(5) and 15(5); Registration of Births, Deaths and Marriages 1973 s42A(2)(f).

52. Children (Equality of Status) Act 1976 s11(1).

53. Id s11(3).

54. Registration of Births, Deaths and Marriages Act 1973 s42A(5)(c).

55. Children (Equality of Status) Act 1976 s11(4).

56. Id s11(4).

57. Registration of Births Deaths and Marriages Act 1973 s42A(5).

58. Id s42A(1), (2).

59. Children (Equality of Status) Act 1976 s15(1)(b).

60. Id s15(5); Registration of Births, Deaths and Marriages Act 1973 s42B, (2).

61. Id s42B(3).

62 [1985] FLR 445. Judgment in A v C was given in 1978, but it was not reported until 1985.

63. Id at 449.

64. Ibid.

65. Ibid.

66. A v C [1985] FLR 453, Stamp, Ormrod and Cumming-Bruce LJJ.

67. [1985] FLR 846, Latey J in the Family Division of the High Court.

68. Id at 847.

69. Ibid.

70. Id at 848.

71. Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421.

72. Id at 424-425.

73. In re Baby M 525 A 2d 1128 (1987).

74. Id at 1167.

75. In the Matter of Baby M (Unreported, Supreme Court of New Jersey A-39, September Term 1987) Wilentz CJ in whose opinion the rest of the court joined: Handler, Pollock, 0’Hern, Garibaldi and Stein, JJ. See also “The Baby M case and surrogate motherhood” (1987) 61 Australian Law Journal 322; “Surrogate motherhood and the appeal in the Baby M case” (1988) 62 Australian Law Journal 324.

76. Id at 69.

77. Id at 46.

78. Id at 26.

79. Wilkinson v Osborne (1915) 21 CLR 89 at 97, per Isaacs J.

80. Ibid.

81. D W Greig and J L R Davis The Law of Contract (1987) at 1127.

82. Carney v Herbert (1985) 59 ALJR 41 at 43-45 (Privy Council).