Surrogacy agreements are becoming more and more common, but each state has different laws about the validity of such arrangements, particularly when it comes to international agreements.  An interesting case has come out of the Family Court of Western Australia in recent weeks.

Father A and Father B were in a defacto relationship and decided to have children together, using a gestational carrier (surrogate) in India.  The children (twins) were conceived with sperm from Father 1 and an egg from an anonymous donor.  The embryo transplant was successful and the twins were born in India.  Although Father A and Father B separated prior to the birth of the children, they nonetheless remained on good terms and continued living together in WA as “housemates”.  They both flew to India for the birth of the children and then brought the twins back to Australia when they were 3 weeks old.

Sadly, Father A was then diagnosed with a terminal illness, so the issue became: what was to happen to these little children, who are now 4 years old ?  If and when he passed away, who would be the ‘parent’ for them and who would make decisions about their lives ?  The Fathers made a joint application to the Family Court for Father B to take on that role.  He has no genetic connection to the children but has lived with them since birth and so has standing to make such an application under the legislation as a person who is concerned with the ‘care, welfare and development’ of these children.  The surrogate in India carried the babies but had no genetic connection to them and has not seen them since birth so, although she was recognised in the proceedings, she did not take part and there was no suggestion of the children being sent to live with her in India.

The Judge found that Father A wanted to ensure that the children are cared for and loved by someone, as he had hoped to do.  Father B is that person and the Court found that the children had a close and loving relationship with both men.  They regarded Father A as their “father” but also regarded Father B as a father figure to them.  He told the Court that he treats the children as his own and loves them.  He was regarded as having the resources, love and understanding to bring up the children.

In the end, the Court was satisfied that it was in the best interests of the children for both Fathers to have equal shared parental responsibility and for the children to live with them.  This Court Order has the effect of securing, in a legal sense, the role of Father B in the lives of the children when Father A passes away.