Cross-Border Surrogacy and Family Law – the complications are limitless

With more and more couples opting to use international services for paid surrogates, many issues can arise for which couples are not prepared. The case of Farnell & Anor and Chanbua [2016] FCWA17 is a representation of the complex issues that can arise when entering into a surrogacy agreement.

Mr and Mrs Farnell engaged a paid surrogate mother in Thailand, Mrs Chanbua, who was inseminated with Mr Farnell’s sperm.  On 23 December 2013 Mrs Chanbua gave birth to twins, Pipah and Gammy, Gammy had Down’s Syndrome.  In accordance with the Surrogacy Agreement, the Farnells returned to Australia with Pipah and Gammy stayed in Thailand with Mr and Mrs Chanbua.

The Farnells were having difficulties trying to regularise Pipah’s status, which was difficult given that Mr Farnell was not shown on the birth certificate as Pipah’s father, and Pipah did not have the Farnell’s surname.  The Farnell’s consequently made an application to the Family Court in Western Australia to obtain an order for joint parental responsibility for Pipah, and permission to change her surname.

In making the application is was revealed that Mr Farnell was a convicted sex offender.

In April 2015 Mrs Chanbua made an Application to the Court for Pipah to be returned to Thailand to live with her on the basis that she was at risk of abuse in the care of the Farnells, and that she should be reunited with her brother Gammy.  The Farnell’s argued that Pipah was now attached to them and she would be traumatised if removed from them.

The Court decided that Mrs Chanbua was the mother of Pipah and Mr Chanbua was Pipah’s father.  The Farnells however, were given parental responsibility of Pipah at the exclusion of the Mr and Mrs Chanbua.  It was ordered that Pipah live with the Farnells.

Thackery CJ warned; “The outcome might have been very different had the dispute come before me much earlier in Pipah’s life. At that point, it may have been decided it was in her best interests to return to live with her birth mother and her twin brother”