Wednesday, 27 April 2016

Baby Gammy judgment delivered

Just over a week ago, Chief Judge Thackray of the Family Court of Western Australia delivered the Baby Gammy judgment. Or to put it more accurately, delivered the Baby Pipah judgment.

You remember the story. Mr Farnell (a convicted sex offender) and his wife went to Thailand to have a child via surrogacy, and ended up with twins. During the pregnancy they discovered that the baby boy had Down's Syndrome and, so the story goes, demanded that the surrogate, now known as Mrs Chanbua, abort the boy. When the children were born, bay Gammy, the boy and baby Pipah, the girl, the Farnell's then demanded that the surrogate keep baby Gammy and they took baby Pipah back to Australia.

The Farnell's then commenced court proceedings in Australia. Horrified that Mr Farnell was a convicted sex offender, Mrs Chanbua asked the court that both Gammy and Pipah live with her in Thailand.

Then in 2015 Mr and Mrs Farnell tried to raid the trust fund set up to protect Baby Gammy- so again the story goes.

Mrs Chanbua was unsuccessful.

Chief Judge Thackray found that some parts of the story were simply untrue. It turns out that Mrs Chanbua was underage and falsely put her age up to be a surrogate. The Farnell's were horrified that Gammy had Down's syndrome- but part of their shock was that the clinic left it very late to test. They did not seek Mrs Chanbua to have an abortion. They couldn't in Thailand. They were told that they could have an abortion in China- as doctors will doanything for money in China, apparently, but they did not seek for there to be an abortion in China.

They did not demand that she keep Gammy. They wanted both children. Instead, Mrs Chanbua loved the idea that she was having a boy growing inside her- and wanted the boy. At the time of the children's births, riots were happening in Bangkok on a daily basis. There was chaos. This was in the period leading up to the coup. Mr and Mrs Farnell were told to get out of Thailand for their safety. They fled Thailand, taking Pipah with them.

Back home they pretened that Gammy had died. The grief was too much to bear.

They started court proceedings, and said, falsely as too many parents do of children born from donor genes, that the child was genetically theirs. In fact, Mr Farnell was genetically the father, but an anonymous egg donor was the genetic mother.  They wanted Pipah to have a "normal" life.

His Honour also found, in painstaking detail, that there was no truth to the story that the Farnell's sought to grab their hands on the loot. Quite simply, they didn't. It was a beat up.

The result to me was not a surprise. The reason was obvious. Pipah was living with the only people she knew, in Bunbury, Western Australia, speaking English, not living with someone she didn't know speaking Thai in Thailand.

In Bunbury she was likely going to be protected from the prying eyes of the media. In Thailand she would probably be the subject of media intrusion as a "celebrity".

In August/ September 2014 when the Baby Gammy saga burst into view, Western Australia's child protection authorities, under the full glare of the world's media camped out on the front lawn, went to the Farnell's home. Since that time the Department did not take Pipah from the care of the Farnell's. Their conclusion- counter-intuitively- was that Mr Farnell was low risk. The judge examined a large amount of evidence and came to the same conclusion- but with the qualifier that there would be 3 monthly and surprise checkups from authorities with the Farnell's to help make ensure that Pipah was safe.

The case is an example of there not being an unacceptable risk. Here there was a risk to Pipah of being in the Farnell's care, but it was found to be low risk. 

From a legal point of view the case is interesting because his Honour expressly rejected the doctrine of intention as to who can be a parent. This runs counter to some other recent cases in the Family Court. His Honour also found that a provision of the Family Law Act that said that if a couple underwent IVF (no matter whose genes were used) or similar procedure they were the parents did not apply to surrogacy. In other words, the surrogate and her husband would not be the parents because they never intended to be the parents. His Honour then relied on State law to determine who were the parents, but here the woman who gave birth was therefore presumed to be the parent.

Yes, I am still trying to figure that out.

What the decision does mean is that the current uncertainty about who is and who is not a parent under the Family Law Act for those undertaking surrogacy overseas is even murkier, if that is possible, than before. His Honour disagreed with a decision in Western Australia by Justice Crisford in 2013 whereby her Honour found that a gay couple were in reality the parents of children born overseas through surrogacy. His view was that decision was incorrectly decided- meaning that those seeking to rely on the adoption provisions of WA law for their overseas surrogacy ought to think again.

An unusual feature of the case was that unlike the usual anonymity, the court revealed the full details of the case, including the names of the parties and that of the children. In a sense, how could it have been otherwise? The Baby Gammy saga had been played out in the world's media. I remember being interviewed by more media that I could count, including NZ radio, Fuji TV, Deutsche Well, the New York Times and the Wall Street Journal, as well as pretty well all of the local media. Quite simply, if his Honour did not reveal all, then the truth would not have been exposed and there would have been accusations of a coverup.

Hopefully for these young children, this will be an end to the media camped out on their lawns, harassing members of family, all trying to emulate Evelyn Waugh's Scoop and get the elusive prize for journalism. Hopefully for these children, they can now lead a normal life.

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