By Jessica Coles-Black

Substantial amounts of money, blackmail, extortion and even an inappropriately behaved lawyer. This matter involved everything that any good tv miniseries has.

The recent case of Soon & Poon, heard by the Family Court in Sydney, involved a commercial surrogacy arrangement between two sets of friends that went disastrously wrong. Commercial surrogacy is illegal in Australia by the way.

The parties in this matter are Mr Seto and Ms Yue, the Intending Parents, and Ms Poon and Mr Zhu, the Surrogate Mother and her partner.

Mr Seto and Ms Yue desperately wanted children. Over several years, the couple underwent five IVF treatments, all of which were unsuccessful.

During this time, Ms Yue formed a close friendship with Ms Poon. Ms Yue and Ms Poon agreed to an arrangement whereby Ms Poon would act as a surrogate mother in exchange for providing assistance to Ms Yue to obtain Australian residency.

Over the course of about five months, Mr Seto, the Intending Father, and Ms Poon, the Surrogate Mother, attempted to conceive a child through artificial insemination, and…. allegedly natural conception.

Mr Seto and Ms Poon attended an IVF clinic in NSW, posing as a couple. Ms Yue, the Intending Mother, also attended the appointment posing as a ‘supportive friend’.

Mr Zhu, the partner of the Surrogate Mother, was aware that his wife, the Surrogate Mother and the Intending Parents were attending IVF appointments, but he did not attend any appointments himself or sign any documents relating to the IVF clinic.

Ms Poon subsequently fell pregnant with twins following the assisted reproductive treatment.

The parties then enter into a ‘Agreement on Renunciation of Guardianship’, drafted by Ms Poon herself. The Agreement provided that Ms Poon, the Surrogate Mother, would ‘voluntarily give up custody of the children’, provided that Mr Seto, the Intending Father, paid for:

  • the IVF and medical costs
  • $50,000 towards Ms Poon’s immigration application (to be paid in instalments)
  • 50% of any costs relating to Ms Poon’s immigration application over $100,000
  • To act as Ms Poon’s financial guarantor for her immigration application
  • $7,000 deposit
  • $4,500 towards Ms Poon’s tuition fees

Such a surrogacy arrangement is illegal in Australia. Surrogacy arrangements must be altruistic.

Coincidently, shortly after the Intending Parents made the first instalment payment to Ms Poon, Ms Poon acknowledged that she no longer needed to apply for Australian residency due to recent change in legislation for Hong Kong residents.

By now, the parties’ relationship had begun to deteriorate. Ms Poon, the Surrogate Mother, began to demand an additional payment of $50,000 from the Intending Parents. Ms Poon threatened that if the Intending Parents refused to pay, she would find other people willing to pay or terminate the pregnancy.

The parties proceeded with the new arrangement on the condition that Ms Poon engaged a ‘reliable’ solicitor to make the arrangement ‘legitimate’ following the birth of the twins.

The twins were born by caesarean in late 2020 and were fed by formula immediately. Ms Yue attended the hospital each day to visit the twins until she was unable to do so as a result of COVID-19 restrictions.

The Surrogate Mother and the twins were discharged from hospital two days after Ms Yue was prevented from visiting. The Intending Parents attended the Surrogate Mother and her Partner, Mr Zhu’s home each day.

On the first evening home, Ms Poon demanded the final $30,000 from the Intending Parents before she would proceed with the application for a parentage order in the NSW Supreme Court. Mr Zhu threatened to sell the twins. The Intending Parents subsequently relented and paid Ms Poon $30,000.

About a week after the payment, the Intending Parents received a letter from Ms Poon’s lawyer, who we will call Lawyer D, demanding an additional payment of $290,000 within seven days. The letter described this payment was to essentially cover Ms Poon’s nutrition fees, cosmetic expenses to recover from her ‘physically disgraceful changes’ (meaning her caesarean scars), maternity matron, anticipated legal fees and to reimbursement of loss of earnings of Mr Zhu and herself.

The Intending Parents initiated proceedings in the Family Court of Australia. An interim order was made for the Intending Parents to spend time with the twins for two hours each day, which had occurred since they were discharged from the hospital.

Was it a legal surrogacy arrangement?

The Surrogacy Act 2010 (NSW) provides numerous preconditions parties have to follow before the NSW Supreme Court can make a parentage order declaring the Intending Parents the legal parents of a child. In this case, these pre-conditions were not met. Regardless, the Surrogacy Act, prohibits commercial surrogacy arrangements and therefore the Intending Parents could not apply for a parentage order.

Who are the parents of the twins?

Proceedings were issue in the Family Court of Australia in NSW.

At the trial, there was no dispute that Ms Poon, the Surrogate Mother, and Mr Seto, the Intending Father, were the biological parents of the twins.

The question at trial was whether the law operates to make Mr Zhu, the Surrogate Mother’s partner, a legal parent of the twins. The Court considered the following legislation and principles:

  • section 60H of the Family Law Act – provides that a woman and her partner, if she has one, are considered to be the parents of a child conceived via an artificial conception procedure. The partner is considered the ‘other intending parent’ provided that he consented to the procedure
  • Section 14 of the Status of Children’s Act (NSW) – provides that the husband of a woman, who falls pregnant through a fertilisation procedure, is presumed to be the parent of the child, if he consented to the procedure
  • The recent High Court Case of Masson v Parsons – when making parenting orders, a person could be considered a ‘parent’ within the ordinary meaning of the word

The Court found that Mr Zhu could not be considered a legal parent of the twins on the basis that:

  • all four parties did consider him the ‘other intended parent’ of the twins
  • if he did consent to the artificial conception procedure, then he only did to for his own financial gain and not to be the ‘other intended parent’

The Court found that Ms Poon, the Surrogate Mother, and Mr Seto, the Intending Father, were the parents of the twins. The Court considered Mr Seto to be the parent of the twins under the principles set out in Masson v Parsons for the following reasons:

  • he was the biological parent of the twins
  • all four parties intended for Mr Seto to be the parent
  • he provided financial support to the twins
  • he spent time with the twins daily

When making parenting orders, the Court must always consider what is in the best interests of the twins. In this case, the Court considered it was in the best interests of the twins for Ms Yue and Mr Seto, the Intending Parents, to have equal shared parental responsibility and residential care of the children. The Court ordered that Ms Poon and Mr Zhu, the Surrogate Mother and partner, spend no time with the twins.

What are the consequences of a commercial surrogacy arrangement?

The Court also referred all four parties to the Commissioner of Police for NSW for breaching the Surrogacy Act 2010 (NSW) and referred Lawyer D to the NSW Legal Services Commissioner for her conduct in the matter.

It came to light during trial that when Lawyer D was called upon to make written submissions to the potential referral to NSW Police and/or NSW Legal Services Commissioner, Lawyer D abruptly left her law firm with no notice, taking firm’s file of Ms Poon and Mr Zhu’s, the Surrogate Mother and partner, with her.

What does the outcome mean in reality for Ms Yue, the Intending Mother?

As the surrogacy arrangement was illegal, the parties were unable to apply to the NSW Supreme Court for a parentage order.

This means that Ms Poon, the Surrogate Mother, will remain on the twins’ birth certificate.

Ms Yue and Mr Seto, the Intending Parents, received final parenting orders providing them with equal shared parental responsibility between them and residential care of the children. The Intending Parents will be responsible for the day to day and long-term decisions relating to the twins, including registering the twins for Medicare, Centrelink and applying for passports.