A baby with Down syndrome at the centre of an international surrogacy dispute in 2014 was not abandoned in Thailand by his Australian parents, a court has ruled.

Baby Gammy and his twin sister Pipah were born in Thailand in December 2013 to surrogate mother Pattaramon Chanbua, using Bunbury man David Farnell's sperm and donor eggs, after Mr Farnell and his wife Wendy were unable to conceive a baby.

The Farnells returned to Australia with Pipah in February 2014 and Ms Chanbua sought orders from Western Australia's Family Court to have Pipah returned to her.

However, in a judgement released today, Chief Judge Stephen Thackray said he had decided she should continue to live with the Farnells.

The case caused a furore when it was claimed the Farnells had abandoned Gammy, who has Down syndrome, in Thailand.

But in his judgment, Justice Thackray found the Farnells did not abandon Gammy, and had wanted to keep him.

However, at some time during the pregnancy, "it is clear that Mrs Chanbua had fallen in love with the twins she was carrying and had decided she was going to keep the boy."

When civil unrest broke out in Bangkok in early February, the Farnells were advised by Australian embassy staff to leave the country.

The Farnells had wanted to keep both babies, the judge found. ( Courtesy 60 Minutes/Channel Nine )

With Ms Chanbua refusing to give up baby Gammy, who was still in hospital, the Farnells left with Pipah and "returned to their home in Bunbury, which they had set up for two babies," Judge Thackray said.

"Although they were home, they were petrified the authorities might come to retrieve Pipah. They were also traumatised as a result of leaving Gammy behind."

The judge also refuted allegations the Farnells later sought access to a trust fund set up for Gammy.

On the contrary, the couple had donated the proceeds of a media interview they did with 60 Minutes to the trust fund.

After details of the case were made public two years ago, it was revealed that Mr Farnell had been convicted of child sex offences.

But in his decision, Justice Thackray said there was no evidence he had reoffended since his release from jail in 1999.

Justice Thackray said Pipah had "settled into her new home" and was "thriving in the care of a loving network of family and friends, including Mr Farnell's ex-wife, and their adult children and their families."

He said Gammy also "appears to be thriving" in Thailand where he has the "love and support of the members of [Ms Chanbua's] extended family".

"I have decided Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though I accept they would love her and would do everything they could to care for all her needs," he said.

Surrogacy problems highlighted: judge

Justice Thackray said the case "should also draw attention to the fact that surrogate mothers are not baby-growing machines, or 'gestational carriers'".

"They are flesh and blood women who can develop bonds with their unborn children.

"The appalling outcome of Gammy and Pipah being separated has brought commercial surrogacy into the spotlight.

"Quite apart from the separation of the twins, this case serves to highlight the dilemmas that arise when the reproductive capacities of women are turned into saleable commodities, with all the usual fallout when contracts go wrong."

Proceedings before the WA Family Court are normally confidential, but Justice Thackray ruled the case could be made public because of the level of public interest.

"This matter highlights the difficulty in achieving a balance between the right of the public to learn of the full background to an important case while ensuring that the best interests of the children involved are protected," he said.

He said the Farnells had "suffered great humiliation and enormous stress for things they did not do".

Decision welcomed

Child Protection Minister Andrea Mitchell welcomed the decision.

"The case covered a complex set of legal, emotional and social circumstances, including human rights and the legalities of artificial fertility and surrogacy," she said in a statement.

"The department has been working intensively with this family for more than 18 months and will continue to be involved in the child's future."

Loading...