Case Insight: Re M [2023] NSWSC 531 – Are Typed Signatures Legally Binding?

The Supreme Court of New South Wales recently addressed a critical question in Re M [2023] NSWSC 531: Can a typed name inserted into a digital document constitute a valid legal signature?

Background

This case involved a surrogacy agreement between a birth mother (L) and the intended parents (Z and X). While Z and X signed the agreement by hand, L used an online PDF editor to insert her name in a cursive font—along with the name of a witness—into the signature field of the electronic document.

The issue before the Court was whether this method of signing satisfied the requirement under section 34(1) of the Surrogacy Act 2010 (NSW), which mandates that the agreement be “signed” by all parties.

The Legal Question

The plaintiffs argued that the electronic signature met the requirements of section 9 of the Electronic Transactions Act 2000 (NSW) (ETA), which validates electronic signatures under certain conditions. However, Justice Parker rejected this argument, finding that the surrogacy agreement was not an “electronic communication” as defined by the ETA, and therefore the Act did not apply.

Instead, the Court turned to the broader definition of “sign” under section 21(1) of the Interpretation Act 1987 (NSW), which includes “the making of a mark.” Justice Parker concluded that typing a name into a document with the intent to accept its terms constitutes a valid signature under this definition.

The Decision

The Court accepted L’s affidavit evidence that she personally typed her name into the document and intended to be bound by it. As such, the surrogacy agreement was deemed validly signed, and the parentage order was granted but not pursuant to the Electronic Transaction Act 2000 (NSW). According to Parker J, the ‘signature’ failed the test under the Electronic Transaction Act 2000 (NSW).

Key Takeaway

This case confirms that a typed name can constitute a valid signature—provided there is clear evidence of intent. However, it also highlights the limitations of relying solely on the ETA and underscores the importance of understanding how different statutes interact.

At Maclarens Lawyers, we help clients navigate the evolving landscape of electronic execution. Whether you're entering into a surrogacy agreement or signing a commercial contract, we ensure your documents are legally sound.

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