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Surrogacy

Surrogacy

Important: Surrogacy can be a complex area of law. The information provided on this page is of a general nature only and applies specifically to Western Australia. It is very important to seek independent legal advice about your particular situation if you are involved or are planning to become involved in a surrogacy arrangement.

What is surrogacy?

Surrogacy is a method of assisted reproduction where a woman carries a child on behalf of another person or couple. Under the Surrogacy Act 2008 (WA) the woman carrying the child is called the birth mother and the person or couple are called the arranged parent(s).

Sometimes the child will be the biological child of the birth mother and the arranged father or a donor. This is called traditional surrogacy. 

Gestational surrogacy is where an embryo is created using either the arranged parent(s) or a donor’s egg or sperm. The embryo is then transferred to the birth mother’s womb. In this case the birth mother would have no genetic relationship to the child.

Is surrogacy legal in Western Australia?

Surrogacy is now legal in Western Australia since the Surrogacy Act 2008 came into force on 1 March 2009. Before this, surrogacy was not permitted in WA.

The surrogacy arrangement can involve either traditional surrogacy or gestational surrogacy. Western Australia is currently the only state in Australia where traditional surrogacy is permitted.

The surrogacy arrangement must not be a commercial one. That is, the birth mother cannot receive any payment other than for the reasonable expenses associated with the pregnancy and birth. It is an offence to enter into a surrogacy arrangement for reward or to assist someone else to do so. There are also other offences around publishing anything in relation to surrogacy arrangements for reward.

Are surrogacy arrangements enforceable?

Surrogacy arrangements are not enforceable, except for the birth mother being able to insist on payment of any agreed expenses related to the pregnancy or birth. This means that the arranged parents cannot rely on the usual contractual remedies (such as compelling someone to complete their part of the agreement) to enforce the surrogacy arrangement.

However, the arranged parents can still apply to the Family Court for a parentage order if they have followed the correct process for entering into a valid surrogacy arrangement and obtaining parentage of the child.

What is involved in a valid surrogacy arrangement?

There is a formal process that must be followed for the surrogacy arrangement to achieve the end result of the intended parents obtaining legal parentage for the child.

There are very specific requirements under the Surrogacy Act 2008 (WA). These include:

  • The birth mother must be at least 25 years old and usually will have to have successfully given birth before.
  • The surrogacy arrangement must be put in writing and signed by:
    • each of the arranged parents
    • the birth mother and her husband or de facto partner, and
    • any donor (if known) who will be providing an egg or sperm as well as that person’s spouse or de facto partner.
  • Each person who signed the agreement must have undertaken specific counselling, been assessed by a clinical psychologist and a medical practitioner and received independent legal advice. This must take place at least 3 months before signing the surrogacy arrangement.
  • The agreement must then be approved in writing by the Reproductive Technology Council.

Important: The surrogacy arrangement must be approved before the birth mother becomes pregnant under the arrangement or the surrogacy arrangement will not be valid.

Be aware that if a fertility clinic is to be involved, the clinic will likely also have their own requirements about how the process must be carried out. For example, the clinic may set an upper age-limit for the birth mother, or may only carry out gestational surrogacy arrangements.

How do the arranged parents obtain legal parentage of the child?

If the steps above and any other requirements under the Surrogacy Act 2008 (WA) have been complied with, the arranged parents may then apply to the Family Court for a parentage order in relation to the child.

The application cannot be made until 28 days after the birth. The application must then be made within 6 months after the birth. The Court may give leave to apply after this time in exceptional circumstances. In most circumstances the child would already be in the day to day care of the arranged parents.

The arranged parents and the birth parent (and her spouse or de facto partner) must have agreed in writing to a plan which must set out details such as any time the child is to spend with the birth parent(s) or any other person and any information that any of the parties is to provide to any other person.

When making a decision about parentage, the Family Court must regard the best interests of the child as the paramount consideration. There is a presumption that it is in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence that it would not be in the child’s best interests. For more information, see Best interests of the child.

Usually the birth mother will need to agree to the parentage order being made. This requirement may be dispensed with if the birth mother is deceased or cannot be contacted, or the birth mother is not the child’s genetic parent and at least one of the arranged parents is the child’s genetic parent (that is, their sperm or egg was used to conceive the child).

If the birth mother is a genetic parent and does not agree to the parentage order being made, the arranged parents would need to apply to the Family Court for parenting orders in the usual way. For more information on this process, see How does the Family Court deal with a children’s case and Children and parenting.

 Who can make an application for a parentage order?

An “eligible couple”

 

This means two people of the opposite sex who are married or in a de facto relationship and who are:

  • unable to conceive for medical reasons (which does not include medical reasons arising from the person’s age), or
  • would likely conceive a child affected by a genetic abnormality or a disease.

An “eligible person”

 

A woman who is:

  • unable to conceive for medical reasons (which does not include medical reasons arising from the person’s age), or
  • would likely conceive a child affected by a genetic abnormality or a disease, or
  • is unable to give birth for medical reasons.

The arranged parents must reside in Western Australia and at least one of the parents must be 25 years or older.

Are the laws about surrogacy the same everywhere?

The laws about surrogacy are different around the world. In some countries different types of surrogacy arrangements are legal, including commercial surrogacy. However, just because an arrangement is legal in another country, does not mean that it will be recognised in Australia.

The laws around surrogacy also differ between the states and territories of Australia. In some states and territories it is illegal to enter into a commercial surrogacy arrangement anywhere in the world.

You should seek legal advice about your specific situation in the place where you reside, intend to reside, and the place where you are thinking of entering into a surrogacy agreement.

Where can I get more information?

 

Last reviewed: 31/10/2012

Last modified:

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.