Surrogacy: Western Australia

Guiding Principles

The Surrogacy Act 2008 (WA) provides that in making decisions about a parentage order, the court must regard the best interests of the child as the paramount consideration.

It is presumed to be in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence to the contrary. 1

Legality: What kinds of arrangements are legal?

Altruistic Surrogacy

Altruistic surrogacy is permitted, provided certain criteria (discussed below) are met.

Reasonable expenses associated with achieving, or attempting to achieve, the pregnancy or associated with the pregnancy, may be reimbursed. These include:

  • a reasonable medical expense that is not recoverable under any health insurance or other scheme; or
  • the value of earnings foregone because of leave taken
    • for a period of not more than 2 months during which the birth occurs or was expected to occur; or
    • at any other time for medical reasons arising during the pregnancy;
  • a reasonable expense of psychological counselling; or
  • a premium payable for health, disability or life insurance that would not have been taken out if the surrogacy arrangement had not been entered into; and provides cover for a period during which an expense referred to in another paragraph of this subsection is incurred or might be, or have been expected to be, incurred. 2

Commercial surrogacy prohibited

A person who enters into a surrogacy arrangement that is for reward commits an offence.

Penalty: a fine of $24 000 or imprisonment for 2 years. 3

Who may enter into a surrogacy arrangement?

The Surrogacy Act 2008 (WA) provides that an ‘eligible’ woman or couple can arrange an altruistic surrogacy arrangement provided a comprehensive assessment and approval process has been undertaken by the Human Reproductive Technology Council (HRTC). 4

Eligible couple means

  • two people of opposite sexes who are married to, or in a de facto relationship with, each other,

and

  • are unable to conceive a child due to medical reasons, or
  • although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease. 5

Gestational or Traditional Surrogacy?

Gestational or traditional surrogacy may be used.

What criteria do the commissioning person(s) need to meet?

The Surrogacy Act 2008 (WA) provides that an ‘eligible’ woman or couple can arrange an altruistic surrogacy arrangement provided a comprehensive assessment and approval process has been undertaken by the Human Reproductive Technology Council (HRTC). 6

  • Eligible couple means two people of opposite sexes who are married to, or in a de facto relationship with, each other and who as a couple are unable to conceive a child due to medical reasons or although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease.
  • An eligible person means a woman who meets the same criteria, or if able to conceive would be unable to give birth to the child for medical reasons.
  • The medical reasons for being unable to conceive a child do not include a reason arising from a person’s age or a reason prescribed for the purpose of the Human Reproductive Technology Act 1991 (WA).
  • The commissioning parents must reside in Western Australia and at least one arranged parent must have reached 25 years of age. 7

At least three (3) months before the HRTC gives approval to such an agreement, each of the arranged parents; the birth mother and her husband or de facto partner, if any; and any other person (a donor ) whose egg or sperm is to be used for the conception of the child or who is the spouse or de facto partner of a donor must have:

  • undertaken any counselling about the implications of the surrogacy arrangement that regulations under this Act require; and
  • been assessed by a clinical psychologist and confirmed, in a written report provided to the Council, to be psychologically suitable to be involved in the surrogacy arrangement; and
  • received independent legal advice about the effect of the surrogacy arrangement;
  • been assessed by a medical practitioner and a written medical report must confirm them to be medically suitable to be involved in the surrogacy arrangement. 8

What criteria does the surrogate need to meet?

The HRTC must not approve a surrogacy arrangement unless satisfied that:

  • The surrogate mother is at least 25 years of age, and (except in exceptional circumstances) has previously given birth to a live child;
  • The surrogacy agreement is in writing, signed by all parties (including the commissioning parents; the surrogate mother and her partner if any; the sperm and/or egg donor(s) and their partners if any;
  • Each of the parties has undergone counselling about the implications of the arrangement; has been assessed by a clinical psychologist as being psychologically suitable for the arrangement; and has received legal advice about the general effect of the agreement, at least three months prior to the arrangement;
  • The donor(s) and surrogate mother have been assessed as medically suitable to be part of the surrogacy arrangement; and
  • The intended surrogate mother is not yet pregnant under the agreement. 9

Is advertising legal?

Advertising concerning a commercial surrogacy agreement is prohibited. That is, a person commits an offence if the person publishes or causes to be published —

  • anything that is intended to, or likely to, induce a person to enter into a surrogacy arrangement that is for reward; or
  • anything to the effect that a person who is willing to enter into a surrogacy arrangement that is for reward is sought; or
  • anything to the effect that a person is or might be willing to enter into a surrogacy arrangement that is for reward. 10 Penalty: a fine of $6 000.

Advertising for an altruistic surrogacy arrangement is legal.

Can agents or intermediaries or other people be involved?

A person who receives, or seeks to receive, valuable consideration for introducing or agreeing to introduce persons with the intention that they might enter into a surrogacy arrangement commits an offence. This applies to both commercial and surrogacy arrangements. 11 Penalty: a fine of $12 000 or imprisonment for one year.

In addition, a person who provides a service knowing that the service is to facilitate a commercial surrogacy arrangement commits a crime except if the service is a health service provided to the birth mother after she has become pregnant. 12 Penalty: imprisonment for 5 years; Summary conviction penalty: a fine of $12 000 or imprisonment for one year.

Enforceability: Can the parties change their mind?

A surrogacy arrangement is not enforceable and so therefore a birth mother or intending parent(s) can change their mind.

Nevertheless, an obligation under a surrogacy arrangement to pay or reimburse reasonable expenses is as enforceable. 13

Parenting Orders?

Commissioning parents may apply to the Family Court of Western Australia for parenting orders.

In making a parentage order the court is to recognise that best interests of the child is paramount, it being presumed to be in the best interests of the child for the arranged parents to be the parents of the child unless there is evidence to the contrary. 14

Before making the order the court must also be satisfied that the birth parents and commissioning parents have made a written plan, which includes details of the amount of time and communication the child will have with the birth parents, and about balancing the child’s long term welfare. 15

In circumstances where the birth mother is not the child’s genetic parent and at least one arranged parent is the child’s genetic parent, or the birth mother cannot be found, is deceased or incapacitated, the legislation permits the court to dispense with the requirement for the birth parent to have received counselling; legal advice; to consent to the making of the parenting order; or to have agreed to an appropriate plan. 16

Access to Information for Children?

Note the above regarding parenting orders, in particular the requirement that birth parents and commissioning parents must make a written plan, which includes details of the amount of time and communication the child will have with the birth parents, and about balancing the child’s long term welfare.

People in Western Australia conceived using donor gametes after 2004 may access identifying information when they turn sixteen about their donor. Information is held on the Reproductive Technology Register maintained by the WA Department of Health. See our Health Law Central access to information for donor conceived people section for more information.

Notes:

  1. Surrogacy Act 2008 (WA) s13.
  2. Surrogacy Act 2008 (WA) s 6.
  3. Surrogacy Act 2008 (WA) s 8.
  4. Surrogacy Act 2008 (WA) ss 16 and 19.
  5. Surrogacy Act 2008 (WA) s 19.
  6. Surrogacy Act 2008 (WA) ss 16 and 19.
  7. Surrogacy Act 2008 (WA) s 19.
  8. Surrogacy Act 2008 (WA) s 17.
  9. Surrogacy Act 2008 (WA) s 15; See also the Surrogacy Regulations 2009 (WA).
  10. Surrogacy Act 2008 (WA) s 10.
  11. Surrogacy Act 2008 (WA) s 9.
  12. Surrogacy Act 2008 (WA) s 11.
  13. Surrogacy Act 2008 (WA) s 7.
  14. Surrogacy Act 2008 (WA), s 13.
  15. Surrogacy Act 2008 (WA), ss 21(2)(f) and 22.
  16. Surrogacy Act 2008 (WA), ss 21(3).