Surrogacy

Surrogacy arrangement

A surrogacy arrangement is approved by the Reproductive Technology Council. The arrangement must comply with the Surrogacy Act 2008.

Surrogacy agreement

A surrogacy agreement will form part of the surrogacy arrangement. The agreement sets out details between the birth mother and arranged parents.

A surrogacy agreement is required for the Reproductive Technology Council (external site) to approve a surrogacy arrangement and for the Family Court to consider a parentage order.

The surrogacy agreement might include expenses that will be covered or reimbursed, number of cycles that will be attempted, future contact or communication between arranged parents, birth mother and child.

The only part of a surrogacy agreement that this legally enforceable relates to costs and expenses for reimbursement.

Independent legal advice must be obtained by all parties to a surrogacy agreement. Legal advice must be obtained at least 3 months before approval of a surrogacy arrangement.

Parentage order

A parentage order is issued by the Family Court on application from the arranged parents. The order transfers parentage from the birth mother and her partner (if applicable) to the arranged parents.

The application for parentage order must be made between 28 days and 6 months after birth. The child must be living with the arranged parents when the application is made.

An application for a parentage order must be accompanied by the approved surrogacy arrangement and the surrogacy agreement.

Surrogacy arrangements must be approved by the Reproductive Technology Council (external site).

Applications are completed by the arranged parents, birth mother and any donors with the assistance of the Surrogacy Coordinator at the chosen licensed fertility provider.

Approval requirements

• The birth mother must be at least 25 years of age
• The birth other must have had at least one child (except in exceptional circumstances).
• The Surrogacy Agreement has been signed by:
  • the arranged parents
  • the birth mother and her husband or partner (if applicable)
    and
  • any donor/s and their spouse or partner (if applicable).
• All parties to the Surrogacy Agreement must:
  • undertake counselling
  • be assessed for medical and psychological suitability for surrogacy
  • receive independent legal advice.

In Western Australia access to surrogacy arrangements are limited to:

• heterosexual married or de facto couples who are unable to conceive a child due to medical reasons or are likely to conceive a child affected by a genetic abnormality or genetic condition
  or
• a woman who is unable to conceive or give birth to a child due to medical reasons; or is likely to conceive a child affected by a genetic abnormality or condition.

Medical reasons above to do not include a reason arising from a person’s age.

Same sex male couples or single males are not currently able to access surrogacy in Western Australia.

The law in Western Australia is being reviewed and the WA Government has committed to providing equity of access to altruistic surrogacy for women who face impending infertility, single men, people in same-sex relationships, transgender people and intersex people.

Birth parents and arranged parents must undertake a psychological assessment and counselling as part of a surrogacy arrangement. Evidence of counselling must be provided when applying for approval of a surrogacy arrangement and a parentage order.

There are additional requirements for counselling if the surrogacy arrangement also involves donor assisted conception.

Surrogacy cannot be for reward. This means the surrogate cannot be paid. Only altruistic surrogacy is permitted in Western Australia.

Reasonable expenses may be reimbursed, including:

• a medical expense not covered by health insurance;
• the value of foregone earnings relating to:
  • the birth (2 month maximum)
  • other medical reasons
• psychological counselling fees
  or
• health, disability or life insurance fees associated with the surrogacy arrangement.

There are significant penalties for:

• making a surrogacy arrangement for reward
• receiving “valuable consideration”, including payment, for introducing parties for a surrogacy arrangement, whether or not that arrangement is for reward
• publishing advertisements seeking or offering surrogacy for reward
  
  or

providing a service to facilitate a surrogacy arrangement for reward.