The Western Australian legislation guiding surrogacy arrangements are set out in the Surrogacy Act 2008, which can be found on the Western Australian Legislation website.
Who may enter into a surrogacy arrangement
- Arrangements must not be commercial, and any payment to a surrogate needs to be strictly to reimburse her for expenses connected the surrogate pregnancy.
- Both gestational and traditional surrogacy arrangements are permitted.
- All parties to the arrangement (including the surrogate’s partner, if she has one) must seek independent legal advice, counselling and medical suitability screening at least three months prior to making the arrangement.
- Arrangements must be in writing and signed by all parties (i.e. including any donors).
- The surrogate must have previously given birth to a live child (unless there are exceptional circumstances).
- Arrangements must balance the rights and responsibilities of the parties, promotes the child’s long term welfare and is reasonable in the circumstances.
- All surrogacy arrangements in Western Australia must be approved by the Reproductive Technology Council
* When seeking a parentage order in Western Australia, at least one of the intended parents must be 25 years old. ** A single woman must be either unable to conceive naturally; or unable to give birth safely; or would likely conceive a child affected by genetic abnormality or disease.
- Surrogacy arrangements made in Western Australia cannot be enforced anywhere in Australia.
Payments in surrogacy arrangements
|Intended parents may reimburse their surrogate for costs connected to the surrogate pregnancy and birth||Commercial surrogacy arrangements are prohibited in Western Australia, and it is considered an offence to intentionally enter into a commercial surrogacy arrangement|
- Intended parents are permitted to advertise their need for a surrogate, so long as they have not paid a fee for the advert, statement or notice.
- Surrogates are permitted to advertise their desire to act as a surrogate, so long as they have not paid a fee for the advert, statement or notice.
At birth, the surrogate is recognised as the birth mother of the child, and if she has a husband or partner they are recognised as the child’s other parent. Intended parents can apply to the Supreme Court for a Parentage Order no earlier than 28 days after birth, and no later than six months following birth.
Preconditions to Parentage Orders
For intended parents to make an application for a parentage order in Western Australia there are several mandatory requirements:
- The surrogate is generally required to have previously given birth to a child.
- The child’s best interests are the paramount consideration.
- Parentage orders cannot be made unless the surrogacy agreement has been approved by the Western Australian Reproductive Council.
- The surrogate and her partner and the intended parents have received counselling and legal advice.
- The child is in the day to day care of the intended parents.