Surrogacy in Western Australia
The Surrogacy Act 2008 was passed by Parliament on 10 December 2008 with the associated Regulations, Directions and Rules commencing on 1 March 2009. This means it is now legal for non-commercial surrogacy arrangements to be made between eligible persons in Western Australia.
- What is a surrogacy arrangement?
- What is legal under the Surrogacy Act 2008?
- Who is eligible for surrogacy?
- What types of surrogacy are allowed in WA?
- How do I find a birth mother (surrogate)?
- Application process
- Costs
- Further information
What is a surrogacy arrangement?
A surrogacy arrangement means an arrangement where a woman (the birth mother) agrees to carry a child for another person or a couple (the arranged parent(s)) with the intention that the child will be raised by those arranged parents. The surrogacy arrangement must meet strict requirements set out in the Surrogacy Act 2008 and must be approved by the Reproductive Technology Council. A surrogacy arrangement can only be made before the birth mother becomes pregnant.
What is legal under the Surrogacy Act 2008?
- An eligible woman or couple can arrange an altruistic surrogacy arrangement in WA when a comprehensive assessment and approval process has been undertaken.
- Allows access to IVF for a woman who has agreed to carry a child for a woman or couple who would be eligible for IVF in WA.
- Provides for the transfer of legal parentage (through a Family Court order) which means the arranged parents would become the legal parents of the child.
- Offers a window of opportunity for transfer of legal parentage for a child conceived through a private surrogacy arrangement before the Surrogacy Act 2008 came into effect. This window of opportunity lasts for 12 months from the commencement of the Surrogacy Act 2008 (1 March 2009) and an application to the Family Court must meet all requirements set out by the Surrogacy Act 2008. Please refer to the Family Court of Western Australia for more information.
Who is eligible for surrogacy?
Assisted Reproductive Technology (such as artificial fertilisation or IVF) in WA is regulated under legislation known as the Human Reproductive Technology Act 1991. Persons wishing to pursue a surrogacy arrangement must meet certain criteria set out in this legislation. An eligible person means a woman who:
- Is 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; or
- Although able to conceive a child, is unable for medical reasons to give birth to a child.
There are further restrictions on who is eligible for a surrogacy arrangement. For example, a woman who can no longer conceive a child as she is postmenopausal will not be eligible to pursue a surrogacy arrangement (this may not be the case for women with premature menopause).
Please refer to Section 23 of the Human Reproductive Technology Act 1991 (WA) or Section 19(2) of the Surrogacy Act 2008 for further information on arranged parent eligibility.
A birth mother (surrogate) must:
- Have reached 25 years of age
- Have given birth to a live child (exceptional circumstances may dispense with this requirement)
- Have not yet become pregnant under the arrangement.
Please refer to Section 17 of the Surrogacy Act 2008 for further information on birth mother eligibility.
What types of surrogacy are allowed in WA?
The Surrogacy Act 2008 does not directly specify the types of surrogacy that are permitted in WA. This means the types of surrogacy that may be accepted in WA are gestational surrogacy (arranged parent gametes and/or donor gametes) or traditional (partial) surrogacy (birth mother egg and arranged father / donor sperm). However, there are differences in parentage order application requirements where the birth mother provides the egg for conception in the surrogacy arrangement.
Please note not all infertility clinics offering surrogacy services will offer traditional (partial) surrogacy arrangements.
How do I find a birth mother (surrogate)?
Only altruistic surrogacy is legal in Western Australia. This means it is legal to be a birth mother if there is no material or financial gain; though reimbursement of reasonable expenses is permitted under the Surrogacy Act 2008. It is an offence to make a surrogacy arrangement that is for reward or to seek a reward for introducing parties.
The law does allow prospective arranged and birth parents to advertise for a surrogacy arrangement, but this must not be for a commercial arrangement (reward). Commercial surrogacy arrangements are illegal in Australia and advertising or making a commercial arrangement carries an offence of substantial fines or imprisonment. Advertising for an altruistic surrogacy arrangement is legal.
Application process
The parties involved in a surrogacy arrangement must undergo a comprehensive assessment and approval process. This includes but is not limited to:
- Medical assessment
- Counselling
- Clinical psychology assessment
- Seeking independent legal advice
Final approval for a surrogacy arrangement is decided by The Reproductive Technology Council. The best interests of any child are paramount when considering any surrogacy arrangement.
View the application forms required to be submitted to the Council by the clinic surrogacy co-ordinator.
Costs
The cost of services in association with a surrogacy arrangement may include:
- Infertility clinic fees and services
- Counselling
- Clinical psychology assessment
- Independent legal advice
- Reimbursement of reasonable expenses to the birth mother
Some of these costs will be included in the infertility clinic’s prices.
Surrogacy arrangements in WA must be altruistic (the birth mother can not receive any financial or material benefit). However, certain reasonable expenses associated with the arrangement can be paid for by the arranged parents.
Further information
Please refer to a WA Infertility Clinic if you are interested in pursuing a surrogacy arrangement or considering being an altruistic birth mother. Please note not all infertility clinics will be providing surrogacy services.
Alternatively, you can make an enquiry with the Reproductive Technology Council. Click here to Contact Us.