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 legal for non-commercial surrogacy arrangements to be made between eligible persons in Western Australia.
Surrogacy in WA
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.
- 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.
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.
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.
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.
The Surrogacy Act 2008 allows for altruistic surrogacy arrangements to be made under legislated conditions. All surrogacy arrangements need to have approval by the Reproductive Technology Council. The Surrogacy Act 2008 allows for the transfer of parentage of the child to the arranged parents through the Family Court of WA.
The following clinics are currently the only clinics offering surrogacy services in WA. Website addresses and contact details for clinic surrogacy coordinators are also provided. Please contact any of these clinics for further information about their surrogacy program.
Concept Fertility Centre
218 Nicholson Road
Subiaco WA 6008
Tel: 08 9382 2388
Genea Hollywood Fertility
Level 2, 190 Cambridge St
Wembley WA 6014
Tel: 08 9389 4200
PIVET Medical Centre
166-168 Cambridge Street
Leederville WA 6007
Tel: 08 9422 5400
Fertility Specialists of Western Australia
Bethesda Hospital Consulting Suites
25 Queenslea Drive,
Claremont WA 6010
Tel: 1300 392 393
The clinical surrogacy coordinators will assist the parties involved in a surrogacy arrangement to undergo the required comprehensive assessment and approval process. This includes but is not limited to:
- Medical assessment
- 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 coordinator.
The cost of services in association with a surrogacy arrangement may include:
- Infertility clinic fees and services
- 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 cannot receive any financial or material benefit). However, certain reasonable expenses associated with the arrangement can be paid for by the arranged parents.
INDEPENDENT LEGAL ADVICE
The term “independent legal advice” intends for all parties to be fully informed about the legal implications of a surrogacy arrangement:
- before entering into a surrogacy arrangement
- of a proposed parentage order
A lawyer must not provide advice regarding the surrogacy arrangement to both the arranged parent/s and the birth parent/s. A lawyer may advise both of the birth parents or both of the arranged parents. In the usual course of events (exceptions exist), each “couple” may be treated as one “party” in terms of this requirement.
Separate legal advice will also be required for any donor (third party) and their partner, who in the usual course, will be treated as another “party” to the surrogacy arrangement.
The Reproductive Technology Council (Council) will follow this general approach in considering applications for approval of a surrogacy arrangement.