The Surrogacy Act 2008 (WA) was passed by the West Australian parliament on 10 December 2008 with the associated Regulations, Directions and Rules commencing on 1 March 2009.
The commencement of the Surrogacy Act means that it is now legal for non-commercial surrogacy arrangements to be made between eligible persons in Western Australia.
What is a “non-commercial surrogacy arrangement” under the Act?
In WA a non-commercial (that is, altruistic) surrogacy arrangement refers to an arrangement where a woman (the birth mother) agrees to carry a child for another person or couple (known as the “arranged parents”), with the intention that the child will be raised by the arranged parents. It is unlawful for any money to change hands, hence the use of the term “altruistic” or non-commercial.
Who is an “eligible person” under the Act?
An “eligible person” under WA surrogacy laws 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 postmenopausal woman will not be eligible to pursue a surrogacy arrangement (women who have experienced premature menopause may be exempt from this restriction).
There are also legal requirements in respect of the birth mother (surrogate). She 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.
Is there an eligibility assessment process?
All surrogacy arrangements need to be approved by the Reproductive Technology Council (“the RTC”), which is the body that advises the Minister for Health and the Commissioner on all assisted reproductive technology and related research issues.
The RTC administers a comprehensive assessment and approval process. This includes but is not limited to:
- Medical assessment;
- Counselling;
- Clinical psychology assessment;
- Seeking independent legal advice (see below for meaning of “independent legal advice” in surrogacy arrangements).
Final approval for a surrogacy arrangement is decided by the RTC. The best interests of any child are paramount when considering any surrogacy arrangement.
The first WA birth under the new surrogacy laws occurred in April 2012, and the RTC had, at that time, approved only 12 surrogacy arrangements.
The Act allows for the transfer of parentage of the child to the arranged parents through the Family Court of WA.
What types of surrogacy arrangements are lawful in WA?
- Firstly, you must have approval for the surrogacy arrangement from the RTC.
- Only altruistic surrogacy is permitted in WA which means that there can be no material or financial gain for the birth mother, although under the Act it is lawful to reimburse the birth mother’s reasonable expenses related to the pregnancy. You should note that it is a criminal offence under section 8 of the Act to enter into a commercial surrogacy arrangements. The penalty of so doing is a fine of $24,000 or imprisonment for 2 years.
- The surrogacy arrangement may involve either traditional surrogacy (that is, arranged parent gametes and/or donor gametes) or gestational surrogacy (that is, birth mother egg and arranged father / donor sperm). Western Australia is currently the only state in Australia where traditional surrogacy is lawful.
What does “independent legal advice” mean?
You are required to obtain “independent legal advice” as part of the RTC assessment process. 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 will usually be treated as another “party” to the surrogacy arrangement.
In assessing fulfilment of the requirement to obtain “independent legal advice” the RTC has said that it will follow general approach outlined above when considering applications for approval of a surrogacy arrangement.
Surrogacy is a complex area of law. This article provides general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, or if you require independent legal advice as part of the approval process for a surrogacy arrangement, please contact our office at reception@hhg.com.au or call us on 1800 609 945.
