Surrogacy

The law regarding surrogacy in Western Australia is governed by the Surrogacy Act 2008 (WA). Surrogacy arrangements in Western Australia for children born after 1 March 2009 must comply with the Act.

Surrogacy involves a woman carrying a baby for a prospective parent or parents. Surrogacy is normally performed when an individual or couple cannot ordinarily conceive a child themselves.

There are two different types of surrogacy in Western Australia:

  1. “Traditional Surrogacy” – where the sperm of the prospective father, or a donor, is used with the egg of the birth mother to create a child. Western Australia is the only state which practises Traditional Surrogacy;
  2. “Gestational Surrogacy” – where the sperm of the prospective father, or a donor, is used with the egg of the prospective mother, or donor, to create a child. The child will have no biological connection with the birth mother.

There are two important questions to consider with surrogacy. First, is the arrangement in question legal? Second, even if it is, who are the legal parents of the resulting child?

For a surrogacy arrangement to be legal in Western Australia it must meet very strict requirements. Generally, they are as follows:

  1. That the prospective parents have entered into a written surrogacy arrangement approved by the Reproductive Technology Council of Western Australia. The arrangement must state that the birth mother (or parents) agrees to carry the child for another person or persons (the prospective parents) with the intention that the child is raised by those prospective parents from its birth;
  2. That both of the prospective parents are residents of Western Australia;
  3. At least one of the prospective parents is over the age of 25;
  4. That the prospective parent(s) is an “eligible person”; and
  5. That the surrogacy is being performed in Western Australia for no commercial gain, payment or reward. Payment of reasonable medical and professional fees is acceptable.

To be an “eligible person”, and therefore qualify to be a prospective parent for a surrogate child, you must be:

  • In a heterosexual relationship; or
  • A woman who can’t conceive naturally on her own; and
  • Be unable to conceive for medical reasons, or you are the carrier of a hereditary genetic disorder.

The surrogate birth mother must also meet particular requirements:

  1. She must be over the age of 25;
  2. She must already have given birth to a live child before (there are some exceptions); and
  3. She must not be pregnant at the time the surrogacy agreement is approved.

A surrogate mother will generally conceive via IVF and be part of ongoing comprehensive health assessments before and during pregnancy.

To become the legal parents of the child, the commissioning couple must obtain a parentage order from the Family Court of Western Australia upon the child’s birth. The parentage order ensures that parental rights for the child are transferred from the child’s legal parent(s) to their prospective arranged parents.

The written surrogacy agreement will remain in place until a parentage order is made after the birth of the child. It is important to note that surrogacy plans are not binding, except for agreed payment of medical costs. Additionally, if the birth parent(s) retract on their offer to transfer the parenting rights of the child to the prospective parents, the same remedies for breaches of a contract would not apply. In those cases, commissioning parents can bring an initiating application in the Family Court to have the court decide what parenting orders would be in the child’s best interests.

Once a surrogacy arrangement is approved by the Council, plans will need to be made about the parentage of the child. The prospective parents and birth mother must bring their application for transfer of parentage in the Family Court of Western Australia between 28 days and 6 months after the child is born.

Alternatively, a surrogacy agreement can prescribe time or contact between the child and their birth mother. Naturally, the birth mother will have developed very strong feelings for the child and may regard them, in some way, as their own child. But ultimately, any such contact must be in the best interests of the child.

A parentage order must meet the following criteria to be considered by the Court:

  1. That the surrogacy is legal with respect to the Act and that there is an approved and legal surrogacy plan;
  2. That all parties to the matter have received counselling about the effect of the parenting orders;
  3. The application is made with the birth parent(s) consent;
  4. That the child is in the arranged, prospective parent(s)’s care; and
  5. That it is in the best interests of the child for the parentage order to be made.’

Once a parentage order is made, the effect of the order is that the birth parent(s) no longer have any legal rights over the child and it is as if the child had been born to their prospective parent(s) all along.

Some people decide to travel overseas to arrange a surrogate birth mother for their child. In that case, some fundamental requirements of a surrogacy arrangement drafted overseas may be wrong or grossly incorrect. If the surrogacy and parenting orders do not comply, then there may be an issue with the child’s parentage.

Surrogacy can be a complex issue. You should consider whether you ought to receive legal advice before proceeding with your matter.

Useful Links

  • The surrogacy governing body, the Reproductive Technology Council of Western Australia has a broad range of information and guidelines for prospective parents to consider. Any person intending to become involved with surrogacy should familiarise themselves with the Council and its processes. You can visit the Council’s website at www.rtc.org.au.
  • The Family Court of Western Australia has a wealth of information about how to apply for parentage orders to finalise surrogacy of a child, as well as providing all forms, instructions and kits available for applying for a parentage order. To access this information and example approved Surrogacy Plan templates, visit the Family Court of Western Australia’s surrogacy page here and/or download a copy of their Surrogacy Kit here.
  • Legal Aid WA also have an information fact sheet where you can find out more about surrogacy and the resources available to prospective parents to complete such an application. You can visit their surrogacy fact page by clicking here or calling Legal Aid WA on (08) 9261 6222.

 

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