West Australians, particularly single and gay men, have long waited for the surrogacy laws to become more accessible. Under the current Surrogacy Act 2008, only heterosexual couples and single women could pursue surrogacy in Western Australia.

The good news is that the Western Australian government, under Premier Mark McGowan, has promised to introduce new surrogacy legislation in the coming months. The new legislation will remove discrimination against gay couples and single men, allowing anyone with a medical or social need to pursue surrogacy in Western Australia. The Minister for Health Roger Cook promises the legislation will also allow clinics to recruit altruistic surrogates.

The legislation promises to improve access to altruistic surrogacy for those experiencing likely-infertility as well as same-sex couples, single men, transgender, and intersex people.

In August 2021, the McGowan Government media release outlined the plans for the coming months to reform the surrogacy laws in Western Australia.

Until law reform happens, intended parents in Western Australia will continue to follow the Surrogacy Act that provides the following criteria:

  • That the intended parents must have a medical need for surrogacy. As a result of the current laws, most same sex male couples in WA go overseas or relocate to another State to pursue surrogacy.
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  • That the birth mother is over 25 years of age.
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  • The birth mother must have given birth to her own child. This requirement might be dispensed with in exceptional circumstances.
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  • At least one of the arranged parents (intended parents) must be over 25 years of age.
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  • That the arrangement is altruistic. The intended parents must cover the birth mother’s out of pocket expenses in accordance with the law. Commercial surrogacy is illegal.
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  • That the parties have undergone counselling about the arrangement with a qualified counsellor, and completed independent psychological assessments with a psychologist.
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  • That the parties have obtained legal advice about the arrangement.
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  • There must be a written Surrogacy Agreement signed by all the parties.
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  • The arrangement must have been approved by the WA Reproductive Technology Council.

Western Australia intended parents can only seek IVF treatment within WA. This means that the embryo transfer must occur in a WA clinic. You should speak to a lawyer before pursuing treatment options outside of your State.

It is illegal to advertise for a surrogate in WA, and it is illegal for someone to publish anything that indicates they are willing to be a surrogate for someone else.

If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options. You can also read a broad overview of surrogacy in Australia.

You can also purchase Sarah’s book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.

You can read about the steps to follow once you have a surrogate, or consider what you need to do to find a surrogate.

If you are considering becoming a surrogate, you can read more about that here.

If you would like to know more about how surrogacy works in Australia and Western Australia, you might like to download the Surrogacy Handbook, or book in for a consult with Sarah below. You can also hear stories from intended parents and surrogates on the Surrogacy Podcast.

If you’re from another state, you can find all the details of the surrogacy laws that apply to you.

Sarah can assist with surrogacy arrangements across all States, including Western Australia and cross-border arrangements. You can contact me here. All consults are conducted over Zoom and email. You can book in for a consult with me below, and check out the legal services I provide.

Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF Mum, an egg donor and a traditional surrogate, and I delivered a baby for her Dads in 2018.

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

more than just a baby

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