Surrogacy Act 2008
Overview of the Act. We recommend you read the Act in its entirety or get legal advice before proceeding with surrogacy in Western Australia
The guiding principles of this act is that the wellbeing and best interests of a child born through a surrogacy arrangement are paramount
Am I eligible for surrogacy?
An eligible person or couple is someone who is unable to conceive or is able to conceive but is unlikely to carry the baby to term without significant risk to herself or the baby’s health. Eligible people include a single woman, or a partnered man and woman. One intended parents must be at least 25 years old before entering into an arrangement. The birth mother must have also given birth to at least one child of her own already.
Can we do Gestational Surrogacy?
Yes, you can use either your egg, or that of a donor. Medicare does not cover the costs IVF in the case of gestational surrogacy; this means you will be required to pay the full medical fee associated with getting pregnant
Can we do Traditional Surrogacy?
Yes, but you need to have a clinic to support you if you are not prepared to do home inseminations. If you use an IVF clinic for traditional surrogacy Medicare will not cover any of the cost
Is a surrogacy arrangement enforceable?
A surrogacy arrangement is not completely enforceable; however covering your surrogate’s costs is enforceable. Even if a surrogacy arrangement doesn’t end with a pregnancy or viable birth, the surrogate’s expenses must be paid byt the IP’s if a surrogacy arrangement has been entered into. If the surrogate terminates the pregnancy for any reason other than health risks to herself or the baby; then the IP’s are not obligated to pay any expenses of the surrogacy arrangement.
What do we need to do to obtain a parentage order?
There are a few requirements you need to meet to be eligible for a parentage order – these must be done prior to entering an agreement…
All parties need to have independent counselling with a counsellor who is prepared to prepare a report. This must be done at least 3 months prior to gaining approval from the Western Australian Reproductive Technology Council. Your counsellor be –
- Have a tertiary qualification or its equivalent in social work, psychology, counselling or another relevant field
- Or in the opinion of the court, have appropriate experience in this area
You and your surrogate must have independent legal advice from different legal representatives before entering an arrangement. This must be done at least 3 months prior to gaining approval from the Western Australian Reproductive Technology Council. Independent legal advice is legal advice from a lawyer that is chosen by the person receiving the advice and is not providing advice to the other party in the arrangement. You can draw up your own arrangement if you have the knowledge and understanding to do so. At a minimum you all must have independent legal advice before entering the arrangement and after the birth of the baby.
Consent must be given freely by the surrogate before entering the arrangement. This means that there should be no coercion on the part of the IP’s.
What costs do the IP’s have to cover?
As an IP you must cover all of your surrogate’s reasonable costs which include…
- a reasonable medical expense that is not recoverable under any health insurance or other scheme
- premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into
- all costs for counselling services needed for a surrogacy arrangement (before pregnancy and after)
- all costs for legal fees needed for a surrogacy arrangement (before pregnancy up until obtainment of a parentage order)
- Any lost wages incurred as a result of the surrogacy arrangement and birth of the child. For the surrogate this includes 2 months of lost wages during which she is expected to give birth during that time; or for any other period during or after the pregnancy when the birth mother was unable to work on medical grounds associated with the pregnancy or the end of a pregnancy
Although the surrogacy agreement is not enforceable, an obligation under the surrogacy agreement to reimburse the birth mother’s expenses is enforceable unless the surrogate does not relinquish the child, or does not consent to a parentage order.
The Act states that the surrogate has the rights to manage the pregnancy. This means the surrogate gets to choose where and how she delivers the baby.
Application of a parentage order
Must be made after 28 days of birth and before the child turns 6 months. If done outside this time you have to apply for special orders and this is at the court’s discretion
Your surrogate must be at least 25 years of age when entering into a surrogacy arrangement and have had at least one of her own children unless the Western Australian Reproductive Technology Council approves her decision to be a surrogate under exceptional circumstances
At least one intended parent must be at least 25 years of age
Each party must have signed the surrogacy agreement, this includes any donors used
At least 3 months prior to approval, the IP’s and surrogate must have had independent legal advice about the arrangement and its implications and the implications of a parentage order before applying to the courts for a parentage order
At least 3 months prior to approval, the IP’s and surrogate must have had counselling from an accredited counsellor about the arrangement and its social and psychological implications and been assessed by a clinical psychologist and confirmed, in a written report provided to the Western Australian Reproductive Technology Council, to be psychologically suitable to be involved in the surrogacy arrangement
Can I advertise for a surrogate in Western Australia?
Legally you are can advertise, but you cannot pay for that advertising.
Is commercial surrogacy illegal?
Yes, commercial surrogacy is illegal in Western Australia. Commercial surrogacy is defined by payment or reward given to the surrogate excluding the surrogate’s expenses.