Surrogacy

Surrogacy refers to a type of assisted reproductive technology where there is an arrangement for a woman to carry and give birth to a child on behalf of another person or couple. 

The parties to surrogacy are:

  • the birth mother who will carry and give birth to the child; and
  • the arranged parent/s who will raise the child.

Types of surrogacy permitted in Western Australia:

  • traditional surrogacy: using birth mother egg and arranged parent or donor sperm;
  • gestational surrogacy: using arranged parent and/or donor gametes.

Surrogacy arrangements must be approved by the Reproductive Technology Council (external site).

Access to surrogacy

In Western Australia access to surrogacy arrangements are limited to:

  • heterosexual married or de facto couples who are unable to conceive a child due to medical reasons or are likely to conceive a child affected by a genetic abnormality or disease; or
  • a woman who is unable to conceive or give birth to a child due to medical reasons; or is likely to conceive a child affected by a genetic abnormality or disease.

Medical reasons above to do not include a reason arising from a person's age.

Same sex surrogacy

The laws around surrogacy currently limit access to women and heterosexual couples. Broader access to surrogacy is available outside Western Australia.

The law in Western Australia is being reviewed and the WA Government has committed to providing equity of access to altruistic surrogacy for women who face impending infertility, single men, people in same-sex relationships, transgender people and intersex people.

Approval requirements
  • The birth mother must be at least 25 years of age.
  • The birth mother must have had at least one child (except in exceptional circumstances).
  • The Surrogacy Agreement has been signed by:
    • the arranged parents;
    • the birth mother and her husband or partner (if applicable); and
    • any donor/s and their spouse or partner (if applicable).
  • All parties to the surrogacy agreement must:
    • undertake counselling;
    • be assessed for medical and psychological suitability for surrogacy;
    • receive independent legal advice.

After the necessary steps above have been completed, there is a 3-month cooling off period before an approval can be issued.

A surrogacy arrangement cannot be approved if the birth mother has become pregnant under the arrangement.

Surrogacy for reward

Surrogacy cannot be for reward.  Only altruistic surrogacy is permitted in Western Australia.

There are significant penalties for:

  • making a surrogacy arrangement for reward;
  • receiving "valuable consideration" for introducing parties for a surrogacy arrangement, whether or not that arrangement is for reward;
  • publishing advertisements seeking or offering surrogacy for reward; or
  • providing a service to facilitate a surrogacy arrangement for reward.
Reasonable expenses may be reimbursed.
Surrogacy agreements and parentage orders
  • A surrogacy agreement is a legal arrangement between surrogate and arranged parent/s where the surrogate seeks to become pregnant and give birth to a child and for the arranged parent/s to raise the child.
  • A surrogacy agreement is required for the Reproductive Technology Council to approve a surrogacy arrangement and for the Family Court to consider a parentage order.
  • A surrogacy agreement is not enforceable, except for payment or reimbursement of expenses.
  • Some of the details that may be included in a surrogacy agreement:
    • payment or reimbursement of expenses;
    • the number of IVF cycles that the surrogate is willing to undertake;
    • the plan for any excess embryos collected in an IVF cycle;
    • any communication or contact between the child and the birth parents or other people;
    • information to be provided between parties of a surrogacy agreement.

Approval of surrogacy arrangements

The Reproductive Technology Council (external site) must approve a surrogacy arrangement. 

Applications are completed by the arranged parents, birth mother and any donors with the assistance of the Surrogacy Coordinator at the chosen licensed fertility provider.

Application form (external site)

Independent legal advice

Independent legal advice must be obtained by all parties to a surrogacy agreement

The person providing independent legal advice:

  • must be chosen by the person receiving the advice; and
  • must not be providing advice to other parties of a surrogacy agreement (birth parents or donors) if they are also providing advice to the arranged parents.

Legal advice must be obtained at least 3 months before approval of the surrogacy arrangement.

Parentage orders

Parentage orders are made by the Family Court after the birth of a child born as part of a surrogacy arrangement.

A parentage order transfers responsibility for the child from the birth mother, and her husband or de facto partner, to the arranged parents.

An application for a Parentage Order may be made if:

  • the arranged parents reside in Western Australia;
  • at least one of the parents is at least 25 years of age.

Applications need to be made between 28 days and 6 months of the child's birth. The child must be in the day to day care of the arranged parents at the time of application and approval of the order.

Evidence of the following must be provided with the application for a parentage order:

  • counselling received by the birth parents and arranged parents;
  • independent legal advice received by all parties;
  • consent of the birth parents; and
  • an approved surrogacy agreement.

More information

Reproductive Technology Unit

Email: rtu@health.wa.gov.au
Mail to: PO Box 8172, Perth Business Centre, WA 6849