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.

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 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 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.