Surrogacy

A surrogacy arrangement means an arrangement where a woman (the birth mother) agrees to carry a child for another person or a couple (the arranged parent(s)) with the intention that the child will be raised by those arranged parents.

The surrogacy arrangement must be approved by the Reproductive Technology Council, and can only be made before the birth mother becomes pregnant.

The Court has jurisdiction under the Western Australian Surrogacy Act 2008 (“the Act”), and can make parentage orders. A parentage order transfers the parentage of a child from his or her surrogate birth parent/s to the child’s arranged parents. The arranged parents then become the child’s legal parents.

Any person wishing to enter into a surrogacy arrangement under the Act must comply with all the procedures set out under the Act and Regulations before applying to the Family Court of WA for a parentage order. The criteria are:

• You are the arranged parent or parents in a written surrogacy arrangement which has been approved, in writing, by the Western Australian Reproductive Technology Council.
• Both arranged parents must be residents of Western Australia.
• At least one of the arranged parents must be over the age of 25.
• The arranged parents must be an eligible couple or at least one of you must be an eligible person.

The Court will consider the following factors when deciding whether or not to grant a parentage order.

• The arranged parent/s satisfy the criteria outlined in the last section.
• The arranged parent/s and the birth parent/s have undergone counselling about the consequences of the proposed order.
• The arranged parents and the birth parent/s have all received independent legal advice about the legal implications of the proposed order.
• The birth parent/s consent to the order being made.
• The child is in the day to day care of the arranged parents.
• The parties have agreed an ‘approved plan’.
• That is in the best interests of the child for the parentage order to be made.

The Reproductive Technology Council has information on how to navigate the surrogacy process.

Eligible person

The Court cannot make a parentage order unless it is satisfied that the arranged parents are an eligible couple, or one of the applicants is an eligible person.

The Act defines an eligible couple as two people of the opposite sex who are married to, or in a de facto relationship with, each other and:

• are unable to conceive a child due to medical reasons, (other than age); or
• although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease.

An eligible person is a woman who:

• is unable to conceive a child due to medical reasons (other than age); or
• although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or
• although able to conceive a child, is unable for medical reasons to give birth to that child.

You will need to attach evidence to your affidavit which supports your statement.

Approved plan

An approved plan is a document, signed by the arranged parents and the birth parent/s, and approved by the court, which sets out details of:

• any time the child is to spend, or communication that the child is to have, with the child’s birth parent/s or any other person (eg: birth grandparents);
• any information that any of the parties is to provide to the other or any other person. This could include things like photos, school reports etc.

More information

If you have met the requirements and want to apply to the Court, there is information on making a surrogacy application.

For more information, you can:

• View the Surrogacy Act 2008
  
  
• Visit the Reproductive Technology Council website.

Last updated: 3-Nov-2022

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