4 Things You Need to Know about Surrogacy in Western Australia – Part 2

Rodney Worth
Barrister and Solicitor

Posted on 29/05/2017, Last Updated on 20/03/2019

This is my four-part blog on surrogacy in Western Australia.

In my last article (Part 1) I answered the question: “what is surrogacy?”

In this article (Part 2) I discuss how to make a surrogacy arrangement in Western Australia.

Part 2 – How to make a surrogacy arrangement in Western Australia?

Firstly, the surrogacy arrangement must be approved in writing by the Western Australian Reproductive Technology Council (the Council)[1] or its delegate.[2]

The Council may[3] approve a surrogacy arrangement only if all of the following requirements are met:

(a) The birth mother is suitable

The birth mother has reached 25 years of age and has already given birth to a live child (although the latter requirement may be dispensed with in “exceptional circumstances”);[4]

(b) The surrogacy arrangement is set out in writing

The arrangement is set out in a written agreement, signed by:

(i) each of the arranged parents; and

(ii) the birth mother and her husband or de facto partner, if any; and

(iii) any other person (a donor) whose egg or sperm is to be used for the conception of the child or who is the spouse or de facto partner of a donor,[5]

(c) The parties have had counselling and legal advice

At least 3 months before approval is given, each of the persons who signed the surrogacy agreement have:

(i) undertaken counselling about the implications of the surrogacy arrangement;

(ii) been assessed by a clinical psychologist and confirmed, in a written report provided to the Council, to be psychologically suitable to be involved in the surrogacy arrangement; and

(iii) received independent legal advice about the effect of the surrogacy arrangement,[6]

(d) The parties have been medically assessed as suitable to be involved in the surrogacy arrangement

At least 3 months before the approval is given, each of the arranged parents, the birth mother and any donor has been assessed by a medical practitioner and confirmed, in a written report provided to the Council, to be medically suitable to be involved in the surrogacy arrangement,[7]

(e) The intended birth mother has not yet become pregnant under the surrogacy arrangement[8]

The process of seeking Council approval is a lengthy and detailed process, and ought to be handled with care.

In my next article (Part 3), I look at the process for becoming the legal parent of a surrogate child.

The other parts in this series can be accessed by clicking on the links below:

The above information is general in nature, and is not specific advice for your situation. If you have questions about how the information contained this article may apply to your situation, you must seek independent legal advice.

[1] Surrogacy Act 2008 (WA), s 16.
[2] Ibid, s 18(2).
[3] I note that approval is at the discretion of the Council once the criteria in s 17 of the Surrogacy Act are satisfied.
[4] Surrogacy Act 2008 (WA) s 17(a).
[5] Ibid, s 17(b).
[6] Ibid, s 17(c).
[7] Ibid, s 17(d).
[8] Ibid, s 17(e).

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