4 Things You Need to Know about Surrogacy in Western Australia – Part 3

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 two articles, I answered the questions “what is surrogacy?” (Part 1), and “how do I make a surrogacy arrangement in Western Australia?” (Part 2) .

In this article (Part 3) I answer the question: “How do I become the parent of my surrogate child?”

Part 3 – How do I become the parent of my surrogate child?

Once the surrogacy arrangement has been approved by the Council (be sure to read Part 2 in this series, if you missed it), steps may then be taken to obtain a parentage order from the Family Court in accordance with Part 3, Division 3 of the Surrogacy Act. The Court’s jurisdiction will be enlivened in the following circumstances:

(a) the arranged parents must reside in Western Australia;[1]

(b) at least one of the arranged parents has reached 25 years of age;[2]

and

(c) when the surrogacy arrangement was entered into or after that time but before the application is made:

(i) the arranged parents are an eligible couple; or

(ii) one of the arranged parents, or the arranged parent if there is only one, is an eligible person.

The definition of “eligible couple” and “eligible person” restricts the class of persons who may apply for a parentage order. The definitions for these terms are set out in full below:

eligible couple means 2 people of opposite sexes who are married to, or in a de facto relationship with, each other and who, as a couple —

(a) are unable to conceive a child due to medical reasons not excluded by subsection (3); or

(b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease;

eligible person means a woman who —

(a) is unable to conceive a child due to medical reasons not excluded by subsection (3); or

(b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or

(c) although able to conceive a child, is unable for medical reasons to give birth to a child.[3]

It is important to note that, by definition, single men and homosexual male couples are not eligible to seek a parentage order for their surrogate child.

The time for making an application for a parentage order is strict. The application can only be lodged 28 days after the surrogate child’s birth.[4]

However, an application cannot be lodged more than 6 months after the surrogate child is born, except with leave of the Family Court, which will only be granted in exceptional circumstances.[5]

The Family Court may make a parentage order if it is satisfied that:

(a) the circumstances enlivening the Court’s jurisdiction (as specified above) exist;

(b) the child’s birth parents and arranged parents have received:

(i) appropriate counselling about the effect of the proposed order;

(ii) independent legal advice about the effect of the proposed order, and

(c) the child’s birth parents freely consent to the making of the order;

(d) the child is in the day to day care of the of the arranged parents at the time of making the application, and at the time of making the order;

(e) the child’s birth parents and the arranged parents have agreed in writing to an appropriate plan in accordance with s 22 of the Surrogacy Act; and

(f) it is in the best interest of the child for the court to make the proposed order.[6]

The effect of a parentage order is to alter, permanently,[7] the relationship between the child, its birth parents, the arranged parents and extended family, such that:

(a) the arranged parents are to be treated as the parents of the child;

(b) the birth parents are not to be treated as being the parents of the child; and

(c) the relationship between the child and the relations of the birth parents and arranged parents are altered accordingly.[8]

In my final article (Part 4), I look at whether all surrogacy arrangements are legal.

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 19(a).
[2] Ibid.
[3] Ibid, s 19(2).
[4] Ibid, s 20(2).
[5] Ibid, s 20(3).
[6] Ibid, s 21(2). Also, see s 13.
[7] Ibid, s 29.
[8] Ibid, s 26.

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