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

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.

So far in this series, we have looked at the definition of a surrogacy arrangement, how to make such an arrangement in Western Australia, and how to become the parent of your surrogate child.

In this final part, I answer the question: “are all surrogacy arrangements legal?”.

Part 4 – Are all surrogacy arrangements legal?

Part 2 of the Surrogacy Act deals with the status of surrogacy arrangements and prohibits certain surrogacy arrangements.

The following acts are prohibited (ie, you will commit a criminal offence if you do any of the following):

(a) making a surrogacy arrangement that is for reward;[1]

(b) reward for introducing parties for a surrogacy arrangement;[2]

(c) publishing willingness to make a surrogacy arrangement that is for reward;[3]

(d) services connected with a surrogacy arrangement that is for reward.[4]

It is therefore clear that commercial surrogacy, and connected acts, are prohibited under the Surrogacy Act.

However, the Act does not prohibit the payment of reasonable expenses connected with the surrogacy, including:

(a) reasonable medical expenses not recoverable under any health insurance or other scheme;

(b) lost earnings for a period of not more than 2 months during which the birth occurs, or at any other time for medical reasons arising during the pregnancy;

(c) reasonable expense of psychological counselling;

(d) a premium payable for health, disability or life insurance that would not have been taken out, but for the surrogacy.[5]

It is important to note that surrogacy arrangements are not enforceable,[6] except in relation to agreement reached in respect of the payment of reasonable expenses.[7]

Finally, section 12 of the Criminal Code 1913 (WA) gives extra-territorial effect to Western Australia’s criminal laws. This is a fancy way of saying that if you enter into a commercial surrogacy arrangement in another country, you will more than likely have committed a criminal offence in Western Australia.

I trust you have found this four-part series to be informative.

If you need any advice about surrogacy law in Western Australia, please do not hesitate to get in touch with our Team of experienced surrogacy lawyers at DS Family Law.

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 8.
[2] Ibid, s 9.
[3] Ibid, s 10.
[4] Ibid, s 11.
[5] Ibid, s 6(3).
[6] Ibid, s 7(1).
[7] Ibid, s 7(3).

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