Legislation governing surrogacy arrangements varies throughout Australia. In Western Australia the Surrogacy Act 2008 sets out what is required for a Surrogacy Arrangement to be approved and then what is necessary for a transfer of parentage orders to be issued.
In WA, a Surrogacy Arrangement is an agreement between a woman (”the birth mother”) or the birth parents where the birth mother is married and a single woman or heterosexual couple (”the arranged parent/s”) who are unable to carry a child themselves due to medical reasons.
The child of a surrogacy arrangement is usually created by combining the egg and sperm of the arranged parent/s and implanting the resulting embryo into the birth mother. It is possible in some cases for donor eggs or sperm to be used.
When the child is born, the birth is registered and the birth mother is registered as the mother in the birth certificate. A court order to transfer parentage from the birth mother to the arranged parent/s is the final step in a surrogacy arrangement.
Once a transfer of parentage order is made, a new birth certificate will be issued.
Although Australian legislative provisions are inconsistent, there are some common principles and requirements:
- Surrogacy must be altruistic (commercial surrogacy – where the birth mother is paid for being a surrogate – is a criminal offence); with only ‘reasonable expenses’ being paid to the birth mother;
- it must involve a pre-conception/treatment agreement;
- the agreement must conform to state requirements, including requirements for all parties to receive counselling and legal guidance;
- the arrangement will result in a transfer of parentage from the birth mother to the intended or ‘arranged’ parents by way of a Court Order.
Woodville Family Law can provide you with advice and assist you to make a surrogacy agreement including defining the terms of the agreement and obtaining parenting orders.
Overseas surrogacy arrangements
If you are considering surrogacy outside of Australia, it is important that you understand the risks associated with it. In some countries, commercial or ‘compensated’ surrogacy is legal, however some Australian states have legislation that specifically criminalises Australians entering into a surrogacy arrangement overseas. Western Australian legislation is less clear but what is clear is that they are not regulated by the Australian Government.