4 Mar 2014

The Surrogacy Act 2008 (WA) was passed by the West Australian parliament on 10 December 2008 with the associated RegulationsDirections and Rules commencing on 1 March 2009.

The commencement of the Surrogacy Act means that it is now legal for non-commercial surrogacy arrangements to be made between eligible persons in Western Australia.

 

What is a “non-commercial surrogacy arrangement” under the Act?

 

In WA a non-commercial (that is, altruistic) surrogacy arrangement refers to an arrangement where a woman (the birth mother) agrees to carry a child for another person or couple (known as the “arranged parents”), with the intention that the child will be raised by the arranged parents.  It is unlawful for any money to change hands, hence the use of the term “altruistic” or non-commercial.

 

Who is an “eligible person” under the Act?

 

An “eligible person” under WA surrogacy laws means a woman who:

  • Is unable to conceive a child due to medical reasons; 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 a child.

There are further restrictions on who is eligible for a surrogacy arrangement.  For example, a postmenopausal woman will not be eligible to pursue a surrogacy arrangement (women who have experienced premature menopause may be exempt from this restriction).

There are also legal requirements in respect of the birth mother (surrogate).  She must:

  • Have reached 25 years of age;
  • Have given birth to a live child (exceptional circumstances may dispense with this requirement);
  • Have not yet become pregnant under the arrangement.

 

Is there an eligibility assessment process?

 

All surrogacy arrangements need to be approved by the Reproductive Technology Council (“the RTC”), which is the body that advises the Minister for Health and the Commissioner on all assisted reproductive technology and related research issues.  

 

The RTC administers a comprehensive assessment and approval process.  This includes but is not limited to:

  • Medical assessment;
  • Counselling;
  • Clinical psychology assessment;
  • Seeking independent legal advice (see below for meaning of “independent legal advice” in surrogacy arrangements).

Final approval for a surrogacy arrangement is decided by the RTC.  The best interests of any child are paramount when considering any surrogacy arrangement.

The first WA birth under the new surrogacy laws occurred in April 2012, and the RTC had, at that time, approved only 12 surrogacy arrangements.

 

The Act allows for the transfer of parentage of the child to the arranged parents through the Family Court of WA.

 

What types of surrogacy arrangements are lawful in WA?

  • Firstly, you must have approval for the surrogacy arrangement from the RTC.
  • Only altruistic surrogacy is permitted in WA which means that there can be no material or financial gain for the birth mother, although under the Act it is lawful to reimburse the birth mother’s reasonable expenses related to the pregnancy.  You should note that it is a criminal offence under section 8 of the Act to enter into a commercial surrogacy arrangements.  The penalty of so doing is a fine of $24,000 or imprisonment for 2 years.
  • The surrogacy arrangement may involve either traditional surrogacy (that is, arranged parent gametes and/or donor gametes) or gestational surrogacy (that is, birth mother egg and arranged father / donor sperm).  Western Australia is currently the only state in Australia where traditional surrogacy is lawful.

 

What does “independent legal advice” mean?

 

You are required to obtain “independent legal advice” as part of the RTC assessment process.  The term “independent legal advice” intends for all parties to be fully informed about the legal implications of a surrogacy arrangement:

  • before entering into a surrogacy arrangement
  • of a proposed parentage order.

A lawyer must not provide advice regarding the surrogacy arrangement to both the arranged parent/s and the birth parent/s. A lawyer may advise both of the birth parents or both of the arranged parents. In the usual course of events (exceptions exist), each “couple” may be treated as one “party” in terms of this requirement.

Separate legal advice will also be required for any donor (third party) and their partner, who will usually be treated as another “party” to the surrogacy arrangement.

In assessing fulfilment of the requirement to obtain “independent legal advice” the RTC has said that it will follow general approach outlined above when considering applications for approval of a surrogacy arrangement.

Surrogacy is a complex area of law.  This article provides general information only, and does not constitute specific legal advice.  If you would like further information in relation to this matter or other legal matters, or if you require independent legal advice as part of the approval process for a surrogacy arrangement, please contact our office at reception@hhg.com.au or call us on 1800 609 945.

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker