On 24 August 2018 the Government of Western Australia introduced the Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018 (“the Bill”).
The Explanatory Memorandum provides that the Bill will “enable male-same sex couples and single men access to surrogacy”. A few things are worth noting:

  1. The Bill is still a proposal and is not law until approved by Parliament and the State Governor.
  2. If approved in its current form gay couples and single men will have access to altruistic surrogacy in WA.
  3. The legal parents of any children born because of an approved surrogacy will be the gay couple or the single man.
  4. Gay men and single men will be required to have an approved surrogacy agreement and the regulation that entails.
  5. The proposal only related to future surrogacy arrangements.
  6. The current Surrogacy Review will address the issue of legal parentage of existing children born to gay dads.
  7. Reproductive technology will be made available to gay couples and single men.

In the case of Adair & Anor and Bachan [2017] FCWA 78 the Family Court of WA made orders granting parental responsibility for twin children to the biological father and another person. The Children were born overseas under a surrogacy agreement.
The biological father, the First Applicant was not the legal father of the children because of express provisions of the Artificial Conception Act 1985 (WA). The Second Respondent was not a parent of the children. The First Applicant was terminally ill.
Her honour noted the Court generally takes a cautious approach in such cases (particulalry the risk of exploitation of vulnerable women in poorer countries) and noted Thackray CJ’s statement in what is popularly known as the Baby Gammy case about the need for law reform in cases of overseas commercial surrogacy.

In making orders that the children live with both applicants and both applicants have Equal Shared Parental Responsibility for the children Justice Duncanson  emphasised that under the bests interest principle the focus is  not on parenthood but on parenting  and noted the following:

  • [The Applicants] have standing to bring these proceedings for a parenting order in relation to the children as they are persons concerned with their care, welfare or development.
  • I have considered the terms of the Surrogacy Agreement and notwithstanding concerning issues which can arise from such agreements, in the circumstances of this case I am satisfied that the orders sought are in the best interests of the children. [72].
  • This is not a decision taken in haste because of the first applicant’s condition and the unusual circumstances of this case… I have approached this matter on the basis that the best interests of the children is the paramount consideration. [52,54].

Mr M Kavanagh of this firm acted as Counsel in this matter.

surrogacyThe desire to have a child is very powerful. For some couples surrogacy may be a solution.

However, surrogacy is a complex area of law and in Western Australia is governed by the Surrogacy Act 2008. The act sets out the legal requirements for non-commercial surrogacy arrangements that can be made between suitable persons.

Assessment requirements under the Surrogacy Act 2008 require parties to obtain independent legal help and advice so all parties are fully informed about the legal consequences of a surrogacy.

Kavanagh Family Lawyers can provide the required independent legal advice prior to surrogacy and assist you in making a surrogacy agreement including defining the agreement terms and obtaining the parenting orders.

Commercial Surrogacy

Commercial surrogacy is illegal in Western Australia and is a criminal offence under the Surrogacy Act 2008.

Next Steps

Call Kavanagh Lawyers on (08) 6557 5888 to speak to one of our lawyers.