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Our clients come to us with so many questions around surrogacy laws in WA. Is it legal? What are the legal requirements for surrogacy? How much do we need to pay a surrogate mother? Who can be a surrogate mother? We’re here to assist during this often confusing time, preparing your surrogacy agreement or providing you with advice regarding an agreement you may have received. We can also provide you with advice on pre-application requirements or answer any questions you have about the surrogacy process.

Is surrogacy legal in Western Australia?

Surrogacy in Australia can only legally occur by way of a surrogacy agreement and, in Western Australia, is handled by the Family Court of Western Australia.

The surrogacy process is complex and involves many legal procedures. A raft of pre-application requirements must be met before surrogacy can proceed.

Who can apply for surrogacy?

The rules in Western Australia provide that a single person or a married or de facto couple can apply for surrogacy if they live in Western Australia. The surrogacy applicants must be over the age of 25 years (in the case of a couple, at least one person must be over the age of 25) and must either:

  • be unable to successfully conceive a child; or
  • be unable to conceive a child who will not be subject to a genetic abnormality or disease.
Who can be a surrogate?

A surrogate or birth mother can be any woman who is at least 25 years old and who has already given birth to at least one live child.

How much do we need to pay the surrogate?

The law in Australia does not allow payment beyond the surrogate’s medical and legal expenses, or other associated out-of-pocket costs. According to Western Australian law, if a person enters a surrogacy arrangement for reward, he or she faces a penalty of imprisonment for two years or a fine of up to $24,000.

What are the requirements for a surrogacy agreement?

A surrogacy arrangement must be set out in writing and, before the arrangement can be approved, the Western Australian Reproductive Technology Council needs to be satisfied that all the parties to the surrogacy arrangement:

  • have had counselling and been psychologically assessed;
  • received independent legal advice; and
  • obtained medical certificates to vouch for their suitability (this applies to the sperm or egg donors and the surrogate).

In order for the surrogacy arrangement to be approved, the surrogate cannot fall pregnant before the arrangement has been finalised and entered into by the parties.

Next steps

You need to seek detailed legal advice if you wish to enter into a surrogacy arrangement. This will sustain you through an otherwise complex process, and ensure that you meet all of the relevant requirements necessary before you enter into surrogacy arrangement.

If you need assistance with a surrogacy arrangement, please contact Carr & Co on 9322 8000 or via email at contactus@carrco.com.au.