Surrogacy in Western Australia

28th Jul 2015

An immense amount of satisfaction can be found in our work when we achieve an outcome for our clients. Bringing an often difficult and emotional matter to a close that is in the best interests of our client involves mixed emotions for everyone involved. However, there is an area in family law that can bring only happiness to our clients and ourselves as specialist practitioners. That area is surrogacy.

Surrogacy, where a woman carries and gives birth to a child on behalf of another, is an area that has been intensively scrutinised recently. This is particularly so since the Baby Gammy case where a Thai surrogate carried twins for a Western Australian couple.

Surrogacy Legal Considerations

When a surrogacy arrangement is made overseas, there are serious legal issues that must be considered. An overseas surrogacy agreement may not fulfil the requirements for the transfer of parentage under Australian law. In Australia, surrogacy arrangements entered into for commercial reasons (where the parents pay a sum of money to the surrogate mother) is illegal. Before parties enter into a surrogacy agreement, it is compulsory for the intended parents to receive counselling and independent legal advice. If either of these requirements alone are not complied with, the Courts are unlikely to approve an application for a parentage order. There may also be complications when intended parents attempt to bring their new baby to Australia.

Surrogacy Legal Requirements

In Western Australia, the laws relating to surrogacy require that there be a surrogacy agreement and that both parties (i.e. the surrogate mother and the intended parents) receive independent legal advice. There must be medical practitioner reports, gynaecological reports, counselling reports and clinical psychology assessments. That is all before any attempt to get the surrogate mother to become pregnant can begin. The Reproductive Technology Council must approve the agreement before anything happens.

Unless the surrogacy agreement is properly drafted by an experienced legal practitioner, the Reproductive Technology Council is unlikely to approve the surrogacy process. If all goes well and the agreement is approved by the Council, then the medical procedures involving IVF can be commenced by one of only three agencies who are authorised to offer surrogacy services.

If the procedure is successful, when the baby is born the intended parents must wait 28 days before they apply to the Family Court for the child to be recognised as their own. This too is a complex procedure involving specific forms that must include information and documents pursuant to current legislation. These forms are best completed by experienced legal practitioners who are able to apply their knowledge of the law and their experience to ensure the smoothest possible process.

How DCH Legal Can Help With Surrogacy Arrangements

At DCH Legal Group we are happy to have assisted parents to undergo this process. We have been fortunate enough to be involved in preparing surrogacy agreements and in successfully applying to the Family Court for a parentage order. A couple who might otherwise not have been able to have their own child, now have a baby boy carrying their genes and their name. Understandably, the knowledge that we have assisted a couple in reaching a very happy outcome makes for a very rewarding career.

If you or anyone you know is interested in finding out more about surrogacy in Western Australia, you may contact us at DCH Legal Group where we can provide you with all the information you require and an estimate of the legal costs involved.