Surrogacy

Is surrogacy legal in Western Australia? What are the legal requirements for surrogacy? How much do we need to pay a surrogate mother? Who can be a surrogate mother? I have received a surrogacy agreement, what happens now?

Carr & Co can assist you with the preparation of a surrogacy agreement or provide you with advice regarding an agreement you may have received. Carr & Co can also provide you with advice regarding the pre-application requirements as well as answer any questions you may 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, as well as the satisfaction of a raft of pre-application requirements.

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 2 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 enter into by the parties.

What should I do now?

The first step is to obtain detailed legal advice regarding your intention 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.