Surrogacy Act 2008 (Western Australia)

This Act creates a regulatory framework for altruistic surrogacy in Western Australia, criminalises commercial (rewarded) surrogacy and associated services, and establishes a court-based procedure to transfer legal parentage from birth parents to arranged parents for children born under approved surrogacy arrangements. It (a) defines the key terms and the narrow meaning of permitted payments (reasonable pregnancy and birth expenses) (s 3, s 6); (b) makes surrogacy arrangements unenforceable as contracts save for obligations to reimburse reasonable expenses (s 7); (c) makes it a criminal offence to enter into, facilitate, advertise or provide services for a surrogacy arrangement “for reward” with specific penalties (ss 6, 8-11); (d) requires Council approval of a surrogacy arrangement before a parentage order can be made in most cases (ss 15-17); (e) sets out eligibility criteria for arranged parents and the timeframe and evidentiary requirements for an application for a parentage order to the Family Court of Western Australia, including the presumption that it is in a child’s best interests for the arranged parents to be the legal parents unless evidence to the contrary is adduced (ss 12-14, 19-21); (f) prescribes minimum procedural safeguards prior to Council approval and court proceedings (counselling, independent legal advice, psychological and medical assessments, a written agreement and an approved plan) with timing requirements (primarily the three-month assessment window and the post-birth filing window) (s 17, s 21(2), s 22); (g) specifies the legal effects of a parentage order, ancillary powers of the court and limits on appeal and review, including mechanisms to discharge an order in narrow circumstances (ss 23-29); and (h) amends several existing Acts to integrate changes to registration, guardianship, reproductive technology and family law administration (Part 4, ss 46-69). The Act also makes court proceedings private (s 43), establishes access rules for birth registration and court records (Div 4, ss 33-41), and requires a statutory review within four years (s 45).

CrestWestern Australia

Surrogacy Act 2008

Western Australia

Surrogacy Act 2008

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used in this Act 2

Part 2 — Surrogacy arrangements

Division 1 — General

What this Part is about 3
Term used in this Part 3
Meaning of “surrogacy arrangement that is for reward” 3
Surrogacy arrangement not binding 4

Division 2 — Offences

Making surrogacy arrangement that is for reward 4
Reward for introducing parties for surrogacy arrangement 5
Publishing willingness to make surrogacy arrangement that is for reward 5
Services connected with surrogacy arrangement that is for reward 5

Part 3 — Order giving parental status to arranged parents

Division 1 — Preliminary

What this Part is about 7
Child’s best interests paramount 7
Terms used in this Part 7

Division 2 — Parentage order excluded for certain arrangements

Meaning of “Council” 8
Approval of surrogacy arrangement 8
Requirements for surrogacy arrangement to be approved 9
Application of Human Reproductive Technology Act 1991 10

Division 3 — Transfer of child’s parentage

Circumstances for seeking parentage order 11
Applying for a parentage order 12
Court may make parentage order 12
Contents of approved plan 14
Ancillary orders 15
Multiple births 15
Name of child 15
Effect of parentage order 16
Discharge of parentage order 16
Relationships for laws relating to sexual offences 18
Finality of parentage order 19
Varying approved plan 19
Court’s powers to do with breach of approved plan 20
Court to notify certain officers 20

Division 4 — Access to information

Terms used in this Division 21
Application of this Division or order under it 22
Right under this Division to be treated as adequate reason 22
Court order excluding access to information 22
Access to certain court records 23
Access to registration of birth 24
Portion of registration of birth not referring to parentage order 25
If certain person deceased 25
If adult child cannot be contacted 26

Division 5 — Other matters

Application of Family Court Act 1997 27
Court proceedings to be private 28
Regulations 29
Review of Act 29

Part 4 — Other Acts amended

Division 1 — Births, Deaths and Marriages Registration Act 1998 amended

Act amended 30
Long title amended 30
Section 3 amended 30
Section 4 amended 30
Part 4 heading replaced 31

Part 4 — Registration of information about certain parentage changes

Section 24 amended 31
Section 25 amended 31
Section 26 amended 32
Section 28 replaced 33
Certain certified copies 33
Section 68 amended 33

Division 2 — Children and Community Services Act 2004 amended

Act amended 34
Section 104 amended 34

Division 3 — Family Court Act 1997 amended

Act amended 35
Section 5 amended 35
Section 36 amended 35
Section 39 amended 35
Section 205T amended 36

Division 4 — Guardianship and Administration Act 1990 amended

Act amended 36
Section 45 amended 37

Division 5 — Human Reproductive Technology Act 1991 amended

Act amended 37
Section 18 amended 37
Section 23 amended 37

Division 6 — Interpretation Act 1984 amended

Act amended 38
Section 5 amended 39

Notes

Compilation table 40

Uncommenced provisions table 40

Defined terms

Western Australia

Surrogacy Act 2008

No. 47 of 2008

An Act about arrangements for surrogate births and children born under those arrangements and for related purposes, and to make related amendments to —

the Births, Deaths and Marriages Registration Act 1998; and
the Children and Community Services Act 2004; and
the Family Court Act 1997; and
the Guardianship and Administration Act 1990; and
the Human Reproductive Technology Act 1991; and
the Interpretation Act 1984.

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary

1. Short title

This is the Surrogacy Act 2008.

2. Commencement

This Act comes into operation as follows —

(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3. Terms used in this Act

In this Act, unless the contrary intention appears —

surrogacy arrangement means an arrangement for a woman (the birth mother) to seek to become pregnant and give birth to a child and for a person or persons other than the birth mother (the arranged parent or arranged parents) to raise the child, but the term does not include an arrangement entered into after the birth mother becomes pregnant unless it is in variation of a surrogacy arrangement involving the same parties.

Part 2 — Surrogacy arrangements

Division 1 — General

4. What this Part is about

This Part deals with the status of surrogacy arrangements and prohibits certain surrogacy arrangements and certain things to do with surrogacy arrangements.

5. Term used in this Part

In this Part, unless the contrary intention appears —

surrogacy arrangement that is for reward has the meaning given in section 6.

6. Meaning of “surrogacy arrangement that is for reward”

(1) This Part refers to a surrogacy arrangement as being for reward if the arrangement provides for any person to receive any payment or valuable consideration other than for reasonable expenses associated with —

(a) the pregnancy or the birth; or

(b) any assessment or expert advice in connection with the arrangement.

(2) Reasonable expenses associated with achieving, or attempting to achieve, the pregnancy are reasonable expenses associated with the pregnancy.

(3) An expense is a reasonable expense for the purposes of subsection (1)(a) to the extent only that it is —

(a) a reasonable medical expense that is not recoverable under any health insurance or other scheme; or

(b) the value of earnings foregone because of leave taken —

(i) for a period of not more than 2 months during which the birth occurs or was expected to occur; or

(ii) at any other time for medical reasons arising during the pregnancy;

(d) a premium payable for health, disability or life insurance that —

(i) would not have been taken out if the surrogacy arrangement had not been entered into; and

(ii) provides cover for a period during which an expense referred to in another paragraph of this subsection is incurred or might be, or have been expected to be, incurred.

7. Surrogacy arrangement not binding

(1) A surrogacy arrangement is not enforceable except to the extent provided for in subsection (3).

(2) Subsection (1) does not affect the ability of the court to make an order under Part 3.

(3) An obligation under a surrogacy arrangement to pay or reimburse reasonable expenses referred to in section 6(1) is as enforceable as it would be if subsection (1) had not been enacted and the arrangement was not unenforceable for any other reason.

Division 2 — Offences

8. Making surrogacy arrangement that is for reward

A person who enters into a surrogacy arrangement that is for reward commits an offence.

Penalty: a fine of $24 000 or imprisonment for 2 years.

9. Reward for introducing parties for surrogacy arrangement

(1) A person who receives, or seeks to receive, valuable consideration for introducing or agreeing to introduce persons with the intention that they might enter into a surrogacy arrangement commits an offence.

Penalty: a fine of $12 000 or imprisonment for one year.

(2) Subsection (1) applies whether or not it is intended that the surrogacy arrangement be one that is for reward.

10. Publishing willingness to make surrogacy arrangement that is for reward

A person commits an offence if the person publishes or causes to be published —

(a) anything that is intended to, or likely to, induce a person to enter into a surrogacy arrangement that is for reward; or

(b) anything to the effect that a person who is willing to enter into a surrogacy arrangement that is for reward is sought; or

(c) anything to the effect that a person is or might be willing to enter into a surrogacy arrangement that is for reward.

Penalty: a fine of $6 000.

11. Services connected with surrogacy arrangement that is for reward

(1) A person who provides a service knowing that the service is to facilitate a surrogacy arrangement that is for reward commits a crime except in the circumstances described in subsection (2).

(2) It is not an offence against subsection (1) if the service is a health service provided to the birth mother after she has become pregnant.

Penalty: imprisonment for 5 years.

Summary conviction penalty: a fine of $12 000 or imprisonment for one year.

Part 3 — Order giving parental status to arranged parents

Division 1 — Preliminary

12. What this Part is about

This Part is to enable the court to transfer, from the birth parents to the arranged parents, the parentage of a child born under a surrogacy arrangement in certain circumstances.

13. Child’s best interests paramount

(1) In deciding whether to make a particular decision concerning a parentage order or proposed parentage order about a child, the court must regard the best interests of the child as the paramount consideration.

(2) For the purposes of this Act it is presumed to be in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence to the contrary.

14. Terms used in this Part

In this Part, unless the contrary intention appears —

approved plan means the plan that section 21(2)(f) refers to by that term, as varied, if applicable, with the court’s approval under section 30;

arranged parents of a child means —

(a) the persons who, according to the definition of surrogacy arrangement in section 3, are the arranged parents; or

(b) the person who, according to that definition, is the arranged parent;

birth parents of a child means —

(a) the persons who are recognised by the law as being, when the child is born, the parents of the child; or

(b) if only one person fits the description in paragraph (a), that person;

chief executive officer means the chief executive officer of the department of the Public Service principally assisting the Minister in the administration of this Act;

child refers to the status of a person in a relationship as parent and child, and it includes a person of that status even after the person has reached the age of full legal capacity;

court means the Family Court of Western Australia;

independent legal advice is legal advice provided by a person who —

(a) is chosen by the person receiving the advice; and

(b) is not providing advice to the arranged parents as well as to any other person required to receive the advice;

parentage order means an order that the court makes under this Part transferring the parentage of a child.

Division 2 — Parentage order excluded for certain arrangements

15. Meaning of “Council”

In this Division —

Council means the Western Australian Reproductive Technology Council established under the Human Reproductive Technology Act 1991 section 8.

16. Approval of surrogacy arrangement

(1) A parentage order cannot be made in respect of a child unless the surrogacy arrangement has been approved in writing under section 17 by the Council.

(2) Subsection (1) does not apply if the child was born as a result of a pregnancy that commenced before the day fixed under section 2(b) as the day section 17 comes into operation.

17. Requirements for surrogacy arrangement to be approved

The Council may approve a surrogacy arrangement only if —

(a) the birth mother —

(i) has reached 25 years of age; and

(ii) unless the Council is satisfied that there are exceptional circumstances because of which it should dispense with this requirement, has given birth to a live child;

and

(b) the arrangement is set out in a written agreement signed by —

(i) each of the arranged parents; and

(ii) the birth mother and her husband or de facto partner, if any; and

(iii) any other person (a donor) whose egg or sperm is to be used for the conception of the child or who is the spouse or de facto partner of a donor;

and

(c) the Council is satisfied that, at least 3 months before the approval is given, each of the persons required by paragraph (b) to sign the agreement (the parties) has —

(i) undertaken any counselling about the implications of the surrogacy arrangement that regulations under this Act require; and

(ii) been assessed by a clinical psychologist and confirmed, in a written report provided to the Council, to be psychologically suitable to be involved in the surrogacy arrangement; and

(iii) received independent legal advice about the effect of the surrogacy arrangement;

and

(d) the Council is satisfied that, at least 3 months before the approval is given, each of the arranged parents, the birth mother and any donor has been assessed by a medical practitioner and confirmed, in a written report provided to the Council, to be medically suitable to be involved in the surrogacy arrangement; and

(e) the intended birth mother has not yet become pregnant under the arrangement.

18. Application of Human Reproductive Technology Act 1991

(1) For the purposes of the performance by the Council of a function under this Act, the provisions of the Human Reproductive Technology Act 1991 referred to in the Table apply as if the function were a function under that Act.

Table

s. 10(1), (3) and (4)	Sch. cl. 4
Sch. cl. 6	Sch. cl. 7
Sch. cl. 8	Sch. cl. 9
Sch. cl. 10

(2) The Council may, by resolution, delegate a function it is given by this Act to a committee appointed in accordance with subsection (1).

(3) For the purpose of the Human Reproductive Technology Act 1991 Schedule clause 10(1)(d) a delegation made under subsection (2) is taken to be a delegation made under section 11 of that Act.

(4) To enable it to perform its functions under this Act, the Council may make use of staff, services or facilities available to it under the Human Reproductive Technology Act 1991.

Division 3 — Transfer of child’s parentage

19. Circumstances for seeking parentage order

(1) An application can be made under this Part for a parentage order only if —

(a) the arranged parents reside in Western Australia and at least one arranged parent has reached 25 years of age; and

(b) when the surrogacy arrangement was entered into or after that time but before the application is made —

(i) the arranged parents are an eligible couple; or

(ii) one of the arranged parents, or the arranged parent if there is only one, is an eligible person.

(2) In subsection (1)(b) —

eligible couple means 2 people of opposite sexes who are married to, or in a de facto relationship with, each other and who, as a couple —

(a) are unable to conceive a child due to medical reasons not excluded by subsection (3); or

(b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease;

eligible person means a woman who —

(a) is unable to conceive a child due to medical reasons not excluded by subsection (3); or

(b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or

(3) The medical reasons for being unable to conceive a child that are referred to in the definitions of eligible couple and eligible person do not include —

(a) a reason arising from a person’s age; or

(b) a reason prescribed for the purpose of the Human Reproductive Technology Act 1991 section 23(1)(d).

20. Applying for a parentage order

(1) In the circumstances described in section 19, the arranged parents may, if the making of the order would not be prevented by section 16(1), apply in accordance with this section for a parentage order.

(2) The application can be lodged with the court only after a period of 28 days has elapsed since the day on which the child is born.

(3) The application cannot be lodged with the court more than 6 months after the day on which the child is born except with the leave of the court, which may be given in exceptional circumstances.

(4) If the child was born before the day fixed under section 2(b) as the day on which this section comes into operation, the application may, despite subsection (3), be lodged within one year after that day.

(5) Before the court considers the application, a certified copy of the child’s birth certificate must, if it is available, have been lodged with the court.

21. Court may make parentage order

(1) The court may, on an application made under section 20(1), make a parentage order.

(2) Before it makes a parentage order the court has to be satisfied that —

(a) the circumstances that section 19 requires for applying for a parentage order exist; and

(b) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent to have received the counselling, the child’s birth parents and the arranged parents have received appropriate counselling about the effect of the proposed order; and

(c) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent to have received the advice, the child’s birth parents and the arranged parents have received independent legal advice about the effect of the proposed order; and

(d) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent’s consent, the child’s birth parents freely consent to the making of the order; and

(e) except in circumstances identified in subsection (4), the child was, when the application for the order was lodged with the court, and is, when the court makes the proposed order, in the day to day care of the arranged parents; and

(f) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent to have agreed, the child’s birth parents and the arranged parents have agreed in writing to an appropriate plan (the approved plan) in accordance with section 22; and

(g) it is in the best interests of the child for the court to make the proposed order.

(3) In circumstances identified in subsection (4) or if the court is satisfied that a birth parent is deceased or incapacitated or that the arranged parents have been unable to contact a birth parent despite having made reasonable efforts to do so, the court may dispense with —

(a) the requirement for the birth parent to have received counselling as described in subsection (2)(b); or

(b) the requirement for the birth parent to have received independent legal advice as described in subsection (2)(c); or

(d) the requirement for the birth parent to have agreed to an appropriate plan as described in subsection (2)(f).

(4) The circumstances this subsection identifies are that —

(a) the birth mother is not the child’s genetic parent; and

(b) at least one arranged parent is the child’s genetic parent.

(5) In subsection (4) —

genetic parent of a child means a person from whose egg or sperm the child is conceived.

22. Contents of approved plan

(1) The plan needed to satisfy the court as section 21(2)(f) requires may deal with any matter relating to the child, and has to —

(a) adequately balance the rights and responsibilities of the parties to the plan; and

(b) promote the child’s long‑term welfare; and

(2) Without limiting the matters that the plan may deal with, the plan has to set out details of —

(a) any time that the child is to spend, or communication that the child is to have, with the child’s birth parents or any other person; and

(b) any information that any of the parties is to provide to the other or to any other person.

23. Ancillary orders

When the court makes a parentage order it may make any consequential or ancillary order it thinks fit in the interests of justice or for the welfare and in the best interests of the child whose parentage would be affected.

24. Multiple births

(1) This section applies if an application is made for a parentage order about a child who has a living brother or sister born as a result of the same pregnancy as the child (a living birth sibling).

(2) The court cannot make a parentage order about a child who has a living birth sibling unless it also makes a parentage order about each living birth sibling of the child.

25. Name of child

(1) If a parentage order is made, the court is to, by the same order, declare the name by which the child whose parentage is transferred is to be known.

(2) Before making an order changing the child’s name, the court is to have regard to —

(a) the principle that a child’s first name should not be changed by a parentage order except in special circumstances; and

(b) anything that is relevant in the approved plan.

(3) An order under this section does not prevent a subsequent change of name under a law of the State or the Commonwealth.

26. Effect of parentage order

(1) The effect of a parentage order is that, for the purposes of the law of this State —

(a) the relationship between the child whose parentage is transferred and each of the arranged parents is to be treated as being that of child and parent; and

(b) the relationship between the child whose parentage is transferred and each of the child’s birth parents is to be treated as not being that of child and parent; and

(c) the relationships of all persons to the child whose parentage is transferred, to each of the arranged parents, and to each of the birth parents of the child are to be determined in accordance with this section.

(2) If a parentage order is made, an appointment, in a deed or will existing at the time the parentage order is made, of a person as the guardian of the child whose parentage is transferred, ceases to have effect.

27. Discharge of parentage order

(1) The court may, if satisfied as described in subsection (2), make an order discharging a parentage order on receiving an application for it to do so from —

(a) the Attorney General; or

(b) the chief executive officer; or

(c) the chief executive officer of the department of the Public Service principally assisting in the administration of the Adoption Act 1994; or

(d) a child whose parentage was transferred by the parentage order who has reached the age of 18 years.

(2) On an application under subsection (1), the court may make an order discharging a parentage order if it is satisfied that —

(a) the parentage order was obtained by fraud, duress or other improper means; or

(b) a consent relied on for the making of the parentage order was not an effective consent because it was obtained by fraud, duress or material inducement; or

(3) If the court makes an order discharging a parentage order, the court is to, by the same order, declare the name by which the child whose parentage would be affected is to be known, having regard to the principle that a child’s first name should not be changed by the order except in special circumstances.

(4) An order under subsection (3) does not prevent a subsequent change of name under a law of the State or the Commonwealth.

(5) The court is not to make an order under subsection (2) unless —

(a) to do so would be for the welfare and in the best interests of the child whose parentage would be affected; and

(b) the court is satisfied that reasonable efforts have been made to give notice of the application to —

(i) each of the birth parents of the child whose parentage would be affected; and

(ii) each of the arranged parents; and

(iii) if the court considers it appropriate having regard to the child’s age, the child whose parentage would be affected.

(6) Any person may apply for leave to intervene in an application under subsection (1) and the court may make an order entitling the person to intervene in the application.

(7) A person who is permitted under subsection (6) to intervene in an application under subsection (1) is to be treated as a party to the application with all the rights, duties and liabilities of a party, unless the court orders otherwise.

(8) Where an order is made under subsection (2), the court may make any consequential or ancillary order it thinks fit in the interests of justice or for the welfare and in the best interests of the child whose parentage would be affected, including any order relating to —

(a) the ownership or possession of property; or

(b) any matter affecting the child in relation to the duties, powers, responsibilities and authority which, by law, parents have in relation to children; or

(9) Where a parentage order is discharged under subsection (2), the rights, duties, liabilities and relationships of persons under the law of the State are to be, after the order is discharged, as if the parentage order had not been made.

(10) Subsection (9) —

(a) does not apply to the extent that its application would be inconsistent with any order made under subsection (8) or with section 28; and

(b) does not affect —

(i) anything lawfully done; or

(ii) the consequences of anything lawfully done; or

(iii) any proprietary right or interest that became vested in any person,

while the parentage order was in force.

28. Relationships for laws relating to sexual offences

For the purposes of the law of this State relating to sexual offences, being law for the purposes of which the relationship between persons is relevant —

(a) despite section 26(1) and (2), a parentage order does not cause the cessation of any relationship that would have existed if the parentage order had not been made, and any such relationship is to be treated as existing in addition to any relationship that exists by virtue of the application of this section in relation to the parentage order; and

(b) despite section 27(9), the discharge of a parentage order does not cause the cessation of any relationship that would have existed if the discharging order had not been made, and any such relationship is to be treated as existing in addition to any relationship that exists by virtue of the discharge of the parentage order.

29. Finality of parentage order

A parentage order cannot be appealed against, reviewed, called in question, or affected by any court, on any account, except —

(a) under section 27; or

(b) under the Family Court Act 1997 section 211(3).

30. Varying approved plan

(1) A person described in subsection (2) may apply to the court for approval to vary an approved plan relating to a child if the child has not reached 18 years of age.

(2) The only person who can make the application is —

(a) a person who is a party to the approved plan; or

(b) a birth parent who is not a party to the approved plan.

(3) The court may approve of the plan being varied in writing as sought by the application under subsection (1) if it is satisfied that —

(a) the variation is appropriate because of a change of circumstances since the approved plan was agreed; and

(b) the plan as varied would conform to the requirements of section 22.

(4) The variation may be to add a new party to the plan.

31. Court’s powers to do with breach of approved plan

(1) If, on an application made to it by a party to an approved plan, the court is satisfied that a breach of a provision of the plan has occurred or is likely to occur, the court may —

(a) order the parties to the plan to participate in a mediation process; or

(b) exercise its powers under the Family Court Act 1997, as it thinks fit, to enforce a provision of the plan as if the provision were an order made by the court under that Act.

(2) Without limiting subsection (1), the court may deal with a breach of a provision of an approved plan as if the person who breached the provision had contravened an order made by the court under the Family Court Act 1997 or had been in contempt of the court.

32. Court to notify certain officers

(1) The registrar of the court is to give to the Registrar of Births, Deaths and Marriages written notice of the particulars described in subsection (2) if the court —

(a) makes a parentage order; or

(b) makes an order under section 27(1) discharging a parentage order.

(2) The particulars of which notice has to be given are —

(a) the date of the order; and

(b) the full name, address and occupation of each of the arranged parents; and

(c) the name by which the child whose parentage was transferred is known before, and is to be known after, the order becomes effective; and

(d) the terms of any consequential or ancillary order under section 27(8); and

(e) details of the date and place of birth of the child whose parentage was transferred and the name and address of each of the child’s birth parents; and

(f) if available, any other information required by the Registrar of Births, Deaths and Marriages in relation to the registration under the Births, Deaths and Marriages Registration Act 1998 of the birth of the child whose parentage was transferred.

(3) If the birth of the child whose parentage was transferred is not registered in this State under the Births, Deaths and Marriages Registration Act 1998 then in addition to the notice required by subsection (1), the registrar of the court is to give the Registrar of Births, Deaths and Marriages a copy of the original registration of the child’s birth, if it is available.

Division 4 — Access to information

33. Terms used in this Division

In this Division —

descendant means a lineal descendant;

grandparent means a lineal grandparent or a lineal ancestor;

sibling means a brother or sister of the whole or half blood,

whether or not the relationship is traced through, or to, a person whose parents were not married to each other at the time of the person’s birth, or subsequently.

34. Application of this Division or order under it

(1) If an approved plan provides for a party to the plan to have greater or earlier access to information than would be available under this Division, the party is entitled to access in accordance with the plan.

(2) A right that this Division gives to have access to information or an order that the court makes giving access to information prevails over a provision of any contract or approved plan that purports to restrict or exclude that access.

35. Right under this Division to be treated as adequate reason

A right that this Division gives to a person to have access to the registration of a birth is to be treated as an adequate reason, for the purposes of the Births, Deaths and Marriages Registration Act 1998 section 54 or 55, for the Registrar of Births, Deaths and Marriages —

(a) to allow the person access to the Register under that Act; and

(b) to provide the person with information extracted from the Register under that Act; and

36. Court order excluding access to information

(1) On an application for a parentage order or after a parentage order has been made, a party may apply to the court for an order excluding a person from having access under this Division to information.

(2) On an application under subsection (1), the court may make an order excluding a person from having access under this Division to information if it is satisfied that the person’s access to the information would be likely to place at serious risk —

(a) the applicant; or

(b) the person to whom the applicant is married, or with whom the applicant is in a de facto relationship; or

(3) The order may exclude access to all or specified information in all or specified circumstances, and may exclude access from being given by the court or exclude a right of access from arising under this Division.

(4) If an order is made under subsection (2), the registrar of the court is to give the Registrar of Births, Deaths and Marriages a certified copy of the order as soon as is practicable.

(5) On the application of a person affected by an order under subsection (2), the court may revoke, suspend, or vary the order.

37. Access to certain court records

(1) A person cannot have access to the record of proceedings in a court in relation to a parentage order except with the court’s approval given on an application under subsection (2) or section 40(4) or 41(4).

(2) The court may give access to all or part of the record of proceedings if an application for access is made in writing by —

(a) the child to whose parentage the order relates; or

(b) a birth parent of the child; or

(d) any other person who was a party to the proceedings.

(3) Without limiting the other reasons for which the court may refuse to give a person access on an application under subsection (2) or section 40(4) or 41(4), the court may refuse to give access if —

(a) the person has not produced to the registrar or another appropriate officer of the court proof of the person’s identity; or

(b) the person has not complied with a requirement of the court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings; or

(c) to give access would be contrary to any court order in relation to exclusion of persons from the hearing of the proceedings.

38. Access to registration of birth

(1) A person has the right to have access to the registration of the birth of a person whose parentage has been transferred by a parentage order if and only if the person who is to have access is —

(a) the child to whose parentage the order relates; or

(b) a birth parent of the child; or

(2) Even though subsection (1) gives a person the right to have access to the registration of the birth, that access may be refused if —

(a) the person has not produced to the Registrar of Births, Deaths and Marriages or another appropriate officer proof of the person’s identity; or

(b) the person has not complied with a requirement of, or under, the Births, Deaths and Marriages Registration Act 1998 relating to that access.

(3) Subsection (1) does not prevent a person from exercising a right given by section 40(2) or 41(2) to have access to the registration of the birth.

39. Portion of registration of birth not referring to parentage order

(1) At the request of —

(a) an arranged parent of the child, if the child has not reached 16 years of age; or

(b) the child, if the child has reached 16 years of age,

the Registrar of Births, Deaths and Marriages is to issue to the person making the request, a certified copy of that portion of the registration of the birth of a child whose parentage was transferred by a parentage order that does not refer to the child’s birth parents or the change of parentage.

(2) A certified copy of a portion of the registration of a child’s birth that the Registrar of Births, Deaths and Marriages issues under subsection (1) is admissible in legal proceedings as evidence of the facts recorded on the document.

40. If certain person deceased

(1) This section applies if —

(a) a child whose parentage was transferred by a parentage order; or

(b) a birth parent of the child; or

is deceased.

(2) If this section applies, a person has the right to have access to the registration of the birth of the child if the person who is to have access has reached 16 years of age and is —

(a) a grandparent of the deceased; or

(b) a descendant of the deceased; or

(3) Even though subsection (2) gives a person the right to have access to the registration of the birth, that access may be refused if —

(a) the person has not produced to the Registrar of Births, Deaths and Marriages or another appropriate officer proof of the person’s identity and age; or

(b) the person has not complied with a requirement of, or under, the Births, Deaths and Marriages Registration Act 1998 relating to that access.

(4) If this section applies, the court may give access to all or part of the record of proceedings in a court in relation to the parentage order if an application for access is made in writing by a person who has reached 16 years of age and is —

(a) a grandparent of the deceased; or

(b) a descendant of the deceased; or

41. If adult child cannot be contacted

(1) This section applies if a child whose parentage was transferred by a parentage order has reached 18 years of age and cannot be found or contacted after making reasonable enquiries.

(2) If this section applies, a person has the right to have access to the registration of the birth of the child if the person who is to have access has reached 16 years of age and is —

(a) a grandparent of the child; or

(b) a descendant of the child; or

(3) Even though subsection (2) gives a person the right to have access to the registration of the birth, that access may be refused if —

(a) the person has not produced to the Registrar of Births, Deaths and Marriages or another appropriate officer proof of the person’s identity and age; or

(b) the person has not complied with a requirement of, or under, the Births, Deaths and Marriages Registration Act 1998 relating to that access.

(a) a grandparent of the child; or

(b) a descendant of the child; or

Division 5 — Other matters

42. Application of Family Court Act 1997

(1) The Family Court Act 1997 applies as if a reference to proceedings under that Act in a provision of that Act listed in the Table referred also to proceedings in which the court exercises jurisdiction conferred on it by this Act.

Table

s. 60	s. 62(1)
s. 65	s. 73
s. 164	s. 165
s. 166	s. 194
s. 195	s. 201
s. 207	s. 208
s. 213	s. 216
s. 245(2)

(1A) The Family Court Act 1997 applies as if —

(a) the reference in section 236B(1)(a) of that Act to proceedings under that Act referred also to proceedings or a part of proceedings in which the court exercises jurisdiction conferred on it by this Act; and

(b) the reference in section 236C(1) of that Act to proceedings that are to be dealt with by the court under that Act referred also to proceedings or a part of proceedings that are to be dealt with by the court in the exercise of jurisdiction conferred on it by this Act.

(2) The Family Court Act 1997 applies as if a reference to jurisdiction of the court under that Act in section 244 referred also to jurisdiction conferred on the court by this Act.

(3) In a context in which the Family Court Act 1997 applies only because of this section, that Act applies as if a reference in that Act to a family consultant referred only to a person who is appointed in accordance with section 25 of that Act.

(4) The Family Court Act 1997 section 212 does not apply to proceedings in which the court exercises jurisdiction conferred on it by this Act.

[Section 42 amended: No. 49 of 2024 s. 84.]

43. Court proceedings to be private

(1) This section applies to proceedings in which the court exercises jurisdiction under this Part (proceedings under this Part) and also to any proceedings of the Supreme Court arising out of proceedings under this Part.

(2) Proceedings to which this section applies are not to be heard in open court and all persons other than a party to the proceedings or his or her lawyer are to be excluded during the proceedings, except as otherwise directed by the court.

(3) A court may order any person to leave the room or other place during the examination of a witness in the proceedings.

44. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), regulations may be made as to what is appropriate counselling for a child’s birth parents and the arranged parents to receive about the effect of a proposed parentage order.

45. Review of Act

(1) The Minister shall carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 4 years from its commencement.

(2) The Minister shall prepare a report based on the review made under subsection (1) and shall, as soon as is practicable after that preparation, cause that report to be laid before each House of Parliament.

Part 4 — Other Acts amended

Division 1 — Births, Deaths and Marriages Registration Act 1998 amended

46. Act amended

This Division amends the Births, Deaths and Marriages Registration Act 1998.

47. Long title amended

In the long title delete “adoptions information” and insert:

information about certain parentage changes

48. Section 3 amended

In section 3:

(a) in paragraph (a) delete “adoptions” and insert:

parentage change

(b) in paragraph (b) delete “adoptions” and insert:

parentage changes

49. Section 4 amended

In section 4 in the definition of registrable event delete “adoption;” and insert:

adoption or the making or discharge of a parentage order as defined in the Surrogacy Act 2008 section 14;

50. Part 4 heading replaced

Delete the heading to Part 4 and insert:

Part 4 — Registration of information about certain parentage changes

51. Section 24 amended

(1) In section 24 delete “On receipt” and insert:

(1) On receipt

(2) At the end of section 24 insert:

(2) On receipt of a notice under section 32(1) of the Surrogacy Act 2008 in relation to the making or discharge of a parentage order about a child whose birth is registered in this State, the particulars provided in the notice must be registered by the Registrar in relation to the registration of the child’s birth.

Note: The heading to section 24 is to read:

WA order: birth registered in WA

52. Section 25 amended

(1) After section 25(1) insert:

(2A) On receipt of a notice under section 32(1) of the Surrogacy Act 2008 in relation to the making or discharge of a parentage order about a child whose birth is registered in another State, the Registrar —

(a) must send a copy of the notice to the relevant registering authority; and

(b) subject to subsection (2), must register the child’s birth in accordance with the information provided under section 32 of that Act.

(2) In subsection (2):

(a) after “subsection (1)” insert:

or (2A)

(b) in paragraph (b) delete “order,” (both occurrences) and insert:

order or parentage order,

(3) In subsection (3) after “subsection (1)” insert:

or (2A)

Note: The heading to section 25 is to read:

WA order: birth not registered in WA

53. Section 26 amended

(1) In section 26:

(a) delete “If” and insert:

(1) If

(b) in paragraph (a) after “adoption order” insert:

or parentage order

(2) At the end of section 26 insert:

(2) In subsection (1) —

parentage order means an order substantially similar in effect to a parentage order under the Surrogacy Act 2008.

Note: The heading to section 26 is to read:

Order in other State: birth registered in WA

54. Section 28 replaced

Delete section 28 and insert:

28. Certain certified copies

If the Adoption Act 1994 section 86 or the Surrogacy Act 2008 section 39 requires the Registrar to issue a certified copy of that portion of the registration of a person’s birth that does not refer to —

(a) the person’s birth parents; or

(b) as the case requires, the person’s adoption or change of parentage under the Surrogacy Act 2008,

the certified copy is to be in an approved form.

55. Section 68 amended

Delete section 68(2) and insert:

(2A) Nothing in this Act prevents a birth parent of a child whose parentage was transferred under the Surrogacy Act 2008 from applying under section 19 or 52 (other than with a request under section 19(2)(c)) to add additional registrable information about the child’s birth registration if, but for the transfer of parentage, the information could have been included in the Register.

(2) To the extent that —

(a) a provision of the Adoption Act 1994 relating to access to adoption information in the Register; or

(b) a provision of the Surrogacy Act 2008 relating to access to information in the Register about the transfer of parentage under that Act,

is inconsistent with this Act, that Act prevails.

Note: The heading to section 68 is to read:

Some effects of Adoption Act 1994 and Surrogacy Act 2008

Division 2 — Children and Community Services Act 2004 amended

56. Act amended

This Division amends the Children and Community Services Act 2004.

57. Section 104 amended

(1) In section 104(2):

(a) before paragraph (f) insert:

(fa) caring for the child under a surrogacy arrangement, as defined in the Surrogacy Act 2008, and not more than one year has elapsed since the day on which the child was born; or

(b) after each of paragraphs (a) to (d) insert:

(2) In section 104(4) after each of paragraphs (a) to (c) insert:

and

Division 3 — Family Court Act 1997 amended

58. Act amended

This Division amends the Family Court Act 1997.

59. Section 5 amended

In section 5(1) in the definition of child:

(a) in paragraph (a) delete “adopted child” and insert:

adopted child, a child whose parentage has been transferred under the Surrogacy Act 2008

(b) in paragraph (b) delete “adopted child);” and insert:

adopted child or a child whose parentage has been transferred under the Surrogacy Act 2008);

60. Section 36 amended

In section 36(2) delete “Adoption Act 1994” and insert:

	*Adoption Act 1994*, the *Surrogacy Act 2008*

61. Section 39 amended

In section 39 after “Adoption Act 1994” insert:

or the Surrogacy Act 2008

62. Section 205T amended

In section 205T:

(a) in the definition of child before paragraph (c) insert:

(ca) a child whose parentage has, since the commencement of the de facto relationship, been transferred under the Surrogacy Act 2008 to the de facto partners; or

(b) in the definition of child after paragraph (a) insert:

Division 4 — Guardianship and Administration Act 1990 amended

63. Act amended

This Division amends the Guardianship and Administration Act 1990.

64. Section 45 amended

After section 45(3)(c) insert:

(da) consent, under section 21(2)(d) of the Surrogacy Act 2008, to the making of a parentage order under that Act; or

Division 5 — Human Reproductive Technology Act 1991 amended

65. Act amended

This Division amends the Human Reproductive Technology Act 1991.

66. Section 18 amended

After section 18(1)(b) insert:

(ca) an artificial fertilisation procedure for implementing a surrogacy arrangement as defined in the Surrogacy Act 2008 section 3;

67. Section 23 amended

(1) In section 23:

(a) delete “An” and insert:

(1) An

(b) after paragraph (a)(ii) insert:

(iii) a woman who is unable to give birth to a child due to medical reasons and is a party to a surrogacy arrangement (as defined in the Surrogacy Act 2008 section 3) that is lawful;

any persons seeking to be regarded, in applying paragraph (a),

(d) after each of paragraph (a)(i) and (ii) insert:

(e) after each of paragraphs (a) to (c) insert:

and

(2) At the end of section 23 insert:

(2) Subsection (1) does not require that the benefit likely to result from the procedure involve the pregnancy of a member of the couple who are, or the woman who is, likely to benefit.

Division 6 — Interpretation Act 1984 amended

68. Act amended

This Division amends the Interpretation Act 1984.

69. Section 5 amended

In section 5 in the definition of parent after paragraph (b) insert:

(c) a person who is a parent in a relationship of parent and child that arises because of a parentage order under the Surrogacy Act 2008;

View image in the official source

Notes

This is a compilation of the Surrogacy Act 2008 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title	Number and year	Assent	Commencement
Surrogacy Act 2008	47 of 2008	10 Dec 2008	s. 1 and 2: 10 Dec 2008 (see s. 2(a)); Act other than s. 1 and 2: 1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 512)
Family Court Amendment (Commonwealth Reforms) Act 2024 s. 84	49 of 2024	6 Dec 2024	10 Feb 2025 (see s. 2(b) and SL 2025/10 cl. 2)

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA legislation website.

Short title	Number and year	Assent	Commencement
Assisted Reproductive Technology and Surrogacy Act 2025 s. 279(1)(b)	19 of 2025	18 Dec 2025	To be proclaimed (see s. 2(c))

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

approved plan 14, 21(2)

arranged parent 3

arranged parents 3, 14

birth mother 3

birth parents 14

chief executive officer 14

child 14

Council 15

court 14

descendant 33

donor 17

eligible couple 19(2)

eligible person 19(2)

genetic parent 21(5)

grandparent 33

independent legal advice 14

living birth sibling 24(1)

parentage order 14, 53(2)

parties 17

proceedings under this Part 43(1)

sibling 33

surrogacy arrangement 3

surrogacy arrangement that is for reward 5

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: ROGER JACOBS, Acting Government Printer

Western Australia

Surrogacy Act 2008

Western Australia

Surrogacy Act 2008

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used in this Act 2

Part 2 — Surrogacy arrangements

Division 1 — General

What this Part is about 3
Term used in this Part 3
Meaning of “surrogacy arrangement that is for reward” 3
Surrogacy arrangement not binding 4

Division 2 — Offences

Making surrogacy arrangement that is for reward 4
Reward for introducing parties for surrogacy arrangement 5
Publishing willingness to make surrogacy arrangement that is for reward 5
Services connected with surrogacy arrangement that is for reward 5

Part 3 — Order giving parental status to arranged parents

Division 1 — Preliminary

What this Part is about 7
Child’s best interests paramount 7
Terms used in this Part 7

Division 2 — Parentage order excluded for certain arrangements

Meaning of “Council” 8
Approval of surrogacy arrangement 8
Requirements for surrogacy arrangement to be approved 9
Application of Human Reproductive Technology Act 1991 10

Division 3 — Transfer of child’s parentage

Circumstances for seeking parentage order 11
Applying for a parentage order 12
Court may make parentage order 12
Contents of approved plan 14
Ancillary orders 15
Multiple births 15
Name of child 15

Surrogacy arrangement: The statutory definition is an arrangement for a woman (birth mother) to seek pregnancy and give birth to a child, with others (arranged parent(s)) intending to raise the child; it excludes agreements entered into after pregnancy unless they vary an earlier arrangement involving the same parties (s 3). This limits the Act’s scope to pre‑conception or pre‑pregnancy surrogacy contracts, except for variations.

Surrogacy arrangement that is for reward: The Act distinguishes paid (commercial) arrangements from permitted reimbursements. “For reward” covers any payment or valuable consideration other than reasonable pregnancy/birth-related expenses and assessments or expert advice (s 6(1)). The statute defines “reasonable expenses” narrowly (medical expenses not recoverable under insurance, earnings foregone for up to two months around birth or otherwise for medical reasons, reasonable counselling costs, and certain premiums for insurance tied to pregnancy-related risks) (s 6(3)). This framework channels permitted financial transfers into a limited, defined set of categories and criminalises anything beyond them (s 8).

Non‑enforceability of surrogacy contracts: Surrogacy arrangements are non‑enforceable as contracts “except to the extent provided” by s 7(3), which preserves enforceability for obligations to pay or reimburse the statutory “reasonable expenses” only. The court retains separate powers to make parentage orders under Part 3 (s 7(2)). Practically, parties cannot rely on contract law to compel performance of broader terms (for example, a promise to hand over the child), since the core arrangement is not contractually enforceable (s 7).

Criminal prohibitions and penalties: The Act creates several specific offences. Entering into a surrogacy arrangement for reward is a criminal offence punishable by a fine of $24,000 or two years’ imprisonment (s 8). Introducing parties for a fee attracts up to $12,000 or one year’s imprisonment (s 9). Publishing material that induces or advertises willingness to enter a rewarded arrangement carries a $6,000 fine (s 10). Providing services that knowingly facilitate a rewarded surrogacy (other than health services to a pregnant birth mother) carries liability up to five years’ imprisonment (s 11). These provisions criminalise intermediaries, advertising platforms and commercial agencies that monetise matching, arranging or facilitating surrogacy beyond the permitted reimbursements.

Approval and safeguards: Before the Family Court can transfer parentage, the surrogacy arrangement must be approved by the Western Australian Reproductive Technology Council, except where the pregnancy began before the day section 17 commenced (s 16). The Council’s approval powers are tightly conditioned (s 17): the birth mother must be 25 and have given birth to a live child (save in exceptional circumstances), the arrangement must be in a written form signed by all relevant parties (including donors and their spouses/de facto partners), and, crucially, at least three months before approval each person required to sign must have undertaken counselling, obtained independent legal advice, and undergone psychological and medical assessments with written reports provided to the Council (s 17(b)-(d)). The intended birth mother must not yet be pregnant under the arrangement at the time of approval (s 17(e)).

Parentage order process and effects: The Family Court may make a parentage order if statutory criteria are satisfied (s 21). Eligibility rules for arranged parents and applicants are set out in s 19 and include residency in WA, age thresholds (arranged parents 25 for the application) and medical/diagnostic criteria for inability to conceive or give birth, excluding reasons arising solely from age or certain prescribed reasons (s 19(1)-(3)). The court must view the child’s best interests as paramount and there is a statutory presumption that arranged parents should be the child’s parents unless the evidence shows otherwise (s 13). A parentage order changes legal relationships so that arranged parents are treated as the child’s parents and birth parents are no longer treated as parents for State law purposes (s 26), but relationships relevant to sexual offences law that would have existed absent the order are preserved in addition to the new legal relationships (s 28).

Privacy, records and access: Proceedings are to be private; non‑parties are excluded (s 43). The Act creates a bespoke access regime for birth registration and court records connected to parentage orders (Div 4, ss 33-41): access is generally limited to the child, birth parents and arranged parents (s 38), with controlled rights for extended family if the child or a parent is deceased or the child cannot be contacted (ss 40-41). The Registrar of Births, Deaths and Marriages must be notified when parentage orders are made or discharged (s 32), and the Births, Deaths and Marriages Registration Act 1998 is amended to accommodate parentage changes (Part 4, ss 46-55).

Inter‑Act interaction: The Council’s functions under this Act are to be treated as if they arise under the Human Reproductive Technology Act 1991 for specified provisions (s 18), enabling use of the Council’s staff and delegations. The Family Court Act 1997 is applied to court proceedings under this Act as though those proceedings were proceedings under that Act in listed provisions (s 42). The Act makes consequential amendments across several statutes (Births, Deaths and Marriages Registration Act 1998; Children and Community Services Act 2004; Family Court Act 1997; Guardianship and Administration Act 1990; Human Reproductive Technology Act 1991; Interpretation Act 1984) to align registration, guardianship, reproductive technology regulation and family law definitions (Part 4).

Timing and review: Parties must wait 28 days after birth to lodge a parentage application and generally must apply within six months (s 20), with limited exceptions. The Minister must conduct a review of the Act’s operation and effectiveness after four years (s 45).

Primary private actors

Birth mothers and arranged parents: The Act directly governs the rights, duties and legal status of birth mothers, arranged parents and any donor whose gametes are used in a surrogacy arrangement (defined terms, s 3; Part 3 generally). Birth mothers are subject to age and prior-childbirth thresholds for Council approval,birth mother must have reached 25 and, unless exceptional circumstances apply, must have previously given birth to a live child (s 17(a)). Arranged parents must meet residency and age thresholds for application: they must reside in Western Australia and at least one arranged parent must have reached 25 (s 19(1)(a)). Arranged parents also must meet eligibility definitions (eligible couple: opposite-sex married or de facto couple; eligible person: woman with specified medical reasons) relating to infertility or genetic risk (s 19(2)). These eligibility criteria exclude some private parties from accessing the parentage pathway (for example, single men are not captured as eligible persons under s 19(2)).
Donors and their spouses/de facto partners: If a donor’s gamete is to be used, they and their spouse or de facto partner may be required signatories to the written agreement (s 17(b)). Donors are also subject to the assessment and counselling requirements (s 17(c)-(d)).

Intermediaries and service providers

Clinics and medical practitioners: Medical practitioners perform medical suitability assessments and may provide health services exempted from the s 11 offence if provided to the birth mother after pregnancy (s 11(2), s 17(d)). Clinics involved in artificial fertilisation tied to surrogacy are explicitly brought within the Human Reproductive Technology Act 1991 regime (s 66 amending s 18 of that Act), so fertility providers must comply with the interlinked regulatory frameworks (s 18).
Agencies, introducers, advertisers and matching services: Persons or businesses that introduce parties, advertise, publish or provide services that facilitate a surrogacy arrangement “for reward” are criminalised under ss 9-11. This affects commercial surrogacy businesses, online platforms that monetise listings or matchmaking, and any person seeking valuable consideration for introductions (s 9). The publishing offence (s 10) captures advertising or public solicitation that indicates willingness to enter paid surrogacy arrangements.

State bodies and regulators

Western Australian Reproductive Technology Council (the Council): The Council is given a gatekeeper role to approve surrogacy arrangements in writing (s 16-17). To do so it must be satisfied about age, prior childbirth, written agreement, counselling, psychological and medical suitability, independent legal advice, and that the intended birth mother has not yet become pregnant under the arrangement (s 17). The Council may delegate functions and use staff or facilities under the Human Reproductive Technology Act 1991 (s 18). This concentrates a substantial administrative and evaluative workload in the Council and draws on its existing regulatory apparatus.
Family Court of Western Australia: The Family Court examines parentage order applications, must regard the child’s best interests as paramount, assesses statutory requirements and approved plans and makes parentage orders and ancillary orders (s 12-13, s 21, s 23). Court decisions on parentage orders are generally final except under the narrow discharge grounds or specified Family Court review provisions (s 27, s 29).
Registrar of Births, Deaths and Marriages: The court registrar must notify the Registrar when parentage orders are made or discharged; the Registrar must register the particulars supplied and issue certified copies of altered birth registration portions when requested (s 32; amendments in Part 4, ss 51-55).

Third parties and families

Birth parents’ families, grandparents, siblings and descendants: The Act creates controlled rights to access registration information for extended family in particular circumstances (death of the subject or parent, or difficulty contacting an adult child) (ss 40-41) and provides parties to an approved plan the ability to negotiate earlier or greater access to registration information than the statutory minimum (s 34(1)).
Wider public and service markets: The criminal prohibitions suppress a market in commercial surrogacy services and related advertising within the State (ss 8-11), changing supply and demand dynamics for intermediaries and possibly shifting activity interstate or overseas. Providers of legal, medical and psychological services gain predictable demand from the regulated counselling and assessment requirements (s 17).

Who pays and who decides

Parties (birth mother, arranged parents, donors) pay for assessments, counselling, legal advice and any private health costs not covered by insurance (s 6(3), s 17). They also bear delay costs from the statutory waiting windows (s 20).
The State (Council, Family Court, registries) pays administrative costs of approvals, legal processing, hearings and registry updates; it decides whether to approve arrangements and whether to make parentage orders (ss 16-21, s 32).

Incentive effects

The Act disincentivises commercialisation of surrogacy by criminal penalties for reward and facilitation (ss 8-11), and favours altruistic, approved arrangements with extensive screening and documentation (s 17).
It incentivises pursuit of court‑sanctioned parentage orders to achieve legal parenthood because surrogacy contracts are not otherwise enforceable (s 7, s 26). Where parties cannot obtain Council approval or fail to meet eligibility criteria, they face either private informal arrangements without legal parentage, or turning to out-of-state or overseas surrogacy options.

Key duties

Duty to avoid reward-based arrangements and facilitation: Individuals and entities must not enter into or facilitate surrogacy arrangements for reward, introduce parties for reward, publish inducements, or provide facilitative services for reward (ss 8-11). The duty is both a criminal prohibition and an economising constraint on intermediaries.
Duty to comply with Council approval process: Where a parentage order is intended, parties must obtain Council approval of the surrogacy arrangement beforehand (s 16). The Council may approve only if statutory requirements are met, specifically age and prior childbirth conditions for the birth mother (s 17(a)), a written and signed agreement (s 17(b)), and completion of counselling, psychological and medical assessments and independent legal advice at least three months prior to approval (s 17(c)-(d)). The intended birth mother must not be pregnant under the arrangement at the time of approval (s 17(e)). These duties impose pre‑approval procedural steps and documentary evidence obligations.
Duty to observe application timing and evidentiary requirements for parentage orders: Arranged parents must wait at least 28 days after birth to lodge the application and generally must apply within six months, unless the court grants leave in exceptional circumstances (s 20(2)-(3)). A certified copy of the birth certificate, if available, must be lodged before the court considers the application (s 20(5)). The court will require the parties to have received counselling and independent legal advice, unless the court dispenses with these for specific reasons such as death, incapacity, or inability to contact a birth parent, or where the birth mother is not genetic and an arranged parent is genetic (s 21(2)-(4)).
Duty of disclosure in the approved plan: The approved plan must adequately balance rights, promote the child’s long-term welfare and be reasonable (s 22(1)), and it must set out time or communication the child is to have with birth parents or others, and what information is to be provided to whom (s 22(2)). Parties must implement and be able to justify the plan to the court.
Registrar notification duty: The court registrar must notify the Registrar of Births, Deaths and Marriages of particulars when a parentage order is made or discharged (s 32(1)-(2)). Where the child’s birth is registered interstate, the Registrar must send a copy of the notice to the relevant registering authority and register the child’s birth in accordance with the notice (Part 4, s 52).

Key rights

Right to a parentage order upon statutory satisfaction: The Family Court may make a parentage order when satisfied that statutory criteria are met (s 21). The court has discretion but the Act sets out the matters it must be satisfied about (s 21(2)). There is a presumption favouring arranged parents as the child’s parents (s 13(2)).
Right to access registration information and certain court records: The child, birth parents and arranged parents have statutory rights to access the registration of birth and certain court records related to the parentage order (ss 34-38). Exceptions and identity/eligibility requirements apply (ss 36-41). These rights prevail over contractual restrictions in approved plans (s 34(2)).
Right to certified partial birth registration: An arranged parent (if the child is under 16) or the child (if over 16) may request a certified copy of the portion of the birth registration that does not refer to the birth parents or change of parentage; the document is admissible as evidence (s 39(1)-(2); Part 4, s 54).
Right to vary an approved plan: Parties to the approved plan and birth parents who are not parties may apply to the court to vary the approved plan for a child under 18 on grounds of changed circumstances and conformity with s 22 requirements (s 30). The variation can add parties to the plan (s 30(3)-(4)).
Right to seek discharge of a parentage order in limited circumstances: The Attorney General, chief executive officers, or the child upon reaching 18 may apply to have a parentage order discharged if obtained by fraud, duress or other improper means, or there is exceptional reason (s 27(1)-(2)). The court must be satisfied it is in the child’s best interests and that reasonable notice was given to relevant parties (s 27(5)-(6)).

Procedural safeguards and limits

Child’s best interests are paramount; however, there is also a statutory presumption favouring arranged parents as parents unless contrary evidence exists (s 13).
The Court may dispense with counselling, legal advice and consent requirements in specified circumstances such as death, incapacity, inability to contact a birth parent, or where genetic parentage circumstances apply (s 21(3)-(5)).
Parentage orders create final legal status subject only to discharge on specified grounds and certain Family Court review powers (s 29). For sexual offences law the Act preserves relationships that would have existed absent the parentage order (s 28).

Criminal offences and penalties

Entering into surrogacy arrangement that is for reward: s 8 makes it an offence for a person who enters into a surrogacy arrangement that is for reward; penalty is a fine of $24,000 or imprisonment for two years.
Reward for introducing parties: s 9(1) criminalises receiving or seeking valuable consideration for introducing persons with the intention they might enter a surrogacy arrangement; penalty is a fine of $12,000 or imprisonment for one year. This applies regardless of whether the intended arrangement would itself be for reward (s 9(2)).
Publishing inducements: s 10 criminalises publishing anything intended or likely to induce a person to enter into a surrogacy arrangement for reward, or announcements seeking willing participants, with a penalty of $6,000.
Services facilitating rewarded surrogacy: s 11(1) establishes a crime for providing a service knowing it is to facilitate a surrogacy arrangement that is for reward; the maximum penalty is imprisonment for five years. There is an express non‑offence for health services provided to the birth mother after she has become pregnant (s 11(2)). A summary conviction alternative carries a fine of $12,000 or imprisonment for one year.

Enforcement mechanisms

Criminal enforcement will lie with prosecuting authorities in the State; the Act sets out the offences and penalties but does not create a new enforcement agency. Existing criminal prosecution powers and procedures will apply to s 8-11 offences.
Family Court enforcement: The Family Court has a suite of powers to make parentage orders and ancillary orders and to enforce approved plan provisions (s 21, s 23). For breach of an approved plan, the Court may order mediation or apply its Family Court powers to enforce provisions as if the breach were of a court order under the Family Court Act 1997 (s 31). The Court may treat breach as contempt or contravention of an order (s 31(2)), enabling coercive remedies, costs orders and other equitable relief.
Registry enforcement and recording: The court registrar must provide particulars to the Registrar of Births, Deaths and Marriages when parentage orders are made or discharged (s 32). The Registrar must register particulars provided for births registered in WA or communicate with interstate registries for out-of-state births (Part 4, ss 51-53). The Registrar is also required to issue certified partial copies when requested under s 39 and to accept the notification under s 32 for registration purposes (Part 4 amendments).

Limits and practical enforcement constraints

Non‑enforceability of surrogacy contracts: Since surrogacy arrangements are not generally contractually enforceable under s 7(1), private remedies to compel transfer of custody or compliance with non‑expense promises are unavailable; enforcement focuses on criminal sanctions for reward, Council and court approval procedures, and Family Court remedies post-birth.
Proof and mens rea: Several offences (notably s 11) hinge on knowledge that services are to facilitate a rewarded surrogacy; prosecution must establish the requisite mental element. The Act contains exceptions for health services to a pregnant birth mother (s 11(2)), which carve out routine prenatal care from liability.
Court discretion in making orders: The Family Court’s statutory threshold is whether it is satisfied of the criteria in s 21, with the child’s best interests paramount (s 13). This gives the Court broad evaluative discretion in evidentiary assessment and in dispensing with requirements in specified circumstances (s 21(3)-(4)).

Record secrecy and regulated access

Court proceedings are private (s 43), and access to court records and birth registration information is limited to specified persons and circumstances (Div 4, ss 34-41). The Court may exclude persons from having access if disclosure would place at serious risk an applicant or their family member (s 36). This constrains public scrutiny but establishes a tailored confidentiality regime.

Regulatory enforcement resources

The Council performs approvals and may use staff, services and facilities under the Human Reproductive Technology Act 1991, and it may delegate certain functions (s 18). The Act therefore leverages existing regulatory structures but concentrates administrative loads in the Council and the Family Court.

Primary cross‑references and incorporations

Human Reproductive Technology Act 1991: The Council’s functions under the Surrogacy Act are to be treated as if they were functions under the Human Reproductive Technology Act for specific listed provisions (s 18). The Council may thus use the machinery, staff and delegation powers provided by that Act (s 18(2)-(4)). The Surrogacy Act also amends the Human Reproductive Technology Act to add artificial fertilisation procedures for implementing a surrogacy arrangement to the list of procedures (Part 4, s 66). This links clinical and ethical oversight of assisted reproduction with the surrogacy approval regime.
Births, Deaths and Marriages Registration Act 1998: The Act amends that Act to add “parentage change” as a registrable event (Part 4, ss 46-55). The Registrar must register particulars supplied under s 32 regarding parentage orders and must issue certified portions of birth registrations not referring to birth parents when requested (s 39; Part 4, s 54). The Act also clarifies precedence between this Act and the Adoption Act 1994 where inconsistent (Part 4, s 55). Access rights under the Surrogacy Act are treated as adequate reasons under the Registration Act for searching and extracting Register information (s 35).
Family Court Act 1997: The Surrogacy Act applies many provisions of the Family Court Act to proceedings under the Surrogacy Act, treating them as if they were proceedings under that Act in specific sections listed (s 42). Section 42 also adds references to proceedings under this Act in section 236B(1)(a) and section 236C(1) of the Family Court Act (s 42(1A)). Section 42(4) removes the application of section 212 of the Family Court Act to proceedings under the Surrogacy Act. The result is procedural alignment between family law processes and parentage order matters while preserving specified divergences. The Surrogacy Act also amends various definitions in the Family Court Act to include children whose parentage has been transferred under the Surrogacy Act (Part 4, Div 3, ss 59-62).
Children and Community Services Act 2004: The Act amends definitions related to who is a carer under the Children and Community Services Act to include caring for a child under a surrogacy arrangement for up to one year post-birth (Part 4, s 57). This affects child protection and child welfare assessment and intervention thresholds.
Guardianship and Administration Act 1990: The Act amends that Act so that consent under section 21(2)(d) of the Surrogacy Act (consent to making a parentage order) can be an example of consent considered under the Guardianship Act when appointing guardians (Part 4, s 64).
Interpretation Act 1984: The Act amends the definition of “parent” to include persons who are parents by virtue of a parentage order under the Surrogacy Act (Part 4, ss 68-69), ensuring legal instruments that use the Interpretation Act definition will recognise parents created by parentage orders.

Operational and interpretive interactions

Non‑enforceability vs. court orders: The statute separates private contract from public status: surrogacy agreements are not enforceable except for reasonable expense reimbursements (s 7), while legal parentage is conferred only by court order (s 21). This means that private contract remedies are limited; the route to legal parenthood is administrative and judicial.
Sexual offences law: Section 28 explicitly preserves, for the purposes of sexual offences law, any relationship that would have existed if the parentage order had not been made and treats that relationship as existing in addition to the relationships created by the parentage order. This is a carefully drafted carve-out to ensure that statutory re‑labelling of family relationships for parentage does not inadvertently alter definitions relevant to sexual offence offences.
Registration precedence and evidentiary effects: The amendments to the Registration Act give the Registrar power and duty to register and to issue certified documents reflecting parentage orders (Part 4). Certified partial registration copies are admissible as evidence (s 39(2) and Part 4, s 54).
Delegation and administrative efficiency: By treating Council functions as functions under the Human Reproductive Technology Act and permitting the Council to delegate to committees and make use of staff and facilities under that Act, the Surrogacy Act intends to integrate with existing regulatory capacity (s 18). This reduces the need for duplicated infrastructure but concentrates interpretive complexity in inter‑Act delegations.

Regulatory hierarchy and conflict resolution

Where provisions of the Adoption Act 1994 or the Surrogacy Act are inconsistent with the Births, Deaths and Marriages Registration Act 1998, the other Acts prevail to the extent of inconsistency, per the amended s 68(2A) (Part 4, s 55). This clarifies that the specialised regimes for adoption and parentage changes will govern over the Register Act in conflict scenarios.

Principal enactment and commencement

Surrogacy Act 2008 No. 47 of 2008 received assent 10 December 2008. Sections 1 and 2 (short title and commencement) commenced on the day of assent. The remainder of the Act commenced on 1 March 2009 (s 2; compilation table).

Subsequent amendments recorded in the compilation table and text

Family Court Amendment (Commonwealth Reforms) Act 2024 s 84 (No. 49 of 2024) amended section 42; that amendment received assent 6 December 2024 and came into operation on 10 February 2025 (compilation table notes s 42 amended: No. 49 of 2024 s 84). The text shows the updated s 42 wording incorporating Family Court Act cross‑references and additional subsection (1A) language, and an express note indicating the amendment (s 42 amended).
The Act contains a standing set of amendments to other Western Australian Acts at Part 4, Division 1-6 (ss 46-69), which were passed as part of the Surrogacy Act 2008 to integrate parentage changes into record-keeping, family law and reproductive technology statutory regimes. These amendments alter the long title and defined terms in the Births, Deaths and Marriages Registration Act 1998 (ss 47-55), amend the Children and Community Services Act 2004 (s 57), the Family Court Act 1997 (ss 59-62), the Guardianship and Administration Act 1990 (s 64), the Human Reproductive Technology Act 1991 (ss 66-67) and the Interpretation Act 1984 (s 69).

Uncommenced and later Acts

The Uncommenced provisions table references the Assisted Reproductive Technology and Surrogacy Act 2025, s 279(1)(b) (No. 19 of 2025) with assent 18 December 2025 and commencement to be proclaimed (uncommenced table). That indicates further legislative developments beyond the 2008 Act; the compilation table notes which provisions are not yet in force and directs readers to “Acts as passed” for uncommenced text.

Statutory review

The Act requires the Minister to conduct a review of the Act’s operation and effectiveness as soon as practicable after four years from commencement and to table a report in Parliament (s 45). That obligation creates an embedded mechanism for post‑implementation amendment or policy refinement on evidence of operation.

Practical implications of amendments and integration

The Act’s consequential amendments to other statutes were made at the time of enactment to ensure that parentage orders under the Surrogacy Act are recognised across family law, registration and guardianship regimes (Part 4). These amendments were structural and functional rather than piecemeal, and were necessary for recognitional coherence (e.g., adding parentage order as a registrable event and extending the Interpretation Act definition of “parent”).
Later changes to the Family Court Act (2024 amendment) reflect reforms to align Family Court procedure and jurisdictional language with the Surrogacy Act’s parentage jurisdiction. The Act’s compilation table records dates of amendment and commencement, important for practitioners tracking which provisions are in force and which remain uncommenced.

No judicial decisions, reported cases or administrative tribunal determinations are reproduced or referenced in the Act itself. The legislative text does not name any cases, nor does it describe precedent or judicial interpretation. Therefore, the Act as provided contains no litigation history or judicial gloss. Practitioners must rely on subsequent case law interpreting:

the scope and application of the Council’s approval powers (ss 16-17), including the meaning of “exceptional circumstances” under s 17(a) and the Council’s satisfaction thresholds under s 17(c)-(d);
the Family Court’s exercise of discretion under s 21 when assessing whether statutory conditions are met, dispensing with counselling or consent requirements under s 21(3), and balancing the statutory presumption in s 13(2) with evidence to the contrary;
the meaning and limits of offences in Part 2 (ss 8-11), including definitions of “reward” (s 6) and “service” that “facilitates” a surrogacy arrangement (s 11), proof of mens rea for the s 11 offence and the boundary between permitted health services and prohibited facilitation;
the operation of s 7 relating to unenforceability of surrogacy arrangements, especially the interplay between the statutory non‑enforceability and equitable relief, if any; and
the privacy and access provisions in Div 4 (ss 33-41) and the circumstances in which courts grant or deny access to records, or exclude persons where disclosure would place an applicant or their family at serious risk (s 36).

Because the Act limits avenues of appeal and review of parentage orders to section 27 (discharge) and Family Court Act 1997 s 211(3) (s 29), litigation arising from decisions under this Act will predominantly be found in Family Court proceedings and appeals where those limited routes apply. Practitioners should search post‑enactment case law for interpretations of the statutory thresholds and judicial weighing of parental best interests against the presumption favouring arranged parents (s 13).

In the absence of cases named in the Act, this section flags areas where litigation is most likely to develop and where judicial interpretation would materially affect practice: Council approvals, mens rea and scope of the facilitation offences, court discretion in dispensing with procedural safeguards, and enforcement or discharge of parentage orders.

Timing traps

Three‑month pre‑approval window: The Council must be satisfied that counselling, psychological assessment and medical assessment occurred at least three months before approval (s 17(c)-(d)). Parties who rush assessments or attempt to fulfil these after entering a surrogacy arrangement or at late stages risk Council refusal. Similarly, the intended birth mother must not yet be pregnant under the arrangement when the Council gives approval (s 17(e)), meaning pre‑conception approvals are required.
Court application window: An application for a parentage order can be lodged only after 28 days from birth but generally no later than six months, except in exceptional circumstances with the Court’s leave (s 20(2)-(3)). Missing the six‑month window without leave can foreclose the route to legal parentage under this Act.

Eligibility and identity constraints

Residency and age thresholds: Arranged parents must reside in Western Australia and at least one must be 25 for an application to be made (s 19(1)(a)). Birth mother must have reached 25 for Council approval except in exceptional circumstances and, usually, must have given birth previously (s 17(a)). These age and residency limits can exclude prospective parents and birth mothers.
Eligibility definitions narrow who may be arranged parents: The Act defines an “eligible couple” as two opposite‑sex persons married or de facto to each other and an “eligible person” as a woman meeting specified medical criteria (s 19(2)). This design excludes single men and same-sex couples from the parentage pathway, unless legislative change or judicial interpretation alters that reading. Practitioners should note that eligibility criteria are statutory and not administrative policy.

Contractual enforcement illusions

Surrogacy arrangements are not enforceable as contracts (s 7(1)). Parties sometimes assume a signed agreement suffices to create enforceable obligations over custody or exchange; the Act prevents that, except for reimbursement of “reasonable expenses” (s 7(3)). Thus, reliance on private contractual remedies to secure the child or to compel a birth mother to relinquish custody is misplaced.

Criminal exposure for intermediaries and advertisers

Broad reach of facilitation and publishing offences: ss 9-11 criminalise introductions for a fee and publishing inducements. Entities operating online marketplaces, social media groups, or classified advertising platforms that enable monetised introductions or advertising could incur liability. The s 11 service offence criminalises providing a service “knowing” it is to facilitate a rewarded arrangement; proof of knowledge can be contested, but the statute draws a clear line that commercial matchmaking and fee-based facilitation are unlawful.

Council approval vs. post-hoc arrangements

Approval required pre‑transfer: Section 16(1) bars parentage orders unless the surrogacy arrangement was approved by the Council under s 17. There is an exception only if pregnancy commenced before s 17 came into operation (s 16(2)). Parties cannot expect the Family Court to transfer parentage where Council approval was not obtained unless an exception applies or the Court exercises its discretion under limited circumstances (s 21(3)). Practitioners should ensure Council approval is obtained before attempting a court application.

Multiple births and sibling linkage

Parentage orders must apply to all siblings born of the same pregnancy: If an application involves a child who has a living birth sibling from the same pregnancy, the Court cannot make the order for one child without making orders for each living birth sibling (s 24). This requires comprehensive planning and can complicate applications involving selective parentage or differing parental wishes for siblings.

Records and privacy: restricted access but some disclosures facilitated

Restricted access vs. approved plan provisions: While proceedings are private (s 43) and access to registration and court records is limited (ss 36-38), an approved plan can confer greater or earlier access than the statutory minimum and the plan’s access rights prevail where they give more access (s 34(1)). However, a plan cannot contract out of statutory access protections (s 34(2)). Parties may therefore believe they can create absolute secrecy through a plan, but statutory rights override contractual attempts to exclude access.

Discharge and finality

Finality subject to narrow exceptions: Section 29 prevents appeal or review of a parentage order except under s 27 (discharge) or Family Court Act s 211(3). Discharge is possible only on fraud/duress/improper means or exceptional reasons and only where discharge is in the child’s best interests (s 27). Parties should recognise the practical finality of parentage orders and pursue all appropriate procedural and evidentiary safeguards before an order is made.

Interstate and international movement

Potential for cross‑border substitution effects: The prohibitions on commerce and advertising in WA do not reach conduct occurring outside the State. Parties may seek interstate or overseas commercial surrogacy to avoid WA criminal rules or Council approval requirements. The Act’s registration amendments (Part 4) provide mechanisms for interstate birth registration notice and recording (s 52), but cross-border legal, immigration and ethical complexities remain and are not resolved solely by this Act.

Administrative burden and uncertainty

Council discretion and undefined standards: The Council’s duties to be “satisfied” about counselling, assessments and suitability (s 17(c)-(d)) create discretion and potential uncertainty about evidentiary standards and the content of “appropriate counselling” (s 17(c) and s 44(2) authorises regulations on what is appropriate counselling). Until regulatory instruments and Council practice statements are published, parties face uncertainty about compliance thresholds.

Insurance and expense definitions

Narrow definitions of reasonable expenses: Section 6(3) narrowly defines reimbursable expenses. Parties may mistakenly treat broader support or compensation as lawful reimbursements. Payments outside these definitions risk criminality under ss 8-11. The statutory list does, however, include specific elements such as limited earnings foregone for up to two months around birth, counselling, certain insurance premiums and non‑recoverable medical expenses (s 6(3)).

Stepwise compliance checklist for practitioners advising parties

Confirm eligibility and residency early (s 19)
- Verify arranged parents’ residence in WA and that at least one arranged parent is 25 (s 19(1)(a)).
- Confirm arranged parents satisfy eligible couple or eligible person definitions (s 19(2)-(3)). If intending to rely on disability or genetic risk grounds, obtain contemporaneous medical opinions documenting the medical reasons and confirm they are not reasons arising solely from age or excluded per s 19(3).
Avoid commercial payments and facilitation (ss 6, 8-11)
- Ensure no payment or valuable consideration is agreed other than strictly permitted “reasonable expenses” (s 6(1)-(3)). Document the nature and quantum of any reimbursements and maintain receipts for medical expenses not covered by insurance, counselling invoices, and records of earnings foregone within permitted periods (s 6(3)(a)-(b)).
- Do not pay or receive fees for introductions, matching or advertising purposes. If third‑party services are used, ensure they are unpaid altruistic services or fall clearly within permitted health services for a pregnant birth mother (s 11(2)).
Prepare the written agreement early and ensure signatories (s 17(b))
- Create a written surrogacy agreement signed by each arranged parent, the birth mother and her spouse or de facto partner (if any), and any donor or donor’s spouse/de facto partner. Ensure the agreement is clear about who is committing to what but also acknowledge that the arrangement is not contractually enforceable beyond reimbursements (s 7).
Undergo counselling, psychological, medical assessments and independent legal advice at least three months before seeking Council approval (s 17(c)-(d))
- Book and complete appropriate counselling sessions required under regulations (s 17(c); s 44(2) permits regulations on what constitutes appropriate counselling).
- Commission written psychological suitability reports from a clinical psychologist and written medical suitability reports from a medical practitioner, and ensure these are provided to the Council (s 17(c)(ii), s 17(d)).
- Each person required to sign the agreement must receive independent legal advice; documentation of that advice should be obtained and retained (s 17(c)(iii)).
Apply to the Western Australian Reproductive Technology Council for approval (ss 16-17)
- Submit the written agreement and supporting counselling, psychological, medical and legal advice reports to the Council. Ensure compliance with the birth mother’s age and prior childbirth conditions or prepare to demonstrate exceptional circumstances under s 17(a) if applicable.
- Ensure the intended birth mother has not yet become pregnant under the arrangement at the time the Council gives approval (s 17(e)).
Plan for timing of application to the Family Court (s 20)
- After the child’s birth, wait at least 28 days before lodging the parentage order application and plan to file within six months of birth unless there are exceptional circumstances and the court grants leave (s 20(2)-(3)).
- Lodge a certified copy of the child’s birth certificate with the court when available (s 20(5)).
Prepare the approved plan for court approval (ss 21-22)
- Draft an approved plan that balances rights and responsibilities, promotes the child’s long‑term welfare, and addresses time/communication with birth parents and information exchange, as required by s 22.
- Prepare to demonstrate day‑to‑day care by the arranged parents when the application is lodged and when the Court makes the order, unless relying on the genetic parent exception in s 21(4). Where arrangements involve multiple birth siblings, be prepared to apply for all siblings affected by the same pregnancy (s 24).
Provide evidence for best interests assessment (s 13)
- Collate evidence that supports the child’s best interests being served by transfer of parentage. The Act contains a statutory presumption favouring arranged parents (s 13(2)), but the Court will still require evidence in support, particularly where there might be contrary indications.
Be prepared for Council and Court notifications and registration updates (s 32; Part 4)
- Once a parentage order is made or discharged, ensure the court registrar’s required particulars are accurate for transmission to the Registrar of Births, Deaths and Marriages (s 32). Obtain advice on any additional registration steps for births registered outside WA (Part 4, s 52).
Understand privacy and access controls (ss 33-41, s 43)
- Advise parties on the privacy of proceedings (s 43) and the restricted statutory rights of access to court records and birth registrations (ss 36-38). If parties want access beyond statutory minima, draft plan provisions accordingly; these can grant greater access but cannot contract out of statutory rights (s 34).
Plan for enforcement and dispute resolution (s 31)
- Include mediation provisions in the plan and be ready to apply to the Family Court to seek enforcement powers or mediation if a plan provision is breached. The Court can treat breaches as contravening a court order and apply contempt or coercive remedies (s 31).
Maintain strict records and receipts for all transactions that might be construed as expenses (s 6)
- Keep detailed documentation of all payments made to the birth mother and donors to demonstrate they are reimbursements for defined reasonable expenses. Ensure any earnings foregone claims are contemporaneously evidenced and limited to the statutory windows (s 6(3)(b)).
Consider immigration and interstate/international dimensions
- If arrangements involve interstate or overseas births or hospitalisations, plan for registration processes under Part 4 (ss 51-53) and ensure that overseas or interstate parentage recognition, immigration for the child, and any criminal exposure for commercial arrangements outside WA are considered.
Stay alert to regulatory guidance and statutory review outcomes
- Monitor the Council’s published guidance, the regulations made under s 44, and the Minister’s statutory review reports (s 45) for changes in interpretation, counselling standards, forms and administrative processes.

Practical drafting and client advice notes

Draft the written agreement and approved plan so they reflect statutory requirements and document all counselling, medical and psychological steps taken. Label and file all independent legal advice certificates.
Where any payment is contemplated, secure independent legal and tax advice to ensure the payment fits squarely within s 6’s narrow list of reimbursable expenses and to avoid inadvertent breach of the criminal prohibitions.
Where parties anticipate delays or unusual circumstances (e.g., birth mother pregnant before Council approval, sudden inability to contact a birth parent, death or incapacity), gather contemporaneous evidence to support any future application for dispensation under s 21(3).
Ensure providers (clinicians, psychologists, lawyers) understand the limited exceptions in s 11 and the need to avoid any facilitation for reward; obtain written confirmations from providers about the nature of services delivered and fee arrangements.

This stepwise compliance pathway, grounded in the Act’s sections, aims to reduce legal and criminal risk, document procedural compliance and furnish robust evidence for Council and Court decision‑making.

Deep Dive

What it does

Current sections