WA surrogacy law: same-sex couples win landmark case

For far too long, Western Australia singled out gay couples, single men, and many others in the LGBTQIA+ community for unequal treatment under its surrogacy law. That discrimination has now been struck down in a landmark case, and it is a significant step forward for fairness, family formation, and legal common sense.

The case was brought by Mr and Mr Dunn, a couple who were otherwise suitable in every respect to pursue surrogacy, but were blocked because of who they were. Their challenge succeeded. The result is not only important for them, but for many others in Western Australia who should never have been excluded in the first place.

How WA’s surrogacy law became discriminatory

Western Australia’s Surrogacy Act 2008 was one of the earliest surrogacy laws in Australia. At the time, it was presented as a reform measure, but it carried a serious flaw from the beginning. Access was structured so that surrogacy was available to a single woman or an eligible couple, which in practice meant a heterosexual couple. Lesbian couples could access surrogacy, but gay male couples and single men could not.

That was not a minor drafting issue. It was a deliberate exclusion built into the legislation.

The law was shaped in an era when lawmakers appeared to be trying to avoid conflict with federal anti-discrimination law. The thinking was that allowing single women might help the legislation survive scrutiny under the Sex Discrimination Act 1984. But there was no proper allowance for same-sex male couples or single men.

That approach quickly became indefensible. Social attitudes changed, the law elsewhere evolved, and federal protections for LGBTQIA+ people became stronger. Yet WA kept the discriminatory framework in place long after it should have been removed.

Criticism had been building for years

This outcome did not appear out of nowhere. The discrimination in WA had been criticised for a very long time.

There was criticism during the statutory review process in 2014, and before that as well. Western Australian barrister Rachel Oakley had been sounding the alarm early and consistently. The problem was plain enough: a state could not continue excluding people from surrogacy simply because they were gay men or single men, particularly once federal anti-discrimination protections had shifted.

In 2017, pressure intensified. The protective period that had effectively shielded WA’s discriminatory scheme from challenge under federal law came to an end in August that year. That meant the legal risk to the state was obvious. The warning was straightforward: either Parliament should fix the law, or WA should expect to lose a court challenge.

That warning proved accurate.

The government knew reform was needed

After those concerns were raised, the then incoming Health Minister Roger Cook commissioned a review. That review dealt with a range of issues concerning IVF regulation and surrogacy in WA, but its top priority was clear: remove the discrimination.

To the government’s credit, a bill was introduced relatively quickly. But politics got in the way. The bill stalled in the upper house because the government did not have the numbers to get it through.

That failure had real consequences. Every month of delay meant more people remained shut out of the system, not because they were unfit to become parents, but because the law treated them as less worthy.

Eventually, on 18 December last year, the Assisted Reproductive Technology and Surrogacy Act was enacted in Western Australia. That new law finally removes the discrimination. The problem is that enactment is not the same thing as commencement. The new regime has not yet started, and the indication has been that it may commence around mid next year, though delays are always possible.

For couples ready to begin their surrogacy journey now, waiting another year or more is no small thing. In fertility law, delay is often its own injustice.

Why Mr and Mr Dunn took the matter to court

That was the position facing Mr and Mr Dunn. They were living in Western Australia and did not want to sit back and wait for a new law to start operating at some uncertain date in the future. Nor should they have had to.

They had already effectively been told that they were acceptable in every relevant respect except one: they were not the “right” kind of couple under the old law.

That is exactly the sort of discrimination anti-discrimination law is meant to address.

So they challenged the relevant provision of the Surrogacy Act. It was a brave decision. Test cases always sound exciting in the abstract, but they are very different when the cost, stress, and exposure sit with the people bringing the case. Litigation of this kind demands money, endurance, patience, and a willingness to carry emotional strain for the benefit of a wider principle.

Mr and Mr Dunn did exactly that.

The landmark decision

The court handed down its decision in May. By a 2 to 1 majority, the challenge succeeded.

That ruling meant the discriminatory barrier could no longer stand. Mr and Mr Dunn were then able to move forward by seeking approval from the Reproductive Technology Council and continue their surrogacy journey.

Just as importantly, the period for seeking special leave to appeal to the High Court has now expired. That means the judgment stands.

It is a landmark outcome because it confirms what should have been obvious for years: excluding same-sex male couples from surrogacy access in WA was unlawful discrimination.

Rachel Oakley’s central role

Cases like this do not succeed on principle alone. They require strategy, persistence, and excellent lawyering. Rachel Oakley was at the centre of this case and deserves enormous credit for it.

She helped drive the challenge, brought together the necessary legal support, and saw the matter through. There was also assistance on parentage issues, but the core achievement belongs to Rachel Oakley and to the Dunns themselves.

When the law resists change, it often takes determined clients and determined lawyers to force it into line with fairness.

What this means for surrogacy in Western Australia

The decision matters immediately for those affected by the old law, but it also carries broader significance for surrogacy in WA.

• Same-sex male couples can no longer be excluded simply because of their sexuality.
• Single men and others previously shut out by the discriminatory framework now have a stronger basis to challenge unequal treatment.
• The judgment reinforces the need for state surrogacy laws to align with federal anti-discrimination protections.
• It increases pressure for smooth commencement of the new Assisted Reproductive Technology and Surrogacy Act.

For anyone trying to understand the current local framework, Surrogacy in Western Australia | Page Provan provides a more focused overview of how the WA system works and where reform has been heading.

Why this case matters beyond WA

This is not just a Western Australian story. It sits within a larger national conversation about access to surrogacy, equality before the law, and the reality that Australian surrogacy laws remain fragmented across states and territories.

Some states have been more inclusive than others. Some have moved earlier. Some have dragged their feet. The result has been a patchwork system that can make family building far more difficult than it ought to be.

For gay men in particular, the legal path to parenthood has often involved navigating rules that were never designed with them in mind. That is why it is so important when a court is prepared to say plainly that exclusion of this kind cannot continue. For a broader look at those issues, Surrogacy for Gay Men in Australia: Legal Guide to Fatherhood addresses the legal pathways and practical considerations involved.

There is also a broader human rights dimension here. Australian governments are expected to administer laws in a way that respects equality and dignity. The Australian Human Rights Commission has long recognised the importance of protection from discrimination for LGBTQIA+ Australians, including in areas touching family life and access to services.

The lesson from this case

The clearest lesson is that discrimination does not become lawful merely because it sits in legislation for a long time.

WA had years to fix this. There were warnings. There was review. There was a recommended reform path. There was even legislation passed to remove the problem, though not yet commenced. But while governments delayed, real people were left in limbo.

Eventually, it took a courageous couple to force the issue.

That should be remembered. Legal progress is often spoken about as though it arrives neatly and inevitably. In reality, it usually arrives because someone is prepared to bear the burden of pushing for it.

Mr and Mr Dunn did that. Rachel Oakley did that. And because they did, WA’s discriminatory barrier has fallen.

What comes next

The practical next step is commencement of the new Assisted Reproductive Technology and Surrogacy Act in WA. That reform needs to happen properly and without unnecessary delay.

In the meantime, this decision stands as a powerful reminder that equal treatment under the law is not optional. If a state excludes people from surrogacy because they are gay men, that exclusion is not merely outdated. It is unlawful.

Anyone dealing with fertility and family formation issues in this space should also ensure they are working with current official guidance, including state health and legal information. In Western Australia, the WA Government and other relevant authorities remain important sources for up-to-date regulatory information as implementation unfolds.

About Stephen Page

Stephen Page is widely regarded as Australia’s leading surrogacy lawyer and one of the country’s best-known family and fertility law specialists. He has advised on surrogacy, donor, parentage, and LGBTQIA+ family law matters for many years, and is recognised nationally for his work in helping intended parents navigate complex legal pathways to build their families. More information about his work with LGBTQIA+ families is available here.