Surrogacy in Western Australia

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page explores the complexities of surrogacy in Western Australia.

Transcript

G’day. I’m Stephen Page from Page Provan Family and Fertility Lawyers. And today I’m talking about surrogacy in Western Australia. 

If you’re an old tragic of repeats on TV like I am, you might have seen the old BBC show Yes, Minister. This was a satire about politics between a Minister and a public servant, and the public servant’s name was Humphrey Appleby. 

Why I mentioned this in the context of Western Australia is I think it really accurately describes the situation of surrogacy in Western Australia. There is an episode on Yes Minister, and there’s a clip that we’ve got a link with the video to the clip about Sir Humphrey Appleby’s hospital. This was a hospital which had hundreds of employees and was even up for the Florence Nightingale Award for Hygiene.

But it didn’t have any patients. And the public servant, Sir Humphrey Appleby, was saying that this was the best hospital in the country. It had the best statistics. And the Minister, of course, is incredulous. He can’t understand why Sir Humphrey would be defending this hospital, because it’s got the best statistics, because it has no patients.

And that really, I think, describes the situation of surrogacy in Western Australia. Western Australia was the second jurisdiction in Australia to pass surrogacy laws, after the ACT. The Surrogacy Act 2008 was pioneering. It became a central election pledge of then incoming Premier Colin Barnett. He wanted to make sure that there were laws concerning surrogacy because it was really unfair that people missed out who could not become parents.

But the model in Western Australia is really restrictive and it’s so restrictive that the statistics speak for themselves. As best I can calculate it, there is one child a year born in Western Australia through surrogacy. But for Western Australian residents, somewhere between 22 and 27, the number varies year by year, go overseas. So one out of 22 or 27 are born in Western Australia through surrogacy to those born to WA residents overseas. 

So to undertake surrogacy in Western Australia is really limited. You can only be a single woman in a lesbian relationship or in a heterosexual relationship. So one of those three relationships will work. Single women, a couple in a heterosexual relationship or a couple of lesbian relationship. If you are transgender or non binary, good luck about whether you fit in or not. If you are a single man or in a gay relationship, tough luck. You miss out. 

It’s likely that the WA laws breach the Sex Discrimination Act. There were changes made back in 2013. They allowed exemptions like WA throughout Australia until 2016. WA had an exemption until 2017.

I wrote to the WA government to have this change removed so that WA was in line with the rest of the country. The government put a bill in the last term of Parliament to get rid of this discrimination. Unfortunately, that bill founded in the upper house, so hopefully in this term of Parliament, there will be a change. No one has yet wanted to spend lots and lots of money challenging the WA government in court, although in my view, they are likely to succeed.

So what we have in Western Australia is that only half of the market, namely heterosexual couples, single women, lesbian couples, can undertake surrogacy in WA. And the numbers are reflected that we only have one birth a year through surrogacy. 

So to undertake the process, you must then have lawyers, both sides. And WA is unique in the world by making it even more restrictive. Three quarters from my experience of those who want to undertake surrogacy need an egg donor. But of course, that’s half of those intended parents are gay couples who can’t do surrogacy in West Australia. The other half are heterosexual couples and a smattering of singles and lesbian couples. 

When you talk about that half of heterosexual couples who undertake surrogacy who need an egg donor, the restriction in Western Australia, unique in the world, is that the egg donor and her partner must also have independent legal advice, must also have counselling. The obvious problem is if you don’t have an egg donor and you are seeking an egg donor through a clinic, that’s not going to work because it can only work with someone you know, because through a clinic, of course, they won’t identify the egg donor or for that matter, the sperm donor or the embryo donor.

So if you have a sperm donor or an egg donor or an embryo donor, that person or all those people must be identified. And that makes it very hard to do. Assuming you get past all these barriers and remembering you are paying for the lawyer for the surrogate and you are paying for the lawyer for the egg donor, then you must make an application to the state regulator, the Reproductive Technology Council of Western Australia. I’m told that one of the clinics in Western Australia charges a fee to get approval of about $10,000. 

To be fair, that also includes the mandatory counselling that must be undertaken and the report from the counsellor. You put your application into the Reproductive Technology Council, and that application has a cooling-off period of three months, and that set out in the Surrogacy Act.

The problem about that approach is that there is an assumption, well, we need everyone to cool off because the surrogate might be taken advantage of. What’s the problem? Well, the three months is the legislated time frame, but the feedback I’ve received from at least one disgruntled intended parent who decided after getting approval to it was all too hard and to pack up and go to California, where he said it was a lot easier to do, is that three months extends out to six months. And the response from that parent was, well, we in WA are crazy. We make it so hard, and yet we go to California where it’s so easy by comparison.

So once you’ve got the RTC approval, you can then proceed. You can then obtain your surrogate getting pregnant. And at the end of the process, you go off to the Family Court of Western Australia and obtain a parentage order. A parentage order make sure that you are the parent or parents, because it’s a transfer of parentage from the surrogate. And if she has a partner, her partner as well. 

There are restrictions in Western Australia as to the form of surrogacy that can be undertaken. So one must be careful about that. You can’t, as I understand it, undertake traditional surrogacy in Western Australia. So, again, another restriction. Another restriction that exists in Western Australia is, like other states, that surrogacy must be noncommercial. But when one looks at the definition of what that means under the Surrogacy Act, one sees that it is much more restrictive than interstate. The jargon that’s used under the Surrogacy Act is that you can’t engage in a surrogacy arrangement that is for reward.

It’s a criminal offence to do so. And you can’t get advice from a lawyer in WA that might be for a surrogacy arrangement that is for award, that is local or overseas. Now, I’ve advocated for an abolition of that law, that other law. And I’ve advocated for greater flexibility with what is the definition of a surrogacy arrangement that is for reward.

There has been a surrogacy review. It didn’t recommend any change to the professional advisors law. It said that the law concerning surrogacy arrangement, that its reward was roughly equivalent to New South Wales and Queensland. I disagree with that, and I’ll give an example in a minute. Nevertheless, the government is reviewing the situation with surrogacy, and I expect that in this term of Parliament, there will be a bill. I don’t know what’s going to be in that bill and how it will change the experience of surrogacy for Western Australian residents. 

But the restriction on expenses in Western Australia is really greater than that seen in Queensland and New South Wales by comparison, because it says that you can only pay for reasonable expenses for the surrogate and that relates to the pregnancy or trying to get pregnant and the birth. And when one looks at those reasonable expenses, they’re really limited. Their counselling, their medical, they relate to insurance, and they relate to professional advice, for example, a lawyer. What’s unclear is whether you can fund the surrogate having legal representation of the parentage order hearing. Extraordinary. I don’t know whether you can. It seems as though you can’t. Maybe it might be seen as being separate. What you can’t fund is travel.

Now, just think about it for a second. Western Australia is the largest state in all of Australia by far, and yet, being the largest state, you can’t fund travel. Nuts! If the surrogate wants to have some basic things happen during her process, some of those can be funded and some can’t. If she wants to take time off work. She can, but only two months.

If she’s self-employed and has a locum, then she’s still restricted by that. And that poses the problem. It’s certainly less flexible. She can’t, for example, pay for a massage during pregnancy and have the expectation that that will be met by the intended parents. She can’t get childcare and expect that that will be met by the intended parents. It’s unlawful. She can’t get acupuncture, for example, and expect that that will be met by the intended parents. 

So what one then sees is a great restriction on the ability to have surrogacy undertaken in Western Australia. And the ripple effect applies interstate. If you have a WA surrogate, but intended parents living interstate and treatment, for example, is occurring interstate, then the antenna parents can’t pay for the travel whilst it’s lawful, for example, in Queensland and New South Wale, it’s not lawful in Western Australia to pay for the travel. 

Western Australia restricts surrogacy treatment. The IVF to occur in Western Australia, so WA residents who want to do a domestic surrogacy journey can’t do IVF somewhere else, for example in Sydney or Brisbane. They just can’t.

So this is another restriction and the restriction in Western Australia as to the use of donor gamut. So sperm or eggs is the most restrictive in the country. A donor can only be a donor if they have provided the sperm or eggs to a maximum of five families worldwide. Now you immediately think, okay, that’s five plus the donor’s family. No, that’s the donor’s family plus another four worldwide.

So it becomes very hard to import eggs or sperm into Western Australia, let alone the restriction under the Surrogacy Act to have, in effect, a known donors sign up to the deal. 

So is surrogacy possible in Western Australia? When I talk to my WA colleagues, they certainly say that the process works well. But in my view, yes, it works well if you fit these extremely narrow parameters. If you fit within those great if you don’t, you’re going to be like most other WA people and either undertake a surrogacy journey in Queensland or New South Wales in particular, both of which have some flexibility with jurisdiction or more likely, go overseas. 

And the issue for WA people going overseas is that there is some view that says, well, you can’t go overseas. There’s no restriction in going overseas because commercial surrogacy laws apply overseas to those living in Queensland, New South Wales or the ACT. Well, not so. The criminal code in West Australia makes plain that if an element of the offence occurs in West Australia, then the offence is committed in Western Australia. In other words, if you enter into a surrogacy arrangement that is for reward, that is an overseas surrogacy arrangement that would exceed the terms in Western Australia, then you potentially commit the offence in Western Australia. It is possible for people in Western Australia to undertake surrogacy overseas, but the immediate problem, evident from what I’ve said in this video is you can’t get advice from a WA lawyer. You’ve got to go outside WA to do so. And I’ll give you a simple example of how difficult the process can be going overseas. It doesn’t mean that it can’t be done. It just means that there’s this narrow pathway through a minefield. And the example I’ll give is Canada.

Canada is an altruistic regime. It’s unlawful in Canada to pay a surrogate a fee, you can go to jail for it. However, surrogates are paid for expenses and two sets of expenses that come up that would make the agreement unlawful in Western Australia are these.

The first is Canada is a very big place. If, for instance, you’re going to fly from Calgary to Toronto, it’s 5 hours. Or to put it in the equivalent from Brisbane or the Gold Coast to Perth. And that’s not the full extent of the country. So it’s common in Canada to provide for travel.

In fact, in every Canadian surrogacy arrangement I’ve seen, there is a reference to travel expenses for the surrogate. But to do that in WA is an offence. 

The other is snow shovelling. It’s a sad feature of life in Canada or an expected feature of life. I should say that in winter it snows quite unlike most of Australia and certainly unlike WA. What we don’t want is to have a pregnant surrogate shovelling snow. So every surrogacy agreement that I’ve seen from Canada, without exception, has provided for her to pay for someone to shovel snow at her place. That’s not provided for by any flexible regime in WA.

And therefore, on its face would be a surrogacy arrangement that is for award. Therefore, for WA residents, it can be possible to undertake surrogacy overseas including in Canada lawfully. But as I said, there is a very narrow pathway through the minefield that is WA surrogacy law. 

Please, if you’re in WA and you’re contemplating, surrogacy get legal advice right at the beginning. The law is incredibly restrictive. As I think I’ve illustrated in this video. You may be able to do it at home. More likely you’ll do it somewhere else.

If you do it somewhere else, you don’t want to trip up committing an offence under WA law. Thank you.