Western Australia’s Proposed Surrogacy Reforms
In this video, our director and award-winning surrogacy lawyer, Stephen Page, talks about the proposed surrogacy reforms in Western Australia.
G’day, Stephen Page from Page Provan, Family and Fertility lawyers, and sometimes when I do these videos talking about IVF and surrogacy and I talk about regulation, it’s fairly depressing because you go, oh really? How did that get thought up? Why doesn’t the government think any better? Why didn’t they talk to experts?
Well, here’s some good news. I actually have some good news in this video, and it’s about Western Australia. Western Australia at the moment with surrogacy could be described as a basket case.
I describe Western Australia as being very much like an episode of the old BBC comedy Yes Minister. It was the one where you have a minister and a public servant based in London and the minister’s name was Jim Hacker, and the public servant’s name was Salford Appleby. There’s a famous episode which was about Sir Humphrey’s Hospital.
The hospital went like this, Sir Humphrey loved this hospital. It had, from recollection, several hundred employees that are all very busy writing reports and doing administration of various kinds. In fact, it was so good that it was up for the Florence Nightingale Hygiene Award. There was only one problem, it had no patients.
And that would be a good description of how surrogacy in Western Australia works, or in fact doesn’t work. When I’ve analysed the numbers, in an average year and every year until this year, 2023, there has only been one child a year born in Western Australia through surrogacy, just one, and Western Australia has a population of 2.5 million, which is roughly about ten percent of the Australian population.
This year is different I’m told by a colleague, Rachel Oakley, Western Australia that there are three children who have been born this year. So that is extraordinary.
How does that one child a year compare with Western Australian residents going overseas? Well, given that Western Australia has ten percent of the Australian population, and I’ve obtained data from the Department of Home Affairs as to the number of children born overseas through surrogacy.
There have, in rough terms, been twenty or more children born a year to Western Australian residents overseas via surrogacy. And the most recent year that I saw, 2021, it was twenty-seven. So just put that into context, one child a year being born in Western Australia domestically, and twenty-seven being born overseas, that’s a Sir Humphrey Appleby style system.
It’s so bad that no one uses it. Well, there’s been pressure for change, and I’m the person who started that process. Back in 2017, with the election of the McGowan government, I wrote to the new Minister, the now Premier, and said to him well, when the Gillard government changed the Sex Discrimination Act so that LGBTQIA+ people were no longer discriminated against, there was a carve out clause that included IVF and surrogacy in each state and territory and it lasted until 2016 in the case of Western Australia, for some reason, it had another year.
WA alone of all the states had another year, till 1 August 2017, and I said, you better start planning for this, because sooner or later someone will bring a court case, you will lose that court case because it’ll in breach of the Federal Sex Discrimination Act, and you’ll have egg all over your faces, so it’s better that you actually plan and provide for intended parents through surrogacy, because the Surrogacy Act, as it’s drafted, excludes single men and male couples.
Where transgendered, non-binary and intersex people fit into this, who knows? But surrogacy in Western Australia is only for heterosexual couples, single women, or oddly, in the scheme of things, lesbian couples, nothing against lesbian couples, but oddly that single men and gay couples aren’t included.
So the government’s reaction to that was to have an inquiry, which was carried out by an academic. It recommended a whole series of changes to assisted reproductive treatment regulation in Western Australia, including abolition of the State Regulator, the Reproductive Technology Council, but also recommended as one of the immediate steps that there should be removal of this discrimination.
The McGowan government responded to that immediate step and brought a bill before the WA Parliament. Well, of course, it had the numbers to get it through the lower house, and it went through easily.
It didn’t have the numbers to get it through the upper house, I should say, and it was defeated. Well, election went past that the McGowan government was re-elected with an overwhelming majority in the lower house. The Liberal Party was reduced to two seats and for the first time ever, had a majority in the upper house.
That government then called for a review of the approach taken by the academic, and this was called a ministerial expert panel. That group of experts, which included a lawyer who was involved with gay dads in WA, and a lawyer who was involved in surrogacy in WA, amongst others, has recommended a series of changes to WA law to do with surrogacy.
Well, of course, it’s recommended that there be a removal of discrimination. It’s recommended that there be an end to the Reproductive Technology Council and that there be a freeing up of various expenses to bring WA into line with other states. I’m very hopeful that these changes will be very positive, the government has accepted these changes either completely or in principle.
One of the in principle changes has been that if a couple have gone overseas and come back, obtained a strange citizenship for the child, but only one of them has been recognised as a parent in the overseas jurisdiction, that both can be recognised.
Now, we’ll see how that one goes, but I think that’s a really, really positive change that’s been proposed, and I strongly endorse it. That will mean that those same sex couples who went to India, for example, where only one would be recognised under the fiction that he was a single man can now be recognised.
It also mean that those couples who have gone to places like Thailand or Malaysia where only one is recognised as a parent, both can be recognised. I hope that the Western Australian government brings it through.
If the Western Australia government puts forward a bill and it’s enacted through Parliament, it’s along the lines of that proposed by the ministerial expert panel, then that will be such a great outcome for Western Australia.
It will mean that Western Australia comes into line with the other states, namely for every child born there, via surrogacy, four will be born overseas, not one to twenty-seven. No longer will we have the embarrassment of the broken system or the Sir Humphrey Appleby system of surrogacy in Western Australia.