Why is discrimination in WA over reproductive rights OK, when it’s not OK anywhere else?

Why is discrimination in WA over reproductive rights OK, when it’s not OK anywhere else?

Why is it the case that Western Australia is allowed to discriminate against gay men and singles when they want to be parents, but nowhere else is? All the while we hear from politicians about how they deplore Australians going to developing countries for surrogacy and exploiting poor women there- but the laws as drafted force gay and single Western Australian men who want to be singles to either move interstate or go offshore.

How does WA law discriminate?

Quite simply, WA has a bizarre system:

  • if you want to be a foster care, you can be single or gay (sounds good so far)
  • if you want to adopt, you can be single or gay (again sounds OK)
  • if you want to have a child through surrogacy, you can be a heterosexual couple, or a lesbian couple, or a single woman, but cannot be a single man or a gay male couple. The Surrogacy Act makes this discrimination plain.

The Commonwealth got called out

In October 2015, the Commonwealth Government got called out when it fronted up at the UN Human Rights Committee in Geneva from over 100 other countries. Some of the issues, not surprisingly, were about Nauru and Manus Island. But they also got a shellacking over Australian laws concerning LGBTI people. The result- the Commonwealth promised to end the exemptions under the Sex Discrimination Act that allowed the States to discriminate against LGBTI people. The Commonwealth told the UN that these exemptions would go by the end of July 2016.

But Western Australia is alone still allowed to discriminate…

And indeed they did. On 1 August 2016 we woke up to find that the exemptions had ended- except in Western Australia:

  • Discrimination in Queensland law to prevent LGBTI Queenslanders accessing assisted reproductive treatment from fertility doctors: OVERRIDDEN. 

  • Discrimination in South Australian law to prevent single and LGBTI South Australians accessing assisted reproductive treatment from fertility doctors: OVERRIDDEN. 

  • Discrimination in Western Australian law to prevent single men and gay male couples from accessing surrogacy: IN PLACE UNTIL 1 AUGUST 2017. Nowhere else- just WA, as the regulations make plain.

Why is it OK to discriminate against gay and single men in WA, but it’s not OK anywhere else? What discussions have happened between the WA and Commonwealth governments to allow this? Why shouldn’t this regulation be scrapped immediately to bring WA into line with the rest of the country?

Request an Appointment
Fill in the form below to find out if you have a claim.
Request an Appointment - Stephen Page
Things to Read, Watch & Listen

Sri Lanka surrogacy: what Australian intended parents must know

Sri Lanka is an often overlooked overseas surrogacy destination for Australians, particularly for people with a genuine connection to the country. It can offer comparatively low IVF and legal costs, prompt surrogate matching and a practical pathway to parentage recognition. However, it also comes with strict eligibility requirements and important Australian legal, citizenship and criminal… Read More »Sri Lanka surrogacy: what Australian intended parents must know

Overseas surrogacy births are 4 times that of domestic surrogacy births

When talking to colleagues, judges and policymakers, it is assumed that the norm of Australian surrogacy is that of domestic surrogacy births. However, as the most recent figures demonstrate, yet again, domestic surrogacy births are the exception. The norm remains that of Australian children being born through surrogacy overseas. That norm and the exception have… Read More »Overseas surrogacy births are 4 times that of domestic surrogacy births

Why is male fertility declining? Experts weigh in

Male fertility decline has become one of the most important and unsettling questions in reproductive medicine. There appears to have been a clear decline in sperm quality over the past 50 years, but the difficult truth is that there is no single, settled explanation. That was one of the central messages delivered by United States… Read More »Why is male fertility declining? Experts weigh in

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board