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… Read More »Custom Single Post Header

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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?

Things to Read, Watch & Listen

Legal Parentage After Domestic Surrogacy Arrangements

Accredited Family Law Specialist and Page Provan Director Stephen Page presented a paper at Growing Families’ National Conference Day Sydney.

Legal Aspects of Donation and Surrogacy in Queensland

On 11 June 2022, Accredited Family Law Specialist and Page Provan Director Stephen Page presented a paper at Monash IVF Qld Clinical Day regarding the legal aspects of donation and surrogacy in Queensland.

The Decline of Inter-Country Adoption

Our Director Stephen Page was honoured to be interviewed by London family lawyer Yasmin Khan-Gunns about her proposed essay on the decline of inter-country adoptions.