Proposed changes to WA’s onerous surrogacy laws could finally be passed in 2025, a long-overdue option for thousands of people seeking to have a family.
By Suzanne Harrison
Pushing a pram into a suburban café on a Saturday afternoon, Jamie* is like any other doting new father – exhausted and yet over the moon to finally be able to hold his own baby.
But Jamie’s journey to fatherhood has been a little different from most.
For the past decade or so, the now 42-year-old had been hoping to have a child, but as a single gay man, the video producer discovered a few years ago that he would not be able to legally access domestic surrogacy in Western Australia, even if it was of an altruistic nature.
In fact, commercial surrogacy – where the surrogate is compensated for more than their expenses, with no other payment provided or personal profit made – is punishable by law throughout Australia.
In WA, it is permitted altruistically only for cis gendered couples or single women where the woman is unable to conceive due to medical reasons. In New South Wales, Queensland, South Australia, Tasmania, and Victoria, altruistic surrogacy is legal for same sex couples.
The Federal Government also says that if Australians engage in commercial surrogacy, they are usually not recognised as legal parents in Australia and the surrogate remains the legal parent of the child.
The concern is that in some countries, commercial surrogacy can lead to risks of exploitation of surrogates, babies and commissioning parents. In the US, where commercial surrogacy is legal and a common location for Australians to access, the cost is prohibitively high for many people.
While in 2020, the Medicare Benefits Review Taskforce recommended removing the restrictions, Medicare is still not accessible for surrogacy.
People like Jamie are not deterred. He did everything in his power to realise his dream of having a baby without breaking the law or dealing with disreputable agencies. The process was agonising, but with the right advice, he made it work.
And he argues that if someone wants to have a baby, they will find a way.
According to a report from Monash University, 213 Australian babies were born through international surrogacy in the financial year from 2021-2022, a reality the WA government has acknowledged via a review that is soon expected to lead to a relaxation of WA’s laws.
In a recent statement from the WA Health Department, it said the government was committed to supporting more people to start a family or expand their family with help from assisted reproductive technology (ART) and surrogacy “that is safe and ethically sound for all”.
Associate Professor Sonia Allan completed an independent review in 2019 (the Allan Review) into the existing state laws. A two-part report was published as part of this review and as a result a Ministerial Expert Panel was convened in May 2022 to ensure new legislation reflected social trends and medical and scientific advances for the accessible and safe use of ART and surrogacy.
It was chaired by Perth-based independent fertility expert Professor Roger Hart, and its work was completed two years ago – in December 2022 – and its final report with recommendations was provided to WA Health Minister Amber-Jade Sanderson.
Outdated laws
Its review of the state’s surrogacy and human reproductive technology laws found them to be outdated and discriminatory.
Ms Sanderson has said the State Government was committed to supporting people who wanted to start or grow their family with assisted reproductive technology laws that were inclusive and safe.
She told the ABC the Government was “absolutely committed to this legislation” and would “introduce a Bill as soon as possible”.
However, with few sitting days left this year, a Bill to Parliament slated for the end of 2024 is now reported to be unlikely.
For Professor Hart, who is National Medical Director of City Fertility, the changes cannot come soon enough. The pathway to surrogacy needs to be streamlined, he says, and the WA laws are “onerous”.
“Certainly, the inequity of a single man, or a homosexual male couple, being unable to access surrogacy needs to be addressed,” Professor Hart said.
The process needs to be less burdensome, while ensuring the health and the rights of the child born from the arrangement are paramount. Support for those seeking surrogacy is a major step, he adds, as is access to Medicare.
“Other than a male couple seeking surrogacy, most others seeking a surrogacy arrangement will have had a very distressing and often painful journey to reach the point that they need surrogacy to realise their desire for a family,” he said.
For example, a surrogate would be required for any woman who was born without a uterus or undergone a hysterectomy due to cancer or obstetric haemorrhage, or had undergone multiple rounds of unsuccessful IVF treatment, or had a medical condition which would make carrying a pregnancy life threatening for her or her baby.
“We need to recognise that fact and try to ensure the process is supportive of those involved in an arrangement that has been less complicated to negotiate, while ensuring that due process is followed.”
Professor Hart believes that individuals and couples seeking surrogacy should be able to access Medicare, which to date, “unfortunately, they are excluded from.”
For intended parents, there is an increasing flow of information amid the groundswell of support for both opposite sex and same sex men and couples seeking a relaxation of the state’s laws.
Sam Everingham, founder of Growing Families Australia, recently hosted the annual Surrogacy and Donor Seminar in Perth.
“We always have great interest in our Perth seminars on this topic because there is so little that WA professionals can offer in this area,” says Mr Everingham, a prominent figure in the surrogacy and family building community and a father to two daughters born via international surrogacy.
“We have been running seminars in Perth since 2015. Often the Department of Health (WA) writes to warn us about complying with WA legislation.”
Mr Everingham’s hope is that the WA Government acts promptly on its long-awaited promise to allow male singles and couples to access domestic surrogacy and has been lobbying for years via Surrogacy Australia and The All Kids Are Equal campaign.
He adds that neither WA lawyers nor medical professionals are allowed to advise on surrogacy arrangements, and with the ongoing ban on gay men accessing surrogacy locally, “we see an alarming reliance on unfiltered online advertising of questionable programs and program in unregulated environments by WA citizens with apparently no awareness of the risk”.
Jamie’s story of overseas surrogacy has a happy ending. He’s now busy with his happy and healthy seven-month-old son, relieved to have him home after proceeding with commercial surrogacy in Argentina.
But as Professor Hart has explained, the experience of travelling overseas to find a surrogate is hugely emotionally and financially stressful for someone like Jamie, not to mention a legal minefield that he was very careful to avoid.
For him, that meant finding a recommended country in terms of providing the correct birth certificate, and one he could afford. The US was too expensive, so Argentina ended up being his final choice.
Initially, it was a smooth process, thanks to the help of prominent Queensland-based surrogacy advocate Stephen Page. The passionate family and fertility lawyer has just released a new guide called When, not if: Surrogacy for Australians.
Mr Page put Jamie in touch with an Argentinian lawyer who introduced him to a reputable agency. Jamie visited Argentina, met the local lawyer and chose an anonymous egg donor alongside a surrogate to carry the embryo.
There was a slight hiccup – he had to make another lightning trip back to Argentina when the laws changed, forcing him to sign papers in person rather than via technological means.
Then, after the birth of his son, the relatively quick process of about 18 months was turned on its head.
While still in Argentina and awaiting an Australian birth certificate to then apply for an Australian passport, a staunchly Catholic judge announced a crackdown on commercial surrogacy in the country, stalling the certificate.
At the time, Jamie and other intended parents had no idea if they would ever be able to take their children home.
What should have been two months at a push ended up being 16 traumatic weeks for Jamie, forcing him to rent an Airbnb, taking care of a new baby, hoping for the best and still trying to run his Perth-based business. It was only after the efforts of a group of surrogacy lawyers acting for the parents who banded together to sue the judge.
“It was people power,” says Jamie. “When the judge went on a leave of absence, the Australian government stepped in and released a citizenship by descent (document) and they allowed this to be enough for a passport.
“But the entire time I was there, I thought I’d be in Argentina until the baby was 18.”
Now happily home and getting used to life as a single dad – with the help of his parents and friends – he’s managing to work and still care for his little one, but the twists and turns with his surrogacy experience are still very fresh.
“They need to make it fair here, for men and for women,” says Jamie. “I’d like commercial surrogacy – if they make it legal – to be regulated in a way that’s good for the kids and the parents.”
* Jamie is unnamed for privacy reasons.
ED: The inaugural Australian Surrogacy and Donor Awards were recently held in Sydney, recognising the contributions of individuals and organisations. The Community Person of the Year was Paul Hadfield-Jia from WA.