The WA Reproductive Technology Council (RTC) has approved Western Australia's first surrogacy arrangement under the Surrogacy Act 2008, which came into effect in March last year.
The new legislation made it legal for eligible parties to enter into non-commercial surrogacy agreements (known under the legislation as 'surrogacy arrangements'). However, the surrogacy arrangement must meet strict requirements before approval is made.
Parties to the agreement are required to undertake comprehensive assessments with medical practitioners, counsellors and clinical psychologists before the agreement is submitted. There is also a "cooling off period" of three months upon completion of the assessments and each party to the agreement must have legal advice.
The new legislation also allows the commissioning parents of a child born of an approved surrogacy arrangement to make an application to have their names on the child's birth certificate. Under the Act, commissioning parents would be recognised at law as parents of the child, although the child is born to a surrogate.
WA's first surrogacy arrangement was drafted by Talbot Olivier's family law principal, Kym Kerr, who expects more surrogacy arrangements to be submitted for approval over the coming months.
Kerr noted that news of the first approved agreement would be bittersweet for some.
"I have had several clients over the years, prior to surrogacy becoming legal in Western Australia, who have travelled overseas to enter into both commercial and altruistic surrogacy arrangements," she said. "There are mothers in Western Australia who are biologically the parents to children born of a surrogate but the surrogate is named as the mother on the child's birth certificate because she gave birth to the child."
Kerr said while the Family Court can make orders relating to the parenting of these children, it is distressing to the biological mothers of children born to surrogates before the legislation, as they are usually not legally recognised as their child's mother.
"This may be a topic for further discussion and consideration in our community and by our government."