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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Surrogacy Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 -- Surrogacy arrangements
Division 1 -- General
4. What this Part is about 3
5. Term used in this Part 3
6. Meaning of "surrogacy arrangement that is for
reward" 3
7. Surrogacy arrangement not binding 3
Division 2 -- Offences
8. Making surrogacy arrangement that is for reward 3
9. Reward for introducing parties for surrogacy
arrangement 4
10. Publishing willingness to make surrogacy
arrangement that is for reward 4
11. Services connected with surrogacy arrangement
that is for reward 4
Part 3 -- Order giving parental
status to arranged parents
Division 1 -- Preliminary
12. What this Part is about 5
13. Child's best interests paramount 5
14. Terms used in this Part 5
190--2 page i
Surrogacy Bill 2007
Contents
Division 2 -- Transfer of child's parentage
15. Circumstances for seeking parentage order 6
16. Applying for a parentage order 7
17. Court may make parentage order 7
18. Contents of approved plan 9
19. Ancillary orders 9
20. Multiple births 9
21. Name of child 10
22. Effect of parentage order 10
23. Discharge of parentage order 11
24. Relationships for laws relating to sexual offences 13
25. Finality of parentage order 13
26. Varying approved plan 14
27. Court's powers to do with breach of approved plan 14
28. Court to notify certain officers 15
Division 3 -- Access to information
29. Terms used in this Division 16
30. Application of this Division or order under it 16
31. Right under this Division to be treated as adequate
reason 16
32. Court order excluding access to information 17
33. Access to certain court records 17
34. Access to registration of birth 18
35. Portion of registration of birth not referring to
parentage order 19
36. If certain person deceased 19
37. If adult child cannot be contacted 20
Division 4 -- Other matters
38. Application of Family Court Act 1997 21
39. Court proceedings to be private 22
40. Regulations 22
41. Review of Act 23
Part 4 -- Other Acts amended
42. Births, Deaths and Marriages Registration
Act 1998 amended 24
Part 4 -- Registration of information about certain
parentage changes
28. Certain certified copies 26
page ii
Surrogacy Bill 2007
Contents
43. Children and Community Services Act 2004
amended 27
44. Family Court Act 1997 amended 28
45. Guardianship and Administration Act 1990
amended 29
46. Human Reproductive Technology Act 1991
amended 30
47. Interpretation Act 1984 amended 31
Defined Terms
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Surrogacy Bill 2007
A Bill for
An Act about arrangements for surrogate births and children born
under those arrangements and for related purposes, and to make
related amendments to --
· the Births, Deaths and Marriages Registration Act 1998; and
· the Children and Community Services Act 2004; and
· the Family Court Act 1997; and
· the Guardianship and Administration Act 1990; and
· the Human Reproductive Technology Act 1991; and
· the Interpretation Act 1984.
The Parliament of Western Australia enacts as follows:
page 1
Surrogacy Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Surrogacy Act 2007.
2. Commencement
5 This Act comes into operation on a day fixed by proclamation.
Note: Under section 22 of the Interpretation Act 1984, this section and
section 1 come into operation on the day on which this Act receives the
Royal Assent.
3. Terms used in this Act
10 In this Act, unless the contrary intention appears --
"surrogacy arrangement" means an arrangement for a woman
(the "birth mother") to seek to become pregnant and give
birth to a child and for a person or persons other than the
birth mother (the "arranged parent" or "arranged
15 parents") to raise the child, but the term does not include
an arrangement entered into after the birth mother becomes
pregnant unless it is in variation of a surrogacy
arrangement involving the same parties.
page 2
Surrogacy Bill 2007
Surrogacy arrangements Part 2
General Division 1
s. 4
Part 2 -- Surrogacy arrangements
Division 1 -- General
4. What this Part is about
This Part deals with the status of surrogacy arrangements and
5 prohibits certain surrogacy arrangements and certain things to
do with surrogacy arrangements.
5. Term used in this Part
In this Part, unless the contrary intention appears --
"surrogacy arrangement that is for reward" has the meaning
10 given in section 6.
6. Meaning of "surrogacy arrangement that is for reward"
(1) This Part refers to a surrogacy arrangement as being for reward
if the arrangement provides for any person to receive any
payment or valuable consideration other than for reasonable
15 expenses associated with --
(a) the pregnancy or the birth; or
(b) any assessment or expert advice in connection with the
arrangement.
(2) Reasonable expenses associated with achieving, or attempting
20 to achieve, the pregnancy are reasonable expenses associated
with the pregnancy.
7. Surrogacy arrangement not binding
A surrogacy arrangement is not enforceable.
Division 2 -- Offences
25 8. Making surrogacy arrangement that is for reward
A person who enters into a surrogacy arrangement that is for
reward commits an offence.
Penalty: a fine of $24 000 or imprisonment for 2 years.
page 3
Surrogacy Bill 2007
Part 2 Surrogacy arrangements
Division 2 Offences
s. 9
9. Reward for introducing parties for surrogacy arrangement
(1) A person who receives, or seeks to receive, valuable
consideration for introducing or agreeing to introduce persons
with the intention that they might enter into a surrogacy
5 arrangement commits an offence.
Penalty: a fine of $12 000 or imprisonment for one year.
(2) Subsection (1) applies whether or not it is intended that the
surrogacy arrangement be one that is for reward.
10. Publishing willingness to make surrogacy arrangement that
10 is for reward
A person commits an offence if the person publishes or causes
to be published --
(a) anything that is intended to, or likely to, induce a person
to enter into a surrogacy arrangement that is for reward;
15 or
(b) anything to the effect that a person who is willing to
enter into a surrogacy arrangement that is for reward is
sought; or
(c) anything to the effect that a person is or might be willing
20 to enter into a surrogacy arrangement that is for reward.
Penalty: a fine of $6 000.
11. Services connected with surrogacy arrangement that is for
reward
(1) A person who provides a service knowing that the service is to
25 facilitate a surrogacy arrangement that is for reward commits a
crime except in the circumstances described in subsection (2).
(2) It is not an offence against subsection (1) if the service is a
health service provided to the birth mother after she has become
pregnant.
30 Penalty: imprisonment for 5 years.
Summary conviction penalty: a fine of $12 000 or imprisonment
for one year.
page 4
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Preliminary Division 1
s. 12
Part 3 -- Order giving parental status to
arranged parents
Division 1 -- Preliminary
12. What this Part is about
5 This Part is to enable the court to transfer, from the birth parents
to the arranged parents, the parentage of a child born under a
surrogacy arrangement in certain circumstances.
13. Child's best interests paramount
(1) In deciding whether to make a particular decision concerning a
10 parentage order or proposed parentage order about a child, the
court must regard the best interests of the child as the paramount
consideration.
(2) For the purposes of this Act it is presumed to be in the best
interests of the child for the arranged parents to be the parents of
15 the child, unless there is evidence to the contrary.
14. Terms used in this Part
In this Part, unless the contrary intention appears --
"approved plan" means the plan that section 17(2)(f) refers to
by that term, as varied, if applicable, with the court's
20 approval under section 26;
"arranged parents" of a child means --
(a) the persons who, according to the definition of
"surrogacy arrangement" in section 3, are the
arranged parents; or
25 (b) the person who, according to that definition, is the
arranged parent;
"birth parents" of a child means --
(a) the persons who are recognised by the law as being,
when the child is born, the parents of the child; or
page 5
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 2 Transfer of child's parentage
s. 15
(b) if only one person fits the description in
paragraph (a), that person;
"chief executive officer" means the chief executive officer of
the department of the Public Service principally assisting
5 the Minister in the administration of this Act;
"child" refers to the status of a person in a relationship as
parent and child, and it includes a person of that status even
after the person has reached the age of full legal capacity;
"court" means the Family Court of Western Australia;
10 "parentage order" means an order that the court makes under
this Part transferring the parentage of a child.
Division 2 -- Transfer of child's parentage
15. Circumstances for seeking parentage order
(1) An application can be made under this Part for a parentage order
15 only if --
(a) the arranged parents reside in Western Australia; and
(b) when the surrogacy arrangement was entered into or
after that time but before the application is made --
(i) the arranged parents are an eligible couple; or
20 (ii) one of the arranged parents, or the arranged
parent if there is only one, is an eligible person.
(2) In subsection (1)(b) --
"eligible couple" means persons who, as a couple, have the
attributes that the Human Reproductive Technology
25 Act 1991 section 23(1) would require of a couple likely to
benefit from an in vitro fertilisation procedure;
"eligible person" means a person who has the attributes that the
Human Reproductive Technology Act 1991 section 23(1)
would require of a person, not being a member of an
30 eligible couple, likely to benefit from an in vitro
fertilisation procedure.
page 6
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 2
s. 16
16. Applying for a parentage order
(1) In the circumstances described in section 15, the arranged
parents may apply in accordance with this section for a
parentage order.
5 (2) The application can be lodged with the court only after a period
of 28 days has elapsed since the day on which the child is born.
(3) The application cannot be lodged with the court more than
6 months after the day on which the child is born except with
the leave of the court, which may be given in exceptional
10 circumstances.
(4) Before the court considers the application, a certified copy of
the child's birth certificate must, if it is available, have been
lodged with the court.
17. Court may make parentage order
15 (1) The court may, on an application made under section 16(1),
make a parentage order.
(2) Before it makes a parentage order the court has to be satisfied
that --
(a) the circumstances that section 15 requires for applying
20 for a parentage order exist; and
(b) except to the extent that subsection (4) authorises the
court to dispense with the requirement for a birth parent
to have received the counselling, the child's birth
parents and the arranged parents have received
25 appropriate counselling about the effect of the proposed
order; and
(c) except to the extent that subsection (4) authorises the
court to dispense with the requirement for a birth parent
to have received the advice, the child's birth parents and
30 the arranged parents have received independent legal
advice, as defined in subsection (3), about the effect of
the proposed order; and
page 7
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 2 Transfer of child's parentage
s. 17
(d) except to the extent that subsection (4) authorises the
court to dispense with the requirement for a birth
parent's consent, the child's birth parents freely consent
to the making of the order; and
5 (e) except in circumstances identified in subsection (5), the child
was, when the application for the order was lodged with
the court, and is, when the court makes the proposed
order, in the day to day care of the arranged parents; and
(f) except to the extent that subsection (4) authorises the
10 court to dispense with the requirement for a birth parent
to have agreed, the child's birth parents and the arranged
parents have agreed in writing to an appropriate plan
(the "approved plan") in accordance with section 18;
and
15 (g) it is in the best interests of the child for the court to
make the proposed order.
(3) Legal advice is "independent legal advice" as referred to in
subsection (2)(c) if --
(a) the person advising the birth parents is chosen by the
20 birth parents; and
(b) the person advising the arranged parents is chosen by
the arranged parents; and
(c) the person advising the birth parents is independent of
the person advising the arranged parents.
25 (4) In circumstances identified in subsection (5) or if the court is
satisfied that a birth parent is deceased or incapacitated or that
the arranged parents have been unable to contact a birth parent
despite having made reasonable efforts to do so, the court may
dispense with --
30 (a) the requirement for the birth parent to have received
counselling as described in subsection (2)(b); or
(b) the requirement for the birth parent to have received
independent legal advice as described in
subsection (2)(c); or
page 8
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 2
s. 18
(c) the requirement for the birth parent to consent under
subsection (2)(d) to the making of a parentage order; or
(d) the requirement for the birth parent to have agreed to an
appropriate plan as described in subsection (2)(f).
5 (5) The circumstances this subsection identifies are that --
(a) the birth mother is not the child's genetic parent; and
(b) at least one arranged parent is the child's genetic parent.
18. Contents of approved plan
(1) The plan needed to satisfy the court as section 17(2)(f) requires
10 may deal with any matter relating to the child, and has to --
(a) adequately balance the rights and responsibilities of the
parties to the plan; and
(b) promote the child's long-term welfare; and
(c) be reasonable in the circumstances.
15 (2) Without limiting the matters that the plan may deal with, the
plan has to set out details of --
(a) any time that the child is to spend, or communication
that the child is to have, with the child's birth parents or
any other person; and
20 (b) any information that any of the parties is to provide to
the other or to any other person.
19. Ancillary orders
When the court makes a parentage order it may make any
consequential or ancillary order it thinks fit in the interests of
25 justice or for the welfare and in the best interests of the child
whose parentage would be affected.
20. Multiple births
(1) This section applies if an application is made for a parentage
order about a child who has a living brother or sister born as a
page 9
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 2 Transfer of child's parentage
s. 21
result of the same pregnancy as the child (a "living birth
sibling").
(2) The court cannot make a parentage order about a child who has
a living birth sibling unless it also makes a parentage order
5 about each living birth sibling of the child.
21. Name of child
(1) If a parentage order is made, the court is to, by the same order,
declare the name by which the child whose parentage is
transferred is to be known.
10 (2) Before making an order changing the child's name, the court is
to have regard to --
(a) the principle that a child's first name should not be
changed by a parentage order except in special
circumstances; and
15 (b) anything that is relevant in the approved plan.
(3) An order under this section does not prevent a subsequent
change of name under a law of the State or the Commonwealth.
22. Effect of parentage order
(1) The effect of a parentage order is that, for the purposes of the
20 law of this State --
(a) the relationship between the child whose parentage is
transferred and each of the arranged parents is to be
treated as being that of child and parent; and
(b) the relationship between the child whose parentage is
25 transferred and each of the child's birth parents is to be
treated as not being that of child and parent; and
(c) the relationships of all persons to the child whose
parentage is transferred, to each of the arranged parents,
and to each of the birth parents of the child are to be
30 determined in accordance with this section.
page 10
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 2
s. 23
(2) If a parentage order is made, an appointment, in a deed or will
existing at the time the parentage order is made, of a person as
the guardian of the child whose parentage is transferred, ceases
to have effect.
5 23. Discharge of parentage order
(1) The court may, if satisfied as described in subsection (2), make
an order discharging a parentage order on receiving an
application for it to do so from --
(a) the Attorney General; or
10 (b) the chief executive officer; or
(c) the chief executive officer of the department of the
Public Service principally assisting in the administration
of the Adoption Act 1994; or
(d) a child whose parentage was transferred by the
15 parentage order who has reached the age of 18 years.
(2) On an application under subsection (1), the court may make an
order discharging a parentage order if it is satisfied that --
(a) the parentage order was obtained by fraud, duress or
other improper means; or
20 (b) a consent relied on for the making of the parentage order
was not an effective consent because it was obtained by
fraud, duress or material inducement; or
(c) there is an exceptional reason why the parentage order
should be discharged.
25 (3) If the court makes an order discharging a parentage order, the
court is to, by the same order, declare the name by which the
child whose parentage would be affected is to be known, having
regard to the principle that a child's first name should not be
changed by the order except in special circumstances.
30 (4) An order under subsection (3) does not prevent a subsequent
change of name under a law of the State or the Commonwealth.
page 11
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 2 Transfer of child's parentage
s. 23
(5) The court is not to make an order under subsection (2) unless --
(a) to do so would be for the welfare and in the best
interests of the child whose parentage would be affected;
and
5 (b) the court is satisfied that reasonable efforts have been
made to give notice of the application to --
(i) each of the birth parents of the child whose
parentage would be affected; and
(ii) each of the arranged parents; and
10 (iii) if the court considers it appropriate having regard
to the child's age, the child whose parentage
would be affected.
(6) Any person may apply for leave to intervene in an application
under subsection (1) and the court may make an order entitling
15 the person to intervene in the application.
(7) A person who is permitted under subsection (6) to intervene in
an application under subsection (1) is to be treated as a party to
the application with all the rights, duties and liabilities of a
party, unless the court orders otherwise.
20 (8) Where an order is made under subsection (2), the court may
make any consequential or ancillary order it thinks fit in the
interests of justice or for the welfare and in the best interests of
the child whose parentage would be affected, including any
order relating to --
25 (a) the ownership or possession of property; or
(b) any matter affecting the child in relation to the duties,
powers, responsibilities and authority which, by law,
parents have in relation to children; or
(c) the domicile of the child.
30 (9) Where a parentage order is discharged under subsection (2), the
rights, duties, liabilities and relationships of persons under the
law of the State are to be, after the order is discharged, as if the
parentage order had not been made.
page 12
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 2
s. 24
(10) Subsection (9) --
(a) does not apply to the extent that its application would be
inconsistent with any order made under subsection (8) or
with section 24; and
5 (b) does not affect --
(i) anything lawfully done; or
(ii) the consequences of anything lawfully done; or
(iii) any proprietary right or interest that became
vested in any person,
10 while the parentage order was in force.
24. Relationships for laws relating to sexual offences
For the purposes of the law of this State relating to sexual
offences, being law for the purposes of which the relationship
between persons is relevant --
15 (a) despite section 22(1) and (2), a parentage order does not
cause the cessation of any relationship that would have
existed if the parentage order had not been made, and
any such relationship is to be treated as existing in
addition to any relationship that exists by virtue of the
20 application of this section in relation to the parentage
order; and
(b) despite section 23(9), the discharge of a parentage order
does not cause the cessation of any relationship that
would have existed if the discharging order had not been
25 made, and any such relationship is to be treated as
existing in addition to any relationship that exists by
virtue of the discharge of the parentage order.
25. Finality of parentage order
A parentage order cannot be appealed against, reviewed, called
30 in question, or affected by any court, on any account, except --
(a) under section 23; or
(b) under the Family Court Act 1997 section 211(3).
page 13
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 2 Transfer of child's parentage
s. 26
26. Varying approved plan
(1) A person described in subsection (2) may apply to the court for
approval to vary an approved plan relating to a child if the child
has not reached 18 years of age.
5 (2) The only person who can make the application is --
(a) a person who is a party to the approved plan; or
(b) a birth parent who is not a party to the approved plan.
(3) The court may approve of the plan being varied in writing as
sought by the application under subsection (1) if it is satisfied
10 that --
(a) the variation is appropriate because of a change of
circumstances since the approved plan was agreed; and
(b) the plan as varied would conform to the requirements of
section 18.
15 (4) The variation may be to add a new party to the plan.
27. Court's powers to do with breach of approved plan
(1) If, on an application made to it by a party to an approved plan,
the court is satisfied that a breach of a provision of the plan has
occurred or is likely to occur, the court may --
20 (a) order the parties to the plan to participate in a mediation
process; or
(b) exercise its powers under the Family Court Act 1997, as
it thinks fit, to enforce a provision of the plan as if the
provision were an order made by the court under
25 that Act.
(2) Without limiting subsection (1), the court may deal with a
breach of a provision of an approved plan as if the person who
breached the provision had contravened an order made by the
court under the Family Court Act 1997 or had been in contempt
30 of the court.
page 14
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 2
s. 28
28. Court to notify certain officers
(1) The registrar of the court is to give to the Registrar of Births,
Deaths and Marriages written notice of the particulars described
in subsection (2) if the court --
5 (a) makes a parentage order; or
(b) makes an order under section 23(1) discharging a
parentage order.
(2) The particulars of which notice has to be given are --
(a) the date of the order; and
10 (b) the full name, address and occupation of each of the
arranged parents; and
(c) the name by which the child whose parentage was
transferred is known before, and is to be known after,
the order becomes effective; and
15 (d) the terms of any consequential or ancillary order under
section 23(8); and
(e) details of the date and place of birth of the child whose
parentage was transferred and the name and address of
each of the child's birth parents; and
20 (f) if available, any other information required by the
Registrar of Births, Deaths and Marriages in relation to
the registration under the Births, Deaths and Marriages
Registration Act 1998 of the birth of the child whose
parentage was transferred.
25 (3) If the birth of the child whose parentage was transferred is not
registered in this State under the Births, Deaths and Marriages
Registration Act 1998 then in addition to the notice required by
subsection (1), the registrar of the court is to give the Registrar
of Births, Deaths and Marriages a copy of the original
30 registration of the child's birth, if it is available.
page 15
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 3 Access to information
s. 29
Division 3 -- Access to information
29. Terms used in this Division
In this Division --
"descendant" means a lineal descendant;
5 "grandparent" means a lineal grandparent or a lineal ancestor;
"sibling" means a brother or sister of the whole or half blood,
whether or not the relationship is traced through, or to, a person
whose parents were not married to each other at the time of the
person's birth, or subsequently.
10 30. Application of this Division or order under it
(1) If an approved plan provides for a party to the plan to have
greater or earlier access to information than would be available
under this Division, the party is entitled to access in accordance
with the plan.
15 (2) A right that this Division gives to have access to information or
an order that the court makes giving access to information
prevails over a provision of any contract or approved plan that
purports to restrict or exclude that access.
31. Right under this Division to be treated as adequate reason
20 A right that this Division gives to a person to have access to the
registration of a birth is to be treated as an adequate reason, for
the purposes of the Births, Deaths and Marriages Registration
Act 1998 section 54 or 55, for the Registrar of Births, Deaths
and Marriages --
25 (a) to allow the person access to the Register under that Act;
and
(b) to provide the person with information extracted from
the Register under that Act; and
(c) to search for information in the Register under that Act.
page 16
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Access to information Division 3
s. 32
32. Court order excluding access to information
(1) On an application for a parentage order or after a parentage
order has been made, a party may apply to the court for an order
excluding a person from having access under this Division to
5 information.
(2) On an application under subsection (1), the court may make an
order excluding a person from having access under this Division
to information if it is satisfied that the person's access to the
information would be likely to place at serious risk --
10 (a) the applicant; or
(b) the person to whom the applicant is married, or with
whom the applicant is in a de facto relationship; or
(c) any child of the applicant.
(3) The order may exclude access to all or specified information in
15 all or specified circumstances, and may exclude access from
being given by the court or exclude a right of access from
arising under this Division.
(4) If an order is made under subsection (2), the registrar of the
court is to give the Registrar of Births, Deaths and Marriages a
20 certified copy of the order as soon as is practicable.
(5) On the application of a person affected by an order under
subsection (2), the court may revoke, suspend, or vary the order.
33. Access to certain court records
(1) A person cannot have access to the record of proceedings in a
25 court in relation to a parentage order except with the court's
approval given on an application under subsection (2) or
section 36(4) or 37(4).
(2) The court may give access to all or part of the record of
proceedings if an application for access is made in writing by --
30 (a) the child to whose parentage the order relates; or
(b) a birth parent of the child; or
page 17
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 3 Access to information
s. 34
(c) an arranged parent of the child; or
(d) any other person who was a party to the proceedings.
(3) Without limiting the other reasons for which the court may
refuse to give a person access on an application under
5 subsection (2) or section 36(4) or 37(4), the court may refuse to
give access if --
(a) the person has not produced to the registrar or another
appropriate officer of the court proof of the person's
identity; or
10 (b) the person has not complied with a requirement of the
court under any law or rule of practice relating to
inspection of and release of information generally from
its record of proceedings; or
(c) to give access would be contrary to any court order in
15 relation to exclusion of persons from the hearing of the
proceedings.
34. Access to registration of birth
(1) A person has the right to have access to the registration of the
birth of a person whose parentage has been transferred by a
20 parentage order if and only if the person who is to have
access is --
(a) the child to whose parentage the order relates; or
(b) a birth parent of the child; or
(c) an arranged parent of the child.
25 (2) Even though subsection (1) gives a person the right to have
access to the registration of the birth, that access may be refused
if --
(a) the person has not produced to the Registrar of Births,
Deaths and Marriages or another appropriate officer
30 proof of the person's identity; or
page 18
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Access to information Division 3
s. 35
(b) the person has not complied with a requirement of, or
under, the Births, Deaths and Marriages Registration
Act 1998 relating to that access.
(3) Subsection (1) does not prevent a person from exercising a right
5 given by section 36(2) or 37(2) to have access to the registration
of the birth.
35. Portion of registration of birth not referring to
parentage order
(1) At the request of --
10 (a) an arranged parent of the child, if the child has not
reached 18 years of age; or
(b) the child, if the child has reached 18 years of age,
the Registrar of Births, Deaths and Marriages is to issue to the
person making the request, a certified copy of that portion of the
15 registration of the birth of a child whose parentage was
transferred by a parentage order that does not refer to the child's
birth parents or the change of parentage.
(2) A certified copy of a portion of the registration of a child's birth
that the Registrar of Births, Deaths and Marriages issues under
20 subsection (1) is admissible in legal proceedings as evidence of
the facts recorded on the document.
36. If certain person deceased
(1) This section applies if --
(a) a child whose parentage was transferred by a parentage
25 order; or
(b) a birth parent of the child; or
(c) an arranged parent of the child,
is deceased.
page 19
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 3 Access to information
s. 37
(2) If this section applies, a person has the right to have access to
the registration of the birth of the child if the person who is to
have access has reached 18 years of age and is --
(a) a grandparent of the deceased; or
5 (b) a descendant of the deceased; or
(c) a sibling of the deceased.
(3) Even though subsection (2) gives a person the right to have
access to the registration of the birth, that access may be refused
if --
10 (a) the person has not produced to the Registrar of Births,
Deaths and Marriages or another appropriate officer
proof of the person's identity and age; or
(b) the person has not complied with a requirement of, or
under, the Births, Deaths and Marriages Registration
15 Act 1998 relating to that access.
(4) If this section applies, the court may give access to all or part of
the record of proceedings in a court in relation to the parentage
order if an application for access is made in writing by a person
who has reached 18 years of age and is --
20 (a) a grandparent of the deceased; or
(b) a descendant of the deceased; or
(c) a sibling of the deceased.
37. If adult child cannot be contacted
(1) This section applies if a child whose parentage was transferred
25 by a parentage order has reached 18 years of age and cannot be
found or contacted after making reasonable enquiries.
(2) If this section applies, a person has the right to have access to
the registration of the birth of the child if the person who is to
have access has reached 18 years of age and is --
30 (a) a grandparent of the child; or
(b) a descendant of the child; or
(c) a sibling of the child.
page 20
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Other matters Division 4
s. 38
(3) Even though subsection (2) gives a person the right to have
access to the registration of the birth, that access may be
refused if --
(a) the person has not produced to the Registrar of Births,
5 Deaths and Marriages or another appropriate officer
proof of the person's identity and age; or
(b) the person has not complied with a requirement of, or
under, the Births, Deaths and Marriages Registration
Act 1998 relating to that access.
10 (4) If this section applies, the court may give access to all or part of
the record of proceedings in a court in relation to the parentage
order if an application for access is made in writing by a person
who has reached 18 years of age and is --
(a) a grandparent of the child; or
15 (b) a descendant of the child; or
(c) a sibling of the child.
Division 4 -- Other matters
38. Application of Family Court Act 1997
(1) The Family Court Act 1997 applies as if a reference to
20 proceedings under that Act in a provision of that Act listed in
the Table to this subsection referred also to proceedings in
which the court exercises jurisdiction conferred on it by
this Act.
Table
s. 60 s. 62(1)
s. 65 s. 73
s. 164 s. 165
s. 166 s. 194
s. 195 s. 201
s. 207 s. 208
s. 213 s. 216
s. 243 245(2)
page 21
Surrogacy Bill 2007
Part 3 Order giving parental status to arranged parents
Division 4 Other matters
s. 39
(2) The Family Court Act 1997 applies as if a reference to
jurisdiction of the court under that Act in section 244 referred
also to jurisdiction conferred on the court by this Act.
(3) In a context in which the Family Court Act 1997 applies only
5 because of this section, that Act applies as if a reference in that
Act to a family consultant referred only to a person who is
appointed in accordance with section 25 of that Act.
(4) The Family Court Act 1997 section 212 does not apply to
proceedings in which the court exercises jurisdiction conferred
10 on it by this Act.
39. Court proceedings to be private
(1) This section applies to proceedings in which the court exercises
jurisdiction under this Part ("proceedings under this Part")
and also to any proceedings of the Supreme Court arising out of
15 proceedings under this Part.
(2) Proceedings to which this section applies are not to be heard in
open court and all persons other than a party to the proceedings
or his or her lawyer are to be excluded during the proceedings,
except as otherwise directed by the court.
20 (3) A court may order any person to leave the room or other place
during the examination of a witness in the proceedings.
40. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
25 necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
(2) Without limiting subsection (1), regulations may be made as to
what is appropriate counselling for a child's birth parents and
the arranged parents to receive about the effect of a proposed
30 parentage order.
page 22
Surrogacy Bill 2007
Order giving parental status to arranged parents Part 3
Other matters Division 4
s. 41
41. Review of Act
(1) The Minister shall carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
expiry of 4 years from its commencement.
5 (2) The Minister shall prepare a report based on the review made
under subsection (1) and shall, as soon as is practicable after
that preparation, cause that report to be laid before each House
of Parliament.
page 23
Surrogacy Bill 2007
Part 4 Other Acts amended
s. 42
Part 4 -- Other Acts amended
42. Births, Deaths and Marriages Registration Act 1998 amended
(1) The amendments in this section are to the Births, Deaths and
Marriages Registration Act 1998*.
5 [* Reprint 1 as at 11 June 2004.
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1.]
(2) The long title is amended by deleting "adoptions information"
and inserting instead --
10 " information about certain parentage changes ".
(3) Section 3 is amended as follows:
(a) in paragraph (a), by deleting "adoptions" and inserting
instead --
" parentage change ";
15 (b) in paragraph (b), by deleting "adoptions" and inserting
instead --
" parentage changes ".
(4) Section 4 is amended in the definition of "registrable event" by
inserting before the semicolon at the end of the definition --
20 "
or the making or discharge of a parentage order as
defined in the Surrogacy Act 2007 section 14
".
(5) The heading to Part 4 is deleted and the following heading is
25 inserted instead --
"
Part 4 -- Registration of information about
certain parentage changes
".
page 24
Surrogacy Bill 2007
Other Acts amended Part 4
s. 42
(6) Section 24 is amended as follows:
(a) by inserting before "On receipt", at the beginning of the
section, the subsection designation "(1)";
(b) by inserting at the end of the section the following
5 subsection --
"
(2) On receipt of a notice under section 28(1) of the
Surrogacy Act 2007 in relation to the making or
discharge of a parentage order about a child whose
10 birth is registered in this State, the particulars provided
in the notice must be registered by the Registrar in
relation to the registration of the child's birth.
".
Note: The heading to section 24 is to read "WA order: birth registered
15 in WA".
(7) Section 25 is amended as follows:
(a) by inserting after subsection (1) the following
subsection --
"
20 (1a) On receipt of a notice under section 28(1) of the
Surrogacy Act 2007 in relation to the making or
discharge of a parentage order about a child whose
birth is registered in another State, the Registrar --
(a) must send a copy of the notice to the relevant
25 registering authority; and
(b) subject to subsection (2), must register the
child's birth in accordance with the information
provided under section 28 of that Act.
";
30 (b) in each of subsections (2) and (3), by inserting after
"subsection (1)" --
" or (1a) ";
page 25
Surrogacy Bill 2007
Part 4 Other Acts amended
s. 42
(c) in subsection (2)(b), by inserting after "adoption order"
in both places where it occurs --
" or parentage order ".
Note: The heading to section 25 is to read "WA order: birth not registered
5 in WA".
(8) Section 26 is amended as follows:
(a) by inserting before "If " at the beginning of the section,
the subsection designation "(1)";
(b) in paragraph (a), by inserting after "adoption order" --
10 " or parentage order ";
(c) by inserting at the end of the section the following
subsection --
"
(2) In subsection (1) --
15 "parentage order" means an order substantially
similar in effect to a parentage order under the
Surrogacy Act 2007.
".
Note: The heading to section 26 is to read "Order in other State: birth
20 registered in WA".
(9) Section 28 is repealed and the following section is inserted
instead --
"
28. Certain certified copies
25 If section 86 of the Adoption Act 1994 or section 35 of
the Surrogacy Act 2007 requires the Registrar to issue a
certified copy of that portion of the registration of a
person's birth that does not refer to --
(a) the person's birth parents; or
30 (b) as the case requires, the person's adoption
or change of parentage under the Surrogacy
Act 2007,
the certified copy is to be in an approved form.
".
page 26
Surrogacy Bill 2007
Other Acts amended Part 4
s. 43
(10) Section 68 is amended as follows:
(a) by inserting after subsection (1) the following
subsection --
"
5 (1a) Nothing in this Act prevents a birth parent of a child
whose parentage was transferred under the Surrogacy
Act 2007 from applying under section 19 or 52 (other
than with a request under section 19(2)(c)) to add
additional registrable information about the child's
10 birth registration if, but for the transfer of parentage,
the information could have been included in the
Register.
";
(b) by repealing subsection (2) and inserting instead the
15 following subsection --
"
(2) To the extent that --
(a) a provision of the Adoption Act 1994 relating to
access to adoption information in the Register;
20 or
(b) a provision of the Surrogacy Act 2007 relating
to access to information in the Register about
the transfer of parentage under that Act,
is inconsistent with this Act, that Act prevails.
25 ".
Note: The heading to section 68 is to read "Some effects of Adoption
Act 1994 and Surrogacy Act 2007".
43. Children and Community Services Act 2004 amended
(1) The amendments in this section are to the Children and
30 Community Services Act 2004*.
[* Act No. 34 of 2004.
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1 and Act
Nos. 65 of 2004 and 35 of 2006.]
page 27
Surrogacy Bill 2007
Part 4 Other Acts amended
s. 44
(2) Section 104 is amended as follows:
(a) in subsection (2), by inserting before paragraph (f) --
"
(ea) caring for the child under a surrogacy
5 arrangement, as defined in the Surrogacy
Act 2007, and not more than one year has
elapsed since the day on which the child
was born; or
";
10 (b) in subsection (2), by inserting after each of
paragraphs (a) to (d) --
" or ";
(c) in subsection (4), by inserting after each of
paragraphs (a) to (c) --
15 " and ".
44. Family Court Act 1997 amended
(1) The amendments in this section are to the Family Court
Act 1997*.
[* Reprint 3 as at 20 October 2006.]
20 (2) Section 5(1) is amended in the definition of "child" as follows:
(a) in paragraph (a), by inserting after "adopted child" --
"
, a child whose parentage has been
transferred under the Surrogacy Act 2007,
25 ";
(b) in paragraph (b), by inserting after "adopted child" --
"
or a child whose parentage has been
transferred under the Surrogacy Act 2007
30 ".
page 28
Surrogacy Bill 2007
Other Acts amended Part 4
s. 45
(3) Section 36(2) is amended by inserting after "Adoption
Act 1994" --
" , the Surrogacy Act 2007 ".
(4) Section 39 is amended by inserting after "Adoption
5 Act 1994" --
" or the Surrogacy Act 2007 ".
(5) Section 205T is amended as follows:
(a) in the definition of "child", by inserting before
paragraph (c) --
10 "
(ba) a child whose parentage has, since the
commencement of the de facto
relationship, been transferred under the
Surrogacy Act 2007 to the de facto
15 partners; or
";
(b) in the definition of "child", by inserting after
paragraph (a) --
" or ";
20 (c) in the definition of "financial matters", by inserting after
paragraph (a) --
" or ".
45. Guardianship and Administration Act 1990 amended
(1) The amendment in this section is to the Guardianship and
25 Administration Act 1990*.
[* Reprint 3 as at 1 April 2005.
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1 and Act
Nos. 34 of 2004 and 35 of 2006.]
page 29
Surrogacy Bill 2007
Part 4 Other Acts amended
s. 46
(2) Section 45(3) is amended by inserting before paragraph (d) --
"
(ca) consent, under section 17(2)(d) of the
Surrogacy Act 2007, to the making of a
5 parentage order under that Act; or
".
46. Human Reproductive Technology Act 1991 amended
(1) The amendments in this section are to the Human Reproductive
Technology Act 1991*.
10 [* Reprint 2 as at 11 November 2005.
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1 and Act
Nos. 34 of 2004 and 28 and 77 of 2006.]
(2) Section 23 is amended as follows:
15 (a) by inserting before "An" at the beginning of the section
the subsection designation "(1)";
(b) in paragraph (c), by deleting "the persons seeking to be
treated" and inserting instead --
"
20 any persons seeking to be regarded, in applying
paragraph (a),
";
(c) by inserting at the end of the section the following
subsection --
25 "
(2) Subsection (1) does not require that the benefit likely to
result from the procedure involve the pregnancy of a
member of the couple who are, or the woman who is,
likely to benefit.
30 ".
page 30
Surrogacy Bill 2007
Other Acts amended Part 4
s. 47
47. Interpretation Act 1984 amended
(1) The amendment in this section is to the Interpretation
Act 1984*.
[* Reprint 5 as at 12 August 2005.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1 and Act
Nos. 38 of 2005 and 60 and 77 of 2006.]
(2) Section 5 is amended in the definition of "parent" by inserting
after paragraph (b) --
10 "
(c) a person who is a parent in a relationship
of parent and child that arises because of
a parentage order under the Surrogacy
Act 2007;
15 ".
page 31
Surrogacy Bill 2007
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
approved plan.......................................................................................14, 17(2)
arranged parent................................................................................................. 3
arranged parents ......................................................................................... 3, 14
birth mother ..................................................................................................... 3
birth parents ................................................................................................... 14
chief executive officer .................................................................................... 14
child............................................................................................................... 14
court .............................................................................................................. 14
descendant ..................................................................................................... 29
eligible couple............................................................................................15(2)
eligible person............................................................................................15(2)
grandparent .................................................................................................... 29
independent legal advice.............................................................................17(3)
living birth sibling ......................................................................................20(1)
parentage order............................................................................................... 14
proceedings under this Part.........................................................................39(1)
sibling............................................................................................................ 29
surrogacy arrangement ..................................................................................... 3
surrogacy arrangement that is for reward........................................................... 5
page 32
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