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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Surrogacy Bill 2008
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 4
Division 2 -- Offences
8. Making surrogacy arrangement that is for reward 4
9. Reward for introducing parties for surrogacy
arrangement 4
10. Publishing willingness to make surrogacy
arrangement that is for reward 5
11. Services connected with surrogacy arrangement
that is for reward 5
Part 3 -- Order giving parental
status to arranged parents
Division 1 -- Preliminary
12. What this Part is about 6
13. Child's best interests paramount 6
14. Terms used in this Part 6
001--1 page i
Surrogacy Bill 2008
Contents
Division 2 -- Parentage order excluded for
certain arrangements
15. Meaning of "Council" 7
16. Approval of surrogacy arrangement 7
17. Requirements for surrogacy arrangement to be
approved 8
18. Application of Human Reproductive Technology
Act 1991 9
Division 3 -- Transfer of child's parentage
19. Circumstances for seeking parentage order 10
20. Applying for a parentage order 11
21. Court may make parentage order 11
22. Contents of approved plan 13
23. Ancillary orders 13
24. Multiple births 14
25. Name of child 14
26. Effect of parentage order 14
27. Discharge of parentage order 15
28. Relationships for laws relating to sexual offences 17
29. Finality of parentage order 18
30. Varying approved plan 18
31. Court's powers to do with breach of approved plan 18
32. Court to notify certain officers 19
Division 4 -- Access to information
33. Terms used in this Division 20
34. Application of this Division or order under it 20
35. Right under this Division to be treated as adequate
reason 20
36. Court order excluding access to information 21
37. Access to certain court records 21
38. Access to registration of birth 22
39. Portion of registration of birth not referring to
parentage order 23
40. If certain person deceased 23
41. If adult child cannot be contacted 24
Division 5 -- Other matters
42. Application of Family Court Act 1997 25
43. Court proceedings to be private 26
44. Regulations 26
45. Review of Act 27
page ii
Surrogacy Bill 2008
Contents
Part 4 -- Other Acts amended
Division 1 -- Births, Deaths and Marriages
Registration Act 1998 amended
46. Act amended 28
47. Long title amended 28
48. Section 3 amended 28
49. Section 4 amended 28
50. Part 4 heading replaced 29
Part 4 -- Registration of information about certain
parentage changes
51. Section 24 amended 29
52. Section 25 amended 29
53. Section 26 amended 30
54. Section 28 replaced 31
28. Certain certified copies 31
55. Section 68 amended 31
Division 2 -- Children and Community Services
Act 2004 amended
56. Act amended 32
57. Section 104 amended 32
Division 3 -- Family Court Act 1997 amended
58. Act amended 33
59. Section 5 amended 33
60. Section 36 amended 33
61. Section 39 amended 34
62. Section 205T amended 34
Division 4 -- Guardianship and Administration
Act 1990 amended
63. Act amended 34
64. Section 45 amended 35
Division 5 -- Human Reproductive Technology
Act 1991 amended
65. Act amended 35
66. Section 18 amended 35
67. Section 23 amended 35
Division 6 -- Interpretation Act 1984 amended
68. Act amended 36
69. Section 5 amended 37
page iii
Surrogacy Bill 2008
Contents
Defined Terms
page iv
Western Australia
LEGISLATIVE ASSEMBLY
Surrogacy Bill 2008
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 2008
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Surrogacy Act 2008.
2. Commencement
5 This Act comes into operation as follows --
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
and different days may be fixed for different provisions.
10 3. Terms used in this Act
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
15 (the arranged parent or arranged 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 2008
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.
(3) An expense is a reasonable expense for the purposes of
subsection (1)(a) to the extent only that it is --
(a) a reasonable medical expense that is not recoverable
25 under any health insurance or other scheme; or
(b) the value of earnings foregone because of leave taken --
(i) for a period of not more than 2 months during
which the birth occurs or was expected to occur;
or
page 3
Surrogacy Bill 2008
Part 2 Surrogacy arrangements
Division 2 Offences
s. 7
(ii) at any other time for medical reasons arising
during the pregnancy;
or
(c) a reasonable expense of psychological counselling; or
5 (d) a premium payable for health, disability or life insurance
that --
(i) would not have been taken out if the surrogacy
arrangement had not been entered into; and
(ii) provides cover for a period during which an
10 expense referred to in another paragraph of this
subsection is incurred or might be, or have been
expected to be, incurred.
7. Surrogacy arrangement not binding
(1) A surrogacy arrangement is not enforceable except to the extent
15 provided for in subsection (3).
(2) Subsection (1) does not affect the ability of the court to make an
order under Part 3.
(3) An obligation under a surrogacy arrangement to pay or
reimburse reasonable expenses referred to in section 6(1) is as
20 enforceable as it would be if subsection (1) had not been
enacted and the arrangement was not unenforceable for any
other reason.
Division 2 -- Offences
8. Making surrogacy arrangement that is for reward
25 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.
9. Reward for introducing parties for surrogacy arrangement
(1) A person who receives, or seeks to receive, valuable
30 consideration for introducing or agreeing to introduce persons
page 4
Surrogacy Bill 2008
Surrogacy arrangements Part 2
Offences Division 2
s. 10
with the intention that they might enter into a surrogacy
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
5 surrogacy arrangement be one that is for reward.
10. Publishing willingness to make surrogacy arrangement that
is for reward
A person commits an offence if the person publishes or causes
to be published --
10 (a) anything that is intended to, or likely to, induce a person
to enter into a surrogacy arrangement that is for reward;
or
(b) anything to the effect that a person who is willing to
enter into a surrogacy arrangement that is for reward is
15 sought; or
(c) anything to the effect that a person is or might be willing
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
20 reward
(1) A person who provides a service knowing that the service is to
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
25 health service provided to the birth mother after she has become
pregnant.
Penalty: imprisonment for 5 years.
Summary conviction penalty: a fine of $12 000 or imprisonment
for one year.
page 5
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 1 Preliminary
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 21(2)(f) refers to by
that term, as varied, if applicable, with the court's approval
20 under section 30;
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 6
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Parentage order excluded for certain arrangements Division 2
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 the
5 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 independent legal advice is legal advice provided by a person
who --
(a) is chosen by the person receiving the advice; and
(b) is not providing advice to the arranged parents as well as
to any other person required to receive the advice;
15 parentage order means an order that the court makes under this
Part transferring the parentage of a child.
Division 2 -- Parentage order excluded for
certain arrangements
15. Meaning of "Council"
20 In this Division --
Council means the Western Australian Reproductive
Technology Council established under the Human Reproductive
Technology Act 1991 section 8.
16. Approval of surrogacy arrangement
25 (1) A parentage order cannot be made in respect of a child unless
the surrogacy arrangement has been approved in writing under
section 17 by the Council.
(2) Subsection (1) does not apply if the child was born as a result of
a pregnancy that commenced before the day fixed under
30 section 2(b) as the day section 17 comes into operation.
page 7
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 2 Parentage order excluded for certain arrangements
s. 17
17. Requirements for surrogacy arrangement to be approved
The Council may approve a surrogacy arrangement only if --
(a) the birth mother --
(i) has reached 25 years of age; and
5 (ii) unless the Council is satisfied that there are
exceptional circumstances because of which it
should dispense with this requirement, has given
birth to a live child;
and
10 (b) the arrangement is set out in a written agreement signed
by --
(i) each of the arranged parents; and
(ii) the birth mother and her husband or de facto
partner, if any; and
15 (iii) any other person (a donor) whose egg or sperm
is to be used for the conception of the child or
who is the spouse or de facto partner of a donor;
and
(c) the Council is satisfied that, at least 3 months before the
20 approval is given, each of the persons required by
paragraph (b) to sign the agreement (the parties) has --
(i) undertaken any counselling about the
implications of the surrogacy arrangement that
regulations under this Act require; and
25 (ii) been assessed by a clinical psychologist and
confirmed, in a written report provided to the
Council, to be psychologically suitable to be
involved in the surrogacy arrangement; and
(iii) received independent legal advice about the
30 effect of the surrogacy arrangement;
and
page 8
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Parentage order excluded for certain arrangements Division 2
s. 18
(d) the Council is satisfied that, at least 3 months before the
approval is given, each of the arranged parents, the birth
mother and any donor has been assessed by a medical
practitioner and confirmed, in a written report provided
5 to the Council, to be medically suitable to be involved in
the surrogacy arrangement; and
(e) the intended birth mother has not yet become pregnant
under the arrangement.
18. Application of Human Reproductive Technology Act 1991
10 (1) For the purposes of the performance by the Council of a
function under this Act, the provisions of the Human
Reproductive Technology Act 1991 referred to in the Table
apply as if the function were a function under that Act.
Table
s. 10(1), (3) and (4) Sch. cl. 4
Sch. cl. 6 Sch. cl. 7
Sch. cl. 8 Sch. cl. 9
Sch. cl. 10
15 (2) The Council may, by resolution, delegate a function it is given
by this Act to a committee appointed in accordance with
subsection (1).
(3) For the purpose of the Human Reproductive Technology
Act 1991 Schedule clause 10(1)(d) a delegation made under
20 subsection (2) is taken to be a delegation made under section 11
of that Act.
(4) To enable it to perform its functions under this Act, the Council
may make use of staff, services or facilities available to it under
the Human Reproductive Technology Act 1991.
page 9
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 3 Transfer of child's parentage
s. 19
Division 3 -- Transfer of child's parentage
19. Circumstances for seeking parentage order
(1) An application can be made under this Part for a parentage order
only if --
5 (a) the arranged parents reside in Western Australia and at
least one arranged parent has reached 25 years of age;
and
(b) when the surrogacy arrangement was entered into or
after that time but before the application is made --
10 (i) the arranged parents are an eligible couple; or
(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 2 people of opposite sexes who are
15 married to, or in a de facto relationship with, each other and
who, as a couple --
(a) are unable to conceive a child due to medical reasons
not excluded by subsection (3); or
(b) although able to conceive a child, would be likely to
20 conceive a child affected by a genetic abnormality or a
disease;
eligible person means a woman who --
(a) is unable to conceive a child due to medical reasons not
excluded by subsection (3); or
25 (b) although able to conceive a child, would be likely to
conceive a child affected by a genetic abnormality or a
disease; or
(c) although able to conceive a child, is unable for medical
reasons to give birth to a child.
page 10
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 3
s. 20
(3) The medical reasons for being unable to conceive a child that
are referred to in the definitions of eligible couple and eligible
person do not include --
(a) a reason arising from a person's age; or
5 (b) a reason prescribed for the purpose of the Human
Reproductive Technology Act 1991 section 23(1)(d).
20. Applying for a parentage order
(1) In the circumstances described in section 19, the arranged
parents may, if the making of the order would not be prevented
10 by section 16(1), apply in accordance with this section for a
parentage order.
(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
15 6 months after the day on which the child is born except with
the leave of the court, which may be given in exceptional
circumstances.
(4) If the child was born before the day fixed under section 2(b) as
the day on which this section comes into operation, the
20 application may, despite subsection (3), be lodged within one
year after that day.
(5) 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.
25 21. Court may make parentage order
(1) The court may, on an application made under section 20(1),
make a parentage order.
(2) Before it makes a parentage order the court has to be satisfied
that --
30 (a) the circumstances that section 19 requires for applying
for a parentage order exist; and
page 11
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 3 Transfer of child's parentage
s. 21
(b) except to the extent that subsection (3) 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
5 appropriate counselling about the effect of the proposed
order; and
(c) except to the extent that subsection (3) authorises the
court to dispense with the requirement for a birth parent
to have received the advice, the child's birth parents and
10 the arranged parents have received independent legal
advice about the effect of the proposed order; and
(d) except to the extent that subsection (3) authorises the
court to dispense with the requirement for a birth
parent's consent, the child's birth parents freely consent
15 to the making of the order; and
(e) except in circumstances identified in subsection (4), 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
20 parents; and
(f) except to the extent that subsection (3) authorises the
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
25 (the approved plan) in accordance with section 22; and
(g) it is in the best interests of the child for the court to
make the proposed order.
(3) In circumstances identified in subsection (4) or if the court is
satisfied that a birth parent is deceased or incapacitated or that
30 the arranged parents have been unable to contact a birth parent
despite having made reasonable efforts to do so, the court may
dispense with --
(a) the requirement for the birth parent to have received
counselling as described in subsection (2)(b); or
page 12
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 3
s. 22
(b) the requirement for the birth parent to have received
independent legal advice as described in
subsection (2)(c); or
(c) the requirement for the birth parent to consent under
5 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).
(4) The circumstances this subsection identifies are that --
(a) the birth mother is not the child's genetic parent; and
10 (b) at least one arranged parent is the child's genetic parent.
(5) In subsection (4) --
genetic parent of a child means a person from whose egg or
sperm the child is conceived.
22. Contents of approved plan
15 (1) The plan needed to satisfy the court as section 21(2)(f) requires
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
20 (c) be reasonable in the circumstances.
(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
25 any other person; and
(b) any information that any of the parties is to provide to
the other or to any other person.
23. Ancillary orders
When the court makes a parentage order it may make any
30 consequential or ancillary order it thinks fit in the interests of
page 13
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 3 Transfer of child's parentage
s. 24
justice or for the welfare and in the best interests of the child
whose parentage would be affected.
24. Multiple births
(1) This section applies if an application is made for a parentage
5 order about a child who has a living brother or sister born as a
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
about each living birth sibling of the child.
10 25. 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.
(2) Before making an order changing the child's name, the court is
15 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
(b) anything that is relevant in the approved plan.
20 (3) An order under this section does not prevent a subsequent
change of name under a law of the State or the Commonwealth.
26. Effect of parentage order
(1) The effect of a parentage order is that, for the purposes of the
law of this State --
25 (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
transferred and each of the child's birth parents is to be
30 treated as not being that of child and parent; and
page 14
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 3
s. 27
(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
determined in accordance with this section.
5 (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.
27. Discharge of parentage order
10 (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
(b) the chief executive officer; or
15 (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
parentage order who has reached the age of 18 years.
20 (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
(b) a consent relied on for the making of the parentage order
25 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.
(3) If the court makes an order discharging a parentage order, the
30 court is to, by the same order, declare the name by which the
child whose parentage would be affected is to be known, having
page 15
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 3 Transfer of child's parentage
s. 27
regard to the principle that a child's first name should not be
changed by the order except in special circumstances.
(4) An order under subsection (3) does not prevent a subsequent
change of name under a law of the State or the Commonwealth.
5 (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
(b) the court is satisfied that reasonable efforts have been
10 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
(iii) if the court considers it appropriate having regard
15 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
the person to intervene in the application.
20 (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.
(8) Where an order is made under subsection (2), the court may
25 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 --
(a) the ownership or possession of property; or
30 (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
page 16
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 3
s. 28
(c) the domicile of the child.
(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
5 parentage order had not been made.
(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 28; and
10 (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,
15 while the parentage order was in force.
28. 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 --
20 (a) despite section 26(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
25 application of this section in relation to the parentage
order; and
(b) despite section 27(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
30 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.
page 17
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 3 Transfer of child's parentage
s. 29
29. Finality of parentage order
A parentage order cannot be appealed against, reviewed, called
in question, or affected by any court, on any account, except --
(a) under section 27; or
5 (b) under the Family Court Act 1997 section 211(3).
30. 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.
10 (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
15 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 22.
20 (4) The variation may be to add a new party to the plan.
31. 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 --
25 (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
30 that Act.
page 18
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Transfer of child's parentage Division 3
s. 32
(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
5 of the court.
32. 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 --
10 (a) makes a parentage order; or
(b) makes an order under section 27(1) discharging a
parentage order.
(2) The particulars of which notice has to be given are --
(a) the date of the order; and
15 (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
20 (d) the terms of any consequential or ancillary order under
section 27(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
25 (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.
30 (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
page 19
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 4 Access to information
s. 33
subsection (1), the registrar of the court is to give the Registrar
of Births, Deaths and Marriages a copy of the original
registration of the child's birth, if it is available.
Division 4 -- Access to information
5 33. Terms used in this Division
In this Division --
descendant means a lineal descendant;
grandparent means a lineal grandparent or a lineal ancestor;
sibling means a brother or sister of the whole or half blood,
10 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.
34. Application of this Division or order under it
(1) If an approved plan provides for a party to the plan to have
15 greater or earlier access to information than would be available
under this Division, the party is entitled to access in accordance
with the plan.
(2) A right that this Division gives to have access to information or
an order that the court makes giving access to information
20 prevails over a provision of any contract or approved plan that
purports to restrict or exclude that access.
35. Right under this Division to be treated as adequate reason
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
25 the purposes of the Births, Deaths and Marriages Registration
Act 1998 section 54 or 55, for the Registrar of Births, Deaths
and Marriages --
(a) to allow the person access to the Register under that Act;
and
page 20
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Access to information Division 4
s. 36
(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.
36. Court order excluding access to information
5 (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
information.
(2) On an application under subsection (1), the court may make an
10 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 --
(a) the applicant; or
(b) the person to whom the applicant is married, or with
15 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
all or specified circumstances, and may exclude access from
being given by the court or exclude a right of access from
20 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
certified copy of the order as soon as is practicable.
(5) On the application of a person affected by an order under
25 subsection (2), the court may revoke, suspend, or vary the order.
37. Access to certain court records
(1) A person cannot have access to the record of proceedings in a
court in relation to a parentage order except with the court's
approval given on an application under subsection (2) or
30 section 40(4) or 41(4).
page 21
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 4 Access to information
s. 38
(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 --
(a) the child to whose parentage the order relates; or
(b) a birth parent of the child; or
5 (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
subsection (2) or section 40(4) or 41(4), the court may refuse to
10 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
(b) the person has not complied with a requirement of the
15 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
relation to exclusion of persons from the hearing of the
20 proceedings.
38. 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
parentage order if and only if the person who is to have access
25 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.
page 22
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Access to information Division 4
s. 39
(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,
5 Deaths and Marriages or another appropriate officer
proof of the person's identity; 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 (3) Subsection (1) does not prevent a person from exercising a right
given by section 40(2) or 41(2) to have access to the registration
of the birth.
39. Portion of registration of birth not referring to
parentage order
15 (1) At the request of --
(a) an arranged parent of the child, if the child has not
reached 16 years of age; or
(b) the child, if the child has reached 16 years of age,
the Registrar of Births, Deaths and Marriages is to issue to the
20 person making the request, a certified copy of that portion of the
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
25 that the Registrar of Births, Deaths and Marriages issues under
subsection (1) is admissible in legal proceedings as evidence of
the facts recorded on the document.
40. If certain person deceased
(1) This section applies if --
30 (a) a child whose parentage was transferred by a parentage
order; or
page 23
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 4 Access to information
s. 41
(b) a birth parent of the child; or
(c) an arranged parent of the child,
is deceased.
(2) If this section applies, a person has the right to have access to
5 the registration of the birth of the child if the person who is to
have access has reached 16 years of age and is --
(a) a grandparent of the deceased; or
(b) a descendant of the deceased; or
(c) a sibling of the deceased.
10 (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,
Deaths and Marriages or another appropriate officer
15 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.
(4) If this section applies, the court may give access to all or part of
20 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 16 years of age and is --
(a) a grandparent of the deceased; or
(b) a descendant of the deceased; or
25 (c) a sibling of the deceased.
41. If adult child cannot be contacted
(1) This section applies if a child whose parentage was transferred
by a parentage order has reached 18 years of age and cannot be
found or contacted after making reasonable enquiries.
page 24
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Other matters Division 5
s. 42
(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 16 years of age and is --
(a) a grandparent of the child; or
5 (b) a descendant of the child; or
(c) a sibling of the child.
(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 16 years of age and is --
20 (a) a grandparent of the child; or
(b) a descendant of the child; or
(c) a sibling of the child.
Division 5 -- Other matters
42. Application of Family Court Act 1997
25 (1) The Family Court Act 1997 applies as if a reference to
proceedings under that Act in a provision of that Act listed in
the Table 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
page 25
Surrogacy Bill 2008
Part 3 Order giving parental status to arranged parents
Division 5 Other matters
s. 43
s. 164 s. 165
s. 166 s. 194
s. 195 s. 201
s. 207 s. 208
s. 213 s. 216
s. 243 s. 245(2)
(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.
43. 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.
44. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
page 26
Surrogacy Bill 2008
Order giving parental status to arranged parents Part 3
Other matters Division 5
s. 45
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
5 the arranged parents to receive about the effect of a proposed
parentage order.
45. 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
10 expiry of 4 years from its commencement.
(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 27
Surrogacy Bill 2008
Part 4 Other Acts amended
Division 1 Births, Deaths and Marriages Registration Act 1998 amended
s. 46
Part 4 -- Other Acts amended
Division 1 -- Births, Deaths and Marriages Registration Act 1998
amended
46. Act amended
5 This Division amends the Births, Deaths and Marriages
Registration Act 1998.
47. Long title amended
In the long title delete "adoptions information" and insert:
10 information about certain parentage changes
48. Section 3 amended
In section 3:
(a) in paragraph (a) delete "adoptions" and insert:
15
parentage change
(b) in paragraph (b) delete "adoptions" and insert:
20 parentage changes
49. Section 4 amended
In section 4 in the definition of registrable event delete
"adoption;" and insert:
25
adoption or the making or discharge of a parentage
order as defined in the Surrogacy Act 2008 section 14;
page 28
Surrogacy Bill 2008
Other Acts amended Part 4
Births, Deaths and Marriages Registration Act 1998 amended Division 1
s. 50
50. Part 4 heading replaced
Delete the heading to Part 4 and insert:
Part 4 -- Registration of information about
5 certain parentage changes
51. Section 24 amended
(1) In section 24 delete "On receipt" and insert:
10 (1) On receipt
(2) At the end of section 24 insert:
(2) On receipt of a notice under section 32(1) of the
15 Surrogacy Act 2008 in relation to the making or
discharge of a parentage order about a child whose
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.
20
Note: The heading to section 24 is to read:
WA order: birth registered in WA
52. Section 25 amended
(1) After section 25(1) insert:
25
(2A) On receipt of a notice under section 32(1) of the
Surrogacy Act 2008 in relation to the making or
discharge of a parentage order about a child whose
birth is registered in another State, the Registrar --
30 (a) must send a copy of the notice to the relevant
registering authority; and
page 29
Surrogacy Bill 2008
Part 4 Other Acts amended
Division 1 Births, Deaths and Marriages Registration Act 1998 amended
s. 53
(b) subject to subsection (2), must register the
child's birth in accordance with the information
provided under section 32 of that Act.
5 (2) In subsection (2):
(a) after "subsection (1)" insert:
or (2A)
10 (b) in paragraph (b) delete "order," (both occurrences) and
insert:
order or parentage order,
15 (3) In subsection (3) after "subsection (1)" insert:
or (2A)
Note: The heading to section 25 is to read:
20 WA order: birth not registered in WA
53. Section 26 amended
(1) In section 26:
(a) delete "If " and insert:
25 (1) If
(b) in paragraph (a) after "adoption order" insert:
or parentage order
30
page 30
Surrogacy Bill 2008
Other Acts amended Part 4
Births, Deaths and Marriages Registration Act 1998 amended Division 1
s. 54
(2) At the end of section 26 insert:
(2) In subsection (1) --
parentage order means an order substantially
5 similar in effect to a parentage order under the
Surrogacy Act 2008.
Note: The heading to section 26 is to read:
Order in other State: birth registered in WA
10 54. Section 28 replaced
Delete section 28 and insert:
28. Certain certified copies
If the Adoption Act 1994 section 86 or the Surrogacy
15 Act 2008 section 39 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
(b) as the case requires, the person's adoption
20 or change of parentage under the
Surrogacy Act 2008,
the certified copy is to be in an approved form.
55. Section 68 amended
25 Delete section 68(2) and insert:
(2A) Nothing in this Act prevents a birth parent of a child
whose parentage was transferred under the Surrogacy
Act 2008 from applying under section 19 or 52 (other
30 than with a request under section 19(2)(c)) to add
additional registrable information about the child's
birth registration if, but for the transfer of parentage,
page 31
Surrogacy Bill 2008
Part 4 Other Acts amended
Division 2 Children and Community Services Act 2004 amended
s. 56
the information could have been included in the
Register.
(2) To the extent that --
(a) a provision of the Adoption Act 1994 relating to
5 access to adoption information in the Register;
or
(b) a provision of the Surrogacy Act 2008 relating
to access to information in the Register about
the transfer of parentage under that Act,
10 is inconsistent with this Act, that Act prevails.
Note: The heading to section 68 is to read:
Some effects of Adoption Act 1994 and Surrogacy Act 2008
Division 2 -- Children and Community Services Act 2004
15 amended
56. Act amended
This Division amends the Children and Community Services
Act 2004.
57. Section 104 amended
20 (1) In section 104(2):
(a) before paragraph (f) insert:
(fa) caring for the child under a surrogacy
arrangement, as defined in the Surrogacy
25 Act 2008, and not more than one year has
elapsed since the day on which the child
was born; or
page 32
Surrogacy Bill 2008
Other Acts amended Part 4
Family Court Act 1997 amended Division 3
s. 58
(b) after each of paragraphs (a) to (d) insert:
or
5 (2) In section 104(4) after each of paragraphs (a) to (c) insert:
and
Division 3 -- Family Court Act 1997 amended
10 58. Act amended
This Division amends the Family Court Act 1997.
59. Section 5 amended
In section 5(1) in the definition of child:
(a) in paragraph (a) delete "adopted child" and insert:
15
adopted child, a child whose parentage has
been transferred under the Surrogacy Act 2008
(b) in paragraph (b) delete "adopted child);" and insert:
20
adopted child or a child whose
parentage has been transferred under
the Surrogacy Act 2008);
25 60. Section 36 amended
In section 36(2) delete "Adoption Act 1994" and insert:
Adoption Act 1994, the Surrogacy Act 2008
page 33
Surrogacy Bill 2008
Part 4 Other Acts amended
Division 4 Guardianship and Administration Act 1990 amended
s. 61
61. Section 39 amended
In section 39 after "Adoption Act 1994" insert:
or the Surrogacy Act 2008
5
62. Section 205T amended
In section 205T:
(a) in the definition of child before paragraph (c) insert:
10 (ca) a child whose parentage has, since the
commencement of the de facto relationship,
been transferred under the Surrogacy Act 2008
to the de facto partners; or
15 (b) in the definition of child after paragraph (a) insert:
or
(c) in the definition of financial matters after
20 paragraph (a) insert:
or
Division 4 -- Guardianship and Administration Act 1990
25 amended
63. Act amended
This Division amends the Guardianship and Administration
Act 1990.
page 34
Surrogacy Bill 2008
Other Acts amended Part 4
Human Reproductive Technology Act 1991 amended Division 5
s. 64
64. Section 45 amended
After section 45(3)(c) insert:
(da) consent, under section 21(2)(d) of the
5 Surrogacy Act 2008, to the making of a
parentage order under that Act; or
Division 5 -- Human Reproductive Technology Act 1991
amended
10 65. Act amended
This Division amends the Human Reproductive Technology
Act 1991.
66. Section 18 amended
After section 18(1)(b) insert:
15
(ca) an artificial fertilisation procedure for
implementing a surrogacy arrangement as
defined in the Surrogacy Act 2008 section 3;
20 67. Section 23 amended
(1) In section 23:
(a) delete "An" and insert:
(1) An
25
(b) after paragraph (a)(ii) insert:
(iii) a woman who is unable to give birth to
a child due to medical reasons and is a
30 party to a surrogacy arrangement (as
page 35
Surrogacy Bill 2008
Part 4 Other Acts amended
Division 6 Interpretation Act 1984 amended
s. 68
defined in the Surrogacy Act 2008
section 3) that is lawful;
(c) in paragraph (c) delete "the persons seeking to be
5 treated" and insert:
any persons seeking to be regarded, in applying
paragraph (a),
10 (d) after each of paragraph (a)(i) and (ii) insert:
or
(e) after each of paragraphs (a) to (c) insert:
15
and
(2) At the end of section 23 insert:
20 (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.
25 Division 6 -- Interpretation Act 1984 amended
68. Act amended
This Division amends the Interpretation Act 1984.
page 36
Surrogacy Bill 2008
Other Acts amended Part 4
Interpretation Act 1984 amended Division 6
s. 69
69. Section 5 amended
In section 5 in the definition of parent after paragraph (b) insert:
(c) a person who is a parent in a relationship of
5 parent and child that arises because of a
parentage order under the Surrogacy Act 2008;
page 37
Surrogacy Bill 2008
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, 21(2)
arranged parent ................................................................................................ 3
arranged parents..........................................................................................3, 14
birth mother ..................................................................................................... 3
birth parents................................................................................................... 14
chief executive officer.................................................................................... 14
child .............................................................................................................. 14
Council.......................................................................................................... 15
court .............................................................................................................. 14
descendant ..................................................................................................... 33
donor ............................................................................................................. 17
eligible couple............................................................................................ 19(2)
eligible person............................................................................................ 19(2)
genetic parent............................................................................................. 21(5)
grandparent.................................................................................................... 33
independent legal advice ................................................................................ 14
living birth sibling...................................................................................... 24(1)
parentage order .............................................................................................. 14
parties............................................................................................................ 17
proceedings under this Part......................................................................... 43(1)
sibling............................................................................................................ 33
surrogacy arrangement ..................................................................................... 3
surrogacy arrangement that is for reward .......................................................... 5
page 38
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