ART Legislation

This is a summary of the legislative and administrative arrangements contained in Western Australia (WA) concerned with the regulation of assisted reproductive technology (ART).

People in WA conceived using donor gametes after 2004 may access identifying information about their donor when they turn 16 years of age. Information is held on the Reproductive Technology Register maintained by the WA Department of Health. 

The child about whom a parentage order relates has the right to have access to the registration of their birth, however there is currently no mechanism in WA for notification of the child’s birth or conception status.

Artificial Conception Act 1985

The Artificial Conception Act 1985 was passed by the WA Parliament in March 1985 and received royal assent in April 1985 and serves to establish a number of presumptions (ie rules), where – 

  • if a woman uses a donated ovum, she is the mother of any child born as a result of the pregnancy; 
  • if a married woman undergoes, with the consent of her husband, an artificial fertilisation procedure, the husband is the father of any child born;
  • if a woman who is in a de facto relationship with another woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure, the de facto partner of the pregnant woman is conclusively presumed to be a parent of the unborn child and is a parent of any child born as a result of the pregnancy;
  • if a woman becomes pregnant in consequence of an artificial fertilisation procedure using a donated ovum, the donor is not the mother of the child; and when donated sperm is used, the donor is presumed not to have caused the pregnancy and is not the father of the child.

Source: Family Law Council (1985) Creating children: A uniform approach to the law and practice of reproductive technology in Australia

Human Reproductive Technology Act 1991

The Human Reproductive Technology Act 1991 establishes the Western Australian Reproductive Technology Council (WARTC).

The Act includes a number of provisions regarding access to ART,  such as that –

  • no artificial fertilisation procedure may be carried out except pursuant to a licence;
  • artificial fertilisation procedures are carried out only for the benefit of persons eligible under the Act;
  • the participants are adequately assessed and counselled;
  • the welfare of the participants is properly promoted;
  • the prospective welfare of any child to be born as a result of the procedure is properly taken into consideration; and
  • equity, welfare and general standards prevailing in the community are taken into account in the practice of reproductive technology

The WARTC performs a number of key roles, including to – 

  • assess applications for a practice license;
  • advise the Commissioner of Health whether to issue a practice license; and
  • publish a Code of Practice, of guidelines, and establish a framework of ethical standards for licensees. 

Note: No such code has yet been published. Instead, guidelines are contained in Directions formulated by the Commissioner of Health.

The first compilation of such directions were issued in October 1997 (published in the Government Gazette No. 171, 3 October 1997) and was reissued in November 2004 (published in the Government Gazette No. 201, 30 November 2004).

Click here to view or download a PDF version [657k] of the first compilation of the IVF Practice Directions issued October 1997.

Click here to view or download a PDF version [587k] of the second compilation of the IVF Practice Directions issued November 2004.

Surrogacy Act 2008

The Surrogacy Act 2008 establishes that commercial surrogacy is prohibited in WA. 

The Act relies on both administrative requirements and a regime of penalties intended to enforce a framework of altruistic surrogacy in WA. For example,  if a person enters into a surrogacy arrangement that is for reward this is an offence, with a fine of $24,000 or imprisonment for two years.

In additional, it is an offence for person who provides a service knowing it is to facilitate a surrogacy arrangement, except if the service is a health service provided to the birth mother after she has become pregnant, with a fine of $12,000 or imprisonment for one year.

The Act provides that an ‘eligible’ person or couple can arrange an altruistic surrogacy arrangement provided a comprehensive assessment and approval process has been undertaken by the WARTC.

An eligible person is a woman who is unable to conceive a child due to medical reasons or, although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or disease, or is unable for medical reasons to give birth to a child.

An eligible couple is defined to mean two people who are married, or two people in a de facto relationship who are of opposite sex to each other who are unable to conceive a child due to medical reasons or although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease.

Provisions limiting access to couples ‘of the opposite sex’ or due to ‘medical reasons’ are contrary to the Commonwealth Sex Discrimination Act provisions prohibiting discrimination based on relationship status, sexual orientation, gender identity, or intersex status.

The current law requires WARTC approval before the arrangement proceeds.

If such approval is not obtained, the Surrogacy Act 2008 provides that an order for legal parentage cannot be made. 

The requirements for an approved surrogacy arrangement, which must be approved by the WARTC, is that such an surrogacy cannot be approved unless –

  • the surrogate mother is at least 25 years of age, and (except in exceptional circumstances) has previously given birth to a live child;
  • the surrogacy agreement is in writing, signed by all parties (including the intended parent(s);
  • the surrogate mother and her partner, if any, and the sperm and/or egg donor(s) and their partners if any, have been assessed as medically suitable to be part of the surrogacy arrangement; and
  • a medical report is submitted to the WARTC for approval.

Click here to view or download a PDF version [334k] of the first compilation of the Surrogacy Practice Directions issued February 2009.

Human Tissue and Transplant Act 1982

This Human Tissue and Transplant Act 1982 has provisions in Part VA, which prohibit the use of embryonic stem cell lines, which are relevant to the regulation of ART.

30A. Terms used

‘Human embryonic stem cell line’ means cultured stem cells derived by isolation of cells from an excess ART embryo as defined in section 53T of the Human Reproductive Technology Act 1991.

Registry of Births, Deaths and Marriages

Western Australia’s Registry of Births, Deaths and Marriages allows for registration of a parent other than a ‘mother’ and/or ‘father’ on the birth documents of the child. 

The birth registration form provides same-sex couples with the option of describing themselves as ‘mother’ and ‘parent’; ‘mother’ and ‘mother’; or ‘parent’ and ‘parent’.

However, donors are not recorded on the birth certificate, as they are not legally recognised as parents under the Artificial Conception Act 1985.

Source: Seymour, J & Magri, S. (2004) ART, surrogacy and legal parentage : a comparative legislative review, Victorian Law Reform Commission.