Assisted Reproductive Technology and Surrogacy Bill 2025
Receipt and first reading
Bill received from the Assembly and, on motion by Hon Matthew Swinbourn (Minister for the Environment), read a first time.
Second reading speech
Hon Matthew Swinbourn (Minister for the Environment) (2:35 pm): I move:
That the bill be now read a second time.
It is clear that there is overwhelming support within the Western Australian community for this bill today to reform laws that will enable all members of our community to start their family, regardless of sexual orientation, sex, gender identity or relationship status. The Assisted Reproductive Technology and Surrogacy Bill 2025 places the patient experience and the best interests of the child born via assisted reproductive technology at the centre of the reform. It does this by removing unnecessary barriers to access for all Western Australians, establishing a streamlined model for the provision of the technology in Western Australia and modernising Western Australia's statutory framework.
It is estimated that around 5% of all Australian births involve some form of assisted reproductive technology (ART) and surrogacy practices. These practices have remained largely unchanged in Western Australia for several decades and are generally regulated through the Human Reproductive Technology Act 1991, the Artificial Conception Act 1985 and the Surrogacy Act 2008. The current legislation, however, is restrictive, forcing Western Australians to travel interstate or overseas to start a family. Since the introduction of the current acts, there have been major advances in reproductive technology and the ART industry itself. The bill contemporises the provision of assisted reproductive technology and surrogacy in Western Australia.
I would ask members to remember that ART has been legal in Western Australia since 1991. This bill should not, then, be considered an opportunity to debate the merits of ART and surrogacy itself; rather, to consider how the legislative framework needs to be changed to reflect updates in technology and the breadth of access to all Western Australians for the provision of this health care. I remind members that, pursuant to the Commonwealth's Sex Discrimination Act, we as a Parliament cannot, and should not, restrict access to care for individuals on grounds such as sex, sexual orientation, gender identity, intersex status, marital or relationship status.
The government would like to take this opportunity to thank a range of people who have supported this bill becoming a reality. Firstly, we would like to thank Surrogacy WA, Equality Australia, Rainbow Futures WA, Gay Dads WA and other community groups that have shared their stories and support for this bill. Although their individual stories and journeys may differ, there is one common thread: these Western Australians wanted to start their own families and they wanted to start them here. Their love for their children and their families is undeniable and they should have had the opportunity to start their families at home, here in Western Australia. This bill will give them, and people facing similar situations, that opportunity.
We know how long the community has been waiting for these reforms. I also want to thank the current Minister for Health, Hon Meredith Hammat; former Minister for Health and now Premier, Hon Roger Cook; and former Minister for Health, Hon Amber-Jade Sanderson, for their work, which has supported this bill becoming a reality.
I will now touch on the background to the bill. There is no doubt that this bill has a significant history. The Assisted Reproductive Technology and Surrogacy Bill 2025 is the culmination of a thorough consultative process to ensure that the specific needs of the community are addressed, and to enable safe and compassionate processes for people seeking reproductive assistance. In 2018, the then Minister for Health, Hon Roger Cook, enlisted Associate Professor Sonia Allan to undertake an independent review of the Human Reproductive Technology Act and the Surrogacy Act, considering a wide range of matters relevant to the operation and effectiveness of the acts. The Allan review report, released in January 2019, recommended multiple areas where Western Australia's existing legislation could be modernised and streamlined. The intention of the 122 recommendations was to simplify and facilitate processes for people seeking access to ART treatments and for the providers of assisted reproductive technology services. In August 2021, the government tabled a response to the Allan review report in Parliament, noting the government's commitment to develop new legislation for ART, including surrogacy, in WA that is modern, fit for purpose and best serves WA needs.
In May 2022, a ministerial expert panel was appointed to undertake further targeted consultation to support the development of potential new legislation for ART in WA. The ministerial expert panel had a broad membership of fertility specialists and medical professionals with experience in reproductive matters, as well as legal professionals. The ministerial expert panel was tasked to consider the implications of recommendations for new legislation, the recommended regulatory framework and areas that may need further consideration. It released a public discussion paper and a regulatory impact consultation statement in 2022 as the foundation for consultation.
In May 2023, the ministerial expert panel's final report was published, with 46 recommendations relating to improving the provision of ART in WA. Shortly afterwards, the government tabled a response to the final report, supporting the majority of the ministerial expert panel's recommendations. In addition, between 2023 and 2025, the Department of Health undertook further targeted consultation with stakeholders, including giving consideration to the potential impacts that the proposed amendments may have on existing services. Stakeholders were broadly supportive of the proposed new ART legislation. Clinics, particularly, supported the removal of redundant approval requirements for certain activities from the Reproductive Technology Council, which will significantly reduce administrative burdens.
I will now give an overview of the bill and its intent. The bill establishes a contemporary model with a responsive and streamlined framework for the provision, regulation and management of all assisted reproductive technologies in WA. It recognises surrogacy as falling within the continuum of assisted reproduction. It protects and emphasises the best interests of ART and surrogacy-born children, the health and wellbeing of ART and surrogacy participants, and the public. In line with the ministerial expert panel's recommendation, the bill will repeal the current Human Reproductive Technology Act, the Surrogacy Act and the Artificial Conception Act, and create a single cohesive piece of legislation pertaining to ART and surrogacy. The bill also makes consequential amendments to other acts, including the Human Tissue and Transplant Act 1982 and the Births, Deaths and Marriages Registration Act 1998.
The bill will implement the government's supported recommendations of the ministerial expert panel. It removes discriminatory barriers and opens up access to ART and surrogacy to couples and individuals struggling to conceive, including members of the LGBTQIA+ community, by removing the requirement of medical infertility. Reciprocal in-vitro fertilisation will now be accessible, along with fertility preservation. The bill will continue to prohibit the commercial trade in human reproductive material and capabilities, including commercial surrogacy.
The bill enshrines additional rights for parties to donor conception, enabling donor-conceived individuals to have access to information about their genetic and social heritage, enabling donors and their intended parents to have access to certain information also, and providing rights to donors regarding consent to continued use of donated reproductive material.
The bill will also reduce regulatory burdens by replacing the WA Reproductive Technology Council with the Assisted Reproductive Technology Advisory and Review Board, which will have an advisory function and limited approval powers.
I will now turn to the specifics of the bill.
Licensing: Parts 2 and 7 of the bill provide for a contemporary administrative and licensing framework under the authority of the chief executive officer of the Department of Health, reducing regulatory burden, including the removal of current requirements for approvals by the Reproductive Technology Council. The bill places mandatory conditions on all licences for providing ART services and also enables the CEO to impose other conditions on a licence-by-licence basis, known as discretionary conditions. The mandatory conditions reflect the paramount duty that ART services are provided in a way that ensures the health, safety and wellbeing of the children conceived via the service, and the people who access and participate in the service. The CEO may impose on a licence only the discretionary conditions necessary for the operation of the new act. The CEO cannot impose a discretionary condition that is inconsistent with a mandatory condition. Part 7, division 6 of the bill gives the CEO powers to investigate whether a person is a fit and proper person to be involved with the provision of assisted reproductive services, ensuring patient safety.
Under this act, the CEO has expanded disciplinary powers. This includes being able to take disciplinary action, such as suspending or cancelling a licence. This will occur when a licensee has contravened this law—for example, by breaching conditions of the licence, failing to comply with compliance notices, or failing to pay fees or penalties. Usually a suspension will be given with advance notice, unless in exceptional circumstances in which the CEO may also immediately suspend a licence for up to three months when there is a reasonable belief of serious contravention of the act.
The bill also provides the option for review if an applicant disagrees with a decision relating to a licence application. It allows for both an internal review process to the CEO and escalation to State Administrative Tribunal review if the applicant is still dissatisfied, allowing for appropriate due process for licensees or applicants.
Accessing ART services: Part 3, division 1 of the bill provides broad access to assisted reproduction based on a clinical assessment and decision. When a person seeks assistance to start a family, the treating medical practitioner must form the view that ART is appropriate, having regard to the person's current and likely future physical, psychological and social circumstances. This part reflects the government's position that access to assisted reproduction should be based on a clinical assessment and decision, and is consistent with the intent of recommendations made by the ministerial expert panel.
The bill makes clear that ART and surrogacy should be available to all persons who seek to access it, regardless of sex, gender identity, sexual orientation or relationship status. It does this by removing discriminatory barriers, including the requirement for medical infertility. The current Human Reproductive Technology Act allows access only to heterosexual couples who are unable to conceive for medical reasons, or whose child would likely be affected by a genetic abnormality or disease, and even then it is restrictive on those couples.
The bill also allows for assisted reproduction procedures to be offered for the purposes of fertility preservation. This includes when collection is needed to provide for the future reproductive options of the participant when they are undergoing medical treatments or procedures that can damage reproductive materials or organs. While a person must be at least 18 years of age in order to access ART, an exception may be made to persons under the age of 18 for fertility preservation.
Clinical requirements: Part 3, division 2 of the bill provides general requirements that a clinic must abide by when providing ART procedures. These procedures must be conducted by qualified persons at licensed premises, with different types of services requiring specialised clinical practitioners as well as other qualified health practitioners. Licensees may also use appropriately qualified health practitioners or authorised practitioners to deliver specific treatments or procedures, with their requirements prescribed in regulations. This will allow doctors, registered nurses and midwives to provide some treatment procedures to support improved accessibility of ART services, particularly in regional areas. This was a specific ministerial expert panel recommendation. The bill also requires a clinical assessment to be conducted of the medical and psychosocial suitability of a person seeking ART services before they may be provided. The bill retains Western Australia's existing worldwide five family limit for using reproductive material from the same donor to create a family. The continuity of this limit was recommended by the ministerial expert panel and provides stability and predictability for donors, families and ART providers. A pathway is available through application and approval by the board if an exception to this limit is sought.
Establishing parentage: Part 3, division 3 of the bill provides the parameters for the parentage of a child conceived or born pursuant to ART in line with the existing presumptions of parentage under the Artificial Conception Act. The definitions previously embedded in the Artificial Conception Act have been updated to reflect contemporary gender inclusive language. Importantly, it also introduces provisions to allow for the recognition of parentage of deceased persons when there has been posthumous use of reproductive material or embryos.
Record keeping and access to information: Part 3, division 4 of the bill will create an obligation to keep prescribed records on a range of matters, including all procedures, consent forms and contact preferences, and identifying information of all participants, including donors. There is an obligation on licensees to provide information to the CEO of the Department of Health for the purpose of the register of identity and the register of ART procedures, which are described in part 5 of the bill. The bill confirms the right of a donor, conceived persons, their parents and donors to have access to prescribed information held by the licensee. Under the current Human Reproductive Technology Act, this right of information is available only to donor-conceived persons born before 2004.
The bill extends this right to all donor-conceived persons and their intended parents. Donor-conceived persons and intended parents will be able to request certain information, if they desire it, from the clinic or the Department of Health. The bill also enables donors to access certain non-identifying information about any births resulting from their donations. Donors will be advised of their rights to this information at donation.
Rights over reproductive material and embryos: Part 4, division 1 of the bill sets out who has the right to control what happens to reproductive material and embryos during the assisted reproduction process. The proposed bill will maintain the status quo, including current provisions that donors may change their mind and withdraw this consent up until the point when the donated materials are used. The bill also sets out who has the right to control what happens to an embryo. For persons providing reproductive material to create an embryo for their own use, the right to determine the management of the embryo vests with them.
Use of reproductive material and embryos: Part 4, divisions 2 to 7 of this bill set out improved processes and requirements for the use of reproductive material and embryos. There are detailed requirements around obtaining consent for the collection, storage and use of reproductive material, embryo creation and embryo transfer, with further consent requirement provided for in regulations where appropriate.
The bill also sets out rights of donors and contributing parents to withdraw consent and the actions a licensee must undertake following withdrawal. This part has been drafted with the intent to ensure that the wishes of the intended parents who have been allocated an embryo or for whom an embryo has been created can be properly captured. These consent requirements will enable management of reproductive materials and embryos in the event of the death, disability or separation of the intended parents. This part also requires the provision of certain information to all participants, including donors and prospective parents to support informed decision-making. Counselling requirements are also established to ensure participants are informed and prepared for the implications and impacts, including social, emotional, physical and psychological, of participating in assisted reproduction and the creation of donor-conceived children. Counselling is mandatory in certain situations, with the details to be prescribed under regulations.
Testing for conditions, genes, disorders: Part 4, division 3 of the bill provides for the creation of an approved list of conditions, genes or disorders that clinics may test for without prior approval. For rare conditions or exceptional circumstances, for example mitochondrial donation, the approval of the board will be required. The genetic testing of embryos for the purpose of gender determination for non-medical reasons will remain prohibited. Posthumous use provisions are entirely new and provide for a contemporary, compassionate approach to circumstances when a person has died and their surviving partner wishes to have a child. Part 4, division 5 of the bill sets out the right of the surviving partner of a deceased person to use the reproductive material or embryo of the deceased in circumstances when consent for posthumous use was explicitly provided prior to death. The legislation contends the right of the surviving partner to use those for their reproductive purposes if desired. Importantly, if the deceased has explicitly stated that they do not consent to use after their death, their wishes must be respected. Where there is no pre-existing consent, such as when someone dies unexpectedly and their reproductive material is subsequently collected, the approval of the board is required. When considering whether to grant approval for posthumous use of reproductive material, the board must consider the wishes and parenting intentions expressed by the deceased, the best interests of any child to be conceived and other requirements as prescribed in regulations.
Transferring, importing, exporting: Part 4, division 6 of the bill deals with the transfer, import and export of reproductive material and embryos. Transfers apply to the movement of embryos or reproductive material between licensees in Western Australia, whilst import and export requirements apply to any movement in and out of the state. A licensee is prohibited from supplying or receiving reproductive material and embryos unless the number of conditions are met, including obtaining informed consent from participants in the process, verifying the age and identity of the donor, and ensuring usage will not exceed the five family worldwide limit unless approved by the board.
Offences: The bill makes it an explicit offence to trade in reproductive material and embryos, consistent with the intent of the ministerial expert panel. Offences are also created, consistent with the current legislation, prohibiting human cloning and the creation of embryos for a purpose other than achieving a pregnancy. Offences also apply to anyone providing false or misleading information to prevent persons avoiding requirements for personal information needed for the register of identity.
Registers to be maintained by the CEO: Part 5 of the bill continues the existing obligation on the CEO under the Human Reproductive Technology Act to keep registers of information related to ART. New provisions are included to mandate that contact preferences of donors are also captured and must be provided to any person eligible to access their information where available. This is to support the rights of people who may not wish to have contact.
Surrogacy: Part 6 of the bill sets out the new surrogacy model for Western Australia, which will benefit from the broader access provisions being proposed. Part 6 also applies to people undertaking traditional or natural surrogacy arrangements without the use of an ART service. Approval from the council will no longer be required for surrogacy arrangements. Instead, parties to a surrogacy arrangement must obtain independent legal advice and counselling about the arrangement prior to any arrangement being made. Furthermore, the arrangement must include details about the intention of the birth parents to carry and deliver the child for others, details on agreed reasonable expenses and other matters as prescribed. This will help ensure that traditional surrogacy arrangements without the involvement of an ART service still meet appropriate requirements to protect all parties and allow for legal parental recognition. Consistent with the current legislation, surrogacy for reward is still prohibited but payment of reasonable expenses incurred during a surrogacy pregnancy will still be permitted.
The bill retains provisions within the current Surrogacy Act that enable the Family Court to make parentage orders to recognise a child's parentage and other orders, including reasonable childbearing expenses. The considerations of the court will differ slightly differ in accordance to when the surrogacy arrangement was made.
Provisions will allow for children born locally or overseas under surrogacy arrangements that were not or could not be approved by the council to apply for parentage orders. This recognises the historical disadvantage of WA's discriminatory surrogacy legislation and provides a remedy pathway for children who do not have adequate recognition of their legal parentage. The court will have discretion to dispense with certain prerequisites for a parentage order if it is in the best interests of the child, in recognition of the unique difficulties of contacting and communicating with birth parents in an international arrangement. The same discretion will apply to overseas surrogacy births that occur within the transitional period of the new act, but only if the surrogacy arrangement was entered into prior to the commencement of this act. However, for children born after the transitional period via a commercial surrogacy arrangement, the court must be satisfied, taking into consideration the circumstances of the surrogate, that the child is facing a significant disadvantage without the parentage order.
Investigation: Part 8 of the bill enables the CEO to appoint certain persons to be an authorised officer under the act and sets out the powers authorised officers have and the processes they must follow. The provisions of this part are congruent with the investigation powers under part 7 of the Medicines and Poisons Act.
Enforcement: Part 9 of the bill provides improved and enhanced enforcement and compliance tools for the CEO as regulator. The new provisions will also help address the limited regulatory enforcement options seen in some other jurisdictions. The CEO will be able to issue compliance notices to the licensee for contraventions or likely contraventions of the act. Enforcement action will be able to be taken for contraventions of the proposed act in line with enforcement provisions under the Medicines and Poisons Act to provide a contemporary framework and improve departmental consistency in regulatory approaches and compliance. A suite of offence provisions and penalties have been drafted throughout this bill following consideration of current offences in the Human Reproductive Technology Act and the equivalent legislation of other Australian jurisdictions. The bill sets out specific offence provisions related to breaches of certain requirements and monetary and imprisonment penalties for breaches depending on the severity and impact of the offence.
Assisted Reproductive Technology Advisory and Review Board: Part 10 of the bill establishes the Assisted Reproductive Technology Advisory and Review Board following the repeal of the current Reproductive Technology Council. The board will support the Minister for Health and the CEO in administering the new legislation. The board will provide advice as requested or on its own initiative regarding critical issues and trends associated with assisted reproductive technology, as well as regulation and governance. It will also provide guidance around surrogacy and ART matters at the request of ART clinics. This will not be legal advice. The board will have a role in approving applications relating to certain forms of genetic testing and posthumous use of reproductive material or embryos. The board will also be able to approve applications for exceptions to the five-family limit and the import or export of reproductive material or embryos in prescribed circumstances.
Transitional provisions: Part 14 of the bill sets out the transitional provisions for legislation on the WA statute book that will be amended by the bill—namely the Artificial Conception Act, the Human Reproductive Technology Act, the Surrogacy Act and associated subsidiary legislation. The bill has been drafted to ensure the delivery of scheduled ART procedures are preserved.
Births, Deaths and Marriages: Part 15 of the bill sets out amendments to the Births, Deaths and Marriages Registration Act to enable greater recognition to be given to persons born through ART or surrogacy. When a child is born as a result of ART or surrogacy, the registrar will be able to record this in the register. Parents of children born to overseas surrogates will also have the ability to have their child's birth registered in WA in limited circumstances. Registration of the birth of a child born via overseas surrogacy can occur only following the issuing of a parentage order by the Family Court of Western Australia. The amendments also provide that when a donor-conceived or surrogate-born person is aged over 16 years and requests a birth certificate, they are notified by the registrar that further information about their birth is available. This is to ensure that these persons are aware of information about the circumstances of their birth.
Posthumous collection of reproductive material or embryos: Part 16 of the bill sets out amendments to the Human Tissue and Transplant Act to clarify and simplify the collection of reproductive material from deceased persons. The bill confers the board with the decision-making power on the usage of the materials. Thus, designated officers will be able to collect materials upon the death of a person, and the board will decide on the use of those materials. This will clarify requirements for clinics and minimise the distress on partners and families during an already difficult time.
Minor consequential amendments: Part 17 includes minor consequential amendments, largely being replacements of references to the repealed acts with a reference to this act or definitional changes to match this act.
In conclusion, the reform of ART laws in WA is long overdue. This is very important to our government and the people of Western Australia. Importantly, this bill removes barriers to access and reflects the progression of the social and ethical consensus of the people of Western Australia. It is evident that change is required and that better ART services could be provided to the Western Australian community. This bill will do so by embedding principles and objectives that make paramount the best interests of persons born through ART and protecting the rights and best interests of all parties accessing reproductive technologies and support. I would again like to thank everybody who has contributed to the making of this bill.
Pursuant to standing order 126(1), I advise that this bill is not a uniform legislation bill. It does not ratify or give effect to an intergovernmental or multilateral agreement to which the government of the state is a party; nor does this bill, by reason of its subject matter, introduce a uniform scheme or uniform laws throughout the Commonwealth.
I commend the bill to the house and table the explanatory memorandum.
(See paper 616.)
Debate adjourned, pursuant to standing orders.
