WA’s weird same-sex surrogacy ban

It’s a bustling Sunday morning in Perth’s city. The sun is bright but not too warm as I sit inside a small cafe, waiting for an old friend to arrive. 

A week ago I posted on Instagram about the current same-sex surrogacy laws in WA that restricts homosexual couples and single men’s access to surrogacy – hoping that someone would want to talk about it.

Liam McKenzie in his yellow button-down. Photo: Harriet Flinn. 

Liam McKenzie, 23, replied almost immediately, with a brief but urgent message to meet up. 

Ten minutes have passed. I notice a flash of yellow at the corner of my eye. I look up to a familiar 6 foot 2 gentle giant who greets me with a warm hug. He apologies for his timing, collapsing into his seat with a sigh, and almost immediately words start pouring out.

“I can’t believe I’m only finding out about this now.”

I let him finish his sentence, as the sun follows a stream of light through the cafe’s arched windows. 

“Of all places, I wasn’t expecting it to be WA. Of all places!” 

McKenzie isn’t alone in this feeling. In fact, he is one of many LGBTQIA+ individuals living in WA, directly affected by the laws that prohibit homosexual couples and single men to access Assisted Reproductive Technology.

Ultimately, same-sex couples intending to raise a child have two options: Adoption or ART. And although adoption is a widely recognised and respected choice, ART, on the other hand, allows for at least one member of a same-sex couple to be genetically related to the child, which is often why it is the preferred route. 

However, same-sex couples in WA do not have the privilege of this preference. 

Associate Professor of Health Law at Deakin University Dr Sonia Allan says it is not permitted to discriminate against people based on sexual orientation, gender identity or interstate status. 

Part One of Sonia Allan’s comprehensive Independent review. Photo: Supplied.

“Looking at laws that allow access to some people and not to others, it is discriminatory.” 

In 2019, Allan was commissioned to write an independent review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008. It was the first comprehensive review of the two pieces of legislation since their enactment. 

Currently, the WA Surrogacy Act 2008 only permits “two people of opposite sexes who are married or in a de facto relationship with each other” to access surrogacy.

Throughout the last decade, other Australian territories have revised the laws around ART, enabling same-sex couples and singles to access it. 

But WA still hasn’t. 

Allan made a total of 122 recommendations that suggested the WA Government should develop new laws for improved access to altruistic surrogacy, for those experiencing likely-infertility, as well as same-sex couples, single men, transgender, and intersex people. 

But that was in 2019. It’s been three years since, and no real progress has been made. 

Liam is eyeing up my pastry and looks up at me, bewildered. 

“Why is WA the only state with these laws?”

“I don’t know,” I reply. 

I offer him a piece of my cinnamon scroll, and he accepts without hesitation. But before it can reach his mouth, he pauses. 

“You know, it really makes me believe that maybe this isn’t my city … even though I love Perth, maybe this isn’t where I start a family, if it means I can’t be the person I want to be.” 

Sarah Jefford with the two dads and their child, who she was a surrogate for in 2018. Photo: Supplied.

Although a number of Western Australians have been protesting for a change in these laws, there are still some who are only finding out about them now.  

Family creation lawyer Sarah Jefford has been helping families across Australia with surrogacy, donor conception and co-parenting since 2005, and says a lot of her gay clients living in WA are taken aback by the current laws in place.  

“Once they start researching surrogacy, they come to my website and find out they can’t even do it in their own state. It comes as quite a shock to them,” says Jefford.

“I’ve had a few clients that have relocated out of WA, and that’s not even uncommon. Sadly, people will pack up and leave because they want to create a family and the only way to do that is to move interstate.”

Lukas Robbins and his partner Chris Gerrard have been together for two years, and are currently living in the UK with Robbin’s two adopted sons. 

In 2001, while living in Perth, Robbins came out as gay. But like many, it wasn’t an easy process for him, and WA’s laws didn’t soften the blow.

The result from asking 50 university students whether they thought gay couples could legally access surrogacy in WA. Graph: Harriet Flinn.

“I held off coming out, purely because I didn’t know how to balance having a family as well as being gay.

“It scared me, because I thought ‘if I’m gay, I can’t have kids’.”

Lukas Robbins

“I had to balance whether I leave, or whether I stay there and be unhappy. Or I stay there and not come out at all, and have a family with a woman.”

In 2004, Robbins made the decision to leave Perth and move to Sydney, allowing himself to live a life of self-acceptance and freedom. 

Since then, 18 years have passed and the couple want to return to Perth, to further extend their family through surrogacy. But hope is running thin. 

“We’re giving it a few more years to see if anything changes, but it really shouldn’t be this hard, that we have to go through all this, just to have a family.” 

Lukas Robbins with his partner Chris Gerrard, and his two sons. Photo: Lukas Robbins.

I ask Liam if he had always wanted children. 

“Always! Even before I knew I was gay, I knew I wanted kids. I want like five of them!

Liam’s eyes are wide with excitement, but his smile slowly fades. 

“It’s funny, I honestly thought that when gay marriage was legalised, that was going to be the last hurdle and everything would just kind of fall into place. 

“Now I’m going to have to fly five times interstate or overseas for five seperate surrogacies?” 

A surrogacy clinic in Perth. Photo: Harriet Flinn.

Although these laws tend to come as a shock to many same-sex couples, it also comes as a surprise for those intended altruistic surrogates, who are willing to help gay couples living in WA to start a family of their own. 

Melanie Young, 39, has been a surrogate twice for a same-sex couple located in Melbourne. However, Young’s original surrogacy plan looked a bit different. 

“I had already met a gay couple in WA that I intended on being a surrogate for, and we had already started talking, already had connected. Until we found out that it was illegal,” Young says.

“It was quite upsetting experience and they eventually decided to move to New Zealand to pursue surrogacy over there. 

“We’re being told who we can and can’t help. It’s ridiculous.”

Melanie Young

When 30-year-old Hayley Malcom started doing her own research into becoming a surrogate, she also found herself questioning WA’s laws.  

“It’s been something I’ve always wanted to do, and I knew I wanted to do it for two dads because there’s really no other option for them. 

“So I was really upset when I found out. I never would’ve thought this to be a law. It’s very backwards.”

Out of 141 of Jefford’s surrogacy arrangements in 2021, almost half involved two fathers, Graph: Sarah Jefford.

Altruistic surrogacy is one type of ART, in which the surrogate does not receive monetary compensation. In many cases, the surrogate is a close relation to the intended parents, which according to Allan, can lend itself to a healthier child/parent relationship. 

“If you say you want the primary focus to be on the child, then [for that child] to know its birth mother and have some relationship with them in some way has a much better outcome for the child,” Allan says. 

“But if these couples believe their only option is to go overseas and pay for a surrogate, there is a far less likely chance for those mothers to be involved in their child’s life.”

Young mentions the alternate routes in which Western Australian same-sex couples are attempting to find ways around the law, but are evidently struggling to do so. 

“I’ve even heard of some couples over here, that have tried to go around the process by doing it themselves, like at home artificial inseminiation, but then they can’t put in proper parentage orders, and they then have to go through adoption channels,” Young says.

It’s with these lack of alternative options, that many same-sex couples decide on travelling overseas, in a last resort to find a surrogate. 

But with this decision, the intended parents are now entering into the commercial surrogacy world, which according to Allan, can present a totally new, and sometimes extremely unpredictable situation. 

“Many couples travelling overseas [for a surrogate]  find themselves in a very murky world.”

Sonia Allan

“Often the woman acting as a surrogate overseas is because she is impoverished, which then affects her decision making.”

A surrogacy clinic in Perth. Photo: Harriet Flinn

Allan says that although these couples don’t have to go overseas, the desire to start a family often overshadows the reality of the situation. 

“They have an option, and they go for it. But once they’re in the commercial world overseas, where they have women chasing between prostitution and surrogacy… it changes the nature of what it is to build a family.”

“I like this place, you know it’s a queer cafe?” McKenzie says. 

It’s a reposeful place, with the smell of freshly ground coffee lingering in the air. 

“I’m still confused,” he says, “If women in WA are wiling to be a surrogate, and gay couples are wanting to have children, then why does the government have any control over that? 

“Why can’t they just build our roads, our hospitals, our schools? They don’t need to get involved with people’s personal relationships.”

In the past, individuals have attempted to take the WA government to court by arguing that the law breaches the Sex Discrimination Act 1984.

But the reality is that many intended parents don’t have the time, funds or energy to go through the very lengthy process of prosecuting a government.

“Often what happens is intended parents are on a one way route to parenthood, so when something pops up that stops them doing that they don’t really have time to issue processes against a government in hopes that it will help them,” says Jefford. 

“They’re not here to reform the law, they’re here to grow their family.”

Sarah Jefford

Robbins and Gerrard have just sold their house in the UK, and are readying themselves for a new life in Perth. But what should be a pleasant and comforting return to Robbins hometown, is clouded with a nervous hesitancy the pair can’t seem to shake.

“It scared us coming home, because we think: Are these laws ever going to change?” Robbins says.

“And if it doesn’t, then do we move to the eastern states, or stay in the UK?”

In response to Allan’s independent review, the Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018 was introduced to the Legislative Assembly in August of 2018.

The Bill was passed by the Labor-dominated lower house, but it ran aground in April 2019 in the upper house when Liberal Party MP Nick Goiran delivered a nearly 24-hour filibuster speech, one of the longest in WA’s Parliament’s history.

At the end of his speech, Goiran moved a motion to have the Bill discharged and referred to the Standing Committee on Legislation, that would delay it by 4 months.

A majority in the upper house voted for Goiran’s motion, but notable exceptions included ALP MP Sue Ellery, who told the parliament on April 10 2019, that “no committee can resolve the policy of the bill and determine whether members support surrogacy being accessible to single and gay men.

Greens MP Alison Xamon also opposed the motion in parliament, stating that “I am firmly of the view that gay men are able to be wonderful, loving parents and that a man on his own is able to be a wonderful, loving father.”

“There are obviously strongly held views around this, and no committee will be able to resolve that,” Xamon said.

Goiran spent a total of 22 hours discussing the bill in the Upper House. Photo: Supplied.

However, by the end of debate, MP Nick Goiran got the support of 18 upper house members (including himself) and defeated the 17 members who voted against him. Thi sent the Bill off to a committee, delaying it by four months.

After four months the committee produced a report that made several recommendations to amend the Bill. However, the government did not bring the Bill back for debate for the remainder of their term of government.

In May of this year, Health Minister Amber-Jade Sanderson appointed a panel of experts to assist with the development of new legislation.

This has been the only development since 2019, but this time the ALP controls both houses of the WA parliament and so perhaps it won’t meet the same fate as the last Bill.

Allan urges Western Australians to not lose hope, and continue their efforts in protesting for these fundamental changes.

“We’ve had COVID-19 and floods and fires and assisted dying. Uuless you have people getting in touch with local MPs and asking ‘why hasn’t anything happened?’ it either falls off the radar or gets pushed down the list, you need stories and the press, because it’s so clearly discrimination,” says Allan. 

“Unless you have that lobbying, and voice that keeps going back and saying ‘what are you doing?’ nothing will get done.”

Sonia Allan

It’s around 11:30am when we eventually step outside the cafe. The weather has warmed up, and McKenzie takes off his yellow button down, flinging it across his shoulder.

“You know, you’d expect people to know about laws that directly relate to them, but I really had no idea about this one, he says, looking straight forward.

“There should be more people upset, or demanding action, or signing a petition.”

He turns to me with a weary gaze.

“Just something. Anything would be better than nothing.”