Gay couple in Perth consider legal challenge against archaic WA law

wa labor premier mark mcgowan november 2021
Image: YouTube

Perth gay couple Scott Corbett and Chris Brain say they’re considering a legal challenge to laws banning gay couples from surrogacy in Western Australia.

In Australian states and territories, only altruistic surrogacy is legal. This means a surrogate who agrees to carry a couple’s baby can’t be paid.

But Western Australia is the only place in the country that does not allow same-sex male partners to have a baby via surrogate at all.

The state’s Surrogacy Act 2008 restricts eligible surrogacy clients to “two people of opposite sexes who are married or in a de facto relationship with each other”.

However Scott and Chris didn’t know this until several local agencies rejected them.

The couple told The West Australian thought the most challenging aspect of becoming dads would be finding a surrogate and the high cost of IVF.

“We never thought that the law would be the reason that we can’t,” Corbett said.

“We just thought money and time and finding the right person. So it was a bit of a surprise for us. That’s when we started doing some research.”

Changes to WA gay surrogacy laws ‘can’t come fast enough’

The WA Labor government supports changing the law to allow altruistic surrogacy for male same-sex couples and single men.

In 2018, the government passed a bill through the state’s lower house. But it failed to pass the Upper House due to a Liberal MP’s lengthy filibuster.

The legislation did not pass prior to the 2021 state election, which WA Labor won in March.

In August, Health Minister Roger Cook said the state government was committed to “supporting more Western Australians to start a family or expand their family with help from assisted reproductive technology”.

“We are committed to develop new laws that carefully balance the needs of the parent or parents, intended parents, and the best interest of the unborn child,” he said.

“For some, the changes can’t come fast enough.

“I want to assure these people we are committed to introducing new legislation to Parliament during this term of government.”

A spokesperson for Cook said the Government remains committed to reforming the law.

They said a ministerial advisory panel would be established by the end of this year.

Gay couple moving to ACT to start family

Scott Corbett and Chris Brain say they can’t wait. The pair are now bringing forward a planned move to Canberra and starting their family there.

They told The West Australian they had spoken to the state government about the issue, but still want to pursue a legal case.

If they do, they’d argue the laws unlawfully discriminate against them by denying them access to IVF and surrogacy services because of their sexual orientation.

“It was always kind of the plan to have kids,” Chris told the publication.

“We came up against a roadblock that we didn’t expect to be there.

“It just feels a bit like sitting in this place of stagnation. Like being stuck at the starting point and then not being able to move forward.”

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  1. Paul Mitchell
    9 December 2021

    Federal law overrides any state or territory law, due to the Australian Constitution section 109. The Sex Discrimination Act explicitly include “sexual orientation” since 2013 – so yes challenge the archaic & discrimatory WA surrogacy law! ➡️

  2. Gallimore
    9 December 2021

    It’s sad that in 2021 we are so far behind.
    Should get Elton John to step in and support this case.
    In Queensland we don’t have Sexual orientation Law’s Protecting LGBTQI people from discrimination.
    Kill the Australian Christian Lobby Discrimination bill , how unchristian can Christians be. Jesus Christ was about Love not HATE.

    • Sten Hård
      10 December 2021

      Not true with regard to anti discrimination law.
      The following QLD Acts forbid discrimination on the basis of sexuality.
      1. Anti-Discrimination Act 1991
      2. The Human Rights Act 2019

      Even if these acts did not exist QLDers would be covered by Federal Anti-Discrimination law.

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