Kate Emery: Fixing WA’s outdated surrogacy laws will finally give families their happy ending

Nadeen Laljee-Curran welcomed her daughter into the world seven years ago after a long battle with infertility. That’s a sentence that sounds like a happy ending: the conclusion to a painful, emotionally-fraught and (trust me) expensive saga. If Nadeen’s life was a movie this is the moment it would end: a tiny hand curling around her mother’s finger to lead us straight into the credits. But although that seven-year-old girl is the biological daughter of Nadeen and her husband Jason and it is their names listed on her Californian birth certificate, they are not recognised as her parents. That’s because their daughter was carried and birthed by a willing surrogate in the US, where commercial surrogacy is legal. And under WA’s existing surrogacy laws, that’s a problem. “In the eyes of West Australian law (our daughter’s) ‘parent’ is still our surrogate, but that doesn’t make any sense because she (the surrogate) has gone to a Californian court of law to say she renounces her legal rights and is not a parent,” is how Nadeen explained it to this columnist. “So if my surrogate is not her parent and my husband and I aren’t her parents, is she an orphan? My child, in Western Australia, has no parents.” In practice, the lack of legal recognition has little effect on everyday life: Nadeen and Jason still make all the decisions that parents should make, from what school she should attend to how much screen time is permissible on weekends. But it is the “what-ifs” that keep them up at night. WA’s proposed new Assisted Reproductive Technology Bill might be Nadeen’s actual happy ending. The Bill, debate on which started in Parliament last week, is intended to modernise the State’s laws around surrogacy and in-vitro fertilisation (IVF). That would not only mean making parental rights recognition possible in cases like Nadeen’s but changing another contentious part of the existing law that amounts to a ban on gay or single men having a baby via surrogate. WA is the only place in Australia where gay men and single straight men cannot use a surrogate to have a baby. (WA’s existing legislation, among other things, requires someone to prove infertility to get the IVF required for surrogacy). The State Government, to its credit, has been trying to change these laws for a long time. The last effort in 2019 was scuttled by the efforts of conservative Christian Liberal powerbroker Nick Goiran. These latest planned changes will not open the door to commercial surrogacy but will make it easier for West Australians to access altruistic surrogacy — the only kind allowed in this country. More than 200 babies are born via overseas surrogate to Australian parents every year. Cale Byrne-McLean and his husband Matt are another Perth couple who have been waiting too long for this Bill. Together for 11 years and married for three, Cale and Matt have always wanted to have kids. “Pretty much from our first date we discussed kids and we both said we really wanted our own family,” Cale said. The discovery that starting their own family in WA was not an option came as a shock. “We were really upset and pretty devastated about it and were seriously considering doing surrogacy overseas,” he said. “It’s been such a drawn out process and can’t believe it’s taking so long. We’ve been ready to start our family for years.” This new Bill is both overdue and reflects what modern WA families look like. It would be a shame if a conservative, religious minority is able to (again) hijack this debate, a possibility given the Government does not have a majority in the Legislative Council. Does the average West Aussie care all that much if a kid has a mum and a dad, two dads or a single parent so long as they have a loving home? I don’t think so, although the exceptions are welcome to send me their best arguments, which I can store in my circular file. No parent with a heart who knows how meaningful a gig it can be would willingly deny sleepless nights and poonami nappy explosions to someone who wants it enough to perform the Simone Biles-worthy gymnastics required to make surrogacy happen. And nobody who has seen abuse or neglect in a seemingly picture-perfect nuclear family can be small-minded enough to believe that the presence of a mother and a father is what guarantees a happy childhood.