Western Australia’s Assisted Reproductive Technology and Surrogacy Bill 2025 (the Bill) passed through the Legislative Assembly on 16 September and is now before the Legislative Council. What might be framed as progressive healthcare reform is actually a case study in industry capture of legislative process, where those who profit from surrogacy are trying to write the rules that would govern it.
If passed, this legislation would further diminish women’s rights in Australia, yet those most affected — women — have been systematically excluded from its development. The story of how this Bill has been crafted reveals much about how laws affecting women are being made in Australia; and recently, that has been through processes that breach our international obligations under CEDAW Article 7 and sideline those who would be most impacted.
Review without women, riddled with conflicts
The Ministerial Expert Panel tasked with reviewing WA’s surrogacy laws was chaired by Professor Roger Hart, a fertility clinic director with clear commercial interests in the outcome. That panel was dominated by assisted reproductive technology industry representatives, medical professionals who profit from ART procedures, and legal practitioners specialising in fertility law.
Notably absent, though, were independent women’s rights advocacy groups, children’s rights organisations, social workers with expertise in exploitation, and ethics experts free from commercial conflicts of interest. When an industry reviews its own regulatory framework, the outcome is predictable: fewer restrictions, more business opportunities, and weaker safeguards for those who might be exploited — and in the case of surrogacy, that most fundamentally means women.
Unlike other Australian jurisdictions that have used independent scrutiny safeguards (see Victoria, Queensland, and even the Australian Law Reform Commission’s current national review) — Western Australia chose to bypassed these safeguards entirely. No parliamentary committee examined the Bill before its introduction, and no comprehensive public consultation gave affected communities time to analyse and respond to the proposed changes.
What the Bill would change
The proposed legislation would consolidate Western Australia’s framework by repealing three separate Acts and abolishing the Reproductive Technology Council in favour of a new advisory board with reduced oversight powers. The changes would go far beyond administrative tidying: Surrogacy eligibility would expand to include single men, whilst the previous requirement to demonstrate medical infertility would disappear in favour of a clinician’s broad discretion. Arrangements with surrogate mothers outside Western Australia would become explicitly permitted, with no requirement that surrogate mothers be WA residents.
Most significantly, the Bill would eliminate pre-conception approval processes and replace them with post-conception validation through counselling and Family Court orders — shifting from prevention to damage control. For the first time, intended parents and licensed clinics could advertise publicly for surrogate mothers, turning what was once carefully regulated into an open marketplace. The legislation would set the minimum age for surrogate mothers at just 18 and remove the requirement that they have previously given birth, changes that would materially expand who could be recruited as surrogate mothers whilst reducing experience-based safeguards. Below is a quick snapshot of the Bill’s most harmful provisions:
- Elimination of pre-conception approval safeguards
- Replacement of ex-ante review with post-conception validation via counselling and Family Court orders
- Public advertising for surrogate mothers, including 18-year-olds
- Removal of the requirement that surrogate mothers have previously given birth
- Expansion of eligibility to single men and overseas surrogates with no residency requiremen
Women’s missing voices, captured process
Women’s rights groups finally learnt of this Bill in August 2025 after its introduction to Parliament, fully formed, and with no exposure draft. The Western Australian Women’s Action Alliance (WAWAA) immediately contacted all members of the WA legislature, alerting each and every one to the lack of democratic process that characterised the Bill’s development. The response from opposition and crossbench members was immediate: phone calls within minutes, detailed conversations, and requests for briefing materials, all of which revealed how little independent analysis parliamentarians had received through government channels.
The contrast with the government’s consultation was stark. Women’s advocacy organisations seeking the abolition of surrogacy were never approached. And groups with expertise in violence against women, reproductive exploitation, and children’s rights were absent from the review process. Instead, since the introduction of the Bill, parliamentarians have reported to us receiving more correspondence supporting the Bill than they have opposing it; this appears to reflect the organised lobbying of commercial and activist interests rather than broad community sentiment. This manufactured majority amounts to little more than ‘the democratic majority of my inbox’ that MPs cite to legitimise positions on morally uncertain ground.
In campaigning to balance this absence of women’s voices, WAWAA has successfully secured Questions on Notice through opposition members, asking detailed questions about the consultation process, panel composition, and the absence of independent review. At the time of writing, however, these questions remain unanswered: a telling silence that speaks to the government’s discomfort with scrutiny of its process.
The broader pattern of democratic failure, international breach
This pattern of excluding women from consultation echoes recent legislative processes across Australia. New South Wales recently established a Legislative Council Select Committee on Fertility Support and Assisted Reproductive Treatment, which has been criticised for failing to identify feminist organisations as essential stakeholders for women’s interests and for prioritising personal stories over structural analysis.
Even the previously mentioned Australian Law Reform Commission’s national review of surrogacy laws, with its final report due 29 July 2026, frames the issue primarily around ‘reducing barriers to domestic altruistic surrogacy’ rather than examining whether surrogacy itself constitutes exploitation. The terms of reference presuppose that surrogacy should be facilitated rather than questioned, a framing that predetermines consultation outcomes before affected women can even participate.
The systematic exclusion of women’s advocacy groups from consultation on legislation in WA and elsewhere that would fundamentally affect women’s bodies and reproductive autonomy represents more than poor process: it constitutes a breach of Australia’s obligations under CEDAW Article 7, which requires states to ensure women’s meaningful participation in policy formulation and implementation.
What MLCs should do now
As this Bill reaches the Legislative Council, members hold the power to stop it in its tracks and demand deeper scrutiny before a final vote. Here are what MLC’s can do:
- Require a public exposure draft and formal consultation period, giving women’s rights groups the chance to participate in shaping the legislation.
- Insist on impact assessments that quantify risks to women’s rights, health, and autonomy, rather than rely solely on industry-driven reports.
- Move the Bill to a committee for detailed clause-by-clause scrutiny, ensuring expert and community input before any further progress.
- Cross-bench with other members to table a motion for a joint parliamentary inquiry, broadening oversight beyond a single committee.
- Publicly declare their vote, demonstrating accountability to constituents and putting industry lobbying on record.
Taking any of these steps would demonstrate commitment to democratic process and to women’s rights, rather than bowing to commercial interests.
Making better law
Women’s advocacy has proven that when given the opportunity to engage, we provide sophisticated analysis that enhances democratic debate. The challenge is ensuring such opportunities are embedded in legislative processes from the outset — and in line with our international obligations — rather than having to be fought for after commercial interests have already shaped the agenda.
The Western Australian Legislative Council still has the opportunity to send this Bill to committee for proper scrutiny, ensuring that those most affected by surrogacy laws finally have our voices heard. Anything less would represent a continuation of the democratic failure that has produced this legislation — and a betrayal of all women who would live with the consequences of further erosions of our rights.
