Western Australia Approves Its First Same-Sex Surrogacy, After a Three-Year Legal Fight
A gay couple from Esperance spent three years fighting Western Australia's surrogacy law before winning. A separate law already on the books will make their route the default for everyone else, starting mid-2027.
In August 2026, Trent and Brad Dunn became the first same-sex couple approved for a surrogacy arrangement by Western Australia's Reproductive Technology Council, after a three-year legal fight that ended with the state's Court of Appeal ruling, 2-1, that the Surrogacy Act 2008's heterosexual-only eligibility rule breached federal anti-discrimination law. Their win is a court decision about their specific case, not a change to the underlying statute — but Western Australia has separately already passed a full legislative reform, the Assisted Reproductive Technology and Surrogacy Act 2025, which removes the heterosexual-only restriction for everyone once it takes effect in mid-2027. Until then, other same-sex couples and single men in WA likely need to follow the same legal-challenge route the Dunns did, which is why the couple is now sharing their own legal template with the community to lower that cost for others.
What happened
Trent and Brad Dunn, from Esperance in Western Australia, first took their case to court about three years ago, after being told the state's Surrogacy Act 2008 required intended parents to be a heterosexual couple. They challenged that restriction, and won: the Court of Appeal of the Supreme Court of Western Australia found, in a 2-1 majority decision, that requiring the Family Court to enforce a heterosexual-only rule breached federal anti-discrimination law.
That ruling cleared the way for WA's Reproductive Technology Council to approve their surrogacy arrangement — the first time the Council has approved one for a same-sex couple. Treatment was beginning as their story became public in mid-August 2026.
“This home will be safe, this home will be loving, and this home will be nurturing,” Brad said. On the years the fight took: “For a lot of people... time’s really precious, time’s really crucial.”
Two different things happened at once, and it matters which is which
It's easy to read this as "Western Australia legalized same-sex surrogacy," but that's not quite what happened yet. The Dunns won a court case about their own arrangement. The Surrogacy Act 2008 itself hasn't been struck down or rewritten by that ruling — it's still the law on the books today, for anyone who isn't the Dunns.
What actually rewrites the rule for everyone is separate: the Assisted Reproductive Technology and Surrogacy Act 2025, which WA's Parliament already passed in December 2025. It just hasn't taken effect yet — that happens in mid-2027.
Until then, other same-sex couples and single men in WA are technically in the same position the Dunns were in three years ago: the old restriction is still formally in force, even though a court has now found it discriminatory in at least one case. The Dunns say they're sharing a template of their own legal documents with the LGBTQIA+ community specifically to lower the legal cost of anyone else who wants to take the same route before mid-2027.
What the new law actually changes
The Assisted Reproductive Technology and Surrogacy Act 2025 is a bigger overhaul than just removing the heterosexual-only rule. A few of the more significant changes: it abolishes the Reproductive Technology Council's role approving arrangements in advance; it removes the requirement that intended parents prove a medical or social need for surrogacy, which previously meant demonstrating an infertility history even when that wasn't really the point; and it permits intended parents and licensed clinics to actively advertise for a surrogate, reversed from the previous restriction.
It also adds real structure that wasn’t clearly required before: mandatory counselling, independent legal advice for both parties, a written agreement, and a "Relationship Plan" setting out how the parties intend to relate to each other and the child going forward. Commercial surrogacy stays illegal — the new law keeps WA, like the rest of Australia, altruistic-only; a surrogate can be reimbursed for actual expenses, not paid a fee.
What this means if surrogacy is on your radar in Western Australia
If you're a heterosexual couple, nothing about your access changes here — that was never restricted. If you're a same-sex couple or single man, the honest picture right now is a gap: the discriminatory rule is still formally in force until mid-2027, but a court has already found it unenforceable in at least one specific case. Talk to a WA family lawyer about what that actually means for your own situation before assuming either "it's settled" or "nothing's changed yet" — both are oversimplified.
Once the new Act takes effect in mid-2027, the process gets genuinely simpler for everyone: no pre-approval council, no proof of medical necessity, and the ability to advertise for a surrogate rather than relying entirely on personal networks — WA has had this restriction on advertising in place for as long as the guide format on this site has existed to explain it.
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