DUNN -v- WA REPRODUCTIVE TECHNOLOGY COUNCIL [2026] WASCA 65

This decision concerned whether provisions of the Surrogacy Act 2008 (WA) unlawfully prevented a same-sex male couple from accessing parentage orders under a lawful surrogacy arrangement, and whether those provisions were inconsistent with the Sex Discrimination Act 1984 (Cth). The case raised significant issues regarding statutory interpretation, discrimination, and constitutional inconsistency under s 109 of the Australian Constitution.

The applicants were a married same-sex male couple (the intended parents), together with the surrogate, her spouse, and the egg donor. The parties entered into a surrogacy arrangement that complied with the procedural requirements of the Surrogacy Act 2008 (WA).

Before a parentage order can later be made by the Family Court of Western Australia, the arrangement must first receive approval from the WA Reproductive Technology Council. Although the Council accepted that all procedural requirements had been met, it refused approval because the intended parents did not satisfy the statutory definition of an “eligible couple.” Under s 19 of the Surrogacy Act, an eligible couple was limited to two people of opposite sexes who were unable to conceive for specified medical reasons. As a same-sex male couple, the applicants were automatically excluded from applying for a parentage order.

The applicants sought judicial review on two grounds:

1. They argued that the Council had misconstrued its powers by treating the eligibility requirements for obtaining a parentage order as preventing it from approving the surrogacy arrangement.
2. They contended that the exclusion of same-sex couples from eligibility constituted unlawful discrimination contrary to s 22 of the Sex Discrimination Act 1984 (Cth).
3. They argued that, because the Family Court provides a service when considering applications for parentage orders, the State legislation required the Court to discriminate against same-sex couples based on their sexual orientation. As Commonwealth law prohibits such discrimination, they submitted that the inconsistent provisions of the Surrogacy Act were invalid to that extent under s 109 of the Constitution.

The majority comprising Mitchell and Archer JJ held that s 17 of the Surrogacy Act did not make approval of a surrogacy arrangement conditional upon the arranged parents already satisfying the eligibility requirements for a future parentage order. Instead, the Council retained a discretion to approve or refuse an application, but it incorrectly believed it lacked legal power to approve the arrangement. This constituted a jurisdictional error of law.

The majority further held that the Family Court, when determining applications for parentage orders, was a “person” providing “services” for the purposes of s 22 of the Sex Discrimination Act. By preventing same-sex couples from applying for parentage orders while allowing eligible opposite-sex couples to do so, the Surrogacy Act required the Family Court to discriminate on the basis of sexual orientation.

The Court concluded that this State law directly conflicted with the Commonwealth prohibition on discrimination. Accordingly, s 109 of the Constitution rendered the discriminatory provisions of the Surrogacy Act inoperative to the extent of the inconsistency.

The Court allowed the application, quashed the Council’s decision, and remitted the matter for reconsideration according to law.

The decision is significant because it confirms that Commonwealth anti-discrimination legislation prevails over inconsistent State legislation under s 109 of the Constitution. It also clarifies that statutory decision-makers must properly understand the scope of their powers and that same-sex couples cannot be excluded from access to parentage orders where such exclusion would require unlawful discrimination under Commonwealth law.