AN amendment to give same sex couples legal access to gestational surrogacy was rejected by the Upper House last night.

Labor MLC Ian Hunter introduced an amendment to the surrogacy Bill that would allow anyone who had been in a domestic relationship – including those in a same sex relationship – access to gestational surrogacy, on the grounds of making the Bill non-discriminatory to gay couples.

The Legislative Council last night passed the Bill to allow gestational surrogacy, which is a medical process usually used as a last resort when a woman cannot carry a child.

The practice was illegal in South Australia, but allowed in the Australian Capital Territory and New South Wales.

Under the procedure, a fertilised egg is implanted in a surrogate, who carries the child.

Upon birth, the surrogate relinquishes the child to the commissioning couple.

The surrogacy Bill was introduced by Liberal MLC John Dawkins in 2006 following reports that couples had travelled interstate to have the treatment, only to return home to face legal issues.

At the time, it was reported that some parents were so desperate to get their child legally recognised, they were committing medical fraud.

Mr Hunter said although it would be unlikely for gay couples to ever use gestational surrogacy, it was not fair to write legislation that discriminated people on their sexuality.

"We thrashed out the domestic partners bill in this place two years ago, giving same sex couples legal wrights, and now to have new legislation that is discriminatory towards them is just deplorable," he said.

Mr Hunter who chaired a social development committee investigating gestational surrogacy and has previously supported the legislation, said he could not vote for it if his amendment was defeated.

The amendment was easily defeated with all Liberal members, some Labor including Carmel Zollo and Bernard Finnigan and Family First voting it down.

It was supported by Labor MPs Mr Hunter and John Gazolla, Greens MLC Mark Parnell, Democrats Sandra Kanck and Independent Ann Bressington.