Legislation around Australia

The Commonwealth Government of Australia cannot universally legislate for reproductive technology practice. Therefore each state and territory is responsible for designing and implementing separate legislation. This has resulted in laws and practices that differ from state to state.

New South Wales

There is currently no specific legislation that encompasses reproductive technology. However clauses in the Human Tissue Act 1983 (NSW) do incorporate some aspects. The NSW government has released a discussion paper that canvases the need for legislation to govern reproductive technology practice and research.  The report from the consultation around this paper is expected early in 2000.

NSW has no current legislation regarding surrogacy and it is thus not specifically prohibited but operates under the National Health and Medical Research Council ethical guidelines and the regulation of Institutional Ethics Committees.  The NSW Law Reform Commission Report (1988) recommended commercial surrogacy be prohibited by law and non-commercial surrogacy not be encouraged.  As in all states of Australia, when surrogacy agreements are made, the birth parents are lawfully deemed to be the legal parents.

Apart from these instances, New South Wales' reproductive technology units currently rely on the National Health and Medical Research Council's recommendations for rulings on reproductive technology issues.

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Victoria

The Victorian Government introduced their Infertility Treatment Act 1995 (Vic) in 1995 and it was fully proclaimed in 1998, following amendments which were passed by the Parliament in 1997.  This act requires that to access treatment, a couple must be in a heterosexual de facto relationship, and considered by their doctor to be infertile, or wishing to prevent the transfer of a genetic abnormality or disease.  Recipients of treatment must be provided with information which is prescribed in the regulations, and receive counselling from a counsellor approved by the Infertility Treatment Authority.  Informed consent must be given to the treatment proposed, by the woman and her spouse.

The Infertility Treatment Authority licenses places where treatment is provided and approves doctors, embryologists, research scientists and counsellors.

The Victorian legislation contains specific clauses that regulate how long reproductive material such as eggs, sperm and embryos can be stored. For example gametes (eggs and sperm) can be stored for ten years and embryos for five years. However, owners of the material are able to apply for an extension of the storage period.

Since 1 January 1998, offspring resulting from donor procedures have the right to access identifying information about their birth origins.  This information is recorded on a Central Register which is managed by the Infertility Treatment Authority.  The Authority also manages a voluntary register associated with donor procedures.

The Victorian Act prohibits any commercial surrogacy arrangement thereby making it an offence to give or receive any payment or reward under a surrogacy agreement. It is also illegal to arrange a surrogacy agreement or act as a surrogate mother. All surrogate agreements both altruistic and commercial are void.

The Act contains a range of prohibitions including a prohibition on cloning and destructive research utilising embryos.  Any embryo research must render the embryo fit for transfer in a treatment procedure, and must be approved by the Infertility Treatment Authority.

Victorian Law Reform Commission

Following extensive consultation and several Issues Papers, the Victorian Law Reform Commission (VLRC) published its Report into Reproductive Technology and Adoption and makes 130 recommendations for changes to reproductive medicine law and policy in Victoria, including expanding eligibility criteria to include social infertility and other indications, as well as reforming the laws to allow same sex couples to adopt.

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Queensland

Queensland does not possess specific reproductive technology legislation and largely depends on the National Health and Medical Research Council's guidelines for its rulings. Currently, only infertile de facto and legally married couples are able to access reproductive technologies in Queensland. This was recently challenged in court with the claimants stating that being a single female or in a lesbian relationship is a form of social infertility. The court ruled that for a woman to receive infertility treatment, she must be medically infertile.

In regard to surrogacy, Queensland regulations are similar to those in Victoria. These are encompassed in the Surrogate Parenthood Act 1988 (Qld) which also prohibits all forms of surrogacy, including altruistic surrogacy.  Criminal sanctions exist and the legislation prohibits any advertising in relation to surrogacy, any payments or reward for entering into a surrogacy arrangement and entering into a surrogacy contract (breached leads to 3 years imprisonment).

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Western Australia

The Human Reproductive Technology Act 1991(WA) and the Amendment Act 1996 allows treatment for infertile de facto and legally married couples and single women or for the prevention of the transfer of genetic diseases. In regard to single women accessing sperm, donors must give their consent for their sperm to be used for single women. While this is the case, offspring of donor material have no access rights to identifying information.

WA legislation regards the child's interests as just a factor amongst others and the WA Artificial Conception Act 1985 precludes that in artificial fertilization cases, the social father and/or mother are the legal parents of the child.

In comparison to other states' legislation and the National Health and Medical Research Council's guidelines, embryos have only been able to be stored for three years in Western Australia. Extensions may be approved on a case by case basis.

Western Australian legislation was reviewed by a Parliamentary Select Committee in 1999 and changes to the legislation are being considered in 2000.

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Australian Capital Territory

The Australian Capital Territory has legislation concerning surrogacy agreements but not assisted reproductive technology. Under the Substitute Parent Agreements Act 1994 (ACT) commercial surrogacy arrangements are prohibited but non-commercial surrogacy agreements are void.  As the Act has not prepared legislation on reproductive medicine, there is no requirement that clients be infertile to access infertility treatment.  In other aspects of reproductive technology, the Australian Capital Territory abides by the National Health and Medical Research Council's guidelines.

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Tasmania

Apart from the Surrogacy Contracts Act 1993 (Tas) Tasmanian reproductive technology units are governed by the National Health and Medical Research Council's guidelines. The surrogacy legislation makes all surrogacy agreements void and unenforceable.   Commercial surrogacy agreements are also considered illegal and attract a penalty of a fine and/or imprisonment.

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Northern Territory

No specific reproductive technology legislation exists in the Northern Territory, but reproductive medicine services in NT are provided by SA clinicians operating under guidelines consistent with SA legislation.  The Department of Health requires its clinics to adhere to South Australian legislation but with some minor changes.

For example, while the South Australian legislation complies with the Sex Discrimination Act 1984 (Cth) and allows access to infertility treatments for all infertile women, the Northern Territory has deemed that legislation regarding reproductive technology is exempt from their Sex Discrimination Act. Therefore, only married or de facto infertile couples can access infertility treatments.

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National Health and Medical Research Council

The National Health and Medical Research Council (NHMRC) is the national body responsible for advising the Australian community and Commonwealth and State governments on standards of individual and public health and supports research to improve those standards.

The NHMRC funds medical and public health research in Australia and supports many of the medical advances made by Australians.

In 1996 the NHMRC released their Ethical Guidelines on Assisted Reproductive Technology.  In September 2004 the revised NHMRC Ethical guidelines on the use of assisted reproductive technology in clinical practice and research were released, and the 1996 Guidelines were rescinded.  

States must comply with the NHMRC Guidelines unless specific legislation regulating reproductive technology overrides. The Guidelines recommend that legislation be developed to regulate assisted reproductive technology where it does not exist at present.  The Guidelines encompass all aspects of the technologies including accreditation and approval processes, counselling recommendations, research requirements, storage of human tissue, record keeping, complaints and appeals processes and prohibited and unacceptable practices.

States that rely on this document as their form of governance over reproductive technology include New South Wales, Queensland, the Australian Capital Territory, Tasmania and the Northern Territory.

The NHMRC can be contacted at: