Australian Law Reform Commission (ALRC) Human Tissue Review

The landscape of family and fertility law in Australia is on the cusp of significant change. The Australian Law Reform Commission (ALRC) is currently conducting a comprehensive review of human tissue laws that could reshape how assisted reproductive technologies (ART), surrogacy arrangements, and posthumous reproduction are regulated across the country. These proposed reforms have far-reaching implications for anyone considering in vitro fertilisation (IVF), surrogacy, or fertility treatments involving the retrieval and use of human biological materials.

In this detailed overview, we will explore the key issues arising from the ALRC’s human tissue review, focusing on the three main areas of concern that impact IVF and surrogacy. We’ll also discuss the complexities around the authorisation of posthumous donations and the patchwork of advertising regulations for donor recruitment. Understanding these legal nuances is essential for prospective parents, surrogates, donors, and legal practitioners alike.

Background: What is the ALRC Human Tissue Review?

Before diving into specific issues, it’s important to understand the context of the ALRC review. Initiated by former Attorney-General Mark Dreyfus just before the last federal election, this review runs concurrently with another ALRC inquiry into surrogacy laws. The human tissue review is accelerating quickly, with an issues paper already published and submissions closing on July 4th. Given the tight timeframe for public input, those interested in shaping the future of these laws should act promptly.

The review examines the legislation governing the collection, use, and storage of human tissue, which in Australia broadly includes biological materials such as organs, blood, and reproductive tissues. However, the scope and definitions vary between states and territories, leading to a complex legal environment. This review seeks to streamline and modernise these laws, but as we will see, some proposed changes raise significant questions for reproductive medicine and family law.

Key Issue 1: Excluding Eggs, Sperm, and Embryos from the Definition of Human Tissue

One of the most consequential proposals in the ALRC review is to remove eggs, sperm, and embryos from the legal definition of “human tissue.” Instead, these would be regulated exclusively under the assisted reproductive technology (ART) statutes. At first glance, this might appear logical—after all, eggs, sperm, and embryos are clearly linked to reproductive technology rather than organ transplantation or other tissue uses.

However, this change could create substantial legal and practical challenges. Currently, many states rely on human tissue legislation to authorise the retrieval of sperm, particularly in posthumous or complex reproductive scenarios. For example, in New South Wales and Victoria, human tissue acts provide the legal framework for retrieving sperm from deceased donors or individuals unable to consent in the usual way. Removing reproductive tissues from this framework without establishing parallel authorisation mechanisms under ART laws could leave a regulatory gap.

Moreover, the terminology and legislative frameworks differ across Australia. Some states, like South Australia and Queensland, use legislation titled “Transplantation and Anatomy Act” rather than “Human Tissue Act,” whereas Western Australia has a hybrid “Human Tissue and Transplant Act.” This patchwork means that any blanket exclusion of reproductive materials from human tissue laws must be carefully coordinated to avoid inconsistencies or legal uncertainty.

For anyone involved in fertility treatments, surrogacy, or posthumous reproduction, this issue is critical. Without clear legislative authority for tissue retrieval, patients and medical providers could face delays, legal risks, or outright prohibition of certain procedures. Ensuring that ART legislation robustly covers these scenarios will be essential if the proposed exclusions proceed.

Key Issue 2: Removing Human Milk from the Definition of Human Tissue

The second major proposal, which many will welcome, is to exclude human milk from the definition of human tissue. In some jurisdictions, including Queensland until recently, human milk was legally classified as tissue, complicating the operation of human milk banks and surrogacy arrangements where milk provision is involved.

This classification posed real-world problems. For instance, surrogacy agreements sometimes include provisions for payment to the surrogate for the supply of breast milk. If milk is treated as human tissue under the law, such arrangements risk breaching tissue donation regulations or surrogacy laws. Similarly, milk banks, which provide donor milk to vulnerable infants, faced regulatory hurdles due to the tissue classification.

Queensland addressed this issue in 2021 by amending its laws to clarify that human milk is not human tissue. This change has been applauded by healthcare providers and families alike. Extending this reform nationally would remove unnecessary legal barriers, making it easier for milk banks to operate and for surrogates and intended parents to manage breastfeeding arrangements without fear of legal complications.

Key Issue 3: Authorisation of Posthumous Donation and Retrieval

When it comes to posthumous donation—such as retrieving sperm after a person’s death—the laws across Australia are inconsistent and sometimes confusing. Generally, the authorisation process depends on where the deceased’s body is located. If the body is in a hospital, the hospital’s designated officer usually has authority to authorise tissue retrieval. If the body is in a morgue or outside the hospital system, the senior available next of kin typically has this power.

Queensland is an exception with a somewhat different legal framework. Experience shows that these authorisation processes can be difficult to navigate, especially in New South Wales, where hospital officers may be reluctant or unclear about their authority. This can create delays or disputes that complicate sensitive and time-critical fertility procedures.

The ALRC review is considering reforms to simplify and clarify who can authorise posthumous tissue donations, including reproductive tissues. Clearer, more consistent rules would benefit families seeking to preserve fertility options after a loved one’s death and ensure medical professionals have unambiguous guidance.

Advertising and Trade in Human Tissue: An Uneven Legal Landscape

Another important aspect of the review concerns advertising restrictions related to human tissue donation, especially for eggs, sperm, and embryos. These materials are subject not only to human tissue laws but also to strict anti-cloning legislation, such as the Commonwealth’s Prohibition of Human Cloning for Reproduction Act 2002 and corresponding state laws.

Advertising for donors varies widely between states, creating a confusing patchwork for clinics, donors, and intended parents. For example:

• In New South Wales, there are virtually no restrictions on advertising for egg donors—you can place ads on Facebook, in local shops, or elsewhere without special permissions.
• In Victoria, however, advertising for donors faces significant restrictions designed to protect donor privacy and prevent commercialisation.
• Queensland requires clinics to obtain permission from the Director-General before advertising, although in-person advertising is allowed under certain conditions.

This inconsistency affects how donor recruitment campaigns are run and can influence the availability of donors in different regions. Many stakeholders argue that a national review and harmonisation of advertising rules would reduce confusion, improve donor availability, and ensure ethical standards are upheld uniformly.

Why These Changes Matter: Implications for Families and Fertility Clinics

The ALRC human tissue review is about much more than legal technicalities. Its outcomes will directly affect Australian families’ reproductive choices, the operation of fertility clinics, and the legal rights of donors, surrogates, and intended parents.

For those undergoing IVF or surrogacy, clarity around the legal status of eggs, sperm, embryos, and human milk is critical. Without clear laws, individuals face uncertainty about what procedures are lawful, how donations can be authorised, and what rights and responsibilities they hold.

For surrogacy arrangements, particularly those involving overseas surrogates or cross-border elements, these laws can create unexpected complications. For example, if human milk remains classified as tissue, surrogates providing milk could unknowingly breach laws. Similarly, the ability to retrieve sperm posthumously hinges on clear legislative authority to avoid heartbreaking legal battles.

Fertility clinics and healthcare providers also need clear, consistent legal frameworks to operate safely and efficiently. Conflicting or outdated laws add administrative burdens and risk legal liability.

How You Can Have Your Say

The ALRC’s review process is open to public submissions, with a deadline of July 4th. This is a rare opportunity for individuals, families, healthcare professionals, and legal experts to influence the future of Australia’s human tissue laws and reproductive rights.

Whether you have personal experience with IVF, surrogacy, fertility donation, or simply care about ethical and legal standards in reproductive medicine, your voice matters. Submissions can highlight practical challenges, suggest improvements, and advocate for harmonized, modern laws that reflect today’s reproductive technologies and family structures.

To participate, visit alrc.gov.au and follow the links to the human tissue review. Time is short, so early engagement is encouraged.

Conclusion: Navigating a Changing Legal Landscape in Australian Fertility Law

The ALRC’s human tissue review is a crucial development in Australian family and fertility law, with the potential to reshape how IVF, surrogacy, and posthumous reproduction are regulated. Key proposals—such as excluding eggs, sperm, and embryos from human tissue definitions, reclassifying human milk, and reforming authorisation for posthumous donation—highlight the need to modernize laws to keep pace with medical advances and social realities.

However, these changes also bring challenges, including the risk of legal gaps and inconsistencies across states. Addressing these issues through a coordinated, transparent reform process will be essential to protect the rights and interests of all Australians navigating fertility treatments and family building.

If you or someone you know is planning to undertake fertility treatment or surrogacy, staying informed about these legal developments and participating in the ALRC consultation is vital. By engaging now, you can help shape laws that support ethical, accessible, and clear pathways to parenthood for Australian families.

For more information and legal advice related to fertility, surrogacy, and family law, consulting with specialists in this field can provide tailored guidance through this evolving legal terrain.