Surrogacy

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family and fertility lawyers

The regulation of assisted reproductive treatment in Australia is extraordinarily complex. Navigating this can be exceptionally difficult. We navigate this legislation daily, on behalf of our clients who are either those who want to become parents, or IVF clinics.

We have assisted those in the IVF industry in several States (and overseas) about Australian and State-based Assisted Reproductive Treatment (ART) regulation.

Different State Laws

Each State has its own human tissue laws and laws to do with the payment of egg, sperm and embryo donors. The Commonwealth has its own human cloning law, the Prohibition of Human Cloning for Reproduction Act 2002 (Cth). Each of the States and the ACT have matching legislation, for example in Queensland the Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003.

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Human Tissue and Human Cloning Laws

Payment of anything more than a donor’s reasonable expenses can result in a maximum punishment of up to 15 years imprisonment. The purpose of the human cloning legislation is to ensure that donors do not profit from being donors, and therefore do not take risks with their bodies.

The links between the human tissue laws and the human cloning laws are not always clear cut. Human tissue laws prevent the payment of money for the supply of tissue – which includes breastmilk, human eggs, sperm and embryos.

These laws are complex and although broadly the same at times have marked differences. For example, it is possible to advertise for donors in NSW, but advertising for donors in Victoria is governed by VARTA. Agreements that allow for the payment of expenses of donors might be allowable in Queensland, for example, but run foul of the Human Tissue Act 1983 (NSW). Each piece of legislation is unique and has its own quirks.

Assisted Reproductive Treatment Acts

Four States have their own Assisted Reproductive Treatment Acts:

  • NSW: Assisted Reproductive Technology Act 2007 (NSW)
  • South Australia: Assisted Reproductive Treatment Act 1988 (SA)
  • Victoria: Assisted Reproductive Treatment Act 2008 (Vic)
  • Western Australia: Human Reproductive Technology Act 1991 (WA)

WA, in addition, has its extraordinarily long Directions issued by the Reproductive Technology Council mandating what IVF clinics can and cannot do in that State.

These laws are often not consistent. Views taken by Government departments about their own legislation is not always in accordance with the law.

For example, each of the States has rules about the caps on the number of women or families who can receive donor sperm. These rules are not consistent. How the rules are interpreted is not consistent. We are aware of these inconsistencies.

Victoria’s and Western Australia’s rules are especially complex. Each has rules about the import and export of donor gametes, for example, which must be approved by the State regulator- VARTA in Victoria, and the RTC in WA. The approach in Victoria is also influenced by decisions of the Victorian Civil and Administrative Appeals Tribunal (VCAT) and of the Patient Review Panel (commonly called the PRP).

New South Wales imposes conditions on the use of donor embryos, following recent controversy, and imposes restrictions on exports.

South Australia imposes licence conditions which can at times be quite restrictive.

Every State and Territory has Status of Children legislation. Not all of it is consistent. For example, in Queensland, someone may be a parent when they have been an intended parent through surrogacy – albeit one with no rights and liabilities of a father. In the same kind of transaction in any other State ordinarily, he would not be recognised as a father.

Every State and the ACT have surrogacy legislation:

  • ACT: Parentage Act 2004 (ACT)
  • NSW Surrogacy Act 2010 (NSW)
  • Queensland: Surrogacy Act 2010 (Qld)
  • South Australia: Assisted Reproductive Treatment Act 1988 (SA), Family Relationships Act 1975 (SA)
  • Tasmania: Surrogacy Act 2012 (Tas)
  • Victoria: Assisted Reproductive Treatment Act 2008 (Vic), Status of Children Act 1974 (Vic)
  • Western Australia: Human Reproductive Technology Act 1991 (WA) and Surrogacy Act 2008 (WA)

In addition, the National Health and Medical Research Council has its Ethical Guidelines on the Use of Assisted Reproductive Treatment in Clinical Practice and Research (2017), not forgetting industry approaches under the umbrella of the Fertility Society of Australia.

Those who manage IVF clinics must be across all this legislation. For those who are in a non-ART Act State (Queensland, NT, ACT and Tasmania) this can be easier for compliance purposes. For those in ART Act States (NSW, SA, Victoria and WA), there must be compliance with the ART Act and (so far as is there no inconsistency) also the NHMRC Ethical Guidelines.

We are across this labyrinth. We have acted for IVF clinics in several states – because they trust us to get it right.

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Our submissions

Our partner Stephen Page has made submissions to surrogacy inquiries in:

  • Tasmania 2012
  • House of Representatives 2015, 2016
  • NSW 2015-2018
  • South Australia 2016 (as to LGBTIQ issues, including surrogacy)
  • South Australia (2018)
  • ART/ surrogacy Western Australia (2018)

Both Stephen Page and Karen Gough made submissions to the Victorian ART/surrogacy inquiry (2018-2019). Representations Stephen made in South Australia in 2014-2015 resulted in changes to the Family Relationships Act 1975, so that only one counsellor provided counselling at the beginning of the surrogacy journey, and counselling was offered as a matter of course to the surrogate post-birth.

Proud Supporter Of Australian IVF

We have consistently stood up for, and are proud of, Australia’s IVF industry. In our view, Australians can be proud of the achievements of our industry. It has a long history and extremely high standards and is among the best in the world. This is not just because of regulation, but because of quality measures that the industry has undertaken, including the ANZARD database, world-leading auditing approaches, and an ongoing commitment to innovation and leadership in science.

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