Storage periods for eggs, sperm and embryos in Australian IVF clinics
(Prepared as at 31 July 2024)
Overview
Each Australian State and Territory determines storage periods. Under the Research Involving Human Embryos Act 2002 (Cth)[1] and corresponding laws in every State[2] and the Australian Capital Territory[3] (but not the Northern Territory), every Australian IVF clinic must be accredited with the Fertility Society of Australia and New Zealand Limited. A requirement of accreditation is that the clinic must comply with Ethical Guidelines issued by the National Health and Medical Research Council: Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017, updated 2023), which act in effect as licensing conditions. However, the Ethical Guidelines are not law.
Where there is a law that is contrary to the Ethical Guidelines, the law prevails. Clinicians must first check as to whether or not there is a law that applies. If not, the Ethical Guidelines apply. If there is a law, clinicians must first ensure compliance with that law, and second then review the Ethical Guidelines to check if it is possible to comply- and if so, comply with them too.
| State/Territory | Storage period | Law | NHMRC |
| Australian Capital Territory[4] | Non-donor eggs, sperm and embryos which commenced storage from on or after 29 September 2024 – the shortest period specified by the IVF clinic or by any gamete provider | Assisted Reproductive Technology Act 2024 (ACT), s.43(2)(b)(i) and (ii) | 7.1, 7.2 |
| Non-donor eggs, sperm and embryos which commenced storage before 29 September 2024 – the shortest specified by the IVF clinic or by any gamete provider | Assisted Reproductive Technology Act 2024 (ACT), s.130 | 7.1, 7.2 | |
| Donor eggs and sperm which commenced storage on or after 29 September 2024 – the shortest period specified by the IVF clinic, or the gamete provider, or up to 15 years plus any additional period authorised by the Director-General, ACT Health | Assisted Reproductive Technology Act 2024 (ACT), s.43(2)(b)(i),(ii) and (iii) | 4.6.1, 5.11.1, 7.1.1, 7.2 | |
| Donor eggs and sperm which commenced storage before 29 September 2024– the shortest period specified by the gamete provider or the IVF clinic | Assisted Reproductive Technology Act 2024 (ACT), s.130 | 4.6.11, 5.11.1, 7.1, 7.2 | |
| Embryos which commenced storage on or after 29 September 2024 – created from donor egg and/or sperm, or a donor embryo, the shortest period specified by any gamete provider, the IVF clinic, or up to 15 years from when the embryo was created plus any additional period authorised by the Director-General, ACT Health | Assisted Reproductive Technology Act 2024 (ACT), s.43(2)(b)(i),(ii) and (iii) | 4.6.1, 5.11.1, 6.2, 6.4, 7.1.1, 7.2 | |
| Embryos which commenced storage before 29 September 2024 – the shortest period specified by any gamete provider, embryo donor, recipient or IVF clinic | Assisted Reproductive Technology Act 2024 (ACT), s.130 | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | |
| New South Wales | Non-donor eggs, sperm, and embryos – the shortest period specified by the IVF clinic or by any gamete provider | Assisted Reproductive Technology Act 2007 (NSW), s.25(3)(a) and (b) | 7.1.1, 7.2 |
| Donor eggs and sperm – the shortest period specified by the IVF clinic, or by any gamete provider, or up to 15 years plus any additional period authorised by the Secretary, Ministry of Health | Assisted Reproductive Technology Act 2007 (NSW), s.25(3)(a), (b), (c); s.26 | 4.6.1, 5.11.1, 7.1.1, 7.1.2 | |
| Embryo created from donor egg and/or sperm, or a donor embryo, the shortest period specified by the IVF clinic, or by any gamete provider, or up to 15 years from when the embryo was created plus any additional period authorised by the Secretary, Ministry of Health | Assisted Reproductive Technology Act 2007 (NSW), s.25(3)(a), (b), (d); s.26 | 4.6.1, 5.11.1, 7.1.1, 7.1.2 | |
| Northern Territory[5] | Non-donor eggs, sperm and embryos– the shortest period specified by the gamete provider or the IVF clinic | 7.1, 7.2 | |
| Donor eggs and sperm – the shortest period specified by the gamete provider or the IVF clinic | 4.6.1, 5.11.1, 7.1, 7.2 | ||
| Embryo created from donor egg and/or sperm, or a donor embryo – the shorter of the period specified by the gamete provider, embryo donor, recipient or clinic | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | ||
| Queensland[6] | Non-donor eggs, sperm and embryos– the shortest period specified by the gamete provider or the IVF clinic | Assisted Reproductive Technology Bill 2024 (Qld), cl. 17(1)(b), 144(b) | 7.1, 7.2 |
| Donor eggs and sperm – shortest period specified by IVF clinic, or donor, or up to 15 years (or longer with written approval of Director-General, Qld Health) | Assisted Reproductive Technology Bill 2024 (Qld), cl. 18(2)(b), 27, 144(b) | 4.6.1, 5.11.1, 7.1, 7.2 | |
| Donor embryos or embryo created from donor egg and/or sperm – shortest period specified by IVF clinic, or donor, or up to 15 years (or longer with written approval of Director-General, Qld Health) | Assisted Reproductive Technology Bill 2024 (Qld), cl. 18(2)(b), 27, 144(b) | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | |
| South Australia[7] | Non-donor eggs, sperm and embryos– the shortest period specified by the gamete provider or the IVF clinic | 7.1, 7.2 | |
| Donor eggs and sperm – the shortest period specified by the gamete provider or the IVF clinic | 4.6.1, 5.11.1, 7.1, 7.2 | ||
| Embryo created from donor egg and/or sperm, or a donor embryo – the shorter of the period specified by the gamete provider, embryo donor, recipient or clinic | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | ||
| Tasmania | Non-donor eggs, sperm and embryos– the shortest period specified by the gamete provider or the IVF clinic | 7.1, 7.2 | |
| Donor eggs and sperm – the shortest period specified by the gamete provider or the IVF clinic | 4.6.1, 5.11.1, 7.1, 7.2 | ||
| Embryo created from donor egg and/or sperm, or a donor embryo – the shorter of the period specified by the gamete provider, embryo donor, recipient or clinic | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | ||
| Victoria[8] | Non-donor eggs and sperm– the shortest period specified by the gamete provider or the IVF clinic, or up to 10 years, or from a child, 20 years, or if produced by a person where a doctor has certified that at the time of producing the gametes the person is at reasonable risk of becoming prematurely infertile because of a medical procedure or condition, 20 years, or as extended by the Patient Review Panel or VCAT | Assisted Reproductive Treatment Act 2008 (Vic), s. 31, 31A, 31B | 7.1, 7.2 |
| Donor eggs and sperm – the shortest period specified by the gamete provider or the IVF clinic, or up to 10 years, or from a child, 20 years, or if produced by a person where a doctor has certified that at the time of producing the gametes the person is at reasonable risk of becoming prematurely infertile because of a medical procedure or condition, 20 years, or as extended by the Patient Review Panel or VCAT | Assisted Reproductive Treatment Act 2008 (Vic), s. 30A, 31, 31A, 31B | 4.6.1, 5.11.1, 7.1, 7.2 | |
| Non-donor embryo – the shortest period specified by the gamete provider, or by the clinic or 5 years but can be extended by up to 5 years by consent of every responsible person or extended by the Patient Review Panel or VCAT | Assisted Reproductive Treatment Act 2008 (Vic), s.30A, 32, 33, 34, 34A | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | |
| Embryo created from donor egg and/or sperm, or a donor embryo – the shorter of the period specified by the gamete provider or clinic, or up to 5 years from being placed in storage, plus a further 5 years by consent of every responsible person[9] or extended by the Patient Review Panel or VCAT | Assisted Reproductive Treatment Act 2008 (Vic), s.30A, 32, 33, 34, 34A | 4.6.1, 5.11.1, 6.2, 6.4, 7.1, 7.2 | |
| Western Australia[10] | Eggs and embryos– the shortest period specified by the gamete provider or the IVF clinic, or up to 10 years or as approved by the Reproductive Technology Council | Human Reproductive Technology Act 1992 (WA), s.24(1)(b), (1a), Human Reproductive Technology Directions 2021 (WA), definition “authorised storage period”, directions 6.10, 6.11 | 7.1, 7.2 |
| Sperm – the shortest period specified by the gamete provider or the IVF clinic | 7.1, 7.2 |
[1] Ss. 8, 10.
[2] New South Wales: Research Involving Human Embryos (New South Wales) Act 2003 (NSW), s.5; Queensland: Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 (Qld), s. 21, 23, Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Regulation 2015 (Qld), reg. 2; South Australia: Research Involving Human Embryos Act 2003 (SA), ss. 3, 5; Tasmania: Human Embryonic Research Regulation Act 2003 (Tas), s.6 ; Victoria: Research Involving Human Embryos Act 2008 (Vic), ss. 3, 6: Western Australia: Human Reproductive Technology Act 1991 (WA), s. 53W.
[3] Human Cloning and Embryo Research Act 2004 (ACT), ss. 23, 25.
[4] As of 31 July, 2024, the Assisted Reproductive Technology Act 2024 (ACT) has not yet commenced regarding the storage of eggs, sperm and embryos. The notification day of the Act was 28 March 2024. Some parts of the Act commenced on the following day, 29 March, 2024: s.2(1). The provisions regarding storage are to commence on a day to be fixed by the Minister by written notice: s.2(2). The Minister has not given that notice. Failing the Minister providing that notice, the provisions regarding storage are to commence 6 months after the day after the notification day, i.e., 6 months after 29 March 2024, i.e., 29 September 2024: Legislation Act 2001 (ACT), s.79.
[5] There is no ART Act in the Northern Territory. The only clinic in the Northern Territory must, by agreement with the Government, comply as far as possible with South Australian licensing conditions.
[6] As of 31 July 2024, the Ethical Guidelines apply in Queensland. The Assisted Reproductive Technology Bill 2024 (Qld) is currently before Queensland Parliament. The Bill is likely to be enacted in August and progressively commence after enactment. The table has been prepared regarding Queensland on the basis that the storage provisions in the Bill are enacted and have commenced. Cl. 144(b) of the Bill applies to gametes or embryos even though they were obtained or created before the commencement.
[7] The Assisted Reproductive Treatment Act 1988 (SA) has no provision for storage times, instead relying on the Ethical Guidelines.
[8] Different rules may apply to eggs, sperm or embryos stored before the commencement of the Assisted Reproductive Treatment Amendment Act 2013 (Vic) and the Assisted Reproductive Treatment Amendment Act 2021 (Vic).
[9] Where an embryo is formed from the patient’s egg or sperm, and a donor egg or sperm, the patient decides as to the extension, but the patient’s partner does not: s.30A(1), definition of “responsible person”, “(a) each person who produced the gametes from which the embryo has been formed but not including any person who is a gamete donor”. However, when there is an embryo only formed from donor egg and sperm, the responsible persons are the woman and the partner at the time for whose use the embryo was formed, or to whom the embryo is allocated- even if the woman and her partner later separate: s.30A(1), definition of “responsible person”, paragraphs (b) and (c) and s.30A(2).
[10] There is no provision in the Act or Directions about the storage times for sperm, only for eggs and embryos.
