Regulation

There are several sources of legislation and guidelines that fit together to form the legal framework of assisted reproductive treatment in Victoria. This page is intended as a practical guide to the legislation and how it may affect you. You will find answers to frequently asked questions across a range of topics covered in legislation and guidelines. If you have further questions, please contact us.

TOPIC 1: The effect of recent legislative changes

Victorian Family Limit

How will changes to the 10-women limit on the use of donor material affect me?

The Assisted Reproductive Treatment Amendment Act 2021 (Amendment Act) enables women in same-sex relationships to use the same donor to have a genetic sibling for their child/ren, even if the 10-women limit under the Assisted Reproductive Treatment Act 2008 (the ART Act) has been reached.

The Amendment Act also applies to existing families who use more than one surrogate mother to have a child who will be genetic sibling to their existing child/ren.

The following are examples of how the Amendment Act may apply:

Examples of family arrangements	Before the Amendment Act	After the Amendment Act
Couple who remains together, or single person in same family arrangement seeks to have a genetic sibling for existing child using the same donor - same family arrangement:
Couple (same-sex or heterosexual) or single person commissioning a surrogacy arrangement with a different surrogate	Not allowed	Allowed
Couple separates with a child and one or both of the ex-partners seek to have a genetic sibling for their existing child using the same donor on their own - different family arrangement:
Man and woman separate and man or woman seeks to have a child, using a different surrogate from the surrogate who carried their existing child	Not allowed	Not allowed
Two men separate and one or both men seek to have a child using a different surrogate from the surrogate who carried their existing child	Not allowed	Not allowed
Two women separate and the woman who carried the first child seeks to carry another child	Allowed	Allowed
Couple separate with a child and one or both re-partner and one or both seek to have a genetic sibling for existing child using the same donor with the new partner - different family arrangement:
Man separates from partner (female or male). Re-partners with a woman and woman seeks to carry a child	Not allowed	Not allowed
Man separates from partner (female or male). Re-partners with a man or woman and needs a surrogate	Not allowed	Not allowed
Woman separates from partner (male or female). Re-partners with a man and needs a surrogate	Not allowed	Not allowed
Woman separates from partner (male or female). Re-partners with a woman and partner seeks to carry a child	Not allowed	Not allowed
Woman separates from partner (male or female). Re-partners with a man or woman and the woman who carried the first child seeks to carry another child	Allowed	Allowed
Couple have a child using donor eggs or sperm and one of the partners dies and surviving partner seeks to have a genetic sibling for existing child using the same donor:
The surviving male partner seeks to have a genetic sibling for the couple’s existing child carried by his deceased female partner, on his own using a surrogate	Not allowed	Allowed, subject to consent to posthumous use
The surviving male partner seeks to have a genetic sibling for his and his deceased partner’s existing child carried by his deceased female partner, with a new partner using a surrogate	Not allowed	Not allowed
The surviving female partner who carried their child seeks to carry a genetic sibling for their existing child, on her own	Allowed, subject to consent to posthumous use	Allowed, subject to consent to posthumous use

 

The Amendment Act only applies to donations made on and from 21 December 2021. It will not apply retrospectively to donations made before 21 December 2021.

Your donor may consent to the use of their donor material for expanded family purposes under the Amendment Act. However, the donor will need to be re-counselled in accordance with the ART Act before they can re-consent.

What does ‘genetic sibling’ mean? Does it require a full genetic sibling (both egg and sperm donor to be the same) or can it be a half sibling?

A 'genetic sibling’ is someone who is related through the donor’s genetics (i.e. they all share the same donor). Exceptions under the Assisted Reproductive Treatment Amendment Act 2021 are not limited to children who are full genetic siblings but can also apply to half siblings.

Why doesn’t the change apply to new or altered family arrangements such as where a couple separates?

The decision to introduce family limits in Victoria was to reduce the risk of donor-conceived genetic siblings from inadvertently forming intimate relationships with each other.

It is anticipated that there would only be a limited number of additional genetic siblings born from the amendment, given that intended parents in these circumstances are ‘building’ their family with the support of one or more women carrying their child/ren.

The Assisted Reproductive Treatment Act 2008 (ART Act) currently allows a woman who has been treated using donor material from one donor to be treated again using the same donor, regardless of whether that woman’s relationship status changes. The Assisted Reproductive Treatment Amendment Act 2021 does not change this aspect of the ART Act.

Donor consent

How will legislative changes regarding donor consent affect me?

The changes to the donor consent provisions intend to provide more certainty to prospective parents using donor material during their fertility journey.

Consent to Use

Donors who donated on or after 15 August 2022:

•    Will not be able to withdraw consent to the use of their gametes once the gametes are used:
      -    in a treatment procedure, such as artificial insemination; or
      -    to form an embryo.
•    These changes do not apply retrospectively to donor consents provided before 15 August 2022, unless the donor is counselled and re-consents (see next category below).

Donors who donated before 15 August 2022

•    Donors who were counselled and consented before 15 August 2022 still have the entitlement to withdraw consent to the use of their gametes, or to the use of embryos formed from using their donor gametes up to point they are used in a treatment procedure.
•    However, donors in this category may re-consent to the new rules. This means that they will not be able to withdraw their consent to the use of their gametes once an embryo has been formed using their gametes.  NOTE:  A renewed consent from donors in this category only extends to the ‘use of embryos’ and does not extend to ’extension of storage or disposal of embryos’ (see next category below).

Consent to the extension of storage or disposal of embryos formed using donor gametes 

Donors who donated on or after 15 August 2022:

•    Will not need to consent to the extension of storage or disposal of embryos formed using their donor gametes. This means that the prospective parent who contributes their own gametes to form an embryo using donor gametes will be able to make decisions about the extension of storage or disposal of that embryo.

Donors who donated before 15 August 2022

•    Will continue to retain their decision-making rights regarding the extension of storage and/or disposal of embryos formed using their gametes.  
•    There is no ability for the donor to re-consent to the new rules in relation to these rights.

Criminal record and child protection order checks

Do I need to obtain a criminal record and child protection order check before I commence treatment?

No. The Assisted Reproductive Treatment Amendment Act 2020 removed the requirement that a woman and her partner (if any), or parties to a surrogacy arrangement, must undergo a criminal records and child protection order check prior to accessing fertility treatment under the Assisted Reproductive Treatment Act 2008 (ART Act).

While the checks are no longer required, several safeguards remain in place. In particular, ART clinics continue to have a statutory obligation to consider the guiding principles set out in section 5 of the ART Act when making a decision about whether to treat a person. These principles include that the welfare and interests of the child to be born are paramount.

ART providers will continue to be able to refuse treatment if they reasonably believe that a child who would be born from treatment may be at risk of abuse or neglect. The Patient Review Panel has an ongoing role in reviewing any decision by an ART provider on this basis. You can read more here.

Spousal consent for treatment

I am married but separated from my partner. Do I need their consent for treatment using donor sperm?

The Assisted Reproductive Treatment Amendment (Consent) Act 2019 ensures that a married woman is not required to obtain her spouse’s consent to undergo treatment using donor sperm where the woman is separated from her spouse. You can read more here.

Pre-treatment Counselling

Who can provide counselling for different treatment types?

If you intend to undergo artificial insemination, you must receive counselling from either:

• a counsellor who provides services on behalf of a Victorian clinic; or
• from an independent counsellor who meets the prescribed requirements for counselling.

If you intend to undergo any other assisted reproductive treatment (such as in-vitro fertilisation), you may only receive counselling from:

• a counsellor who provides such services on behalf of a Victorian clinic.

 

Please speak to your Victorian clinic about the counselling options available to you depending on your treatment type.

TOPIC 2: The use and storage of eggs, sperm and embryos

Sex selection

Can I choose the sex of my child when trying for a baby with IVF?

Selecting an embryo based on its sex for non-medical reasons is prohibited in Victoria. The law that applies is section 28 of the Assisted Reproductive Treatment Act 2008 (ART Act). It prohibits sex selection in Victoria, except in two situations:

where it is necessary for the child to be of a particular sex so as to avoid the risk of transmission of a genetic abnormality or a genetic disease to the child, or Victoria’s Patient Review Panel has otherwise approved the use of the gametes or embryo for the purpose of producing or attempting to produce a child of a particular sex.

The PRP has more information for potential applicants and clinics about the process here. You can also contact the panel by emailing prp@dhhs.vic.gov.au. Some people may also find it useful to seek independent and specialised legal advice which takes into account their personal circumstances.

People wanting to select the sex of embryos can apply for permission to Victoria’s Patient Review Panel (PRP). The PRP is an independent body established under the ART Act to consider applications for certain uses of fertility treatment, including applications for clinics to carry out sex selection using preimplantation genetic diagnosis (PGD).

PGD is also known as PGT-M (preimplantation genetic testing for monogenic disorders). It enables clinics to select and transfer embryos that are not affected by a specific detected disorder or abnormality to prevent that condition from being passed onto future children.

Please note that when reviewing applications for sex selection, the PRP considers Victorian law and the National Health and Medical Research Council Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research 2017. The NHMRC guidelines say PGD (for sex selection or otherwise) should only be used for prevention of conditions that severely limit the quality of life of the person to be born.

Using eggs, sperm or embryos after someone dies

Can I use sperm or eggs from my deceased partner, or an embryo that was created with the sperm or eggs of my deceased partner?

Using eggs or sperm after the death of a person is only allowed in a limited set of circumstances in Victoria. For example, the deceased person must have provided written consent for their eggs, sperm or embryos to be used in the event of their death.

Until 24 June 2022, following a man’s death, treatment can only be carried out on his partner – which is defined in section 3 of the Assisted Reproductive Treatment Act 2008 (ART Act). In the case of a woman’s death, her partner may be able to use her eggs or embryos as part of a surrogacy arrangement.

From 24 June 2022, amendments to the ART Act will expand the circumstances where a deceased person’s gametes can be used in a surrogacy arrangement with written consent. These amendments are intended to reduce discrimination by enabling all people whose partners have died to use their eggs, sperm, and/or embryos in accordance with their deceased partner’s wishes. This includes people who have been in same-sex relationships. Please be advised that this amendment will not apply retrospectively. However, a person could provide a new written consent regarding the use of their gametes following commencement of these changes.

The Patient Review Panel (PRP) must approve the posthumous use of gametes or embryos by a partner. The PRP has more information for potential applicants and clinics about the process here. You can also contact the panel by emailing prp@dhhs.vic.gov.au.

Given the complexity of this area, you may find it useful to seek independent and specialised legal advice that considers your personal circumstances.

Can I use donated sperm or donated eggs from a donor who is now deceased?

Using donated eggs or sperm, or an embryo formed from donated eggs or sperm, after the donor has died is not allowed in Victoria, even if the donor previously consented to this.

Storage of your eggs, sperm and embryos in Victoria

How will legislative changes regarding the storage of donor material affect me? 

The legislative changes which commenced on 15 August 2022 remove the requirement for donors of gametes to consent to the extension of storage or disposal of embryos formed from their donated gametes. The change applies to new donations under donor consents given from commencement of the changes. 

 

The changes do not apply retrospectively to donations made before commencement of the changes, even if the donor reconsents under the new rule. This means that a donor of an existing donation made before commencement of the change who reconsents under the new rules will continue to have decision making rights with respect to extension of storage and disposal of an embryo formed from their gametes. These changes will provide more certainty for prospective parents, who are recognised as best placed to make decisions about embryos created for their use.

How long can I store eggs, sperm & embryos in Victoria?

Under Victorian law, gametes (i.e. eggs or sperm) must not be stored for longer than 10 years, except where the gametes have been produced by a child or a person who is at a reasonable risk of becoming prematurely infertile due to a medical condition or procedure, the gametes may be stored for 20 years, or the Patient Review Panel has approved a longer storage period. ART providers are required by law to remove gametes or embryos in storage following the end of the approved storage periods. They may also remove gametes from storage if written consent has been given for removal. In the case of embryos, the responsible persons in relation to the embryo must consent to its removal.

ART providers should discuss a patient's wishes about the gametes or embryos that they have in storage leading up to the end of the approved storage period. It is important that patient contact details are kept up-to-date to ensure these conversations can take place at the appropriate time. 

An embryo must not be stored for longer than five years from the day the embryo was placed in storage, except where the responsible persons in relation to the embryo consent to storage for a further five years (extensions on this basis are managed by assisted reproductive treatment (ART) providers); or the Patient Review Panel has approved a longer or further storage period. 

NB: A donor of an existing donation made before commencement of the legislative changes on 15 August 2022 will continue to have decision making rights with respect to extension of storage and disposal of an embryo formed from their gametes.

How can I extend the storage of sperm, eggs & embryos

You will need to apply to the Patient Review Panel (PRP) for approval of a longer storage period. Information about how to apply to extend your storage period is available on the PRP website.

TOPIC 3: Issues considered by other bodies

The Role of the Patient Review Panel

What type of applications does the Patient Review Panel (PRP) consider?

The PRP considers a range of procedures under the Assisted Reproductive Treatment Act 2008 (ART Act) related to assisted reproduction. These include:

Pre-implantation genetic diagnosis (PGD) – applications to use PGD (or equivalent) to select the sex of your child. Posthumous use of gametes – if your partner is deceased and you wish to use their gametes or embryos formed from their gametes in an ART procedure.

 

Details about the Panel Guidelines and relevant application forms are available on the PRP website. Applications should be directed to the Patient Review Panel at prp@dhhs.vic.gov.au.

• Removal of embryo from storage – if you currently have embryos in storage at an ART provider and you wish to remove those embryos from storage but the other gamete provider does not agree to that removal.
• Extension of storage for embryos – if you and/or your partner (if applicable) have embryos currently in storage at an ART provider and you wish to extend that storage.
• Extension of storage for gametes – if you have sperm, eggs or ovarian tissue currently in storage at an ART provider and you wish to extend that storage.
• Surrogacy arrangement – if you and your partner (if applicable) are seeking to enter into a surrogacy arrangement.
• Review of decisions regarding treatment – if you and your partner (if applicable) do not meet the criteria for treatment under the ART Act or have been refused treatment by an ART clinic.

The Role of the Victorian Health Complaints Commissioner

Who can I contact to complain about treatment I received at a Victorian fertility treatment clinic?

You can contact your clinic first to discuss your concerns. If you are not satisfied with their response, you can contact the Victorian Health Complaints Commissioner by calling 1300 582 113 or completing an online form here.