Assisted Reproductive Treatment Act 1988

The Act defines a number of core terms in section 3. “Assisted reproductive treatment” means any medical procedure directed at fertilisation of a human ovum by artificial means and includes an in vitro fertilisation procedure. “In vitro fertilisation procedure” is defined as any of the following: removal of a human ovum for fertilisation inside or outside the body, storage of an ovum before fertilisation, fertilisation by artificial means of an ovum inside or outside the body, culture or storage of a fertilised ovum outside the body, and transference of a fertilised or unfertilised ovum into the human body. “Assisted insemination” is a narrower concept: ART (not being an IVF procedure or surgical procedure) in which human sperm are introduced by artificial means into the female reproductive system. “Human reproductive material” means a human embryo, human semen, or a human ovum. A “registered objector” is a person who is registered under Part 2 and who has notified the Minister that they have a religious objection to providing ART to another on the basis of the other’s sexual orientation, gender identity, or marital status (section 8(2)(ba) and 8(3)). Such a person is exempt from the usual condition that prohibits refusing treatment on those grounds, but must instead take steps to refer the person seeking treatment to another registered provider (section 9(1a)).

The paramount principle is stated in section 4A: the welfare of any child to be born as a consequence of the provision of ART in accordance with this Act must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of the Act. This principle applies across all decision-making under the Act.

A “lawful surrogacy agreement” means a lawful surrogacy agreement under the Surrogacy Act 2019 (section 3). The Act references such agreements in the context of permissible treatment circumstances (section 9(1)(c)(iva)) and in the posthumous use provisions.

The “donor conception register” is defined in section 15. A “donor” for the purposes of Part 3 is a person who provided human reproductive material for ART on the understanding that they would not be a parent or legal guardian of a child born as a consequence (section 15(12)). This definition excludes persons who provide material but intend to be a parent.

The Act also distinguishes between registered providers (those on the Register under Part 2) and health professionals approved by the Minister to provide assisted insemination under section 5(2)(a). An approval may be conditional or unconditional and may be varied or cancelled by the Minister on any grounds thought fit (sections 5(3) and 5(4)).

A key concept underpinning Part 2 is that of a “fit and proper person” for registration. The Act does not define the phrase exhaustively, but it does provide that a registered objector’s religious objection is not of itself grounds for finding a person not fit and proper (section 6(2)). The Minister must also impose conditions, including one requiring the person to hold specified licences, accreditations, or qualifications; one setting out the kinds of ART the person may provide; and a prohibition on discrimination subject to the objector exception (section 9(1)(a), (b), (ba)). Conditions may be varied by the Minister (section 9(2)).

Another important concept is that of “posthumous use” of reproductive material. Section 9(1)(c)(iv) permits ART using human reproductive material from a deceased donor if the donor consented before death to such use, any directions given have been complied with, and the treatment is for the benefit of a person who was living with the donor on a genuine domestic basis immediately before death (whether that person is the treated person or another under a lawful surrogacy agreement). This provision was inserted by the Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Act 2024, which commenced on 26 February 2025.

The Act directly affects several categories of persons and entities. The primary regulated persons are those who provide ART. Under section 5(1), a person must not provide ART unless registered under Part 2. This includes clinics, medical practitioners, and other entities that perform IVF procedures, as well as persons providing assisted insemination for fee or reward. The penalty for non-compliance is up to $120,000. However, health professionals who are approved by the Minister under section 5(2)(a) may provide assisted insemination without being registered. An approved health professional may be a medical practitioner or any person belonging to a profession or occupation declared by regulation to be within the definition of “health professional” (section 5(6)). Those who provide assisted insemination without fee or reward are also exempt from registration (section 5(2)(b)). These approval-holders are affected by the Minister’s power to vary or cancel the approval on any grounds the Minister thinks fit (section 5(4)), and they commit an offence if they contravene a condition of the approval (section 5(5)).

The Minister is a central actor: responsible for deciding registration applications, imposing conditions, maintaining the Register and the donor conception register, authorising disclosure of donor register information, delegating functions, and conducting reviews. The Minister may also authorise entities under section 15A to assist in obtaining information, provide counselling, facilitate exchange of information between donors and others, or perform functions prescribed by regulation. Such an authorisation may be subject to conditions set out in a Gazette notice (section 15A(2)).

Donors are affected by the Act because their information is recorded on the donor conception register. A donor is defined as a person who provided human reproductive material on the understanding they would not be a parent or legal guardian of the resulting child (section 15(12)). Donors may be required to provide information to the Minister under section 15B, and their personal details may be disclosed to authorised entities under section 15A(3). Donors also have rights of access to information in the register, subject to the Minister’s absolute discretion to deny access under section 15(8).

Recipients of ART are affected: they must provide information for the donor register (section 15(2)(b)), and their personal information is protected by confidentiality obligations in section 18. They may also seek access to donor information through the register, but access is limited.

Children born as a consequence of ART are recorded on the donor conception register (section 15(2)(c)). The Act does not itself confer legal parentage , that is left to other laws , but the register exists to enable children to access information about their genetic origins, subject to the Minister’s discretion.

The Registrar of Births, Deaths and Marriages is affected by section 15B(3), which requires the Registrar to provide information about donors recorded under the Births, Deaths and Marriages Registration Act 1996 to the Minister for inclusion in the donor conception register, and no secrecy obligation applies to that disclosure (section 15B(4)).

Authorised persons under the Act are persons authorised by the Minister to exercise powers of entry, inspection, questioning, and record examination under section 17. They affect any person on premises where ART is provided.

Finally, the South Australian Civil and Administrative Tribunal (SACAT) is affected by section 15(11), which gives it jurisdiction to review decisions of the Minister under section 15(8) regarding refusal of access to the donor conception register. The Supreme Court is affected by section 13, which provides a right of appeal against certain ministerial decisions (refusal to approve a health professional, variation or cancellation of an approval, refusal to register, imposition or variation of conditions, suspension or cancellation of registration, and refusal to reinstate a person on the Register).

The Act imposes a range of duties and confers corresponding rights. The most fundamental duty is on any person providing ART: they must be registered under Part 2 (section 5(1)). A registered provider must comply with all conditions of registration (section 9(3)). Those conditions include a mandatory duty not to refuse treatment on the basis only of a person’s sexual orientation, gender identity, marital status, or religious beliefs. However, a registered objector , a person who has notified the Minister of a religious objection to providing treatment on those grounds , has a different duty: instead of providing treatment, they must take steps to refer the person seeking treatment to another registered provider (section 9(1a)). A registered provider who contravenes a condition faces a maximum penalty of $120,000 (section 9(3)).

A registered provider must also keep such records and documents as required by the regulations (section 16(1)), with a maximum penalty of $50,000 for non-compliance. A person who is in possession of records relating to ART provided at any time (before or after the commencement of the provision) must keep those records in accordance with the regulations (section 16(2a)). The Minister may authorise the transfer of such records to another person, and the transferor and recipient must comply with any conditions specified in the authorisation (section 16(4)-(6)).

A registered provider must also provide the Minister with information required for the donor conception register, in the manner and form determined by the Minister (section 15(7)). Failure to do so carries a maximum penalty of $120,000. Any person (not being a registered provider) may voluntarily provide prescribed information to the Minister for inclusion in the register (section 15(6)).

A person or public authority served with a notice under section 15B must provide the required information; failure without reasonable excuse or knowingly providing false or misleading information is an offence punishable by up to $10,000 (section 15B(2)). The same penalty applies to contravening a condition of an approval under section 5(2)(a) (section 5(5)).

Confidentiality duties are imposed by section 18. A person must not divulge any personal information obtained for the purpose or in the course of providing ART, except as required or authorised by or under this or any other Act, in order to provide that treatment, or with the consent of the person to whom the information relates (section 18(2)). A person engaged or formerly engaged in connection with the operation of the Act must not disclose personal information obtained while so engaged except as authorised under Part 3 (for donor register information), as required or authorised by law, in the administration of the Act, or with the person’s consent (section 18(2a)). The penalty is $10,000 or imprisonment for six months. Importantly, nothing prevents the use of information that does not disclose identity for statistical or research purposes (section 18(3)).

Rights include the right to apply for registration under Part 2, the right of a registered person to apply to be removed from the Register (section 11(1)), and the right to apply for reinstatement after removal or suspension (section 12). A person whose registration has been suspended for a specified period may only apply for reinstatement after that period expires (section 12(2)).

A person affected by specified ministerial decisions has a right of appeal to the Supreme Court within one month of receiving notice of the decision, unless the Court makes a contrary order (sections 13(1) and 13(2)). The Supreme Court may annul, vary, or reverse the decision, and make consequential orders (section 13(3)).

A person who is dissatisfied with the Minister’s refusal to disclose information from the donor conception register under section 15(8) may apply to SACAT for review (section 15(11)). The Minister must establish and publish written guidelines regarding the exercise of that discretion (sections 15(9) and 15(10)).

A person required or permitted to provide information under Part 3 does not incur civil or criminal liability if they do so honestly and in good faith (section 15D(1)). Similarly, persons engaged in administration of the Act are protected for honest acts or omissions in connection with Part 3 (section 15D(2)), and the Crown is also protected from liability (section 15D(3)).

The Act creates a suite of criminal offences with substantial penalties, and gives the Minister and authorised persons enforcement powers. The most serious penalty is a maximum of $120,000 for providing ART without being registered, unless one of the exceptions applies (section 5(1)). The same maximum penalty applies to a registered provider who contravenes or fails to comply with a condition of registration (section 9(3)), and to a registered provider who fails to provide required information for the donor conception register (section 15(7)). An approved health professional who contravenes a condition of the Minister’s approval also faces a maximum of $120,000 (section 5(5)).

Record-keeping offences carry a maximum penalty of $50,000. This applies to a registered provider who fails to keep required records or documents (section 16(1)), a health professional approved under section 5(2)(a) who fails to keep records of assisted inseminations (section 16(2)), a person in possession of ART-related records who fails to keep them in accordance with regulations (section 16(2a)), a person who fails to retain records for the required period (section 16(3)), and a person who fails to comply with conditions of a record transfer authorisation (section 16(6)).

Lesser penalties are set for other offences. A person who fails to comply with a notice to provide information for the donor conception register, or who knowingly or recklessly provides false or misleading information, is liable to a maximum of $10,000 (section 15B(2)). The same $10,000 maximum applies to a person who obstructs an authorised person, fails to answer questions to the best of their information and belief, or fails to produce records when required (section 17(2)). Offences against the confidentiality provisions in section 18 also carry a maximum of $10,000 or imprisonment for six months (sections 18(2) and 18(2a)).

Enforcement powers are given to authorised persons. An authorised person may at any reasonable time enter and inspect premises on which ART is provided, inspect equipment, ask questions, require production of records, and examine and copy records (section 17(1)). Confidential information may be disclosed to an authorised person without breaching professional ethics (section 17(3)).

The Minister has the power to suspend or cancel a person’s registration if satisfied that the person has contravened or failed to comply with a condition of registration (section 10(1)). Before taking such action, the person must be given a reasonable opportunity to make submissions (section 10(2)). The Minister may also remove a person from the Register if they cease to hold a required licence or accreditation, or otherwise cease to be entitled to be registered, and may do so without prior notice (section 11(2) and 11(3)). A person whose registration has been cancelled may apply for reinstatement, and the Minister may refuse to reinstate until related proceedings under this Act or equivalent laws of other jurisdictions are finally disposed of (section 12(5)).

The Act also provides for an appeal mechanism against ministerial decisions, as described in the previous section. This functions as a check on enforcement actions.

The Act expressly interacts with several other pieces of legislation. First, section 4 provides that the Act binds the Crown, meaning state government agencies are subject to its requirements. The Freedom of Information Act 1991 is expressly excluded: the donor conception register and any other document held for the purposes of Part 3 that relates to a particular person are not subject to access under the FOI Act (section 15C). This means a person cannot use FOI to obtain donor register information; they must use the access mechanisms under Part 3 itself.

The Surrogacy Act 2019 is referenced in the definition of “lawful surrogacy agreement” and in the permissive treatment circumstances. Section 9(1)(c)(iva) allows ART to be provided for the purposes of a lawful surrogacy agreement under that Act. The posthumous use provision at section 9(1)(c)(iv)(D) also contemplates treatment for the benefit of a person under a lawful surrogacy agreement.

The Births, Deaths and Marriages Registration Act 1996 is relevant because the Minister may require the Registrar to provide information about donors recorded under that Act for inclusion in the donor conception register (section 15B(3)). No obligation to maintain secrecy or other restriction on disclosure applies to the Registrar for the purpose of complying with such a notice (section 15B(4)).

The Act also provides that a person required or permitted to provide information under Part 3 does not incur civil or criminal liability if acting honestly and in good faith (section 15D(1)). This overrides other laws that might otherwise impose liability for disclosure. Similarly, no civil or criminal liability attaches to persons engaged in administration of the Act for honest acts or omissions (section 15D(2)), and the Crown is also protected (section 15D(3)).

Confidentiality provisions in section 18 permit disclosure of personal information as required or authorised by or under this or any other Act (sections 18(2)(aa) and 18(2a)(b)(i)). This means that if another Act compels disclosure, it will be authorised. But the Act provides a specific exception to professional ethics: confidential information may be disclosed to an authorised person without breach of professional ethics (section 17(3)).

The South Australian Civil and Administrative Tribunal Act 2013 is relevant because a person dissatisfied with the Minister’s refusal to disclose information from the donor conception register may apply to SACAT for review under section 34 of that Act (section 15(11)).

The Act also acknowledges the potential interaction with laws of other States and Territories. Section 12(5) allows the Minister to refuse to reinstate a person on the Register until any proceedings under this Act or under a law of another State or Territory providing for registration or accreditation of persons who provide ART have been finally disposed of. This recognises that a provider could be the subject of proceedings in multiple jurisdictions.

The Acts Interpretation Act 1915 is noted in the legislative history as providing for commencement provisions.

The Act originated as the Reproductive Technology Act 1988, which commenced on 1 April 1988. It was later renamed the Assisted Reproductive Treatment Act 1988 by the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009, which also changed the long title. The original Part 2 and Part 3 were substituted by that 2009 amendment, which commenced on 1 September 2010. That amendment also introduced the paramount principle in section 4A, the new definition of “assisted reproductive treatment”, and the current registration scheme under Part 2, among other changes.

Various amendments have been made over the years. The South Australian Health Commission (Administrative Arrangements) Amendment Act 2000 modified references to the Commission and authorisations. The Research Involving Human Embryos Act 2003 amended section 10 and other provisions to align with Commonwealth legislation regarding embryo research.

The Statutes Amendment (Surrogacy) Act 2009 (commenced 26 November 2010) inserted references to “recognised surrogacy agreement”, which was later deleted and replaced by “lawful surrogacy agreement” in the Surrogacy Act 2019 amendments (commencing 1 September 2020 and 7 November 2021). The Family Relationships (Surrogacy) Amendment Act 2015 and the Statutes Amendment (Surrogacy Eligibility) Act 2017 introduced the concept of a “registered objector” in section 8 and the corresponding exception in section 9(1a).

The most recent significant amendment is the Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Act 2024. This Act commenced in two stages: Part 2 (sections 3 to 8) commenced on 26 February 2025. It inserted the posthumous use provisions into section 9(1)(c)(iv), substantially rewrote Part 3 (including new sections 14A, 15A-15D), updated the donor conception register provisions, added record transfer authorisation powers, revised confidentiality provisions, and made other changes. The donor conception register amendments include the new definition of “donor”, the Minister’s absolute discretion to refuse access, and the right of review to SACAT.

The Statutes Amendment (Health and Wellbeing) Act 2025, which commenced on 4 December 2025, made minor amendments to sections 5 and 8, updating references and wording.

The Act’s legislative history shows that section 2 was omitted in 2003 under the Legislation Revision and Publication Act 2002. A transitional provision in Schedule 1 of the 2009 amendment Act provided that existing licensees under the former Part 3 were taken to be registered under the new Part 2, with certain licence conditions continuing as conditions of registration. Those transitional provisions also required former licensees to keep records required under the old Act as if they were required under the new Act.

The Act itself does not contain references to any judicial decisions or cases. The deep dive must ground itself in the source, and the source does not name any cases. Accordingly, this section notes that the Act provides for two avenues of judicial or tribunal review: appeals to the Supreme Court against specified ministerial decisions (section 13), and applications to the South Australian Civil and Administrative Tribunal for review of the Minister’s refusal to disclose information from the donor conception register (section 15(11)). The Act also provides that a certificate signed by the Minister stating whether a person was or was not registered on the Register (section 14(3)), or whether a donor was or was not registered on the donor conception register in relation to a specified child (section 15(5)), is admissible in legal proceedings as proof of that fact, absent proof to the contrary. No further litigation history can be derived from the text.

Several provisions in the Act may catch practitioners off guard. First, the definition of “donor” in section 15(12) for the purposes of Part 3 is limited: a donor is a person who provided human reproductive material “on the understanding that they would not be a parent or legal guardian of a child born as a consequence of the treatment.” This means that a person who provides gametes or embryos with the intention of being a parent (for instance, a partner in a couple undergoing IVF) is not a “donor” for the purposes of the register, and their information may not be recorded or accessible under Part 3. Practitioners advising clients on parentage and access to genetic information need to be alert to this distinction.

Second, the requirement to be registered under Part 2 has two significant exceptions (section 5(2)). Assisted insemination provided by a health professional approved by the Minister is exempt, as is assisted insemination provided other than for fee or reward. This means that a general practitioner who performs artificial insemination using a partner’s sperm without charging a fee may not need registration. However, the Minister’s approval for a health professional to provide assisted insemination may be conditional and may be varied or cancelled without cause (section 5(4)). A health professional relying on such an approval must ensure they comply with its conditions.

Third, the registered objector exception (section 9(1a)) only applies to a person who has notified the Minister of a religious objection to providing ART on the basis of sexual orientation, gender identity, or marital status. Such a person is recorded as a registered objector on the Register (section 8(2)(ba) and 8(3)). However, the objector does not simply get to refuse treatment: they must take steps to refer the person seeking treatment to another registered provider. A failure to refer would be a breach of a condition of registration, carrying a $120,000 maximum penalty.

Fourth, the Minister’s discretion to refuse access to the donor conception register under section 15(8) is stated to be “absolute” and may be exercised if disclosure would be an unjustifiable intrusion on privacy, give rise to a serious risk to health, safety, or welfare of any person, or be inappropriate because the information may be unreliable or misleading. Although the decision is reviewable by SACAT, the broad discretion gives the Minister considerable power to withhold information. The Minister must publish guidelines on how this discretion is exercised (section 15(9) and 15(10)), so practitioners should check those guidelines before advising clients on access.

Fifth, the confidentiality provisions in section 18 are broad and carry a penalty of imprisonment. Personal information obtained in the course of providing ART may only be divulged in accordance with exceptions. But note that the Act itself authorises disclosure to authorised persons (section 17(3)), to entities authorised under section 15A (section 15A(3)), and in response to a notice under section 15B. The provision also allows information that does not disclose identity to be used for statistics and research (section 18(3)). The new section 18(2a) specifically limits disclosure by persons engaged in the administration of the Act.

Sixth, the Act applies Part 3 (the donor conception register) to assisted reproductive treatment “whether provided before or after the commencement of this Part” (section 14A). This means that historical ART treatments , even those that occurred before the register existed , are within scope. This retrospective application may impose obligations on providers who no longer operate or hold records, and on donors who may not have anticipated their information being collected.

Seventh, the posthumous use provision at section 9(1)(c)(iv) only applies where the donor consented before death and gave directions, and the treatment is for the benefit of a person who was living with the donor on a genuine domestic basis immediately before death. This is a strict temporal and relationship requirement: a sibling, parent, or friend who did not live with the donor would not qualify, even if the donor consented.

For a person or entity providing ART in South Australia, the first step is to determine whether they require registration under Part 2. If the treatment falls within the definition of ART (which includes IVF procedures) and does not fall within the exceptions for approved health professionals providing assisted insemination or free insemination, registration is mandatory. An application must be made to the Minister in the approved form, accompanied by the prescribed fee (section 7). The applicant must satisfy the Minister that they are a fit and proper person and hold any required licence, accreditation, or qualification prescribed by regulation (section 6). The Minister will then impose conditions under section 9, which will include a condition not to refuse treatment on discriminatory grounds unless the person is a registered objector, in which case they must refer the person to another provider.

Once registered, the provider must comply with all conditions of registration strictly. The maximum penalty for breach is $120,000 (section 9(3)). The provider must also make and keep records as required by the regulations (section 16). Failure to keep records properly can attract a $50,000 penalty. Records must be retained for the period specified in the regulations. If the provider wishes to transfer records to another person, they must apply to the Minister for authorisation and comply with any conditions (section 16(4)-(6)).

For the donor conception register, a registered provider must provide information to the Minister in the manner and form determined by the Minister (section 15(7)). The information required includes details about donors, recipients, and children born. The provider should ensure that the information is accurate and complete, as knowingly providing false or misleading information to the Minister is an offence under section 15B(2) with a maximum penalty of $10,000.

Any person who possesses ART-related records (including historical records) must keep them in accordance with the regulations (section 16(2a)). Providers should review their storage arrangements to ensure compliance with any prescribed retention periods and formats.

A provider should also be aware of their obligations to respond to notices from the Minister under section 15B(1). Such notices may require the provision of information for the purpose of preparing and maintaining the donor conception register. Failure to comply without reasonable excuse is an offence. The provider should also be prepared to cooperate with authorised persons who may enter premises, inspect equipment, and examine records under section 17. Staff should be trained not to obstruct authorised persons and to answer questions truthfully.

Confidentiality is a critical compliance area. All persons who obtain personal information in the course of providing ART must not disclose that information except as permitted by the Act (section 18). This means that written policies and staff training should cover the lawful grounds for disclosure, including obtaining consent from the person to whom the information relates. Persons involved in administering the Act must also comply with the new section 18(2a). Anyone dealing with donor register information should be familiar with the specific authorisation regime under Part 3, including the Minister’s ability to authorise disclosure and the exemption for serious and imminent risk to health, safety, or welfare (section 15(4d)).

For a health professional who wishes to provide assisted insemination without being registered, they must first obtain the Minister’s approval under section 5(2)(a). The approval may be conditional, and the Minister may vary or cancel it on any ground. The health professional must comply with the conditions and keep required records. They should also note that the approval does not extend to IVF procedures.

For a person who wishes to access information from the donor conception register, they should apply through the mechanisms available under section 15. If the Minister refuses access, the person may apply to SACAT for review (section 15(11)). It is advisable to first obtain the Minister’s published guidelines on the exercise of the discretion.

Finally, any person providing ART should stay informed about the regulations that may prescribe additional requirements for record keeping, consent forms, returns of information, and other matters (section 20). The regulations may also impose penalties for non-compliance of up to $10,000. The Act requires a review of its operation after five years from the commencement of the 2009 amendments (section 21), but that review has already occurred; however, practitioners should monitor for any further amendments.