Assisted Reproductive Treatment Act 2008

Part 1—Preliminary

1 Purposes

The main purposes of this Act are—

(a) to regulate the use of assisted reproductive treatment and artificial insemination procedures (other than self-insemination); and

(b) to regulate access to information about treatment procedures carried out under this Act; and

(c) to promote research into the incidence, causes and prevention of infertility; and

(d) to make provision with respect to surrogacy arrangements; and

S. 1(e) repealed by No. 39/2024 s. 3(a).

S. 1(f) amended by No. 39/2024 s. 3(b).

(f) to provide for the keeping of the Central Register and the Voluntary Register by the Donor Conception Registrar; and

(g) to repeal the Infertility Treatment Act 1995; and

(h) to amend the Status of Children Act 1974 and the Births, Deaths and Marriages Registration Act 1996 and other Acts consequent on the enactment of this Act.

2 Commencement

(1) Sections 1 and 135 and this section come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) does not come into operation before 1 January 2010, it comes into operation on that day.

3 Definitions

In this Act—

artificial insemination means a procedure of transferring sperm without also transferring an oocyte into the vagina, cervical canal or uterus of a woman;

assisted reproductive treatment means medical treatment or a procedure that procures, or attempts to procure, pregnancy in a woman by means other than sexual intercourse or artificial insemination, and includes—

(a) in-vitro fertilisation; and

(b) gamete intrafallopian transfer; and

(c) any related treatment or procedure prescribed by the regulations;

S. 3 def. of Authority repealed by No. 39/2024 s. 4(2)(a).

S. 3 def. of Central Register amended by Nos 6/2016 s. 4(1)(a), 39/2024 s. 4(2)(b).

Central Register means the register kept by the Donor Conception Registrar under section 53;

child means a person who is less than 18 years of age;

S. 3 def. of child protection order amended by No. 61/2014 s. 162, repealed by No. 15/2020 s. 4.

S. 3 def. of child protection order check repealed by No. 15/2020 s. 4.

S. 3 def. of commis-sioning parent repealed by No. 39/2021 s. 4(4).

S. 3 def. of contact preference inserted by No. 6/2016 s. 4(2).

contact preference means a written statement lodged under section 63C or 63I;

S. 3 def. of criminal records check amended by No. 37/2014 s. 10(Sch. item 5.1(b)), repealed by No. 15/2020 s. 4.

designated officer, in relation to a registered ART provider, means a person appointed, employed or engaged by that provider under Division 3 of Part 8;

S. 3 def. of doctor substituted by No. 13/2010 s. 51(Sch. item 6).

doctor means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

donor means a person who has given a consent under section 16;

S. 3 def. of Donor Conception Registrar inserted by No. 39/2024 s. 4(1).

Donor Conception Registrar means a person who is employed as the Donor Conception Registrar under section 99;

donor embryo means an embryo in respect of which consent has been given under section 16;

donor gametes means a donor oocyte or donor sperm;

donor oocyte means an oocyte in respect of which consent has been given under section 16;

S. 3 def. of donor sibling inserted by No. 58/2014 s. 4.

donor sibling, in relation to a person born as a result of a donor treatment procedure, means a sibling of that person who was born as a result of a donor treatment procedure using gametes donated by the same donor;

donor sperm means sperm in respect of which consent has been given under section 16;

donor treatment procedure means a treatment procedure in which donor gametes or a donor embryo is used;

embryo means a discrete entity that has arisen from either—

(a) the first mitotic division when fertilisation of a human oocyte by a human sperm is complete; or

(b) any other process that initiates organised development of a biological entity with a human nuclear genome or altered human nuclear genome that has the potential to develop up to, or beyond, the stage at which the primitive streak appears—

and has not yet reached 8 weeks of development since the first mitotic division;

S. 3 def. of enforceable undertaking inserted by No. 39/2024 s. 4(1).

enforceable undertaking means an undertaking given by a regulated person under section 116C;

S. 3 def. of enforceable undertaking order inserted by No. 39/2024 s. 4(1).

enforceable undertaking order means an order made by the Magistrates' Court under section 116H(2);

excess ART embryo has the meaning given by the Research Involving Human Embryos Act 2008;

exemption means an exemption under section 37;

gametes means sperm or an oocyte;

S. 3 def. of general condition inserted by No. 39/2024 s. 4(1).

general condition means a condition imposed under section 75;

S. 3 def. of Health Services Commis-sioner inserted by No. 6/2016 s. 4(2)[1], substituted as Health Complaints Commis-sioner by No. 24/2019 s. 5(1)(a).

Health Complaints Commissioner means the Commissioner within the meaning of the Health Complaints Act 2016;

identifying information means information that will or may disclose the identity of a person;

S. 3 def. of improvement notice inserted by No. 39/2024 s. 4(1).

improvement notice means a notice given under section 107;

S. 3 def. of information or document production notice inserted by No. 39/2024 s. 4(1).

information or document production notice means a notice given under section 116J;

S. 3 def. of intended parent inserted by No. 39/2021 s. 4(1).

intended parent, for a surrogacy arrangement, means the person or persons who enter into the surrogacy arrangement for a woman to carry a child on behalf of the person or persons;

non-identifying information means information other than identifying information;

S. 3 def. of notice of separation inserted by No. 39/2021 s. 4(1).

notice of separation means a notice given under section 20A(3);

oocyte means an ovum from a woman;

S. 3 def. of Part 6 counsellor inserted by No. 39/2024 s. 4(1).

Part 6 counsellor has the meaning given in section 67A;

S. 3 def. of partner amended by No. 24/2019 s. 4.

partner, in relation to a person, means—

(a) the person's spouse (other than a spouse from whom the person has separated); or

(b) a person who lives with the first person as a couple on a genuine domestic basis, irrespective of gender;

S. 3 def. of police officer inserted by No. 37/2014 s. 10(Sch. item 5.1(a)), repealed by No. 15/2020 s. 4.

S. 3 def. of pre-1988 donor treatment procedure inserted by No. 58/2014 s. 4.

pre-1988 donor treatment procedure means a treatment procedure carried out using gametes donated before 1 July 1988;

S. 3 def. of pre-1998 donor inserted by No. 6/2016 s. 4(2).

pre-1998 donor means a person who donated gametes before 1 January 1998;

S. 3 def. of pre-1998 donor treatment procedure inserted by No. 6/2016 s. 4(2).

pre-1998 donor treatment procedure means a donor treatment procedure carried out using gametes donated before 1 January 1998;

S. 3 def. of production order inserted by No. 6/2016 s. 4(2).

production order means an order referred to in section 56D(1);

S. 3 def. of prohibition notice inserted by No. 39/2024 s. 4(1).

prohibition notice means a notice given under section 113;

registered ART provider means a person who is registered under Part 8 as a registered ART provider;

Registrar means the Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1996;

S. 3 def. of regulated person inserted by No. 39/2024 s. 4(1).

regulated person means a person who is—

(a) a registered ART provider; or

(b) a designated officer of a registered ART provider; or

(c) a doctor carrying out artificial insemination or assisted reproductive treatment (whether or not on behalf of a registered ART provider); or

(d) carrying out artificial insemination or assisted reproductive treatment under the supervision and direction of a doctor referred to in paragraph (c);

S. 3 def. of RTAC accreditation amended by No. 39/2021 s. 4(2).

RTAC accreditation means accreditation granted by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia and New Zealand;

S. 3 def. of Secretary substituted by No. 29/2010 s. 46, amended by Nos 24/2019 s. 5(1)(b), 39/2024 s. 4(2)(c).

Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health;

S. 3 def. of self-insemination amended by No. 39/2021 s. 4(3).

self-insemination means artificial insemination not carried out by a doctor or a person carrying out artificial insemination under the supervision and direction of a doctor who is carrying out the treatment on behalf of a registered ART provider;

S. 3 def. of specific condition inserted by No. 39/2024 s. 4(1).

specific condition means a condition imposed under section 75A;

sperm includes spermatids;

store means—

(a) to freeze an oocyte, embryo or sperm; or

(b) to otherwise preserve an oocyte, embryo or sperm by a prescribed method;

surrogacy arrangement means an arrangement, agreement or understanding, whether formal or informal, under which a woman agrees with another person to become or try to become pregnant, with the intention—

(a) that a child born as a result of the pregnancy is to be treated as the child, not of her, but of another person or persons (whether by adoption, agreement or otherwise); or

(b) of transferring custody or guardianship in a child born as a result of the pregnancy to another person or persons; or

(c) that the right to care for a child born as result of the pregnancy be permanently surrendered to another person or persons;

treatment procedure means—

(a) artificial insemination, other than self‑insemination; or

(b) assisted reproductive treatment;

S. 3 def. of Voluntary Register amended by Nos 6/2016 s. 4(1)(b), 39/2024 s. 4(2)(d).

Voluntary Register means the register kept by the Donor Conception Registrar under section 70.

4 Interpretation of references to procedures and treatment

(1) This section applies to a reference in this Act to—

(a) a kind of procedure; or

(b) a kind of assisted reproductive treatment; or

(c) a kind of treatment procedure; or

(d) a procedure, assisted reproductive treatment or treatment procedure of a particular kind.

(2) Unless a contrary intention appears, a reference to the procedure or treatment includes—

(a) the nature or type of procedure or treatment; and

(b) whether the procedure or treatment involves the use of a donor oocyte or donor sperm, or an embryo formed from a donor oocyte or donor sperm (or both); and

(c) in relation to a consent or withdrawal of consent of a donor, whether—

(i) gametes or an embryo may be used in a procedure or treatment to be carried out on a woman who is not the donor; and

(ii) gametes or embryo may be used in such a procedure or treatment to be carried out on any woman, or only on a named woman.

5 Guiding principles

It is Parliament's intention that the following principles be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act—

(a) the welfare and interests of persons born or to be born as a result of treatment procedures are paramount;

(b) at no time should the use of treatment procedures be for the purpose of exploiting, in trade or otherwise—

S. 5(b)(i) amended by No. 39/2021 s. 5(a).

(i) the reproductive capabilities of individuals; or

(ii) children born as a result of treatment procedures;

S. 5(c) amended by No. 39/2021 s. 5(b).

(c) children born as the result of the use of donated gametes have a right to information about their donors;

(d) the health and wellbeing of persons undergoing treatment procedures must be protected at all times;

S. 5(e) amended by No. 39/2021 s. 5(c).

(e) persons seeking to undergo treatment procedures must not be discriminated against on the basis of their sexual orientation, marital or relationship status, gender identity, sex characteristics, race or religion.

6 Act to bind the Crown

(1) This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence.

Part 2—Treatment procedures

Division 1—General

7 Assisted reproductive treatment

A person may only carry out assisted reproductive treatment if—

(a) the person—

(i) is a doctor who is carrying out the treatment on behalf of a registered ART provider; or

(ii) is carrying out the treatment under the supervision and direction of a doctor who is carrying out the treatment on behalf of a registered ART provider; and

(b) the person is satisfied that the requirements of Divisions 2, 3 and 4 have been met.

S. 8 substituted by No. 39/2021 s. 6.

8 Artificial insemination

A person may carry out artificial insemination of a woman only if—

(a) the person—

(i) is a doctor; or

(ii) carries out the artificial insemination under the supervision and direction of a doctor who is carrying out the treatment on behalf of a registered ART provider; and

(b) the person is satisfied that the requirements of Divisions 2, 3 and 4 have been met.

Penalty: 480 penalty units or 4 years imprisonment or both.

S. 9 (Heading) amended by No. 29/2011 s. 3(Sch. 1 item 4.1).

9 Section 8 not applicable to self-insemination

Section 8 does not apply to—

(a) a woman carrying out self-insemination; or

(b) the woman's partner or a relative or friend of the woman, assisting the woman to carry out self-insemination.

Division 2—General requirements for treatment procedures

10 Persons who may undergo treatment procedures

(1) A woman may undergo a treatment procedure only if—

(a) the woman and her partner, if any, have consented, in the prescribed form, to the carrying out of a procedure of that kind; and

(b) either—

(i) the criteria in subsection (2) apply to the woman; or

(ii) the Patient Review Panel has decided there is no barrier to the woman undergoing a treatment procedure of that kind.

S. 10(2) substituted by No. 15/2020 s. 5(1).

(2) For subsection (1)(b)(i), the criteria applicable to the woman is that a doctor is satisfied, on reasonable grounds, that—

(a) in the woman's circumstances, the woman is unlikely to become pregnant other than by a treatment procedure; or

(b) the woman is unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure; or

(c) the woman is at risk of transmitting a genetic abnormality or genetic disease to a child born as a result of a pregnancy conceived other than by a treatment procedure, including a genetic abnormality or genetic disease for which the woman's partner is the carrier.

S. 10(3) amended by No. 15/2020 s. 5(2).

(3) A doctor may be satisfied under subsection (2)(c) that the woman is at risk of transmitting a genetic abnormality or genetic disease only if—

(a) the doctor has obtained advice to that effect from another doctor or a geneticist; and

(b) if the advice is from another doctor, the other doctor has specialist qualifications in human genetics.

11 Requirements as to consent

(1) A consent under section 10(1)—

(a) must specify that the woman and her partner, if any, have consented to undergo the kind of treatment procedure specified in the consent; and

S. 11(1)(b) amended by No. 15/2020 s. 6(a).

(b) must not have been withdrawn or have lapsed when the treatment procedure takes place.

S. 11(1)(c)(d) repealed by No. 15/2020 s. 6(b).

S. 11(1A) inserted by No. 39/2021 s. 7.

(1A) To avoid doubt, the woman's partner is not required to give consent under section 16(1) for use of the partner's gametes in the treatment procedure.

(2) The person giving the consent must give the consent or cause the consent to be given to—

(a) a designated officer of the registered ART provider that is to carry out the treatment procedure; or

(b) if the procedure is to be carried out by a person other than a registered ART provider, the doctor in charge of the woman's treatment.

S. 12 repealed by No. 15/2020 s. 7.

S. 13 amended by No. 39/2021 s. 8(1)(2) (ILA s. 39B(1)).

13 Counselling

(1) Before a woman consents to undergo assisted reproductive treatment, the woman and her partner, if any, must have received counselling (including counselling in relation to the prescribed matters) from a counsellor who provides services on behalf of a registered ART provider.

S. 13(2) inserted by No. 39/2021 s. 8(2).

(2) Before a woman consents to undergo artificial insemination, the woman and her partner, if any, must have received counselling (including counselling in relation to the prescribed matters) from—

(a) a counsellor who provides counselling on behalf of a registered ART provider; or

(b) a person who meets the prescribed requirements for counselling.

S. 14 repealed by No. 15/2020 s. 8.

15 Application for review

(1) A person may apply to the Patient Review Panel for a review if—

S. 15(1)(a) repealed by No. 15/2020 s. 9(a).

S. 15(1)(b) amended by No. 15/2020 s. 9(b).

(b) under section 10(2) the person is ineligible for treatment; or

(c) a registered ART provider or a doctor has refused to carry out a treatment procedure on a woman because the provider or doctor reasonably believes that a child that may be born as a result of a treatment procedure carried out on the woman would be at risk of abuse or neglect.

(2) After considering an application for review made under this section, the Patient Review Panel may decide that there is no barrier to the person undergoing treatment procedures generally or a treatment procedure of a specified kind.

(3) In deciding the application for review, the Patient Review Panel must have regard to—

(a) the guiding principles referred to in section 5; and

(b) whether carrying out a treatment procedure, whether generally or of a specified kind, on the person—

(i) is for a therapeutic goal; and

(ii) is consistent with the best interests of a child who would be born as a result of the treatment procedure.

Division 3—Requirements for donors

16 Donation of gametes or an embryo

(1) Gametes donated by a person may be used in a treatment procedure only if the person who donated the gametes has consented to the use of the gametes in a treatment procedure of that kind.

(2) An embryo may be used in a treatment procedure only if each of the persons who donated gametes used to create the embryo has consented to the use of the person's gametes for a treatment procedure of that kind.

S. 16(3) inserted by No. 39/2021 s. 9.

(3) To avoid doubt, a reference in subsection (2) to a person who donated gametes used to create the embryo includes a reference to a person who produced gametes used to create the embryo, unless the treatment procedure is to be carried out on—

(a) the person who produced the gametes or that person's partner; or

(b) a surrogate mother under a surrogacy arrangement, in relation to which the person who produced the gametes is an intended parent.

17 Requirements as to consent

(1) A donor's consent under section 16—

(a) must be in the prescribed form; and

(b) must specify the number of women on whom treatment procedures using the donor's oocyte, sperm or embryo may be carried out; and

(c) must specify the kinds of treatment procedures for which the oocyte, sperm or embryo may be used; and

S. 17(1)(d) substituted by No. 39/2021 s. 10.

(d) must not have been withdrawn or have lapsed—

(i) in the case of donor gametes—

(A) when the gametes are used in a treatment procedure; or

(B) if the gametes are earlier used to form an embryo, when the gametes are used to form the embryo; or

(ii) in the case of consent given by a person who produced gametes used to create the embryo*,* when the embryo is used in a treatment procedure.

(2) A person giving consent under section 16 must give the consent or cause the consent to be given to—

(a) if the donation is made—

(i) to a registered ART provider, a designated officer of the registered ART provider; or

(ii) to a person other than a registered ART provider, a doctor; or

(b) in accordance with the regulations.

S. 18 amended by No. 39/2021 s. 11(1)(2) (ILA s. 39B(1)).

18 Counselling requirements

(1) Before a person gives consent under section 16 for use of the person's gametes in assisted reproductive treatment, the person must have received counselling (including counselling in relation to the prescribed matters) from a counsellor who provides services for a registered ART provider.

S. 18(2) inserted by No. 39/2021 s. 11(2).

(2) Before a person gives consent under section 16 for use of the person's gametes in artificial insemination, the person must have received counselling (including counselling in relation to the prescribed matters) from—

(a) a counsellor who provides counselling on behalf of a registered ART provider; or

(b) a person who meets the prescribed requirements for counselling.

19 Requirements as to the giving and receiving of information

At the time at which a donor gives consent under section 16, the donor—

(a) must give the prescribed information required to be recorded in the register under section 49 or 50 in relation to donors; and

S. 19(b) amended by No. 39/2021 s. 12.

(b) must be given written advice by the registered ART provider or doctor who carries out artificial insemination other than on behalf of a registered ART provider to whom the donation is being made about—

(i) the rights of any person born as a result of a donor treatment procedure, the parents of that person and any other persons to the disclosure of information under Division 3 of Part 6; and

(ii) the nature of the information about the donor that is recorded in the Central Register; and

(iii) the donor's rights to obtain information under Divisions 2 and 3 of Part 6; and

(iv) the existence and function of the Voluntary Register.

Division 4—Provisions about consent

20 Withdrawal of consent

S. 20(1) substituted by No. 39/2021 s. 13.

(1) A person who gives a consent under section 10(1) may withdraw it at any time before the procedure or action consented to is carried out.

S. 20(1A) inserted by No. 39/2021 s. 13.

(1A) A person who gives a consent under section 16 may withdraw it—

(a) in the case of donor gametes, at any time before the earliest of the following occurs—

(i) when the gametes are used in a treatment procedure; or

(ii) if the gametes are earlier used to form an embryo, when the gametes are used to form the embryo; or

(b) in the case of consent given by a person who produced gametes used to create the embryo*,* at any time before the embryo is used in a treatment procedure.

(2) A withdrawal of consent under this section must be in writing.

(3) A person withdrawing a consent must give the withdrawal or cause the withdrawal to be given as soon as practicable—

(a) to the registered ART provider or doctor to whom the consent was given; or

(b) to the registered ART provider or doctor with whom the sperm, oocyte or embryo to which the consent relates is kept or stored; or

(c) in accordance with the regulations.

S. 20A inserted by No. 39/2021 s. 14.

20A Consent to treatment procedure taken to be withdrawn on separation

(a) a woman and her partner have each given a consent under section 10(1) to a treatment procedure; and

(b) gametes produced by the woman's partner are to be used in the treatment procedure to be carried out on the woman; and

(c) before the treatment procedure is carried out, the woman and her partner separate.

(2) The consent given under section 10(1) by each of the woman and her partner is taken to be withdrawn on their separation*.*

(3) As soon as practicable after the separation, the woman and her former partner must each give written notice of the separation or cause the written notice to be given—

(a) to the registered ART provider or doctor to whom the consent under section 10(1) was given; or

(b) to the registered ART provider or doctor with whom the sperm, oocyte or embryo to which the consent relates is kept or stored; or

(c) in accordance with the regulations.

21 Lapsing of consent

(1) In the case of donor gametes, the consent of the donor given under section 16(1) lapses—

(a) 10 years after it has been given; or

(b) if any lesser period has been specified in the consent by the donor, at the end of that period.

S. 21(2) amended by No. 39/2021 s. 15.

(2) In the case of a donor embryo, the consent of each donor given under section 16 lapses—

(a) 10 years after it has been given; or

(b) if any lesser period has been specified in the consent by the donor, at the end of that period.

S. 22 (Heading) substituted by No. 39/2021 s. 16(1).

S. 22 amended by No. 39/2021 s. 16(3) (ILA s. 39B(1)).

22 Record of consent, withdrawal of consent and notice of separation

(1) A designated officer of a registered ART provider must—

S. 22(1)(a) amended by No. 39/2021 s. 16(2)(a).

(a) obtain and keep the original of each consent, withdrawal of consent or notice of separation given to the provider under this Part; and

S. 22(1)(b) substituted by No. 39/2021 s. 16(2)(b).

(b) ensure that a certified copy of each consent, withdrawal of consent or notice of separation is given to—

(i) the person who gave the consent, withdrawal of consent or notice of separation; and

(ii) in the case of a notice of separation, to the former partner of the person who gave the notice of separation.

S. 22(2) inserted by No. 39/2021 s. 16(3).

(2) A doctor carrying out artificial insemination other than on behalf of a registered ART provider must—

(a) obtain and keep the original of each consent, withdrawal of consent or notice of separation given to the doctor under this Part; and

(b) ensure that a certified copy of each consent, withdrawal of consent or notice of separation is given to—

(i) the person who gave the consent, withdrawal of consent or notice of separation; and

(ii) in the case of a notice of separation, to the former partner of the person who gave the notice of separation.

S. 23 amended by No. 39/2021 s. 17.

23 Transfer of documents

If gametes or an embryo is transferred from a registered ART provider (the first provider) to another registered ART provider (the second provider), a designated officer of the first provider must ensure that any consent, withdrawal of a consent or notice of separation relevant to the gametes or embryo is also transferred to the second provider.

24 Information about transfer of donated gametes or an embryo

(1) This section applies if a registered ART provider (the transferring registered ART provider) transfers a donor's gametes, or an embryo formed from the gametes, to another registered ART provider.

(2) A designated officer of the transferring registered ART provider must make all reasonable efforts to give the donor written notice of the name of the registered ART provider to whom the gametes or embryo has been transferred.

Division 5—Requirements for donor treatment procedures

S. 25 amended by No. 39/2021 s. 18 (ILA s. 39B(1)).

25 Information and advice

(1) Before a woman undergoes a donor treatment procedure, the registered ART provider carrying out the treatment procedure must give the woman and her partner, if any, written advice about—

(a) the rights of any person born as a result of that procedure, the donor and any other persons to information under Divisions 2 and 3 of Part 6; and

(b) the nature of the information about the woman and her partner, if any, that is recorded in the Central Register; and

(c) the rights of the woman and her partner, if any, to obtain information under Division 3 of Part 6; and

(d) the existence and function of the Voluntary Register.

S. 25(2) inserted by No. 39/2021 s. 18.

(2) Before a woman undergoes artificial insemination using donor sperm carried out by a doctor who carries out artificial insemination other than on behalf of a registered ART provider, the doctor must give the woman and her partner, if any, written advice about—

(a) the rights of any person born as a result of that procedure, the donor and any other persons to information under Divisions 2 and 3 of Part 6; and

(b) the nature of the information about the woman and her partner, if any, that is recorded in the Central Register; and

(c) the rights of the woman and her partner, if any, to obtain information under Division 3 of Part 6; and

(d) the existence and function of the Voluntary Register.

Part 3—Offences relating to use and storage
of gametes and embryos and other matters

Division 1—Prohibited procedures

26 Procedures involving gametes produced by children

(1) A person must not use, for a treatment procedure—

(a) gametes produced by a child; or

(b) an embryo formed from gametes produced by a child.

(a) a doctor has certified there is a reasonable risk of the child becoming infertile before becoming an adult; and

(b) the person obtains gametes from the child for the purpose of storing the gametes for the child's future benefit.

(3) A person must not use gametes obtained under subsection (2)—

(a) in the treatment of another person, including a relative of the child; or

(b) for research purposes; or

(c) after the death of the person who produced the gametes.

27 Ban on certain procedures

(1) A person must not carry out a treatment procedure—

(a) using sperm produced by more than one person or oocytes produced by more than one person; or

(b) in which more than one embryo is used if the gametes from which each embryo is formed are not produced by the same two people.

28 Ban on sex selection

(1) A person carrying out a treatment procedure must not use gametes or an embryo, or perform the procedure in a particular way, with the purpose or a purpose of producing or attempting to produce a child of a particular sex.

(a) 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

(b) the Patient Review Panel has otherwise approved the use of the gametes or embryo for the purpose or a purpose of producing or attempting to produce a child of a particular sex.

29 Ban on using donated gametes to produce more than 10 families

(1) A person must not carry out a treatment procedure using gametes, or an embryo formed from gametes, produced by a donor if the person knows the treatment procedure may result in more than 10 women having children who are genetic siblings, including the donor and any current or former partner of the donor.

(2) If more than 10 women have children who are genetic siblings, subsection (1) does not prevent a person carrying out a treatment procedure on any of the women using gametes, or an embryo formed from gametes, produced by the donor to produce a child that will be a genetic sibling of the women's children.

S. 29(3) inserted by No. 39/2021 s. 19.

(3) A person does not commit an offence against subsection (1) if—

(a) the person carries out a treatment procedure using gametes, or an embryo formed from gametes, produced by a donor; and

(b) the person knows the treatment procedure may result in more than 10 women having children who are genetic siblings; and

(c) the treatment procedure is carried out—

(i) on a woman who has a female partner or whose female partner is deceased to produce a child who will be a genetic sibling of the children of that woman and her partner or that woman and the deceased (as the case requires); or

(ii) on a woman under a surrogacy arrangement to produce a child who will be a genetic sibling of the children of—

S. 29(3) (c)(ii)(A) amended by No. 39/2021 s. 40.

(A) both intended parents; or

S. 29(3) (c)(ii)(B) amended by No. 39/2021 s. 40.

(B) the intended parent, if the other children of the intended parent were born as a result of a surrogacy arrangement commissioned only by that intended parent; or

S. 29(3) (c)(ii)(C) amended by No. 39/2021 s. 40.

(C) in the case of posthumous use, the intended parent and the deceased.

30 Ban on destructive research on embryos created for treatment purposes

A person must not carry out research, outside the body of a woman, involving the use of an embryo—

(a) if the embryo is unfit for transfer to a woman; or

(b) in the case of an embryo which is fit for transfer to a woman, if the research would—

(i) harm the embryo; or

(ii) make the embryo unfit for transfer to a woman; or

(iii) reduce the likelihood of a pregnancy resulting from the transfer of the embryo.

Division 2—Storage

S. 30A inserted by No. 39/2021 s. 20.

30A Meaning of *responsible person*

(1) In this Division—

gamete donor means a person who gave consent under section 16(1) for use of the person's oocyte or sperm in a treatment procedure;

responsible person, in relation to an embryo, means—

(a) each person who produced the gametes from which the embryo has been formed but not including any person who is a gamete donor; or

(b) in the case of an embryo formed only from donor gametes—

(i) the woman and her partner (if any) for whose use in a treatment procedure the embryo was formed; or

(ii) the intended parent who commissioned or who intends to commission a surrogacy arrangement, and for whose use in a treatment procedure under that surrogacy arrangement the embryo was formed; or

(c) in the case of an embryo referred to in paragraph (b) that is later allocated—

(i) the woman and her partner (if any) to whom the embryo is allocated for use in a treatment procedure; or

(ii) the intended parent who commissioned or who intends to commission a surrogacy arrangement, and for whose use in a treatment procedure under that surrogacy arrangement the embryo is allocated.

(2) For the purposes of paragraphs (b)(i) and (c)(i) of the definition of responsible person, a reference to the woman's partner is a reference to the woman's partner at the time the embryo was formed or allocated, whether or not the woman and her partner have since separated.

S. 31 substituted by No. 18/2013 s. 4.

31 Storing gametes

(1) A person must not cause or permit gametes to remain in storage except as permitted by section 31B—

(a) if the person knows that the person who produced the gametes has asked for those gametes to be removed; or

(b) in any other case, after the end of the latest of the following periods—

(i) 10 years; or

(ii) if the gametes have been obtained under section 26(2) from a child, 20 years; or

(iii) if the gametes have been produced by a person in respect of whom a certification has been made under subsection (2), 20 years; or

(iv) if the Patient Review Panel has given written approval under section 31A for a longer or further storage period, the approved period.

(2) A doctor may certify that a person is, at the time of producing the gametes, at reasonable risk of becoming prematurely infertile because of a medical procedure or condition.

S. 31A inserted by No. 18/2013 s. 4.

31A Panel may approve longer or further storage period

(1) If the person who produced the gametes has given written approval for a specified longer storage period, the Patient Review Panel may approve the longer storage period if it considers there are reasonable grounds to do so in the particular case.

(2) If the person who produced the gametes is unable to give written approval, or the person's written approval cannot be obtained, the Patient Review Panel may approve the longer storage period if it considers there are exceptional circumstances for doing so in the particular case.

(3) If an application is made for approval under subsection (1) or (2) after the period for storage of gametes referred to in section 31(1)(b) has expired, the Patient Review Panel may approve a further storage period if it considers there are exceptional circumstances in the particular case for failing to seek approval before the expiry of the period.

(4) An approval under this section may be subject to conditions.

In deciding to approve a longer or further storage period, the Patient Review Panel must have regard to the guiding principles in section 5—see section 91(2).

S. 31B inserted by No. 18/2013 s. 4.

31B Time for removal of gametes from storage

(1) A person may cause or permit gametes to remain in storage for up to 3 months after—

(a) the person becomes aware that the person who produced the gametes has asked for those gametes to be removed; or

(b) the expiry of the relevant period referred to in section 31(1)(b); or

(c) in case of a pending application, the relevant day unless the Tribunal approves the longer storage period on the relevant day; or

(d) if the Patient Review Panel refuses to approve a further storage period under section 31A(3), the relevant day unless the Tribunal approves the further storage period on the relevant day.

(2) In case of a pending application, a person may cause or permit gametes to remain in storage until the earlier of the following—

(a) the Patient Review Panel approves the longer storage period; or

(b) if the Patient Review Panel refuses or has refused to approve a longer storage period, the relevant day.

(3) A person must not use gametes kept in storage under subsection (1) or (2), unless the use by the person consists only of—

(a) storage of the gametes; or

(b) removal of the gametes from storage.

(4) For the purposes of this section—

pending application means either of the following that, on the expiry of the relevant period referred to in section 31(1)(b), had been made but not yet decided—

(a) an application to the Patient Review Panel for approval of a longer storage period; or

(b) an application to the Tribunal for review of the Patient Review Panel's decision not to approve a longer storage period;

relevant day means the day—

(a) that is 28 days after the Patient Review Panel refuses to approve the longer or further storage period; or

(b) if an application is made to the Tribunal for review of the Patient Review Panel's decision, the Tribunal decides the application.

32 Prohibition on storing embryos except in particular circumstances

S. 32(1) amended by No. 18/2013 s. 5.

(1) A person must not cause or permit an embryo to be placed or remain in storage except as permitted by section 34A.

(a) the person is a registered ART provider; and

(b) it is intended to transfer the embryo to the body of a woman in a treatment procedure in accordance with this Act; and

(c) the persons who have produced the gametes from which the embryo has been formed have consented to its storage for the purpose of later transfer.

(3) A consent under subsection (2)(c)—

(a) must be in writing; and

(b) must be given as soon as practicable after the consent has been given, to the registered ART provider storing the embryo.

33 Storing embryos for later transfer

(1) This section applies to an embryo stored as referred to in section 32(2).

S. 33(2) amended by No. 18/2013 s. 6(1).

(2) A registered ART provider must not cause or permit the embryo to remain in storage except as permitted by section 34A—

(a) if one of the persons who produced the gametes used to form the embryo has specified a storage period of less than 5 years, after that period; or

(b) in any other case, after the latest of the following days—

(i) the day that is 5 years after the day the embryo was placed in storage;

S. 33(2)(b)(ii) substituted by No. 39/2021 s. 21.

(ii) if each responsible person in relation to the embryo consents to storage for a period of not more than 5 years in addition to the period referred to in subparagraph (i), the day that is the end of that additional period;

S. 33(2)(b)(iii) substituted by No. 18/2013 s. 6(2).

(iii) if the Patient Review Panel gives approval under section 33A for a longer or further period of storage, the day that is the end of the period approved by the Panel.

S. 33(3)(4) repealed by No. 18/2013 s. 6(3).

S. 33A inserted by No. 18/2013 s. 7.

33A Patient Review Panel may approve longer or further storage of embryos

S. 33A(1) substituted by No. 39/2021 s. 22.

(1) If the responsible persons in relation to the embryo have given written approval for a specified longer storage period, the Patient Review Panel may approve the longer storage period if it considers there are reasonable grounds to do so in the particular case.

S. 33A(2) substituted by No. 39/2021 s. 22.

(2) If a responsible person is unable to give written approval, or the person's written approval is unable to be obtained, the Patient Review Panel may approve a longer storage period if it considers there are exceptional circumstances for doing so in the particular case.

(3) If an application is made for approval under subsection (1) or (2) after the period for storage of the embryo referred to in section 33(2)(b) has expired, the Patient Review Panel may approve a further storage period if it considers there are exceptional circumstances in the particular case for failing to seek approval before the expiry of the period.

(4) An approval under this section may be subject to conditions.

In deciding to approve a longer or further storage period, the Patient Review Panel must have regard to the guiding principles in section 5—see section 91(2).

34 Removal of embryos from storage

(1) A registered ART provider must not remove an embryo from storage, or cause or permit an embryo to be removed from storage, unless—

(a) it is to be used, in accordance with this Act, in a treatment procedure; or

S. 34(1)(b) substituted by No. 39/2021 s. 23.

(b) written consent to its removal has been given to a designated officer of the registered ART provider by the responsible persons in relation to the embryo; or

S. 34(1)(c) substituted by No. 39/2021 s. 23.

(c) the responsible persons in relation to the embryo are unable to agree on the period for which the embryo is to be stored and the Patient Review Panel has directed that the embryo be removed; or

(d) it is required to be removed by reason of the operation of section 33(2).

(2) A person who removes from storage an embryo that is not to be used for a treatment procedure must ensure that—

(a) it is not removed from its container, other than for the sole purpose of observing the embryo; and

(b) it is disposed of in accordance with the regulations.

S. 34A inserted by No. 18/2013 s. 8.

34A Time for removal of embryos from storage

(1) A registered ART provider may cause or permit an embryo to remain in storage for up to 3 months after—

S. 34A(1)(a) substituted by No. 39/2021 s. 24.

(a) the responsible persons in relation to the embryo give written consent to its removal; or

(b) the expiry of the relevant period referred to in section 33(2); or

(c) in case of a pending application, the relevant day unless the Tribunal approves the longer storage period on the relevant day; or

(d) if the Patient Review Panel refuses to approve a further storage period under section 33A(3), the relevant day unless the Tribunal approves the further storage period on the relevant day; or

(e) in case of a direction under section 34(1)(c), the relevant day unless the Tribunal decides on the relevant day that the embryo should not be removed.

(2) In case of a pending application or a direction under section 34(1)(c), a registered ART provider may cause or permit an embryo to remain in storage until the earlier of the following—

(a) in case of a pending application, the Patient Review Panel approves the longer storage period; or

(b) if the Patient Review Panel refuses or has refused to approve a longer storage period, or has directed that an embryo be removed from storage, the relevant day.

(3) A person must not use an embryo kept in storage under subsection (1) or (2) unless the use by the person consists only of—

(a) storage of the embryo; or

(b) removal of the embryo from storage.

(4) For the purposes of this section—

pending application means either of the following that, on the expiry of the relevant period referred to in section 33(2), had been made but not yet decided—

(a) an application to the Patient Review Panel for approval of a longer storage period; or

(b) an application to the Tribunal for review of the Patient Review Panel's decision not to approve a longer storage period;

relevant day means the day—

(a) that is 28 days after the Patient Review Panel refuses to approve the longer or further storage period, or directs that an embryo be removed from storage; or

(b) if an application is made to the Tribunal for review of the Patient Review Panel's decision, the Tribunal decides the application.

Division 3—General offences in relation to gametes and embryos

35 Formation of embryos

A person must not knowingly or recklessly form or attempt to form an embryo outside the body of a woman unless the person—

(a) is a doctor or scientist who provides services on behalf of a registered ART provider; and

(b) forms the embryo in the course of providing services for the registered ART provider.

36 Moving donated gametes and embryos into and out of Victoria

(1) A person must not—

(a) bring donor gametes, or an embryo produced from donor gametes, into Victoria; or

(b) take donor gametes, or an embryo produced from donor gametes, from Victoria.

S. 36(2) substituted by No. 39/2024 s. 5.

(2) Subsection (1) does not apply to a person if the person—

(a) brings donor gametes or an embryo produced from donor gametes into Victoria, or takes donor gametes or an embryo produced from donor gametes from Victoria, in accordance with this Act and the regulations; and

(b) complies with subsection (3) or (4) (as the case requires).

S. 36(3) substituted by No. 39/2024 s. 5.

(3) Before a person brings donor gametes or an embryo produced from donor gametes into Victoria, the person must certify that—

(a) any payment made, any valuable consideration that is given or agreed to be given in connection with the donation or any agreement entered into for payment to be made or valuable consideration to be given in connection with the donation does not contravene—

(i) the Human Tissue Act 1982; or

(ii) the Prohibition of Human Cloning for Reproduction Act 2008; or

(iii) the Prohibition of Human Cloning for Reproduction Act 2002 of the Commonwealth; and

(b) the donor of the gametes, or each person who donated the gametes used to produce the embryo, has consented in writing to—

(i) the donor's gametes being brought into Victoria; and

(ii) the use of the donor's gametes or the embryo produced from the donor's gametes in accordance with subsection (5); and

(iii) the storage of the embryo produced from the donor's gametes for the purpose of later transfer, or if an exemption has been granted in relation to section 32(2)(c) or (3), any conditions to which the exemption is subject have been complied with; and

(c) the person has been given a copy of—

(i) the donor's consent, referred to in paragraph (b); or

(ii) the consent of each person who donated the gametes used to produce the embryo, referred to in paragraph (b); and

(d) the donor or each person who donated the gametes used to produce the embryo has received counselling in relation to prescribed matters from a counsellor who meets the prescribed requirements for counselling or, if an exemption has been granted in relation to section 18, any conditions to which the exemption is subject have been complied with; and

(e) the donor or each person who donated the gametes used to produce the embryo has given information about the matters prescribed for the purposes of this section or, if an exemption has been granted in relation to section 19(a), any conditions to which the exemption is subject have been complied with; and

(f) the donor or each person who donated the gametes used to produce the embryo has been given written advice on the matters set out in section 19(b)(i) to (iv) or, if an exemption has been granted in relation to section 19(b), any conditions to which the exemption is subject have been complied with; and

(g) the person has taken all reasonable steps to ensure that any future use of the donor gametes or embryo produced from donor gametes in Victoria will comply with section 29; and

(h) the person has satisfied any prescribed matter.

S. 36(4) substituted by No. 39/2024 s. 5.

(4) Before a person takes donor gametes or an embryo produced from donor gametes from Victoria, the person must certify that—

(a) the purpose for which the gametes or embryo will be used outside Victoria is consistent with a purpose for which it could be used in Victoria; and

(b) the way in which the gametes or embryo will be used outside Victoria is consistent with the way in which it could be used in Victoria; and

(c) the person has satisfied any prescribed matter.

S. 36(5) substituted by No. 39/2024 s. 5.

(5) For the purposes of subsection (3)(b)(ii), a donor's consent or the consent of each person who donated the gametes used to produce the embryo—

(a) must meet the requirements of section 17(1)(a) to (c); and

(b) must not have been withdrawn or have lapsed at the time the certification is made.

S. 36(6) inserted by No. 39/2024 s. 5.

(6) Certification under this section must be—

(a) in the prescribed form; and

(b) given to the Secretary before the gametes or embryo produced from donor gametes is brought into or taken from Victoria.

S. 37 substituted by No. 39/2024 s. 6.

37 Exemption from compliance—bringing or taking gametes or embryo into or out of Victoria

(1) A person to whom section 36(3) or (4) applies in relation to particular donor gametes or a particular embryo produced from donor gametes may apply to the Secretary in the prescribed form for an exemption under this section in relation to the gametes or embryo.

(2) In the case of an application by a person to whom section 36(3) applies, the Secretary, by written notice given to the person, may exempt the person from compliance with a provision specified in subsection (3) in relation to the gametes or embryo if the Secretary is satisfied that—

(a) similar procedures have taken place outside of Victoria; and

(b) there are special circumstances that warrant the exemption.

(3) For the purposes of subsection (2), the following provisions are specified—

(a) sections 17(2), 18, 19, 20(3) and 32(2)(c) and (3);

(b) Division 1 of Part 6;

(c) any other prescribed provision of this Act or the regulations.

(4) In the case of an application by a person to whom section 36(4) applies, the Secretary, by written notice given to the person, may exempt the person from compliance with a provision specified in subsection (5) in relation to the gametes or embryo if the Secretary is satisfied that—

(a) the gametes or embryo will be used in a way that is consistent with this Act; and

(b) there are special circumstances that warrant the exemption.

(5) For the purposes of subsection (4), the following provisions are specified—

(a) sections 32(2) and 33;

(b) any other prescribed provision of this Act or the regulations.

(6) An exemption under this section may—

(a) relate to the whole or a part of a provision of this Act; and

(b) be subject to conditions specified by the Secretary.

(7) A person in relation to whom an exemption is granted must comply with any condition to which the exemption is subject.

S. 37A inserted by No. 39/2024 s. 6.

37A Offence to certify a false or misleading matter

A person must not certify a matter specified in section 36(3) or (4) that the person believes to be false or misleading.

S. 37B inserted by No. 39/2024 s. 6.

37B Record keeping

(1) A person must keep a written record of the matters certified by the person under section 36(3) or (4).

(2) A person must keep a written record of the prescribed matters relating to a certification made by the person under section 36(3) or (4) for a prescribed period after the date on which the certification is made.

S. 37C inserted by No. 39/2024 s. 6.

37C Guidelines

(1) The Secretary may issue written guidelines in relation to—

(a) taking all reasonable steps for the purposes of section 36(3)(g); and

(b) the keeping of records relating to compliance with section 37B.

(2) Guidelines issued under this section must be published on the Department's Internet site.

S. 37D inserted by No. 39/2024 s. 6.

37D Regulations

For the purposes of section 37E, the regulations may—

(a) prohibit persons from—

(i) bringing donor gametes, an embryo produced from donor gametes, a class of donor gametes or a class of embryo produced from donor gametes into Victoria in prescribed circumstances; or

(ii) taking donor gametes, an embryo produced from donor gametes, a class of donor gametes or a class of embryo produced from donor gametes from Victoria in prescribed circumstances; and

(b) prescribe requirements for—

(i) bringing donor gametes, an embryo produced from donor gametes, a class of donor gametes or a class of embryo produced from donor gametes into Victoria; or

(ii) taking donor gametes, an embryo produced from donor gametes, a class of donor gametes or a class of embryo produced from donor gametes from Victoria.

S. 37E inserted by No. 39/2024 s. 6.

37E Offence to contravene prescribed prohibition or requirements

A person who brings donor gametes or an embryo produced from donor gametes into Victoria, or takes donor gametes or an embryo produced from donor gametes from Victoria, must not contravene any prohibition or requirement prescribed for the purposes of this section.

Division 4—Offence in relation to giving information

38 False or misleading information

A person must not knowingly or recklessly give false or misleading information or omit to give material information—

(a) in an application, consent or request under this Act; or

(b) with respect to the giving of information that is required—

(i) to be given under this Act; or

(ii) to be included in a register, record or notice under this Act.

Part 4—Surrogacy

39 Certain surrogacy arrangements to require approval of Patient Review Panel

A registered ART provider may carry out a treatment procedure on a woman under a surrogacy arrangement only if the surrogacy arrangement has been approved by the Patient Review Panel.

40 Matters to be considered by Patient Review Panel in deciding application for approval of surrogacy arrangement

(1) The Patient Review Panel may approve a surrogacy arrangement if the Panel is satisfied of the following—

(a) that a doctor has formed an opinion that—

S. 40(1)(a)(i) amended by No. 39/2021 s. 27(a).

(i) in the circumstances, the intended parent is unlikely to become pregnant, be able to carry a pregnancy or give birth; or

S. 40(1)(a)(ii) amended by No. 39/2024 s. 112(1).

(ii) if the intended parent is a woman, the woman is likely to place her life or health, or that of the baby, at risk if she becomes pregnant, carries a pregnancy or gives birth;

(ab) that the surrogate mother's oocyte will not be used in the conception of the child;

(ac) that the surrogate mother has previously carried a pregnancy and given birth to a live child;

(b) that the surrogate mother is at least 25 years of age;

S. 40(1)(c) amended by No. 39/2021 s. 27(a).

(c) that the intended parent, the surrogate mother and the surrogate mother's partner, if any, have received counselling and legal advice as required under section 43;

(d) that the parties to the surrogacy arrangement are aware of and understand the personal and legal consequences of the arrangement;

(e) that the parties to the surrogacy arrangement are prepared for the consequences if the arrangement does not proceed in accordance with the parties' intentions, including—

S. 40(1)(e)(i) amended by No. 39/2021 s. 27(a).

(i) the consequences if the intended parent decides not to accept the child once born; and

S. 40(1)(e)(ii) amended by No. 39/2021 s. 27(b).

(ii) the consequences if the surrogate mother refuses to relinquish the child to the intended parent;

(f) that the parties to the surrogacy arrangement are able to make informed decisions about proceeding with the arrangement.

(2) In making its decision under subsection (1), the Patient Review Panel must have regard to the following—

(a) a report from a counsellor who provided counselling under section 43 to the parties;

(b) an acknowledgment by the parties that the parties have undergone counselling and obtained legal advice as required by section 43.

(3) This section is subject to section 41.

41 Patient Review Panel may approve non-complying surrogacy arrangement in exceptional circumstances

The Patient Review Panel may approve a surrogacy arrangement, despite failing to be satisfied of the matters referred to in section 40(1) in relation to the arrangement, if the Panel believes—

(a) the circumstances of the proposed surrogacy arrangement are exceptional; and

(b) it is reasonable to approve the arrangement in the circumstances.

S. 42 substituted by No. 15/2020 s. 10.

42 Application of general requirements for treatment to surrogacy arrangement

For the purposes of applying Division 2 of Part 2 to a treatment procedure carried out under a surrogacy arrangement, the requirement to comply with the criteria in section 10(2) does not apply to the surrogate mother.

S. 42A (Heading) amended by Nos 39/2021 s. 41(1), 39/2024 s. 112(2).

S. 42A inserted by No. 39/2021 s. 25, amended by No. 39/2021 s. 41(2).

42A Intended parents not required to give donor's consent

To avoid doubt, gametes produced by an intended parent or an embryo formed from gametes produced by an intended parent may be used in a treatment procedure carried out under a surrogacy arrangement without a consent given by the intended parent under section 16.

S. 43 amended by No. 39/2021 s. 28.

43 Counselling and legal information

Before a surrogacy arrangement is entered into the intended parent, the surrogate mother and the surrogate mother's partner, if any, must—

(a) undergo counselling, by a counsellor providing services on behalf of a registered ART provider, about the social and psychological implications of entering into the arrangement, including counselling about the prescribed matters; and

(b) undergo counselling about the implications of the relinquishment of the child and the relationship between the surrogate mother and the child once it is born; and

(c) obtain information about the legal consequences of entering into the arrangement.

44 Surrogacy costs

(1) A surrogate mother must not receive any material benefit or advantage as a result of a surrogacy arrangement.

(2) Subsection (1) does not prevent a surrogate mother being reimbursed for the prescribed costs actually incurred by the surrogate mother as a direct consequence of entering into the surrogacy arrangement.

S. 44(2A) inserted by No. 39/2021 s. 26(1).

(2A) If the surrogate mother's partner is a party to the surrogacy arrangement, subsection (1) does not prevent the partner being reimbursed for the prescribed costs actually incurred by the partner as a direct consequence of the partner or the surrogate mother entering into the surrogacy arrangement.

S. 44(3) amended by No. 39/2021 s. 26(2).

(3) To the extent that a surrogacy arrangement provides for a matter other than the reimbursement for costs actually incurred by the surrogate mother or the surrogate mother's partner (if any) the arrangement is void and unenforceable.

S. 44A inserted by No. 39/2021 s. 29.

44A Rights of surrogate mother in relation to pregnancy and birth

(1) This section applies in relation to a surrogacy arrangement despite anything that the parties to the arrangement may have agreed, whether orally or in writing.

(2) The surrogate mother has the same rights as any other pregnant woman has to make decisions or take actions in relation to the management of the pregnancy and the birth of the child.

45 Prohibition on certain publications

(1) A person must not publish, or cause to be published, a statement, advertisement, notice or document—

(a) to the effect that a person is or may be willing to enter into a surrogacy arrangement; or

(b) to the effect that a person is seeking another person who is or may be willing to enter into a surrogacy arrangement or to act as a surrogate mother or to arrange a surrogacy arrangement; or

(c) to the effect that the person is or may be willing to arrange a surrogacy arrangement; or

(d) to the effect that a person is or may be willing to accept any benefit under a surrogacy arrangement, whether for himself or herself or for another person; or

(e) that is intended or likely to counsel or procure a person to agree to act as a surrogate mother; or

(f) to the effect that a person is or may be willing to act as a surrogate mother.

(2) In this section—

publish means—

(a) publish in any newspaper; or

(b) publish by means of television, radio or the Internet; or

(c) otherwise disseminate to the public.

Part 5—Posthumous use of gametes

46 Requirements for posthumous use of gametes or an embryo in treatment provided by a registered ART provider

A registered ART provider may use a person's gametes, or an embryo created from the person's gametes, in a treatment procedure after the person's death only if—

(a) the treatment procedure is carried out—

(i) on the deceased person's partner; or

S. 46(a)(ii) substituted by No. 39/2021 s. 30.

(ii) by the deceased person's partner commissioning a surrogacy arrangement in accordance with Part 4; and

(b) the deceased person provided written consent for the deceased person's gametes or an embryo created from the deceased person's gametes to be used in a treatment procedure of that kind; and

(c) the Patient Review Panel has approved the use of the gametes or embryo; and

(d) the person who is to undergo the treatment procedure has received counselling under section 48.

47 Approval by Patient Review Panel

(1) In deciding whether or not to grant approval for the posthumous use of gametes or an embryo, the Patient Review Panel must have regard to the possible impact on the child to be born as a result of the treatment procedure.

(2) Without limiting subsection (1), the Patient Review Panel must have particular regard to any research on outcomes for children conceived after the death of one of the child's parents.

S. 48 substituted by No. 39/2021 s. 31.

48 Counselling

Before a woman may undergo a treatment procedure referred to in section 46, the woman must undergo counselling in relation to the prescribed matters from—

(a) in the case of assisted reproductive treatment, a counsellor who provides counselling on behalf of a registered ART provider; or

(b) in the case of artificial insemination, either—

(i) a counsellor who provides counselling on behalf of a registered ART provider; or

(ii) a person who meets the prescribed requirements for counselling.

Part 6—Registers and access to information

Division 1—Registers kept by registered ART providers and doctors

49 Register to be kept by registered ART providers

(1) A registered ART provider must keep a register that includes the prescribed information in relation to the following—

(a) the donors of gametes and embryos kept or stored by the registered ART provider;

(b) the destruction or disposal by the registered ART provider of any gametes or an embryo formed outside the body of a woman;

(c) any human embryo kept or stored by the registered ART provider that becomes an excess ART embryo;

(d) each woman on whom the registered ART provider carries out a treatment procedure and the woman's partner, if any;

(e) any treatment procedure carried out on a woman by the registered ART provider;

(f) the use of gametes or an embryo in a treatment procedure carried out by the registered ART provider;

(g) any gametes or an embryo transferred between—

(i) the registered ART provider and another registered ART provider; or

(ii) the registered ART provider and a doctor;

(h) the collection and storage of gametes or an embryo by the registered ART provider;

S. 49(1)(i) amended by No. 39/2021 s. 32.

(i) the consents to the storage and removal from storage of gametes or an embryo by the registered ART provider;

(j) the bringing into or taking out of Victoria of any gametes or an embryo that have been or are stored or kept by the registered ART provider;

(k) each consent or withdrawal or lapsing of consent given under this Act for a treatment procedure by the registered ART provider;

(l) if the registered ART provider reimburses a donor for costs actually incurred by the donor in respect of a donation made to the registered ART provider, details of the reimbursement;

(m) the outcome of a treatment procedure including particulars of—

(i) a confirmed pregnancy resulting from a treatment procedure; and

(ii) the miscarriage of a pregnancy resulting from a treatment procedure;

(n) a person born as a result of a treatment procedure, including particulars of the birth of the person.

S. 49(2) amended by No. 39/2024 s. 7.

(2) A designated officer of a registered ART provider must ensure that any information required, by a condition of registration that applies to the provider's registration, to be recorded in the register kept by the provider under subsection (1) is recorded in the register.

S. 49A inserted by No. 58/2014 s. 5.

49A Register of pre-1988 donor treatment procedures to be kept by registered ART provider

A registered ART provider who is in possession of or has control of records relating to pre-1988 donor treatment procedures must keep a register that includes the prescribed information contained in the records in relation to the following—

(a) the donors of gametes used in pre-1988 donor treatment procedures;

(b) each woman on whom a pre-1988 donor treatment procedure was carried out and the woman's partner;

(c) the outcomes of pre-1988 donor treatment procedures including particulars of—

(i) a confirmed pregnancy resulting from the treatment procedure; and

(ii) the miscarriage of a pregnancy resulting from the treatment procedure;

(d) any pre-1988 donor treatment procedure carried out on a woman;

(e) the use of donor gametes in a pre-1988 donor treatment procedure;

(f) a person born as a result of a pre-1988 donor treatment procedure, including particulars of the birth of the person.

50 Register to be kept by doctor carrying out artificial insemination

(1) This section applies to a doctor carrying out artificial insemination other than on behalf of a registered ART provider.

(2) The doctor must keep a register that includes the prescribed information in relation to the following—

(a) each artificial insemination carried out by the doctor;

(b) if donor sperm is used for the artificial insemination, the donor;

(c) the woman who is inseminated and her partner, if any;

(d) a person born as a result of the artificial insemination, including particulars of the birth, if known to the doctor;

(e) each consent given in relation to the artificial insemination or withdrawal or lapsing of the consent.

S. 51 (Heading) amended by Nos 6/2016 s. 5(1), 39/2024 s. 8(1).

51 Information to be given to the Donor Conception Registrar by registered ART providers

S. 51(1) amended by Nos 6/2016 s. 5(2), 39/2024 s. 8(2).

(1) Each registered ART provider must, not later than 1 July in each year, give to the Donor Conception Registrar the information specified in subsection (2) about the following—

(a) the birth of each person born as a result of a donor treatment procedure carried out by the registered ART provider, and that is known to the registered ART provider, within the preceding financial year;

(b) each pregnancy that has occurred as a result of a donor treatment procedure carried out by the ART provider, and that is known to the registered ART provider, within the preceding financial year;

S. 51(1)(c) amended by Nos 6/2016 s. 5(2), 39/2024 s. 8(2).

(c) in the circumstances specified in writing by the Donor Conception Registrar, each donor treatment procedure carried out by the registered ART provider in the preceding financial year, if the outcome of that procedure is not known by the provider.

1. 10 penalty units.

(2) The information provided under subsection (1) must include the following details—

(a) in the case of a birth, the name of the person born as a result of the donor treatment procedure;

(b) in all cases, the name of the donor;

(c) in all cases, the name of the woman on whom the procedure was carried out and the name of her partner, if any;

(d) in all cases, the kind of procedure carried out.

S. 52 (Heading) amended by Nos 6/2016 s. 6(1), 39/2024 s. 9(1).

52 Information to be given to Donor Conception Registrar by doctors

S. 52(1) amended by Nos 6/2016 s. 6(2), 39/2024 s. 9(2).

(1) A doctor who has carried out artificial insemination other than on behalf of a registered ART provider must, by 1 August in each year, give to the Donor Conception Registrar the information specified in subsection (2) in relation to—

(a) the birth of each person born as a result of artificial insemination carried out by the doctor, and that is known to the doctor, within the preceding financial year;

(b) each pregnancy that has occurred as a result of artificial insemination carried out by the doctor, and that is known to the doctor, within the preceding financial year;

(c) each artificial insemination procedure carried out by the doctor in the preceding financial year.

(2) The information provided under subsection (1) must include the following details—

(a) in the case of a birth, the name of the person born as a result of artificial insemination;

(b) if donor sperm was used in the artificial insemination, the name of the donor;

(c) in all cases, the name of the woman on whom the procedure was carried out and the name of her partner, if any;

(d) in all cases, the kind of procedure carried out.

S. 52AA (Heading) amended by No. 39/2024 s. 10(1).

S. 52AA inserted by No. 6/2016 s. 7, amended by No. 39/2024 s. 10(2).

52AA Information to be given to the Registrar by the Donor Conception Registrar

If the Donor Conception Registrar receives information under section 51(1) or 52(1) in relation to the birth of a person born as a result of a donor treatment procedure, the Donor Conception Registrar must give the following information to the Registrar to enable the Registrar to perform functions under section 17B(1A) of the Births, Deaths and Marriages Registration Act 1996—

(a) the name and date of birth of the person born as a result of the donor treatment procedure; and

(b) the name of the woman on whom the procedure was carried out and the name of her partner, if any.

S. 52A (Heading) amended by Nos 6/2016 s. 8(1), 39/2024 s. 11(1).

S. 52A inserted by No. 58/2014 s. 6,
amended by Nos 6/2016 s. 8(2), 39/2024 s. 11(2).

52A Information to be given to Donor Conception Registrar by registered ART provider—register of pre‑1988 donor treatment procedures

Each registered ART provider required to keep a register of pre-1988 donor treatment procedures under section 49A must, not later than 1 July in each year, give to the Donor Conception Registrar any additional information that has been included in the register in the preceding 12 months.

S. 52B (Heading) substituted by No. 6/2016 s. 9(1), amended by No. 39/2024 s. 12(1).

S. 52B inserted by No. 58/2014 s. 6.

52B Information may be given to Donor Conception Registrar by persons other than registered ART providers—pre-1988 donor treatment procedures

S. 52B(1) amended by No. 6/2016 s. 9(2)(a).

(1) A person other than a registered ART provider who is in possession of or has control of records relating to pre-1988 donor treatment procedures may—

S. 52B(1)(a) amended by Nos 6/2016 s. 9(2)(b), 39/2024 s. 12(2).

(a) give the records to the Donor Conception Registrar; or

S. 52B(1)(b) amended by Nos 6/2016 s. 9(2)(b), 39/2024 s. 12(2).

(b) give copies of the records to the Donor Conception Registrar.

S. 52B(2) amended by Nos 6/2016 s. 9(3). 39/2024 s. 12(2).

(2) A person is not liable for prosecution for an offence, or to a civil action, only for giving records to the Donor Conception Registrar under subsection (1).

S. 53 (Heading) amended by Nos 6/2016 s. 10(1), 39/2024 s. 13(1).

S. 53 amended by Nos 6/2016 s. 10(2), 39/2024 s. 13(2).

53 Donor Conception Registrar to keep a Central Register

The Donor Conception Registrar must keep, in the way decided by the Donor Conception Registrar, a Central Register containing—

S. 53(a) amended by Nos 6/2016 s. 10(2), 39/2024 s. 13(2).

(a) the information given to the Donor Conception Registrar under this Division; and

(ab) for each donor, the number of persons born as a result of a treatment procedure or artificial insemination using that donor's gametes; and

S. 53(ac) inserted by No. 6/2016 s. 10(3), amended by No. 39/2024 s. 13(2).

(ac) results described in section 56L(2)(c) that are given to the Donor Conception Registrar in response to a request made under section 56L(2); and

S. 53(ad) inserted by No. 6/2016 s. 10(3), amended by No. 39/2024 s. 13(2).

(ad) results described in section 56M(2)(c) that are given to the Donor Conception Registrar in response to a request made under section 56M(2); and

S. 53(ae) inserted by No. 6/2016 s. 10(3).

(ae) the information contained in the Central Register kept by the Registrar immediately before the commencement of section 10 of the Assisted Reproductive Treatment Amendment Act 2016; and

(b) the prescribed information.

S. 54 (Heading) substituted by No. 58/2014 s. 7,
amended by Nos 6/2016 s. 11(1), 39/2024 s. 14(1).

54 Donor Conception Registrar to correct Central Register on request

S. 54(1) amended by Nos 6/2016 s. 11(2), 39/2024 s. 14(2).

(1) A person in relation to whom information is recorded in the Central Register may, at any time, ask the Donor Conception Registrar to correct or amend information in the Register that is inaccurate, incomplete, out of date or misleading.

(2) A request under subsection (1)—

(a) must be in writing; and

(b) must specify the amendment or correction the person wishes to have made and the reasons the person wishes to have the amendment or correction made.

S. 54(3) amended by Nos 6/2016 s. 11(3), 39/2024 s. 14(3).

(3) If, in the Donor Conception Registrar's opinion, the amendment or correction requested will make the Central Register more accurate or complete, the Donor Conception Registrar must make the amendment or correction to the Register that is necessary in the Donor Conception Registrar's opinion.

S. 54(4) amended by Nos 6/2016 s. 11(4), 39/2024 s. 14(4).

(4) The Donor Conception Registrar must notify a person who makes a request under this Part of the Donor Conception Registrar's decision about that request within 30 days of making that decision.

S. 54A (Heading) amended by Nos 6/2016 s. 12(1), 39/2024 s. 15(1).

S. 54A inserted by No. 58/2014 s. 8.

54A Donor Conception Registrar to correct or include information on Central Register without request

S. 54A(1) amended by Nos 6/2016 s. 12(2), 39/2024 s. 15(2).

(1) The Donor Conception Registrar may use information provided under section 52A, 63A or 140 to amend or correct information, or create a new entry, in the Central Register if, in the Donor Conception Registrar's opinion, the amendment, correction or new entry will make the Central Register more accurate or complete.

S. 54A(2) amended by Nos 6/2016 s. 12(3), 39/2024 s. 15(2).

(2) The Donor Conception Registrar may use information or records obtained under section 52B, 56A(2), 56B or 56J or under a production order to amend or correct information, or create a new entry, in the Central Register, if, in the Donor Conception Registrar's opinion, the amendment, correction or new entry will make the Central Register more accurate or complete.

S. 54A(3) amended by Nos 6/2016 s. 12(4), 39/2024 s. 15(3).

(3) For the purposes of subsection (2) , in considering whether a new entry will make the Central Register more accurate or complete, the Donor Conception Registrar must have regard to the desirability of including in the Central Register as much as possible of the information required under section 53.

Pt 6 Div. 2 (Heading) amended by No. 39/2021 s. 33.

Division 2—Information to be given by registered ART providers and doctors

55 Information recorded by registered ART providers that is to be given to donors

(1) This section applies if a registered ART provider proposes to carry out a donor treatment procedure using a donor's gametes or an embryo formed from the donor's gametes.

(2) The donor may ask a designated officer of the registered ART provider for any information required to be recorded in the registered ART provider's register about—

(a) the woman on whom the procedure is proposed to be carried out; and

(b) the woman's partner, if any.

(3) On receiving a request for information under subsection (2), the designated officer must disclose to the donor, in accordance with subsection (4)—

(a) the information in the registered ART provider's register about the woman and her partner, if any, other than identifying information about the woman or her partner; and

(b) any identifying information in the registered ART provider's register about the woman or her partner, if any, if the woman and her partner have consented to the disclosure.

(4) Information disclosed under subsection (3) must be given—

(a) in writing; and

(b) in accordance with any conditions or limitations imposed by the woman or her partner, if any.

register, in relation to a registered ART provider, means the register required to be kept by the provider under Division 1.

S. 55A inserted by No. 39/2021 s. 34.

55A Information recorded by doctors that is to be given to donors

(1) This section applies if a doctor who carries out artificial insemination other than on behalf of a registered ART provider proposes to carry out artificial insemination using donor sperm.

(2) The donor may ask the doctor for any information required to be recorded in the doctor's register about—

(a) the woman on whom the procedure is proposed to be carried out; and

(b) the woman's partner, if any.

(3) On receiving a request for information under subsection (2), the doctor must disclose to the donor, in accordance with subsection (4)—

(a) the information in the doctor's register about the woman and her partner, if any, other than identifying information about the woman or her partner; and

(b) any identifying information in the doctor's register about the woman or her partner, if any, if the woman and her partner have consented to the disclosure.

(4) Information disclosed under subsection (3) must be given—

(a) in writing; and

(b) in accordance with any conditions or limitations imposed by the woman or her partner, if any.

register, in relation to a doctor, means the register required to be kept by the doctor under Division 1.

Division 3—Disclosure of information on Central Register

56 Application for information on Central Register

S. 56(1) amended by Nos 6/2016 s. 13(1), 39/2024 s. 16(1).

(1) The following persons may apply to the Donor Conception Registrar for the disclosure of information recorded on the Central Register—

(a) a person born as a result of a donor treatment procedure;

(b) a parent of a person born as a result of a donor treatment procedure;

(c) a person who is descended from a person born as a result of a donor treatment procedure;

(d) a donor.

(2) An application under subsection (1) may request only the disclosure of information relating to—

(a) if the application is made by a person referred to in subsection (1)(a), the applicant; or

(b) if the application is made by a person referred to in subsection (1)(b) or (d), the applicant's child; or

(c) if the application is made by a person referred to in subsection (1)(c), the person from whom the applicant is descended; or

(d) if the application is made by a person referred to in subsection (1)(d), a person born as a result of a donor treatment procedure carried out using the donor's gametes.

S. 56(3) amended by No. 6/2016 s. 13(2), substituted by No. 39/2024 s. 16(2).

(3) An application under subsection (1) must—

(a) be in the form and way approved by the Donor Conception Registrar; and

(b) include a statement in the prescribed form of the applicant's reasons for the application; and

(c) be accompanied by the prescribed fee.

S. 56(4) inserted by No. 39/2024 s. 16(2).

(4) Before accepting an application under this section, the Donor Conception Registrar must give the applicant any prescribed explanatory material.

S. 56A inserted by No. 58/2014 s. 9.

56A Application relating to person born as a result of pre-1988 donor treatment procedure—access to public records

(1) This section applies if an application under section 56(1) requests information relating to a person born as a result of a pre-1988 donor treatment procedure.

S. 56A(2) amended by Nos 6/2016 s. 14, 39/2024 s. 17.

(2) For the purposes of obtaining information requested in the application, the Donor Conception Registrar may access records transferred to the Public Record Office from Prince Henry's Institute of Medical Research that relate to donor treatment procedures.

S. 56A(3) amended by Nos 6/2016 s. 14, 39/2024 s. 17.

(3) The Donor Conception Registrar, in accordance with this Part, may disclose to the applicant information obtained from the Public Record Office if the information is of a kind that could be included in the Register under section 54A(2).

S. 56B (Heading) amended by No. 39/2024 s. 18(1).

S. 56B inserted by No. 6/2016 s. 15.

56B Donor Conception Registrar may request records—pre-1988 donor treatment procedures

(a) an applicant under section 56(1) requests information relating to a person born as a result of a pre-1988 donor treatment procedure; and

(b) records relating to the donor treatment procedure are not among records from Prince Henry's Institute of Medical Research in the custody of the Public Record Office.

S. 56B(2) amended by No. 39/2024 s. 18(2).

(2) If the Donor Conception Registrar believes on reasonable grounds that a person (other than a registered ART provider) is in possession of or has control of records relating to the donor treatment procedure, the Donor Conception Registrar may, subject to subsection (3), request the person to locate and give the records to the Donor Conception Registrar.

S. 56B(3) amended by No. 39/2024 s. 18(2).

(3) The Donor Conception Registrar must not request records under this section from a child of a donor unless—

S. 56B(3)(a) amended by No. 39/2024 s. 18(2).

(a) the donor consents to the Donor Conception Registrar making the request; or

S. 56B(3)(b) amended by No. 39/2024 s. 18(2).

(b) the child has previously initiated contact with the Donor Conception Registrar.

(4) A request under subsection (2) must be in writing and must set out the requirements of this section.

(5) A person who receives a request under subsection (2) must, within 60 days of receiving the request—

(a) make all reasonable efforts to locate the requested records; and

S. 56B(5)(b) amended by No. 39/2024 s. 18(2).

(b) provide a written declaration to the Donor Conception Registrar stating—

(i) that the person has made all reasonable efforts to locate the requested records; and

(ii) whether the person is in possession of or has control of the requested records.

(6) If the declaration states that the person is in possession of or has control of the requested records, the person must, within 21 days after providing the declaration—

S. 56B(6)(a) amended by No. 39/2024 s. 18(2).

(a) give the records to the Donor Conception Registrar; or

S. 56B(6)(b) amended by No. 39/2024 s. 18(2).

(b) give copies of the records to the Donor Conception Registrar.

S. 56B(7) amended by No. 39/2024 s. 18(2).

(7) A person is not liable for prosecution for an offence, or to a civil action, only for giving records, or copies of records, to the Donor Conception Registrar under subsection (6).

S. 56C (Heading) amended by No. 39/2024 s. 19(1).

S. 56C inserted by No. 6/2016 s. 15.

56C Offence to disclose that Donor Conception Registrar has requested records—pre-1988 donor treatment procedures

S. 56C(1) amended by No. 39/2024 s. 19(2).

(1) A person who receives a request to which this offence applies must not disclose, whether directly or indirectly, to any other person that the request has been made unless—

(a) the disclosure is reasonably necessary for the purposes of locating the records that are the subject of the request; or

(b) the disclosure is made to the person to whom the requested records relate.

S. 56C(2) amended by No. 39/2024 s. 19(3).

(2) Subsection (1) does not apply to a disclosure of information if the Authority or the Donor Conception Registrar (as the case may be) has not advised the person that it is a criminal offence to disclose to any other person that the Authority or the Donor Conception Registrar (as the case may be) has made the request.

S. 56C(3) inserted by No. 39/2024 s. 19(4).

request to which this offence applies means—

(a) a request under section 56B(2) from the Authority that is made before the commencement of section 19 of the Health Legislation Amendment (Regulatory Reform) Act 2024; or

(b) a request made by the Donor Conception Registrar under section 56B(2).

S. 56D (Heading) amended by No. 39/2024 s. 20(1).

S. 56D inserted by No. 6/2016 s. 15.

56D Donor Conception Registrar may apply to Magistrates' Court for production order

S. 56D(1) amended by No. 39/2024 s. 20(2).

(1) The Donor Conception Registrar may apply to the Magistrates' Court for an order requiring a person to produce records relating to a particular pre‑1988 donor treatment procedure if—

S. 56D(1)(a) amended by No. 39/2024 s. 20(2).

(a) the Donor Conception Registrar requested the person under section 56B to provide records relating to that donor treatment procedure; and

S. 56D(1)(b) amended by No. 39/2024 s. 20(2).

(b) the person, within 90 days of the Donor Conception Registrar giving the request—

(i) did not provide the requested records; or

(ii) did not provide all the requested records; and

S. 56D(1)(c) amended by No. 39/2024 s. 20(2).

(c) the Donor Conception Registrar believes on reasonable grounds that the person is in possession of or has control of the requested records.

S. 56D(2) amended by No. 39/2024 s. 20(2).

(2) The Donor Conception Registrar may make an application under subsection (1) whether or not the person has made a declaration under section 56B(5) stating that the person is not in possession of or does not have control of the records.

(3) An application under subsection (1) must be—

S. 56D(3)(a) amended by No. 39/2024 s. 20(2).

(a) supported by an affidavit made on behalf of the Donor Conception Registrar stating—

S. 56D(3)(a)(i) amended by No. 39/2024 s. 20(2).

(i) the particulars of the request that the Donor Conception Registrar has made under section 56B; and

(ii) whether the person complied with any part of the request under section 56B; and

S. 56D(3)(a)(iii) amended by No. 39/2024 s. 20(2).

(iii) the grounds on which the Donor Conception Registrar considers that the person against whom the order is sought is in possession of or has control of the records that are the subject of the request; and

(b) accompanied by any declaration made by the person under section 56B(5).

S. 56D(4) amended by No. 39/2024 s. 20(2).

(4) As soon as practicable after the Donor Conception Registrar makes an application under subsection (1), the Donor Conception Registrar must serve a copy of the application and the supporting affidavit on the person against whom the production order is sought.

S. 56E inserted by No. 6/2016 s. 15.

56E Hearing of application for production order

S. 56E(1) amended by No. 39/2024 s. 21.

(1) The Magistrates' Court hearing an application under section 56D(1) may require the Donor Conception Registrar to give the Court any additional information that the Court requires concerning the grounds on which the order is sought.

(2) The respondent is entitled to be present at any hearing of an application under section 56D(1).

(3) Despite anything to the contrary in the Open Courts Act 2013, an application under section 56D(1) must be heard in closed court.

S. 56F inserted by No. 6/2016 s. 15.

56F Magistrates' Court may make production order

S. 56F(1) amended by No. 39/2024 s. 22.

(1) If the Magistrates' Court is satisfied that there are reasonable grounds for believing that the person is in possession of or has control of records relating to the pre-1988 donor treatment procedure to which the application relates, the Court may make a production order requiring the person to produce to the Donor Conception Registrar before a day specified in the order—

(a) the records specified in the order; or

(b) copies of the records specified in the order.

S. 56F(2) amended by No. 39/2024 s. 22.

(2) The Donor Conception Registrar must serve a copy of an order made under this section on the person against whom it is made.

S. 56G inserted by No. 6/2016 s. 15.

56G Expiry of production order

If a production order has not been served on the person against whom it was made before the day that is 2 months after the making of the order, the order expires on that day.

S. 56H inserted by No. 6/2016 s. 15.

56H Failure to comply with production order

(1) A person against whom a production order has been made and who has been served with the order must not, without reasonable excuse, fail to comply with the order.

(2) A person is not liable for prosecution for an offence, or to a civil action, only for producing records when required to do so by a production order.

S. 56I
inserted by No. 6/2016 s. 15.

56I Medical professional privilege, contravention of ethics not a reasonable excuse

(1) It is not a reasonable excuse for a person to refuse to or fail to comply with a production order on the ground of medical professional privilege or on the ground that complying with the order would constitute unprofessional conduct or a breach of professional ethics.

(2) Sections 28(2), 28(3) and 32C of the Evidence (Miscellaneous Provisions) Act 1958 do not apply to prevent the production of records as required by a production order.

S. 56J (Heading) amended by No. 39/2024 s. 23(1).

S. 56J inserted by No. 6/2016 s. 15.

56J Donor Conception Registrar may request additional information in order to identify pre-1998 donor

(a) an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and

(b) there is insufficient information on the Central Register to identify the donor of gametes used in the procedure; and

S. 56J(1)(c) amended by No. 39/2024 s. 23(2).

(c) the Donor Conception Registrar is satisfied that records identifying the donor are not among records from Prince Henry's Institute of Medical Research in the custody of the Public Record Office; and

S. 56J(1)(d) amended by No. 39/2024 s. 23(2).

(d) the applicant consents to the Donor Conception Registrar requesting information under this section.

S. 56J(2) amended by No. 39/2024 s. 23(2).

(2) Subject to subsections (4) and (5), the Donor Conception Registrar may for the purposes of identifying the donor—

(a) request information relating to the donor or to the donor treatment procedure from any person (including a registered ART provider); and

(b) for the purposes of making a request under paragraph (a), disclose to any person information contained on the Central Register.

S. 56J(3) repealed by No. 39/2024 s. 23(3).

S. 56J(4) amended by No. 39/2024 s. 23(4).

(4) The Donor Conception Registrar must not request information under subsection (2)(a) from a child of a person whose name is entered on the Central Register as a donor unless—

S. 56J(4)(a) amended by No. 39/2024 s. 23(4).

(a) the person whose name is entered on the Central Register consents to the Donor Conception Registrar making the request; or

S. 56J(4)(b) amended by No. 39/2024 s. 23(4).

(b) the child has previously initiated contact with the Donor Conception Registrar.

S. 56J(5) amended by No. 39/2024 s. 23(4).

(5) The Donor Conception Registrar must not request under subsection (2)(a) records relating to pre‑1988 donor treatment procedures.

S. 56K (Heading) amended by No. 39/2024 s. 24(1).

S. 56K inserted by No. 6/2016 s. 15.

56K Offence to disclose that Donor Conception Registrar has requested additional information relating to donor or donor treatment procedures

S. 56K(1) amended by No. 39/2024 s. 24(2).

(1) A person who receives a request to which this offence applies must not disclose, whether directly or indirectly, to any other person that the request has been made unless—

(a) the disclosure is reasonably necessary for the purposes of locating the information that is the subject of the request; or

(b) in the case of records, the disclosure is made to the person to whom the requested records relate.

S. 56K(2) amended by No. 39/2024 s. 24(3).

(2) Subsection (1) does not apply to a disclosure of information if the Authority or the Donor Conception Registrar (as the case may be) has not advised the person or the registered ART provider that it is a criminal offence to disclose to any other person that the Authority or the Donor Conception Registrar (as the case may be) has made the request.

S. 56K(3) inserted by No. 39/2024 s. 24(4).

request to which this offence applies means—

(a) a request under section 56J(2) from the Authority that is made before the commencement of section 24 of the Health Legislation Amendment (Regulatory Reform) Act 2024; or

(b) a request made by the Donor Conception Registrar under section 56J(2).

S. 56L (Heading) amended by No. 39/2024 s. 25(1).

S. 56L inserted by No. 6/2016 s. 15.

56L Donor Conception Registrar may request genetic test results of suspected donor

(a) an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and

(b) there is insufficient information on the Central Register to determine whether a person whose name is entered on the Central Register as a donor is the donor of gametes used in the procedure.

S. 56L(2) amended by No. 39/2024 s. 25(2).

(2) The Donor Conception Registrar may, for the purposes of establishing a genetic link between the person whose name is entered on the Central Register and the applicant, request that the person whose name is entered on the Central Register—

S. 56L(2)(a) amended by No. 39/2024 s. 25(2).

(a) undergo genetic testing at a place specified by the Donor Conception Registrar; and

(b) consent to the comparison of the results of the genetic testing described in paragraph (a) with a DNA profile or genetic test results relating to the applicant; and

S. 56L(2)(c) amended by No. 39/2024 s. 25(2).

(c) consent to the results of the comparison described in paragraph (b) being given to the Donor Conception Registrar.

S. 56M (Heading) amended by No. 39/2024 s. 26(1).

S. 56M inserted by No. 6/2016 s. 15.

56M Donor Conception Registrar may request genetic test results of relative of suspected donor

(a) an application has been made under section 56(1) by a person born as a result of a pre-1998 donor treatment procedure; and

S. 56M(1)(b) amended by No. 39/2024 s. 26(2).

(b) the Donor Conception Registrar reasonably believes that a person whose name is entered on the Central Register as a donor may be the donor of gametes used in the procedure; and

S. 56M(1)(c) amended by No. 39/2024 s. 26(2).

(c) the Donor Conception Registrar has—

(i) made a request under section 56L(2) of the person whose name is entered on the Central Register; or

(ii) made all reasonable efforts to locate the person whose name is entered on the Central Register for the purposes of making a request under section 56L(2).

S. 56M(2) amended by No. 39/2024 s. 26(2).

(2) Subject to subsection (3), the Donor Conception Registrar may, for the purposes of establishing a genetic link between the person whose name is entered on the Central Register and the applicant, request that an adult blood relative of the person whose name is entered on the Central Register—

S. 56M(2)(a) amended by No. 39/2024 s. 26(2).

(a) undergo genetic testing at a place specified by the Donor Conception Registrar; and

(b) consent to the comparison of the results of the genetic testing described in paragraph (a) with a DNA profile or genetic test results relating to the applicant; and

S. 56M(2)(c) amended by No. 39/2024 s. 26(2).

(c) consent to the results of the comparison described in paragraph (b) being given to the Donor Conception Registrar.

S. 56M(3) amended by No. 39/2024 s. 26(2).

(3) The Donor Conception Registrar may make a request under subsection (2) only if—

(a) the person whose name is entered on the Central Register is deceased; or

(b) the person whose name is entered on the Central Register is considered to be a missing person by Victoria Police, the police force of any other State or a territory or the Australian Federal Police; or

S. 56M(3)(c) amended by No. 39/2024 s. 26(2).

(c) the Donor Conception Registrar considers that there are exceptional circumstances that justify making a request under subsection (2) in the particular case.

S. 56M(4) amended by No. 39/2024 s. 26(2).

(4) If the Donor Conception Registrar intends to make a request under subsection (2) on the basis that there are exceptional circumstances that justify making the request, the Donor Conception Registrar must make all reasonable efforts to give notice of the intended request to the person whose name is entered on the Central Register.

S. 56M(5) amended by No. 39/2024 s. 26(2).

(5) If a person is given notice under subsection (4) of an intended request, that person may apply to VCAT for a review of the decision of the Donor Conception Registrar to make the intended request.

(6) An application to VCAT must be made—

(a) if the person does not request reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, within 28 days of receiving the notice under subsection (4); or

(b) if the person does request reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, within 28 days of receiving the written reasons under that Act.

S. 56M(7) amended by No. 39/2024 s. 26(3)(a).

(7) If notice of an intended request is given under subsection (4), the Donor Conception Registrar may make that request only if—

S. 56M(7)(a) amended by No. 39/2024 s. 26(3)(b).

(a) the person does not apply for a review of the decision of the Donor Conception Registrar to make the intended request within the period set out in subsection (6)(a) or (b); or

S. 56M(7)(b) amended by No. 39/2024 s. 26(3)(c).

(b) VCAT has reviewed the Donor Conception Registrar's decision to make the intended request and has confirmed the Donor Conception Registrar's decision.

S. 56N (Heading) amended by No. 39/2024 s. 27(1).

S. 56N inserted by No. 6/2016 s. 15.

56N Donor Conception Registrar to be satisfied of relationship before disclosing information

S. 56N(1) amended by No. 39/2024 s. 27(2)(a).

(1) The Donor Conception Registrar must not disclose information (whether identifying or non‑identifying) under this Part about a person whose name is entered on the Central Register as a donor to a person born as a result of a donor treatment procedure or a parent or descendant of a person born as a result of a donor treatment procedure unless satisfied under subsection (4) that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are related.

S. 56N(2) amended by No. 39/2024 s. 27(2)(a).

(2) The Donor Conception Registrar must not disclose information (whether identifying or non-identifying) under this Part about a person born as a result of a donor treatment procedure to a person whose name is entered on the Central Register as a donor unless satisfied under subsection (4) that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are related.

S. 56N(3) amended by No. 39/2024 s. 27(2)(a).

(3) The Donor Conception Registrar must not disclose information about a donor sibling under section 60A to a person born as a result of a donor treatment procedure or a parent of that person unless satisfied under subsection (4) that—

(a) the person whose name is entered on the Central Register as a donor and the person born as a result of donor treatment are related; and

(b) the donor sibling—

(i) is a person born as a result of a donor treatment procedure; and

(ii) is related to the person whose name is entered on the Central Register referred to in paragraph (a).

S. 56N(4) amended by No. 39/2024 s. 27(2)(a).

(4) The Donor Conception Registrar may be satisfied that a person whose name is entered on the Central Register as a donor and a person born as a result of a donor treatment procedure are related if—

(a) a unique donor identifier recorded in the Central Register links the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure; or

S. 56N(4)(b) amended by No. 39/2024 s. 27(2)(a).

(b) a comparison of genetic testing results provided to the Donor Conception Registrar establishes that the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are genetically related; or

S. 56N(4)(c) amended by No. 39/2024 s. 27(2).

(c) the Donor Conception Registrar, having regard to all available information, reasonably believes that—

(i) the person whose name is entered on the Central Register and the person born as a result of a donor treatment procedure are genetically related; and

(ii) there is no reasonable likelihood that any other person may be the donor of the person born as a result of a donor treatment procedure.

unique donor identifier means a unique identifier used by a registered ART provider or a doctor carrying out artificial insemination other than on behalf of a registered ART provider for the purposes of identifying an individual donor.

57 Disclosure of information that does not identify a person

S. 57(1) amended by Nos 6/2016 s. 16, 39/2024 s. 28.

(1) On receipt of an application under section 56, the Donor Conception Registrar must disclose to the applicant the information applied for, other than identifying information about another person.

(2) A disclosure of information about a person under subsection (1) does not require the person's consent.

58 Disclosure of information to parent of person born as a result of donor treatment or donor

S. 58(1) amended by Nos 6/2016 s. 17(1), 39/2024 s. 29.

(1) On receipt of an application under section 56 from a parent of a person born as a result of a donor treatment procedure or a donor, the Donor Conception Registrar must disclose to the parent or donor identifying information if—

(a) the person to whom the information relates consents to the disclosure of the information and the disclosure is in accordance with that consent; or

(b) if the person is a child—

(i) the child's parent or guardian has consented to the disclosure of the information; and

(ii) the disclosure is in accordance with the consent; and

S. 58(1)(b)(iii) amended by Nos 6/2016 s. 17(1), 39/2024 s. 29.

(iii) the child has not indicated to the Donor Conception Registrar that the child does not want the information disclosed.

(2) If a child born as a result of a donor treatment procedure has indicated to the Registrar that the child does not want identifying information about the child disclosed to a person, the Registrar may disclose the information only if the Registrar considers it reasonable in the circumstances.

S. 58(3) inserted by No. 6/2016 s. 17(2).

(3) Disclosure of identifying information under this section is subject to—

(a) if the application was made by a parent of a person born as a result of a donor treatment procedure, Division 3A;

(b) if the application was made by a donor, Division 3B.

S. 59 amended by No. 58/2014 s. 10, substituted by No. 6/2016 s. 18, amended by No. 39/2024 s. 30(a).

59 Disclosure of information to persons born as a result of a donor treatment procedure

Subject to Division 3A, on receipt of an application under section 56 from a person born as a result of a donor treatment procedure, the Donor Conception Registrar must disclose to the applicant identifying information about another person—

(a) if the applicant is an adult; or

(b) if the applicant is a child and—

(i) the applicant's parent or guardian has consented to the making of the application; or

S. 59(b)(ii) substituted by No. 39/2024 s. 30(b).

(ii) a Part 6 counsellor has provided counselling to the applicant; and

S. 59(b)(iii) inserted by No. 39/2024 s. 30(b).

(iii) the Donor Conception Registrar has received a statement from the Part 6 counsellor that the applicant is sufficiently mature to understand the consequences of the disclosure from the Central Register.

S. 60 amended by No. 58/2014 s. 11, substituted by No. 6/2016 s. 19, amended by No. 39/2024 s. 31.

60 Disclosure of information to persons descended from persons born as a result of donor treatment procedure

Subject to Division 3A, on receipt of an application under section 56 from a person who is descended from a person born as a result of a donor treatment procedure, the Donor Conception Registrar may disclose to the person identifying information about the donor from whom the person is descended.

S. 60A inserted by No. 58/2014 s. 12.

60A Application for information on Central Register about donor siblings

(1) A person born as a result of a donor treatment procedure or a parent of a person born as a result of a donor treatment procedure may apply for the disclosure of information recorded on the Central Register relating to—

(a) donor siblings of the person; or

(b) donor siblings of the applicant's child.

(2) An application under subsection (1) must—

S. 60A(2)(a) amended by Nos 6/2016 s. 20, 39/2024 s. 32.

(a) be made in the form and way approved by the Donor Conception Registrar; and

(b) be accompanied by the prescribed fee.

S. 60A(3) amended by Nos 6/2016 s. 20, 39/2024 s. 32.

(3) On receipt of an application under subsection (1) the Donor Conception Registrar may disclose to the applicant the following information—

(a) the total number of the applicant's or the child's donor siblings and the number of those donor siblings born to each woman;

(b) the sex of each of the applicant's or the child's donor siblings;

(c) the month and year of birth of each of the applicant's or the child's donor siblings.

S. 61 amended by Nos 58/2014 s. 13, 6/2016 s. 21, repealed by No. 39/2024 s. 33.

S. 62 substituted by No. 6/2016 s. 22.

62 Notice to be given of intended disclosure

S. 62(1) amended by No. 39/2024 s. 34(1).

(1) If the Donor Conception Registrar intends to disclose under this Division identifying information relating to a person (other than a pre-1998 donor or a person born as a result of a donor treatment procedure), the Donor Conception Registrar must make all reasonable efforts to give notice of the intended disclosure together with any prescribed explanatory material to that person.

S. 62(2) amended by No. 39/2024 s. 34(2)(a).

(2) If the Donor Conception Registrar intends to disclose identifying information under this Division relating to a pre‑1998 donor, the Donor Conception Registrar must make all reasonable efforts to inform the donor that—

(a) an application for the disclosure of the donor's identifying information has been made by—

(i) a person born as a result of a donor treatment procedure; or

(ii) the parent of a person born as a result of a donor treatment procedure; or

(iii) a person who is descended from a person born as a result of a donor treatment procedure; and

S. 62(2)(b) amended by No. 39/2024 s. 34(2)(a)(b).

(b) the donor may lodge with the Donor Conception Registrar a contact preference under section 63C.

S. 62(2)(c) repealed by No. 39/2024 s. 34(2)(c).

S. 62(3) amended by No. 39/2024 s. 34(3)(a).

(3) If the Donor Conception Registrar intends to disclose identifying information under this Division relating to a person born as a result of a donor treatment procedure, the Donor Conception Registrar must make all reasonable efforts to inform that person or, if the person is a child, the person's parent or guardian—

(a) that an application for the disclosure of the person's identifying information has been made by the donor whose gametes were used in the donor treatment procedure; and

S. 62(3)(b) amended by No. 39/2024 s. 34(3)(a)(b).

(b) that the person born as a result of a donor treatment procedure or, if the person is a child, the person's parent or guardian, may lodge with the Donor Conception Registrar a contact preference under section 63I.

S. 62(3)(c) repealed by No. 39/2024 s. 34(3)(c).

S. 62(4) inserted by No. 39/2024 s. 34(4).

(4) In addition, if the Donor Conception Registrar intends to disclose identifying information under this Division relating to a person born as a result of a donor treatment procedure or a pre‑1998 donor, the Donor Conception Registrar must make all reasonable efforts to give that person, or if the person is a child, the person's parent or guardian, any prescribed explanatory material.

Pt 6 Div. 3A (Heading) inserted by No. 6/2016 s. 23.

Division 3A—Disclosure and contact preferences for pre-1998 donors

S. 63 amended by No. 58/2014 s. 14, substituted by No. 6/2016 s. 23.

63 Disclosure of information if pre-1998 donor deceased or not located

S. 63(1) amended by No. 39/2024 s. 35.

(1) If a person applies under section 56(1) for the disclosure of identifying information about a pre‑1998 donor, the Donor Conception Registrar may disclose identifying information under Division 3 about the donor without giving notice under section 62(2) if—

S. 63(1)(a) amended by No. 39/2024 s. 35.

(a) despite making all reasonable efforts to locate the donor, the Donor Conception Registrar has not located the pre-1998 donor within 4 months of the application being made; or

(b) the donor is deceased.

S. 63(2) amended by No. 39/2024 s. 35.

(2) The Donor Conception Registrar must not disclose identifying information under Division 3 about a pre‑1998 donor unless the applicant gives the Secretary—

(a) an undertaking not to contact the donor; and

S. 63(2)(b) amended by No. 39/2024 s. 35.

(b) an undertaking to provide the Donor Conception Registrar with any information the applicant subsequently receives from a source other than the Donor Conception Registrar from which the pre-1998 donor may be directly or indirectly located.

(3) An applicant who gives an undertaking under subsection (2)(a) must not knowingly contact the pre-1998 donor unless the contact is a continuation of, or a similar kind to, contact that the applicant had with the donor before the applicant made the application.

S. 63A inserted by No. 6/2016 s. 23.

63A Information leading to location of donor

S. 63A(1) amended by No. 39/2024 s. 36(1).

(1) If, after receiving identifying information from the Donor Conception Registrar about a pre-1998 donor who could not be located, an applicant receives, from a source other than the Donor Conception Registrar, information from which the pre‑1998 donor may be directly or indirectly located, the applicant must, as soon as reasonably practicable, provide the Donor Conception Registrar with that information.

S. 63A(2) substituted by No. 39/2024 s. 36(2).

(2) If the Donor Conception Registrar receives information relating to a pre‑1998 donor under subsection (1), the Donor Conception Registrar must make all reasonable efforts—

(a) to inform the donor—

(i) that the donor's identifying information has been released to a person under Division 3; and

(ii) that the donor may lodge with the Donor Conception Registrar a contact preference under section 63C relating to that person; and

(b) to give the donor any prescribed explanatory material.

S. 63B inserted by No. 6/2016 s. 23.

63B Time limit for disclosure of identifying information about pre-1998 donors

S. 63B(1) amended by No. 39/2024 s. 37.

(1) If the Donor Conception Registrar has given a pre-1998 donor a notice under section 62(2), the Donor Conception Registrar must disclose under Division 3 the identifying information about the pre-1998 donor as soon as reasonably practicable after the earlier of the following—

(a) if the donor consents to the disclosure, the day of that consent;

(b) 4 months after the notice was given.

S. 63B(2) amended by No. 39/2024 s. 37.

(2) If, under section 63, the Donor Conception Registrar is not required to give a notice before disclosing identifying information about a pre‑1998 donor under Division 3, the Donor Conception Registrar must disclose the information as soon as reasonably practicable after 4 months after the application under section 56 was made.

S. 63B(3) amended by No. 39/2024 s. 37.

(3) Despite subsections (1)(b) and (2), the Donor Conception Registrar may delay disclosure of the identifying information by a further 4 months if the Donor Conception Registrar considers there are exceptional circumstances that justify delaying the disclosure of the information.

S. 63C inserted by No. 6/2016 s. 23.

63C Contact preference for pre-1998 donors

S. 63C(1) amended by No. 39/2024 s. 38(1).

(1) If an application is made for the disclosure of identifying information about a pre-1998 donor, the donor may lodge with the Donor Conception Registrar either or both of the following—

(a) a written statement setting out the donor's wishes about being contacted by the applicant for the disclosure of the information;

(b) a written statement setting out the donor's wishes about the donor's child being contacted by the applicant for the disclosure of the donor's information.

(2) A contact preference lodged under subsection (1) must be in the form approved by the Secretary.

S. 63C(3) amended by No. 39/2024 s. 38(1).

(3) A contact preference lodged under subsection (1) must be lodged with the Donor Conception Registrar before the first day on which there is contact between the donor and the applicant to whom the contact preference relates.

(4) A contact preference lodged under subsection (1)(a) may state either that—

(a) the pre-1998 donor does not wish to be contacted by the applicant; or

(b) the donor wishes any contact with the applicant to occur only in a specified way.

(5) A contact preference lodged under subsection (1)(b) may state either that—

(a) the pre-1998 donor does not wish the child to be contacted by the applicant; or

(b) the donor wishes any contact between the child and the applicant to occur only in a specified way.

S. 63C(6) amended by No. 39/2024 s. 38(1).

(6) If a pre-1998 donor lodges a contact preference under subsection (1)(b), the Donor Conception Registrar may—

(a) have regard to the child's wishes in relation to the lodgement of the contact preference; and

S. 63C(6)(b) amended by No. 39/2024 s. 38(1).

(b) if the child's wishes in relation to the lodgement are different from the pre‑1998 donor's, comply with the donor's wishes only if the Donor Conception Registrar considers it reasonable in the circumstances.

S. 63C(7) substituted by No. 39/2024 s. 38(2).

(7) As soon as practicable after a contact preference is lodged under subsection (1), the Donor Conception Registrar must give the applicant a copy of the contact preference lodged.

S. 63C(8) amended by No. 39/2024 s. 38(3).

(8) The Donor Conception Registrar must maintain records of contact preferences lodged under subsection (1).

S. 63D inserted by No. 6/2016 s. 23.

63D Duration of contact preferences lodged by pre-1998 donors

(1) Subject to subsection (2), a contact preference lodged under section 63C continues in force for 5 years after—

S. 63D(1)(a) amended by No. 39/2024 s. 39.

(a) the contact preference is lodged with the Donor Conception Registrar; or

(b) the contact preference is extended under subsection (3).

(2) A contact preference lodged under section 63C(1)(b) expires on the day on which the child who is the subject of the contact preference turns 18 years of age.

S. 63D(3) amended by No. 39/2024 s. 39.

(3) A pre-1998 donor who lodges a contact preference under section 63C may extend that contact preference by written notice to the Donor Conception Registrar.

S. 63D(4) amended by No. 39/2024 s. 39.

(4) Before a contact preference expires under subsection (1), the Donor Conception Registrar must make all reasonable efforts to give the pre‑1998 donor who lodged the contact preference written notice—

(a) as to when the contact preference will expire under subsection (1); and

(b) that the donor may extend the contact preference under subsection (3).

S. 63D(5) amended by No. 39/2024 s. 39.

(5) The Donor Conception Registrar must, as soon as practicable after a contact preference expires under subsection (1) or (2) or is extended under subsection (3), notify the applicant to whom the contact preference relates.

S. 63E inserted by No. 6/2016 s. 23.

63E Amendment of contact preferences lodged by pre‑1998 donors

S. 63E(1) amended by No. 39/2024 s. 40(1).

(1) Subject to subsection (2), a pre-1998 donor who lodges a contact preference under section 63C may amend the contact preference by written notice to the Donor Conception Registrar.

(2) A pre-1998 donor must not amend a contact preference unless there has been no contact between the donor and the applicant to whom the contact preference relates.

S. 63E(3) amended by No. 39/2024 s. 40(2)(a).

(3) If a pre-1998 donor amends a contact preference, the Donor Conception Registrar must, as soon as practicable after the contact preference is amended—

(a) notify the applicant to whom the amended contact preference relates—

(i) that the contact preference has been amended; and

(ii) of the particulars of the amendment; and

S. 63E(3)(a)(iii) repealed by No. 39/2024 s. 40(2)(b).

S. 63E(3)(ab) inserted by No. 39/2024 s. 40(2)(c).

(ab) give the applicant any prescribed explanatory material; and

(b) give the applicant a copy of the amended contact preference.

S. 63F inserted by No. 6/2016 s. 23.

63F Withdrawal of contact preferences lodged by pre‑1998 donors

S. 63F(1) amended by No. 39/2024 s. 41.

(1) A pre-1998 donor may, by written notice to the Donor Conception Registrar, withdraw a contact preference lodged under section 63C by that donor.

(2) If a pre-1998 donor withdraws a contact preference, the donor cannot lodge a subsequent contact preference in relation to the applicant to whom the withdrawn contact preference relates if there has been contact between the applicant and the donor.

S. 63F(3) amended by No. 39/2024 s. 41.

(3) If a pre-1998 donor withdraws a contact preference, the Donor Conception Registrar must, as soon as practicable after the contact preference is withdrawn, notify the applicant to whom the withdrawn contact preference relates.

S. 63G inserted by No. 6/2016 s. 23.

63G Undertaking required from applicant for identifying information relating to pre-1998 donors

S. 63G(1) amended by No. 39/2024 s. 42.

(1) The Donor Conception Registrar must not disclose identifying information relating to a pre‑1998 donor in response to an application under section 56(1) unless the applicant gives an undertaking to the Secretary to comply with the donor's contact preferences as set out in—

(a) any contact preference lodged by the donor under section 63C (whether or not the contact preference is lodged at the time the undertaking is given); and

(b) if the contact preference is amended by the donor under section 63E, that preference as amended (whether or not the amended contact preference is lodged at the time the undertaking is given).

(2) An applicant who gives an undertaking under subsection (1) must not knowingly contact the pre-1998 donor in contravention of the contact preference or the amended contact preference unless the contact is a continuation of, or of a similar kind to, contact that the applicant had with the donor before the applicant knew of the contact preference or the amended contact preference (as the case requires).

(3) Subsection (2) does not apply if the applicant has not been given—

(a) in case of a contravention of a contact preference, a copy of the contact preference under section 63C(7); or

(b) in case of a contravention of an amended contact preference, a copy of the amended contact preference under section 63E(3)(b).

S. 63H inserted by No. 6/2016 s. 23.

63H Applications from children for information relating to pre‑1998 donors

(1) This section applies in relation to an application made under section 56(1) if the applicant is a person born as a result of a pre‑1998 donor treatment procedure who is a child at the time the application is made.

S. 63H(2) substituted by No. 39/2024 s. 43.

(2) The Donor Conception Registrar must not release identifying information relating to the pre‑1998 donor in response to the application unless—

(a) a Part 6 counsellor has provided counselling to the applicant; and

(b) the Donor Conception Registrar has received a statement from the Part 6 counsellor that the applicant is sufficiently mature to understand the consequences of giving an undertaking under section 63G(1).

Pt 6 Div. 3B (Heading and ss 63I−63O) inserted by No. 6/2016 s. 23.

Division 3B—Contact preferences for persons born as a result of a donor treatment procedure

S. 63I
inserted by No. 6/2016 s. 23.

63I Contact preferences for persons born as a result of a donor treatment procedure—application for disclosure

S. 63I(1) amended by No. 39/2024 s. 44(1).

(1) If an application is made under section 56(1) for the disclosure of identifying information about a person born as a result of a donor treatment procedure, the person or, if the person is a child, a parent or guardian of the person, may lodge with the Donor Conception Registrar a written statement setting out the person's wishes about being contacted by the applicant for the disclosure of the information.

S. 63I(2) amended by No. 39/2024 s. 44(2).

(2) If the person born as a result of the donor treatment procedure is a child, the Donor Conception Registrar may—

(a) have regard to the child's wishes in relation to the lodgement of the contact preference; and

S. 63I(2)(b) amended by No. 39/2024 s. 44(2).

(b) if the child's wishes in relation to the lodgement are different from the wishes of the child's parent or guardian, comply with the wishes of the parent or guardian only if the Donor Conception Registrar considers it reasonable in the circumstances.

S. 63I(3) amended by No. 39/2024 s. 44(3).

(3) Subject to subsection (4), a contact preference lodged under subsection (1) must be lodged with the Donor Conception Registrar before the first day on which there is contact between the person born as a result of a donor treatment procedure and the applicant to whom the contact preference relates.

(4) A person born as a result of a donor treatment procedure who was a child at the time the application under section 56 was made may lodge a contact preference under subsection (1) in relation to the applicant if any contact between the person and the applicant occurred—

(a) before the day on which the person turned 18 years of age; or

(b) within 6 months after the day on which the person turned 18 years of age, and the contact was in accordance with the wishes set out in a contact preference lodged by the person's parent or guardian under subsection (1).

S. 63I(5) amended by No. 39/2024 s. 44(3).

(5) The Donor Conception Registrar must notify a person born as a result of a donor treatment procedure that the person may lodge a contact preference as soon as practicable after the person turns 18 years of age.

S. 63I(6) substituted by No. 39/2024 s. 44(4).

(6) As soon as practicable after a contact preference is lodged under this section, the Donor Conception Registrar must give the applicant—

(a) a copy of the contact preference lodged; and

(b) any prescribed explanatory material.

S. 63I(7) amended by No. 39/2024 s. 44(5).

(7) The Donor Conception Registrar must maintain records of contact preferences lodged under this section.

S. 63J inserted by No. 6/2016 s. 23.

63J Form of contact preference

(1) A contact preference lodged under section 63I must be in the form approved by the Secretary.

(2) A contact preference may state that—

(a) the person does not wish to be contacted by the applicant; or

(b) the person wishes any contact with the applicant to occur only in a specified way.

S. 63J(3) substituted by No. 39/2024 s. 45.

(3) Before a contact preference is lodged under section 63I, the Donor Conception Registrar must give any prescribed explanatory material to—

(a) if the contact preference is to be lodged by a person born as a result of a donor treatment procedure, that person; or

(b) if the contact preference is to be lodged by the parent or guardian of a child born as a result of a donor treatment procedure—

(i) the parent or guardian; and

(ii) if the Donor Conception Registrar is informed that the child wishes to receive the explanatory material, the child.

S. 63K inserted by No. 6/2016 s. 23.

63K Duration of contact preferences for person born as a result of donor treatment procedure

(1) Subject to section 63L, a contact preference lodged under section 63I continues in force for 5 years after—

S. 63K(1)(a) amended by No. 39/2024 s. 46.

(a) the contact preference is lodged with the Donor Conception Registrar; or

(b) the contact preference is extended under subsection (2).

S. 63K(2) amended by No. 39/2024 s. 46.

(2) A person who lodges a contact preference under section 63I may extend that contact preference by written notice to the Donor Conception Registrar.

S. 63K(3) amended by No. 39/2024 s. 46.

(3) Before a contact preference expires under subsection (1), the Donor Conception Registrar must make all reasonable efforts to give the person who lodged the contact preference written notice—

(a) as to when the contact preference will expire under subsection (1); and

(b) that the person may extend the contact preference under subsection (2).

S. 63K(4) amended by No. 39/2024 s. 46.

(4) The Donor Conception Registrar must, as soon as practicable after a contact preference expires under subsection (1) or is extended under subsection (2), notify the applicant to whom the contact preference relates.

S. 63L inserted by No. 6/2016 s. 23.

63L Duration of contact preferences lodged by parent or guardian of person born as a result of donor treatment procedure

(1) This section applies if a contact preference lodged under section 63I—

(a) is lodged by the parent or guardian of a person born as a result of a donor treatment procedure; and

(b) is in force on the day on which the person born as a result of a donor treatment procedure turns 18 years of age.

(2) A contact preference to which this section applies expires 6 months after the day on which the person born as a result of a donor treatment procedure turns 18 years of age.

S. 63L(3) amended by No. 39/2024 s. 47.

(3) Before a contact preference expires under subsection (2), the Donor Conception Registrar must make all reasonable efforts to give the person born as a result of a donor treatment procedure written notice—

(a) as to when the contact preference will expire under subsection (2); and

(b) that the person may—

(i) withdraw the contact preference; or

(ii) withdraw the contact preference and lodge a contact preference in relation to the applicant to whom the withdrawn contact preference related; or

(iii) if the contact preference expires, lodge a contact preference in relation to the applicant to whom the expired contact preference related.

(4) The person born as a result of a donor treatment procedure may, within 6 months after the day on which that person turns 18 years of age, withdraw the contact preference.

(5) If the person born as a result of a donor treatment procedure withdraws the contact preference under subsection (4), the person may lodge a contact preference under section 63I in relation to the applicant to whom the withdrawn contact preference related.

S. 63L(6) amended by No. 39/2024 s. 47.

(6) The Donor Conception Registrar must, as soon as practicable after a contact preference expires under subsection (2) or is withdrawn under subsection (4), notify any applicant to whom the contact preference relates.

S. 63M inserted by No. 6/2016 s. 23.

63M Amendment of contact preferences lodged in relation to persons born as a result of a donor treatment procedure

S. 63M(1) amended by No. 39/2024 s. 48(1).

(1) Subject to subsection (2), a person who lodges a contact preference under section 63I may amend the contact preference by written notice to the Donor Conception Registrar.

(2) A person must not amend a contact preference unless there has been no contact between the applicant to whom the contact preference relates and the person born as a result of a donor treatment procedure.

S. 63M(3) amended by No. 39/2024 s. 48(2)(a).

(3) If a person amends a contact preference, the Donor Conception Registrar must—

(a) notify the applicant to whom the amended contact preference relates—

(i) that the contact preference has been amended; and

(ii) of the particulars of the amendment; and

S. 63M (3)(a)(iii) repealed by No. 39/2024 s. 48(2)(b).

S. 63M(3)(ab) inserted by No. 39/2024 s. 48(2)(c).

(ab) give the applicant any prescribed explanatory material; and

(b) give the applicant a copy of the amended contact preference.

S. 63N inserted by No. 6/2016 s. 23.

63N Withdrawal of contact preferences lodged in relation to persons born as a result of a donor treatment procedure

S. 63N(1) amended by No. 39/2024 s. 49.

(1) A person who lodges a contact preference under section 63I may, by written notice to the Donor Conception Registrar, withdraw the contact preference.

(2) If a person withdraws a contact preference, the person cannot lodge a subsequent contact preference in relation to the applicant to whom the withdrawn contact preference relates if there has been contact between the applicant and the person born as a result of a donor treatment procedure.

S. 63N(3) amended by No. 39/2024 s. 49.

(3) If a person withdraws a contact preference, the Donor Conception Registrar must, as soon as practicable after the contact preference is withdrawn, notify the applicant to whom the withdrawn contact preference relates.

S. 63O inserted by No. 6/2016 s. 23.

63O Undertaking required from applicant for identifying information relating to person born as a result of a donor treatment procedure

S. 63O(1) amended by No. 39/2024 s. 50.

(1) The Donor Conception Registrar must not disclose identifying information relating to the person born as a result of a donor treatment procedure in response to an application under section 56(1) unless the applicant gives an undertaking to the Secretary to comply with the person's contact preferences as set out in—

(a) any contact preference (whether or not the contact preference is lodged at the time the undertaking is given) lodged under section 63I by—

(i) the person born as a result of the donor treatment procedure; and

(ii) a parent or guardian of a person born as a result of a donor treatment procedure; and

(b) if the contact preference is amended under section 63M by the person who lodged it, that preference as amended (whether or not the amended contact preference is lodged at the time the undertaking is given).

(2) An applicant who gives an undertaking under subsection (1) must not knowingly contact the person born as a result of the donor treatment procedure in contravention of the contact preference or the amended contact preference unless the contact is a continuation of, or of a similar kind to, contact that the applicant had with the person before the applicant knew of the contact preference or the amended contact preference (as the case requires).

(3) Subsection (2) does not apply if the applicant has not been given—

(a) in case of a contravention of a contact preference, a copy of the contact preference under section 63I(6); or

(b) in case of a contravention of an amended contact preference, a copy of the amended contact preference under section 63M(3)(b).

Division 4—General provisions

64 Information

Any reference in this Act or the regulations to the disclosure of identifying information means the disclosure of information from which a person will or may be identified, directly or indirectly.

65 Disclosure of information to doctor

(a) a person has applied for information under this Part or the regulations; and

(b) the information to be disclosed is or includes information that is of a medical or psychiatric nature; and

(c) the person to whom the application has been made considers the disclosure of the information may be prejudicial to the physical or mental health or well-being of the applicant.

(2) The person to whom the application has been made may decide not to disclose that information to the applicant but to disclose it instead to a doctor nominated by the applicant.

66 Records of information disclosed

A person who discloses information under this Part or the regulations must keep a record of—

(a) the person to whom the information is disclosed; and

(b) the information disclosed.

S. 66A inserted by No. 6/2016 s. 24.

66A Confidentiality of information on the Central Register

S. 66A(1) amended by No. 39/2024 s. 51(1).

(1) The Donor Conception Registrar, a person referred to in section 102 or a person engaged under section 103 or an organisation authorised under section 67B must not disclose to any person, whether directly or indirectly, any information recorded in the Central Register.

S. 66A(2) amended by No. 39/2024 s. 51(2)(a).

(2) Despite subsection (1), the Donor Conception Registrar, a person referred to in section 102 or a person engaged under section 103 or an organisation authorised under section 67B may disclose information recorded in the Central Register—

S. 66A(2)(a) amended by No. 39/2024 s. 51(2)(b).

(a) in the exercise in good faith of a power or a function of the Donor Conception Registrar under this Act; or

(b) to a court or a tribunal; or

(c) as required in the course of disciplinary proceedings against a doctor; or

S. 66A(2)(ca) inserted by No. 39/2024 s. 51(3).

(ca) to the Secretary, at the Secretary's request, for the purpose of assisting the Secretary to perform the Secretary's functions under this Act; or

(d) as required under any other Act; or

(e) for the purposes of law enforcement.

S. 66A(3) inserted by No. 39/2021 s. 35, amended by No. 39/2024 s. 51(4).

(3) Subsection (1) does not apply to a disclosure by an organisation authorised under section 67B of information that is recorded in the Central Register but was not disclosed to the organisation by the Donor Conception Registrar.

S. 66B (Heading) amended by No. 39/2024 s. 52(1).

S. 66B inserted by No. 6/2016 s. 24.

66B Confidentiality of other information provided to the Donor Conception Registrar under this Part

S. 66B(1) amended by No. 39/2024 s. 52(2).

(1) The Donor Conception Registrar, a person referred to in section 102 or a person engaged under section 103 or an organisation authorised under section 67B must not disclose to any person, whether directly or indirectly, any information obtained under section 52B, 56A(2), 56B or 56J or under a production order that cannot be included on the Central Register under section 54A.

S. 66B(2) amended by No. 39/2024 s. 52(3)(a).

(2) Despite subsection (1), the Donor Conception Registrar, a person referred to in section 102 or a person engaged under section 103 or an organisation authorised under section 67B may disclose the information—

S. 66B(2)(a) amended by No. 39/2024 s. 52(3)(b).

(a) in the exercise in good faith of a power or a function of the Donor Conception Registrar under this Act; or

(b) to a court or a tribunal; or

(c) as required in the course of disciplinary proceedings against a doctor; or

S. 66B(2)(ca) inserted by No. 39/2024 s. 52(4).

(ca) to the Secretary, at the Secretary's request, for the purpose of assisting the Secretary to perform the Secretary's functions under this Act; or

(d) as required under any other Act; or

(e) for the purposes of law enforcement.

S. 66C (Heading) amended by No. 39/2024 s. 53(1).

S. 66C inserted by No. 6/2016 s. 24.

66C Confidentiality of information on the Central Register disclosed by the Donor Conception Registrar

S. 66C(1) amended by Nos 39/2021 s. 36, 39/2024 s. 53(2).

(1) If the Donor Conception Registrar has disclosed information recorded on the Central Register to a person, that person must not disclose the information that was disclosed to the person by the Donor Conception Registrar to any other person, whether directly or indirectly.

S. 66C(2) amended by No. 39/2024 s. 53(2).

(2) Despite subsection (1), the person may disclose information disclosed by the Donor Conception Registrar—

(a) to a court or a tribunal; or

(b) in the course of disciplinary proceedings against a doctor; or

(c) as required under any other Act; or

(d) for the purposes of law enforcement.

(3) Subsection (1) does not apply if—

S. 66C(3)(a) amended by No. 39/2024 s. 53(2).

(a) the Donor Conception Registrar disclosed the information to a person who made an application under section 56(1) or 60A or to a doctor nominated by that person; or

S. 66C(3)(b) amended by No. 39/2024 s. 53(2).

(b) the Donor Conception Registrar disclosed the information to a person in a notice given to that person under section 62; or

S. 66C(3)(c) amended by No. 39/2024 s. 53(2).

(c) the Donor Conception Registrar did not advise the person, at the time of disclosure, that it is a criminal offence to disclose that information to any other person; or

(d) the information is disclosed to another person by a registered ART provider in accordance with Part 6A.

67 Consent

(1) This section applies if, under this Part or the regulations, consent is required to be given before information may be disclosed.

(2) If the person required to give consent is dead, the consent may be given by the senior available next of kin of that person, within the meaning of the Human Tissue Act 1982.

(3) If the person required to give consent is a child, the consent may be given by a parent of the child or by the child's guardian.

(4) If the consent required is given but is withdrawn in writing before the information is disclosed, the information must not be disclosed.

S. 67AA inserted by No. 39/2024 s. 54.

67AA Requirement to give statement of the applicant's reasons for the application

If a person is required to give consent under this Part or the regulations before information on the Central Register may be disclosed, the Donor Conception Registrar must give the person whose consent is required a copy of the statement of the applicant's reasons for the application before the information is disclosed.

See section 56(3)(b).

S. 67A inserted by No. 58/2014 s. 15, amended by No. 6/2016 s. 25, substituted by No. 39/2024 s. 55.

67A Part 6 counsellor

In this Part, a Part 6 counsellor means a person who—

(a) provides counselling to a child under section 59(b)(ii) or 63H(2)(a) for the purposes of determining the maturity of the child; and

(b) meets the prescribed requirements for counselling.

S. 67B inserted by No. 6/2016 s. 26.

67B Authorisation of organisations

S. 67B(1) amended by No. 39/2024 s. 56.

(1) The Secretary may, by written notice, authorise an organisation to assist the Donor Conception Registrar in obtaining—

S. 67B(1)(a) amended by No. 39/2024 s. 56.

(a) information relating to the identity of persons from whom the Donor Conception Registrar may request information under section 56J; or

(b) if the disclosure of identifying information relating to a person has been applied for under section 56(1), information from which that person may be located.

(2) A notice of an authorisation under this section, and notice of any revocation or suspension of an authorisation under this section, must be published in the Government Gazette.

S. 67B(3) amended by No. 39/2024 s. 56.

(3) The Donor Conception Registrar may disclose information recorded in the Central Register to an organisation authorised under this section to enable that organisation to exercise a function under this section.

68 Exemption from Freedom of Information Act 1982

(1) For the purposes of the Freedom of Information Act 1982, a document is an exempt document if—

(a) it contains information (whether or not that information is kept in a register under this Part) about or provided by a person as—

(i) a donor; or

(ii) a woman on whom a treatment procedure is being or has been carried out or on whom a treatment procedure may be carried out; or

(iii) a person who is or has been the partner of a woman referred to in paragraph (ii); or

(iv) a person who was born as a result of a treatment procedure; or

(b) it is the Central Register or part of the Central Register.

(2) Despite subsection (1), a document is not an exempt document under subsection (1)(a)—

(a) to the extent that it only contains information—

(i) about or provided by the applicant and no other person; or

(ii) about or provided by one person only and the applicant is that person's guardian; or

(b) in the prescribed circumstances and to the extent the document does not contain identifying information.

Pt 6A (Heading and ss 68A–68E) inserted by No. 58/2014 s. 16.

Part 6A—Access to certain kinds of medical information

S. 68A inserted by No. 58/2014 s. 16.

68A Application of Part

This Part applies in relation to medical information about an individual that is or could be predictive of the health (at any time) of the individual or any descendants of the individual.

S. 68B inserted by No. 58/2014 s. 16.

68B Registered ART provider may disclose medical information

(1) A registered ART provider may disclose medical information about a donor to the following persons in accordance with section 68C—

(a) a person born as a result of a donor treatment procedure;

(b) the parent of a person born as a result of a donor treatment procedure;

(c) the woman and her partner, if any, who is to undergo a treatment procedure using the donor's gametes.

(2) A registered ART provider may disclose medical information about a person born as a result of a donor treatment procedure to the following persons in accordance with section 68C—

(a) the donor;

(b) an adult donor sibling of the person;

(c) the parent of a donor sibling of the person.

S. 68C inserted by No. 58/2014 s. 16.

68C Disclosure of medical information

(1) A registered ART provider may disclose medical information that is not identifying information about a donor or a person born as a result of a donor treatment procedure if a doctor has certified in writing that the disclosure is necessary—

(a) to save a person's life; or

(b) to warn the person to whom the information is to be disclosed about the existence of a genetic or hereditary condition that may be harmful to that person or that person's descendants.

(2) A disclosure of medical information to a person under this section must be made by a doctor on behalf of the registered ART provider.

(3) If medical information is disclosed to a person under this section, the registered ART provider may also disclose the information to a doctor who is treating the person.

(4) Medical information may be disclosed under this section without the consent of the person to whom the information relates.

S. 68D inserted by No. 58/2014 s. 16, amended by No. 6/2016 s. 27 (ILA s. 39B(1)).

68D Disclosure of information from Central Register to registered ART provider

S. 68D(1) amended by No. 39/2024 s. 57.

(1) On request of a registered ART provider, the Donor Conception Registrar may disclose information (including identifying information) on the Central Register about the following persons for the purposes of disclosing medical information under this Part—

(a) a donor;

(b) a person born as a result of a donor treatment procedure;

(c) a parent of a person born as a result of a donor treatment procedure.

S. 68D(2) inserted by No. 6/2016 s. 27(2), amended by No. 39/2024 s. 57.

(2) Before disclosing that a person is a donor of a person born as a result of a donor treatment procedure, the Donor Conception Registrar must be satisfied that a donor and a person born as a result of a donor treatment procedure are related within the meaning of section 56N(4).

S. 68E inserted by No. 58/2014 s. 16.

68E Registered ART provider not required to disclose medical information under this Part

Nothing in this Part requires a registered ART provider to disclose medical information to a person.

Pt 7 (Heading) substituted by No. 58/2014 s. 17, amended by No. 39/2024 s. 58.

Part 7—Voluntary Register

Pt 7 Div. 1 (Heading) inserted by No. 58/2014 s. 18, repealed by No. 39/2024 s. 59.

S. 69 amended by No. 58/2014 s. 19.

69 Application of Part

This Part applies despite Parts 6 and 6A.

S. 70 (Heading) amended by Nos 6/2016 s. 28(1), 39/2024 s. 60(1).

70 Donor Conception Registrar to keep Voluntary Register

S. 70(1) amended by Nos 6/2016 s. 28(2), 39/2024 s. 60(2).

(1) The Donor Conception Registrar must keep a Voluntary Register that contains information about donor treatment procedures.

(2) The Voluntary Register must be kept separately to the Central Register and is not part of the Central Register.

S. 71 (Heading) amended by No. 6/2016 s. 29(1).