10Offence—use of excess ART embryo

10 Offence—use of excess ART embryo

(1) A person commits an offence if the person intentionally uses an excess ART embryo, unless: (a) the excess ART embryo is created other than by using a mitochondrial donation technique and the use of the embryo by the person is authorised by a general licence; or (aa) the excess ART embryo is created using a mitochondrial donation technique and the use of the embryo by the person is permitted under section 28B (carrying out activities authorised by mitochondrial donation licences); or (b) the use by the person is an exempt use within the meaning of subsection (2).

Penalty: Imprisonment for 5 years.

(2) A use of an excess ART embryo by a person is an exempt use for the purposes of subsection (1) if: (a) the use consists only of: (i) storage of the excess ART embryo; or (ii) removal of the excess ART embryo from storage; or (iii) transport of the excess ART embryo; or (b) the use consists only of observation of the excess ART embryo; or (c) the use consists only of allowing the excess ART embryo to succumb; or (d) the use is carried out by an accredited ART centre, and: (i) the excess ART embryo is not suitable to be placed in the body of the woman for whom it was created where the suitability of the embryo is determined only on the basis of its biological fitness for implantation; and (ii) the use forms part of diagnostic investigations conducted in connection with the assisted reproductive technology treatment of the woman for whom the excess ART embryo was created; or (e) the use is carried out by an accredited ART centre, and: (i) the use is for the purposes of achieving pregnancy in a woman other than the woman for whom the excess ART embryo was created; and (ii) the excess ART embryo was not created using a mitochondrial donation technique as permitted under section 28B (carrying out activities authorised by mitochondrial donation licences); or (f) the use is of a kind prescribed by the regulations for the purposes of this paragraph. (3) Despite subsection 13.3(3) of the Criminal Code, a defendant does not bear an evidential burden in relation to any matter in subsection (1) or (2) of this section. (4) In subsection (2):

diagnostic investigation, in relation to an excess ART embryo, means any procedure undertaken on embryos for the sole purpose of diagnostic investigations for the direct benefit of the woman for whom it was created.

observation, in relation to an excess ART embryo, includes taking a photograph of the embryo, or taking a recording of the embryo from which a visual image can be produced.