New South Wales Consolidated Acts

HUMAN TISSUE ACT 1983 - SECT 20G

20G Restrictions as to legal proceedings involving infection by a prescribed contaminant involving semen

(1) If:

(a) a person has become infected with a prescribed contaminant, or a disease that is attributable to a prescribed contaminant, and

(b) the contaminant was or may have been transmitted to that person as a result of the artificial insemination of a woman,

the provisions of subsection (2), (3) or (4) apply according to the circumstances of the case.

(2) Proceedings for an offence (except an offence against section 20E) or in tort or for a breach of contract arising out of the transmission of a prescribed contaminant as referred to in subsection (1) may not be brought against the donor of the semen concerned in the infection, unless it is proved in the proceedings:

(a) that the donor has previously been found guilty of an offence against section 20E or of an offence against a law of another State or a Territory that corresponds to that section, or

(b) that the donor would have been found guilty of such an offence had the donor been charged with such an offence.

(3) If proceedings for an offence or in tort or for a breach of contract arising out of the transmission of a prescribed contaminant as referred to in subsection (1) are brought against a person (other than the donor) in respect of a supply by that person, or an employee of that person, of semen, it is a defence in those proceedings for the defendant to prove that:

(a) at the time of supply, the defendant was an authorised supplier or an employee of an authorised supplier, and

(b) if the defendant or an employee of the defendant had obtained or received the semen from the donor-the defendant or that employee had, before supply, ensured that:

(i) the donor had signed either a certificate of the kind referred to in section 20D or a similar document as to the medical suitability of the donor to provide semen for the purpose referred to in section 20C (c), and

(ii) the blood of the donor of the semen had been subjected to tests of a kind approved by the Minister for the purposes of this section and those tests had indicated that no prescribed contaminant was present in that blood, and

(c) if the defendant or an employee of the defendant obtained the semen from another person-that other person was an authorised supplier or an employee of an authorised supplier, and

(d) before the time when the semen was used for the artificial insemination of the infected woman, the defendant had not become aware that the semen was or was likely to have been contaminated with the prescribed contaminant concerned or, if before that time the defendant had become aware of that fact, the defendant had taken all reasonably practicable steps to ensure that the semen was not so used.

(4) If proceedings for an offence or in tort or for a breach of contract arising out of the transmission of a prescribed contaminant as referred to in subsection (1) are brought against the person who carried out the artificial insemination or the employer or any supervisor of that person, it is a defence in those proceedings for the defendant to prove that:

(a) if the defendant or an employee of the defendant obtained or received the semen, from the donor directly, the defendant or that employee had ensured that:

(i) the donor had signed either a certificate of the kind referred to in section 20D or a similar document as to the medical suitability of the donor to provide semen for the purpose referred to in section 20C (c), and

(ii) the blood of the donor of the semen had been subjected to tests of a kind approved by the Minister for the purposes of this section and those tests had indicated that no prescribed contaminant was present in that blood, and

(b) if the defendant or an employee of the defendant obtained the semen from another person-that other person was an authorised supplier or an employee of an authorised supplier, and

(c) when the transfusion, treatment or artificial insemination was carried out, the defendant was not aware that the semen was or was likely to have been contaminated with the prescribed contaminant concerned.

(5) In this section:
"prescribed contaminant" means a contaminant prescribed by the regulations for the purposes of this section.