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PARLIAMENT OF VICTORIA
Assisted Reproductive Treatment Bill 2008
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
3 Definitions 3
4 Interpretation of references to procedures and treatment 7
5 Guiding principles 8
6 Act to bind the Crown 9
PART 2--TREATMENT PROCEDURES 10
Division 1--General 10
7 Assisted reproductive treatment 10
8 Artificial insemination 10
9 Section 8 not applicable to self insemination 11
Division 2--General requirements for treatment procedures 11
10 Persons who may undergo treatment procedures 11
11 Requirements as to consent 12
12 Child protection order check 13
13 Counselling 14
14 Presumption against treatment 14
15 Application for review 15
Division 3--Requirements for donors 16
16 Donation of gametes or an embryo 16
17 Requirements as to consent 16
18 Counselling requirements 17
19 Requirements as to the giving and receiving of information 17
Division 4--Provisions about consent 18
20 Withdrawal of consent 18
21 Lapsing of consent 18
22 Record of consent and withdrawal of consent 19
23 Transfer of documents 19
24 Information about transfer of donated gametes or an embryo 19
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Division 5--Requirements for donor treatment procedures 20
25 Information and advice 20
PART 3--OFFENCES RELATING TO USE AND STORAGE
OF GAMETES AND EMBRYOS AND OTHER MATTERS 21
Division 1--Prohibited procedures 21
26 Procedures involving gametes produced by children 21
27 Ban on certain procedures 22
28 Ban on sex selection 22
29 Ban on using donated gametes to produce more than 10 families 23
30 Ban on destructive research on embryos created for treatment
purposes 23
Division 2--Storage 24
31 Storing gametes 24
32 Prohibition on storing embryos except in particular
circumstances 25
33 Storing embryos for later transfer 25
34 Removal of embryos from storage 26
Division 3--General offences in relation to gametes and embryos 27
35 Formation of embryos 27
36 Moving donated gametes and embryos into and out of Victoria 28
37 Exemption 29
Division 4--Offence in relation to giving information 30
38 False or misleading information 30
PART 4--SURROGACY 32
39 Certain surrogacy arrangements to require approval of Patient
Review Panel 32
40 Matters to be considered by Patient Review Panel in deciding
application for approval of surrogacy arrangement 32
41 Patient Review Panel may approve non-complying surrogacy
arrangement in exceptional circumstances 33
42 Application of general requirements for treatment to surrogacy
arrangement 34
43 Counselling and legal information 34
44 Surrogacy costs 35
45 Prohibition on certain publications 35
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PART 5--POSTHUMOUS USE OF GAMETES 37
46 Requirements for posthumous use of gametes or an embryo in
treatment provided by a registered ART provider 37
47 Approval by Patient Review Panel 37
48 Counselling 38
PART 6--REGISTERS AND ACCESS TO INFORMATION 39
Division 1--Registers kept by registered ART providers and
doctors 39
49 Register to be kept by registered ART providers 39
50 Register to be kept by doctor carrying out artificial
insemination 41
51 Information to be given to the Registrar by registered ART
providers 41
52 Information to be given to Registrar by doctors 42
53 Registrar to keep a Central Register 43
54 Registrar to correct Central Register 43
Division 2--Information to be given by registered ART providers 44
55 Information recorded by registered ART providers that is to be
given to donors 44
Division 3--Disclosure of information on Central Register 45
56 Application for information on Central Register 45
57 Disclosure of information that does not identify a person 46
58 Disclosure of information to parent of person born as a result
of donor treatment or donor 47
59 Disclosure of information to persons born as a result of donor
treatment procedure 48
60 Disclosure of information to persons descended from persons
born as a result of donor treatment procedure 48
61 Requirement for counselling 49
62 Notice to be given of intended disclosure 49
63 Disclosure of information to Authority 49
Division 4--General provisions 50
64 Information 50
65 Disclosure of information to doctor 50
66 Records of information disclosed 50
67 Consent 51
68 Exemption from Freedom of Information Act 1982 51
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PART 7--VOLUNTARY REGISTER 53
69 Application of Part 53
70 Registrar to keep Voluntary Register 53
71 Information to be recorded in Voluntary Register 53
72 Disclosure of information 54
73 Requirement for counselling 54
PART 8--REGISTRATION AND DESIGNATED OFFICERS 56
Division 1--Registration as an ART provider 56
74 Registration as an ART provider 56
75 Authority may impose conditions on registration 56
Division 2--General provisions about registrations 57
76 Suspension of registration 57
77 Immediate suspension of registration 58
78 Offence of failing to notify authority if RTAC accreditation no
longer held 59
79 Notification to Minister 59
Division 3--Designated officers 59
80 Designated officers for registered ART providers 59
Division 4--List of registered ART providers 59
81 Authority to keep list 59
PART 9--PATIENT REVIEW PANEL 61
Division 1--Constitution and procedures of Patient Review Panel 61
82 Establishment of Panel 61
83 Constitution of Panel 61
84 List of approved names 61
85 Functions of Panel 61
86 Chairperson and deputy chairperson 62
87 Removal of name from approved list 62
88 Payment of members 63
89 Notice of hearing 63
90 Conduct of hearing 64
91 Decision by Patient Review Panel 64
92 Written reasons for decisions 66
93 Effect of vacancy or defect 66
94 Immunity 66
95 Evidence 67
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Division 2--Review of Patient Review Panel's decisions 67
96 Reviewable decisions 67
97 Who may apply for review 67
98 When application must be made 68
PART 10--VICTORIAN ASSISTED REPRODUCTIVE
TREATMENT AUTHORITY 69
Division 1--Constitution of the Authority 69
99 Establishment of Authority 69
100 Powers, functions, duties and consultation requirements 69
101 Membership 71
102 Terms of office 71
103 Resignation and removal 72
104 Chairperson and deputy chairperson 72
105 Acting member 73
106 Payment of members 73
107 Procedure of Authority 73
108 Effect of vacancy or defect 74
109 Member's interests 74
110 Immunity 75
111 Engagement or employment of persons 75
112 Delegation 76
113 Committees 76
Division 2--Reporting and financial provisions 76
114 Report to Minister 76
115 Victorian Assisted Reproductive Treatment Authority Fund 77
116 Investment powers 78
PART 11--GENERAL 79
117 No action if gametes used without knowing consent withdrawn
or lapsed 79
118 Identity cards 79
119 Powers and duties of members of Authority to inspect
documents 79
120 Offence to obstruct or hinder 80
121 Prohibition on destruction of documents 81
122 Requirements if registered ART provider ceases to operate 81
123 Indictable offences 82
PART 12--REGULATIONS 83
124 Regulations 83
125 Application etc of regulations 84
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PART 13--REPEAL, SAVINGS AND TRANSITIONAL
PROVISIONS 86
Division 1--Repeal 86
126 Repeal 86
Division 2--Transitional provisions 86
127 Definitions 86
128 References to repealed Act etc 86
129 Consents 87
130 Registers 87
131 Licence holders 87
132 Authority 87
133 Applications 88
134 Transitional regulations 88
Division 3--Savings provision 89
135 Continued operation of Infertility Treatment Regulations 89
PART 14--AMENDMENTS TO THE STATUS OF CHILDREN
ACT 1974 90
136 Principal Act 90
137 Definitions 90
138 Evidence of parentage 91
139 Instruments may be filed with Registrar of Births, Deaths and
Marriages 91
140 Application to Supreme Court for declaration of parentage 92
141 Substitute heading to Part II 93
"PART II--STATUS OF CHILDREN--MEDICAL
PROCEDURES--WOMEN WITH A MALE PARTNER". 93
142 Interpretation 93
143 Artificial insemination: presumption as to status of child 93
144 Implantation procedures: presumption as to status of child
where donor semen used 93
145 Implantation procedures: presumption as to status of child
where donor ovum used 94
146 Donor semen used in artificial insemination of certain women 94
147 Substitute Part III 94
PART III--STATUS OF CHILDREN--MEDICAL
PROCEDURES--WOMEN WITH A FEMALE
PARTNER OR WITHOUT A PARTNER 94
11 Interpretation 94
12 Application of Part 94
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13 Women with a female partner: presumption as to status
of child 95
14 Women with a female partner: presumption as to status
of child where donor ovum used 96
15 Women with no partner: presumption as to status of
child 97
16 Women with no partner: presumption as to status of
child where donor ovum used 98
PART IV--STATUS OF CHILDREN IN SURROGACY
ARRANGEMENTS 99
Division 1--Preliminary 99
17 Interpretation 99
18 Jurisdiction of courts 100
19 Surrogacy arrangements--presumption as to status of
child 100
Division 2--Substitute parentage orders 101
Subdivision 1--Making substitute parentage orders 101
20 Application for a substitute parentage order 101
21 Commissioning parents presumed to be named as legal
parents 101
22 Court may make substitute parentage order 102
23 Additional requirements for surrogacy arrangements
without assistance of registered ART provider 103
24 Circumstances in which consent not required 104
25 Ancillary orders 106
26 Effect of substitute parentage order 106
Subdivision 2--Discharge of substitute parentage orders 108
27 Who may apply for discharge of substitute parentage
order 108
28 Court may order discharge of substitute parentage
order 109
29 Effect of discharge of a substitute parentage order 111
Subdivision 3--Appeals 111
30 Appeals 111
Division 3--Proceedings under this Part 112
31 Registrar of Births, Deaths and Marriages to receive
copy of orders 112
32 Proceedings to be heard in closed court 112
33 Restrictions on publication of proceedings 112
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34 Access to court records 113
35 Access to court records if person deceased or cannot
be found 114
PART V--POSTHUMOUS USE OF GAMETES--
STATUS OF CHILDREN 115
36 Definitions 115
37 Presumption as to status of child if male partner is
deceased 115
38 Presumption as to status of child if female partner is
deceased 116
39 Presumption as to status of child if female partner is
deceased--surrogacy arrangements 117
40 Legal status of deceased parent 118
PART VI--GENERAL 119
41 Regulations 119
PART VII--TRANSITIONAL PROVISIONS--ASSISTED
REPRODUCTIVE TREATMENT ACT 2008 119
42 Definition 119
43 Transitional--Definitions 119
44 Transitional--Repeal of section 10F 120
45 Transitional--Application of Part III 120
46 Transitional--Application of Part IV 121
47 Transitional--Application of Part V 121
148 Repeal of Part 122
PART 15--AMENDMENTS TO BIRTHS, DEATHS AND
MARRIAGES REGISTRATION ACT 1996 123
149 Purposes 123
150 Definitions 123
151 Registrar's general functions 124
152 Registration of parentage details 124
153 New section 17A 124
17A Addition of details after birth registration--registration
of partner 124
154 New section 19A 125
19A Surrogate birth registration 125
PART 16--CONSEQUENTIAL AMENDMENTS OF OTHER
ACTS 127
Division 1--Amendment of Freedom of Information Act 1982 127
155 Document affecting personal privacy 127
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Division 2--Amendment of Magistrates' Court Act 1989 127
156 Amendment of Schedule 4 127
62 Assisted Reproductive Treatment Act 2008 127
Division 3--Amendment of Public Health and Wellbeing Act 2008 127
157 Tissue donations 127
158 Definition of Secretary 128
Division 4--Amendment of Victorian Civil and Administrative
Tribunal Act 1998 128
159 Amendment of Schedule 1 128
PART 2A--ASSISTED REPRODUCTIVE TREATMENT
ACT 2008 128
4A Fees 128
4B Constitution of Tribunal for hearings 128
ENDNOTES 129
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PARLIAMENT OF VICTORIA
Introduced in the Assembly
Assisted Reproductive Treatment Bill
2008
A Bill for an Act to regulate assisted reproductive treatment and
artificial insemination, to make provision with respect to surrogacy
arrangements, to repeal the Infertility Treatment Act 1995, to amend
the Status of Children Act 1974 and the Births, Deaths and
Marriages Registration Act 1996 and other Acts and for other
purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The main purposes of this Act are--
(a) to regulate the use of assisted reproductive
5 treatment and artificial insemination
procedures (other than self-insemination);
and
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(b) to regulate access to information about
treatment procedures carried out under this
Act; and
(c) to promote research into the incidence,
5 causes and prevention of infertility; and
(d) to make provision with respect to surrogacy
arrangements; and
(e) to establish the Victorian Assisted
Reproductive Treatment Authority; and
10 (f) to provide for the keeping of the Central
Register and the Voluntary Register by the
Registrar of Births, Deaths and Marriages;
and
(g) to repeal the Infertility Treatment Act
15 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.
20 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
25 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.
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3 Definitions
In this Act--
artificial insemination means a procedure of
transferring sperm without also transferring
5 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
10 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
15 prescribed by the regulations;
Authority means the Victorian Assisted
Reproductive Treatment Authority
established under Part 10;
Central Register means the register kept by the
20 Registrar under section 53;
child means a person who is less than 18 years of
age;
child protection order means any of the following
orders made under the Children, Youth and
25 Families Act 2005--
(a) a custody to Secretary order;
(b) a custody to third party order;
(c) a guardianship to Secretary order;
child protection order check means a check
30 carried out and statement prepared under
section 12;
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commissioning 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
5 person or persons;
criminal records check, in relation to a person,
means a statement prepared by a member of
the police force that specifies--
(a) the member has checked records kept
10 by the police force to determine
whether the person has a criminal
record; and
(b) details of the following--
(i) any convictions recorded against
15 the person;
(ii) any findings of guilt against the
person, with or without
conviction;
(iii) any charges outstanding against
20 the person;
(iv) any other matters the member
considers relevant;
designated officer, in relation to a registered ART
provider, means a person appointed,
25 employed or engaged by that provider under
Division 3 of Part 8;
doctor means a registered medical practitioner
under the Health Professions Registration
Act 2005;
30 donor means a person who has given a consent
under section 16;
donor embryo means an embryo in respect of
which consent has been given under
section 16;
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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;
5 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;
10 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
15 (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
20 beyond, the stage at which the primitive
streak appears--
and has not yet reached 8 weeks of
development since the first mitotic division;
excess ART embryo has the meaning given by the
25 Research Involving Human Embryos Act
2008;
exemption means an exemption under section 37;
gametes means sperm or an oocyte;
identifying information means information that
30 will or may disclose the identity of a person;
non-identifying information means information
other than identifying information;
oocyte means an ovum from a woman;
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partner, in relation to a person, means--
(a) the person's spouse; or
(b) a person who lives with the first person
as a couple on a genuine domestic
5 basis, irrespective of gender;
registered ART provider means a person who is
registered under Part 8 as a registered ART
provider;
Registrar means the Registrar of Births, Deaths
10 and Marriages under the Births, Deaths and
Marriages Registration Act 1996;
RTAC accreditation means accreditation granted
by the Reproductive Technology
Accreditation Committee of the Fertility
15 Society of Australia;
Secretary means the Secretary to the Department
of Human Services;
self-insemination means artificial insemination
not carried out by a doctor;
20 sperm includes spermatids;
store means--
(a) to freeze an oocyte, embryo or sperm;
or
(b) to otherwise preserve an oocyte,
25 embryo or sperm by a prescribed
method;
surrogacy arrangement means an arrangement,
agreement or understanding, whether formal
or informal, under which a woman agrees
30 with another person to become or try to
become pregnant, with the intention--
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(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,
5 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
10 (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--
15 (a) artificial insemination, other than self-
insemination; or
(b) assisted reproductive treatment;
Voluntary Register means the register kept by the
Registrar under section 70.
20 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
25 (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--
30 (a) the nature or type of procedure or treatment;
and
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(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
5 (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
10 (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
15 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--
20 (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,
25 in trade or otherwise--
(i) the reproductive capabilities of men
and women; or
(ii) children born as a result of treatment
procedures;
30 (c) children born as the result of the use of
donated gametes have a right to information
about their genetic parents;
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(d) the health and wellbeing of persons
undergoing treatment procedures must be
protected at all times;
(e) persons seeking to undergo treatment
5 procedures must not be discriminated against
on the basis of their sexual orientation,
marital status, race or religion.
6 Act to bind the Crown
(1) This Act binds the Crown, not only in right of the
10 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.
_______________
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PART 2--TREATMENT PROCEDURES
Division 1--General
7 Assisted reproductive treatment
A person may only carry out assisted reproductive
5 treatment if--
(a) the person--
(i) is a doctor who is carrying out the
treatment on behalf of a registered ART
provider; or
10 (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
15 (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.
8 Artificial insemination
20 A person may carry out artificial insemination of a
woman only if the person--
(a) is a doctor; and
(b) is satisfied the requirements of Divisions 2, 3
and 4 have been met.
25 Penalty: 480 penalty units or 4 years
imprisonment or both.
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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
5 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
10 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--
15 (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
20 that kind.
(2) For subsection (1)(b)(i), the criteria applicable to a
woman are--
(a) a doctor is satisfied, on reasonable grounds,
that--
25 (i) in the woman's circumstances, the
woman is unlikely to become pregnant
other than by a treatment procedure; or
(ii) the woman is unlikely to be able to
carry a pregnancy or give birth to a
30 child without a treatment procedure; or
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(iii) 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
5 treatment procedure, including a
genetic abnormality or genetic disease
for which the woman's partner is the
carrier; and
(b) a presumption against treatment does not
10 apply to the woman.
(3) A doctor may be satisfied under subsection
(2)(a)(iii) 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
15 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
20 (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
25 (b) must not have been withdrawn or have
lapsed when the treatment procedure takes
place; and
(c) must include a statement by the counsellor
who provided counselling to the woman and
30 her partner, if any, under section 13 that the
counsellor has sighted a criminal records
check in relation to the woman and her
partner; and
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(d) must be accompanied by permission from
the woman and her partner, if any, for a child
protection order check to be conducted in
relation to the woman and her partner.
5 (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
10 (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.
12 Child protection order check
15 (1) This section applies if a registered ART provider
is given permission under section 11(1)(d) to
conduct a child protection order check in relation
to a person.
(2) The registered ART provider must ask the
20 Secretary to the Department responsible for
providing child protection services to prepare a
statement that includes--
(a) details of whether a child protection order
has been made removing a child from the
25 person's custody or guardianship; and
(b) if a child protection order has been made
removing a child from the person's custody
or guardianship, details of that order,
including when and the period for which the
30 order was made.
(3) If a registered ART provider asks the Secretary to
the Department responsible for providing child
protection services to prepare a statement under
subsection (2), the Secretary must give to the
35 provider the statement requested.
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13 Counselling
Before a woman consents to undergo a treatment
procedure, the woman and her partner, if any,
must have received counselling (including
5 counselling in relation to the prescribed matters)
from a counsellor who provides services on behalf
of a registered ART provider.
14 Presumption against treatment
(1) This section applies if--
10 (a) a criminal record check specifies that--
(i) charges have been proven against a
woman or her partner for a sexual
offence referred to in clause 1 of
Schedule 1 to the Sentencing Act
15 1991; or
(ii) the woman or her partner has been
convicted of a violent offence referred
to in clause 2 of Schedule 1 to the
Sentencing Act 1991; or
20 (b) a child protection order check specifies that a
child protection order has been made
removing a child from the custody or
guardianship of the woman or her partner.
(2) A presumption against providing a treatment
25 procedure applies to the woman.
(3) If, under subsection (2), a presumption against
providing a treatment procedure applies to a
woman a registered ART provider must not
provide a treatment procedure to the woman.
561232B.I-9/10/2008 14 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 2--Treatment Procedures
s. 15
15 Application for review
(1) A person may apply to the Patient Review Panel
for a review if--
(a) under section 14, a presumption against
5 providing a treatment procedure to a woman
applies to the person; or
(b) under section 10(2)(a) the person is
ineligible for treatment; or
(c) a registered ART provider or a doctor has
10 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
15 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
20 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
25 (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
30 child who would be born as a result of
the treatment procedure.
561232B.I-9/10/2008 15 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 2--Treatment Procedures
s. 16
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
5 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
10 of the person's gametes for a treatment procedure
of that kind.
17 Requirements as to consent
(1) A donor's consent under section 16--
(a) must be in the prescribed form; and
15 (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
20 procedures for which the oocyte, sperm or
embryo may be used; and
(d) must not have been withdrawn or have
lapsed when the treatment procedure takes
place.
25 (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
30 designated officer of the registered
ART provider; or
561232B.I-9/10/2008 16 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 2--Treatment Procedures
s. 18
(ii) to a person other than a registered ART
provider, a doctor; or
(b) in accordance with the regulations.
18 Counselling requirements
5 Before a person gives consent under section 16,
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.
10 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
15 required to be recorded in the register under
section 49 or 50 in relation to donors; and
(b) must be given written advice by the
registered ART provider to whom the
donation is being made about--
20 (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
25 (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
30 (iv) the existence and function of the
Voluntary Register.
561232B.I-9/10/2008 17 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 2--Treatment Procedures
s. 20
Division 4--Provisions about consent
20 Withdrawal of consent
(1) A person who gives a consent under section 10(1)
or 16 may withdraw it at any time before the
5 procedure or action consented to is carried out.
(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
10 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
15 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--
20 (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.
(2) In the case of a donor embryo, the consent of each
25 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.
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 2--Treatment Procedures
s. 22
22 Record of consent and withdrawal of consent
A designated officer of a registered ART provider
must--
(a) obtain and keep the original of each consent
5 or withdrawal of consent given to the
provider under this Part; and
(b) ensure that a certified copy of each consent
or withdrawal of consent is given to the
person who gave the consent or withdrawal
10 of consent.
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
15 provider), a designated officer of the first provider
must ensure that any consent or withdrawal of a
consent relevant to the gametes or embryo is also
transferred to the second provider.
24 Information about transfer of donated gametes or
20 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
25 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
30 embryo has been transferred.
561232B.I-9/10/2008 19 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 2--Treatment Procedures
s. 25
Division 5--Requirements for donor treatment procedures
25 Information and advice
Before a woman undergoes a donor treatment
procedure, the registered ART provider carrying
5 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
10 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
15 any, to obtain information under Division 3
of Part 6; and
(d) the existence and function of the Voluntary
Register.
_______________
561232B.I-9/10/2008 20 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 26
Other Matters
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
5 (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.
10 Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) Subsection (1) does not apply if--
(a) a doctor has certified there is a reasonable
risk of the child becoming infertile before
15 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
20 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
25 the gametes.
Penalty: 240 penalty units or 2 years
imprisonment or both.
561232B.I-9/10/2008 21 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 27
Other Matters
27 Ban on certain procedures
(1) A person must not carry out a treatment
procedure--
(a) using sperm produced by more than one
5 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.
10 Penalty: 240 penalty units or 2 years
imprisonment or both.
28 Ban on sex selection
(1) A person carrying out a treatment procedure must
not use gametes or an embryo, or perform the
15 procedure in a particular way, with the purpose or
a purpose of producing or attempting to produce a
child of a particular sex.
Penalty: 240 penalty units or 2 years
imprisonment or both.
20 (2) Subsection (1) does not apply if--
(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
25 (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.
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 29
Other Matters
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
5 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.
10 Penalty: 240 penalty units or 2 years
imprisonment or both.
(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
15 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.
30 Ban on destructive research on embryos created for
20 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
25 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
30 woman; or
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 31
Other Matters
(iii) reduce the likelihood of a pregnancy
resulting from the transfer of the
embryo.
Penalty: 480 penalty units or 4 years
5 imprisonment or both.
Division 2--Storage
31 Storing gametes
(1) A person must not cause or permit gametes to
remain in storage--
10 (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--
(i) for more than 10 years; or
15 (ii) if the person who produced the gametes
has given written approval for a
specified longer storage period and the
Patient Review Panel has approved the
period, for more than the approved
20 period.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) The Patient Review Panel may give written
approval for a longer storage period if it considers
25 that there are reasonable grounds to do so in the
particular case.
(3) An approval under subsection (2) may be subject
to conditions.
561232B.I-9/10/2008 24 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 32
Other Matters
32 Prohibition on storing embryos except in particular
circumstances
(1) A person must not cause or permit an embryo to
be placed or remain in storage.
5 Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) Subsection (1) does not apply if--
(a) the person is a registered ART provider; and
(b) it is intended to transfer the embryo to the
10 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
15 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
20 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).
(2) A registered ART provider must not cause or
25 permit the embryo to remain in storage--
(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
561232B.I-9/10/2008 25 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 34
Other Matters
(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;
5 (ii) if the persons who produced the
gametes from which the embryo has
been formed consent to storage for a
period of not more than 5 years in
addition to the period referred to in
10 subparagraph (i), the day that is the end
of that additional period;
(iii) if the Patient Review Panel gives
approval under subsection (3) for a
longer period of storage, the day that is
15 the end of the period approved by the
Panel.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(3) The Patient Review Panel may give written
20 approval for a longer period for storage of an
embryo if it considers there are reasonable
grounds for doing so in the particular case.
(4) An approval under subsection (3) may be subject
to conditions.
25 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,
30 in a treatment procedure; or
(b) written consent to its removal has been given
to a designated officer of the registered ART
provider by both of the persons who
produced the gametes from which the
35 embryo is formed; or
561232B.I-9/10/2008 26 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 35
Other Matters
(c) the persons who produced the gametes from
which the embryo is formed are unable to
agree on the period for which the embryo is
to be stored and the Patient Review Panel
5 has directed that the embryo be removed; or
(d) it is required to be removed by reason of the
operation of section 33(2).
Penalty: 480 penalty units or 4 years
imprisonment or both.
10 (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
15 embryo; and
(b) it is disposed of in accordance with the
regulations.
Penalty: 240 penalty units or 2 years
imprisonment or both.
20 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
25 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.
30 Penalty: 480 penalty units or 4 years
imprisonment or both.
561232B.I-9/10/2008 27 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 36
Other Matters
36 Moving donated gametes and embryos into and out
of Victoria
(1) A person must not--
(a) bring donor gametes, or an embryo produced
5 from donor gametes, into Victoria; or
(b) take donor gametes, or an embryo produced
from donor gametes, from Victoria.
Penalty: 240 penalty units or 2 years
imprisonment or both.
10 (2) Subsection (1) does not apply if the gametes or
embryo is brought into or taken from Victoria in
accordance with the written approval of the
Authority.
(3) In deciding whether or not to grant approval under
15 subsection (2) for a person to take gametes or an
embryo from Victoria, the Authority must have
regard to the following--
(a) whether the purpose for which the gametes
or embryo will be used outside Victoria is
20 consistent with a purpose for which it could
be used in Victoria;
(b) whether the way in which the gametes or
embryo will be used outside Victoria is
consistent with the way in which it could be
25 used in Victoria.
(4) An approval granted under subsection (2)--
(a) may apply to a particular case or class of
cases; and
(b) may be subject to conditions imposed by the
30 Authority.
561232B.I-9/10/2008 28 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 37
Other Matters
(5) A person given an approval under this section
must comply with any condition imposed by the
Authority on the approval.
Penalty: 240 penalty units or 2 years
5 imprisonment or both.
37 Exemption
(1) If a person has approval under section 36(2) to
bring gametes or an embryo into Victoria the
Authority may exempt a person from compliance
10 with the following provisions in relation to the
gametes or embryo, or a donor of the gametes or
embryo--
(a) sections 17(2), 18, 19, 20(3) and 32(2)(c)
and (3);
15 (b) Division 1 of Part 6;
(c) any other prescribed provision of this Act or
the regulations.
(2) The Authority may exempt a person under
subsection (1) only if the Authority is satisfied
20 that--
(a) similar procedures have taken place outside
Victoria; and
(b) there are special circumstances that warrant
the exemption.
25 (3) If a person has approval under section 36(2) to
take gametes or an embryo from Victoria the
Authority may exempt the person from
compliance with the following provisions in
relation to the gametes or embryo--
30 (a) sections 32(2) and 35;
(b) any other prescribed provision of this Act or
the regulations.
561232B.I-9/10/2008 29 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 38
Other Matters
(4) The Authority may exempt a person under
subsection (3) only if the Authority is satisfied
that--
(a) the gametes or embryo will be used in a way
5 that is consistent with this Act; and
(b) there are special circumstances that warrant
the exemption.
(5) An exemption granted under this section--
(a) must be made in writing; and
10 (b) may relate to the whole or a part of a
provision; and
(c) may be subject to conditions imposed by the
Authority.
(6) A person granted an exemption under this section
15 must comply with any condition imposed by the
Authority on the exemption.
Penalty: 240 penalty units or 2 years
imprisonment or both.
Division 4--Offence in relation to giving information
20 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
25 this Act; or
(b) with respect to the giving of information that
is required--
(i) to be given under this Act; or
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 3--Offences Relating to Use and Storage of Gametes and Embryos and
s. 38
Other Matters
(ii) to be included in a register, record or
notice under this Act.
Penalty: 50 penalty units.
__________________
561232B.I-9/10/2008 31 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 4--Surrogacy
s. 39
PART 4--SURROGACY
39 Certain surrogacy arrangements to require
approval of Patient Review Panel
A registered ART provider may carry out a
5 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
10 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--
15 (a) that a doctor has formed an opinion that--
(i) in the circumstances, the
commissioning parent is unlikely to
become pregnant, be able to carry a
pregnancy or give birth; or
20 (ii) if the commissioning 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;
25 (b) that the surrogate mother is at least 25 years
of age;
(c) that the commissioning parent, the surrogate
mother and the surrogate mother's partner, if
any, have received counselling and legal
30 advice as required under section 43;
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STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 4--Surrogacy
s. 41
(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
5 are prepared for the consequences if the
arrangement does not proceed in accordance
with the parties' intentions;
(f) that the parties to the surrogacy arrangement
are able to make informed decisions about
10 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
15 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.
20 (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
25 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
30 arrangement are exceptional; and
(b) it is reasonable to approve the arrangement
in the circumstances.
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 4--Surrogacy
s. 42
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
5 surrogacy arrangement--
(a) the requirement that a criminal records check
be sighted by the counsellor applies to a
criminal records check for each party to the
surrogacy arrangement; and
10 (b) the requirement to give permission for a
child protection order check to be conducted
applies to all parties to the surrogacy
arrangement; and
(c) the requirement to comply with the criteria in
15 section 10(2)(a) does not apply to the
surrogate mother.
43 Counselling and legal information
Before a surrogacy arrangement is entered into the
commissioning parent, the surrogate mother and
20 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
25 the arrangement, including counselling about
the prescribed matters; and
(b) if the surrogate mother's oocyte is to be used
in the conception of the child, undergo
counselling about the implications of the
30 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
35 arrangement.
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 4--Surrogacy
s. 44
44 Surrogacy costs
(1) A surrogate mother must not receive any material
benefit or advantage as a result of a surrogacy
arrangement.
5 Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) Subsection (1) does not prevent a surrogate
mother being reimbursed for the prescribed costs
actually incurred by the surrogate mother as a
10 direct consequence of entering into the surrogacy
arrangement.
(3) To the extent that a surrogacy arrangement
provides for a matter other than the
reimbursement for costs actually incurred by the
15 surrogate mother the arrangement is void and
unenforceable.
45 Prohibition on certain publications
(1) A person must not publish, or cause to be
published, a statement, advertisement, notice or
20 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
25 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
30 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
35 or herself or for another person; or
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Assisted Reproductive Treatment Bill 2008
Part 4--Surrogacy
s. 45
(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
5 willing to act as a surrogate mother.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) In this section--
publish means--
10 (a) publish in any newspaper; or
(b) publish by means of television, radio or
the Internet; or
(c) otherwise disseminate to the public.
__________________
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 5--Posthumous use of Gametes
s. 46
PART 5--POSTHUMOUS USE OF GAMETES
46 Requirements for posthumous use of gametes or an
embryo in treatment provided by a registered ART
provider
5 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--
10 (i) on the deceased person's partner; or
(ii) in the case of a deceased woman, by the
woman's male partner commissioning a
surrogacy arrangement in accordance
with Part 4; and
15 (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
20 (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.
25 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
30 of the treatment procedure.
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Assisted Reproductive Treatment Bill 2008
Part 5--Posthumous use of Gametes
s. 48
(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.
5 48 Counselling
Before a woman may undergo a treatment
procedure referred to in section 46, the woman
must undergo counselling, by a counsellor
providing services on behalf of a registered ART
10 provider, in relation to the prescribed matters.
__________________
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 49
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
5 (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;
10 (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
15 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
20 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
25 between--
(i) the registered ART provider and
another registered ART provider; or
(ii) the registered ART provider and a
doctor;
30 (h) the collection and storage of gametes or an
embryo by the registered ART provider;
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 49
(i) the consents and withdrawals of consent to
the storage and removal from storage of
gametes or an embryo by the registered ART
provider;
5 (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
10 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
15 registered ART provider, details of the
reimbursement;
(m) the outcome of a treatment procedure
including particulars of--
(i) a confirmed pregnancy resulting from a
20 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
25 of the person.
Penalty: 50 penalty units.
(2) A designated officer of a registered ART provider
must ensure that any information required, by a
condition of registration imposed by the
30 Authority, to be recorded in the register kept by
the provider under subsection (1) is recorded in
the register.
Penalty: 50 penalty units.
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 50
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
5 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
10 doctor;
(b) if donor sperm is used for the artificial
insemination, the donor;
(c) the woman who is inseminated and her
partner, if any;
15 (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
20 consent.
51 Information to be given to the Registrar by
registered ART providers
(1) Each registered ART provider must, not later than
1 July in each year, give to the Registrar the
25 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
30 to the registered ART provider, within the
preceding financial year;
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 52
(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
5 preceding financial year;
(c) in the circumstances specified in writing by
the Registrar, each donor treatment
procedure carried out by the registered ART
provider in the preceding financial year, if
10 the outcome of that procedure is not known
by the provider.
Penalty: 10 penalty units.
(2) The information provided under subsection (1)
must include the following details--
15 (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
20 whom the procedure was carried out and the
name of her partner, if any;
(d) in all cases, the kind of procedure carried
out.
52 Information to be given to Registrar by doctors
25 (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 Registrar the information specified in
subsection (2) in relation to--
30 (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;
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Part 6--Registers and Access to Information
s. 53
(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;
5 (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--
10 (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
15 whom the procedure was carried out and the
name of her partner, if any;
(d) in all cases, the kind of procedure carried
out.
53 Registrar to keep a Central Register
20 The Registrar must keep, in the way decided by
the Registrar, a Central Register containing--
(a) the information given to the Registrar under
this Division; and
(b) the prescribed information.
25 54 Registrar to correct Central Register
(1) A person in relation to whom information is
recorded in the Central Register may, at any time,
ask the Registrar to correct or amend information
in the Register that is inaccurate, incomplete, out
30 of date or misleading.
(2) A request under subsection (1)--
(a) must be in writing; and
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Part 6--Registers and Access to Information
s. 55
(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.
5 (3) If, in the Registrar's opinion, the amendment or
correction requested will make the Central
Register more accurate or complete, the Registrar
must make the amendment or correction to the
Register that is necessary in the Registrar's
10 opinion.
(4) The Registrar must notify a person who makes a
request under this Part of the Registrar's decision
about that request within 30 days of making that
decision.
15 Division 2--Information to be given by registered ART
providers
55 Information recorded by registered ART providers
that is to be given to donors
(1) This section applies if a registered ART provider
20 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
25 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.
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 56
(3) On receiving a request for information under
subsection (2), the designated officer must
disclose to the donor, in accordance with
subsection (4)--
5 (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
10 (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.
Penalty: 50 penalty units.
15 (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
20 partner, if any.
(5) In this section--
register, in relation to a registered ART provider,
means the register required to be kept by the
provider under Division 1.
25 Division 3--Disclosure of information on Central Register
56 Application for information on Central Register
(1) The following persons may apply for the
disclosure of information recorded on the Central
Register--
30 (a) a person born as a result of a donor treatment
procedure;
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Part 6--Registers and Access to Information
s. 57
(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
5 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
10 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
15 (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
20 born as a result of a donor treatment
procedure carried out using the donor's
gametes.
(3) An application under subsection (1) must be--
(a) in the form and way approved by the
25 Registrar; and
(b) accompanied by the prescribed fee.
57 Disclosure of information that does not identify a
person
(1) On receipt of an application under section 56, the
30 Registrar must disclose to the applicant the
information applied for, other than identifying
information about another person.
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Part 6--Registers and Access to Information
s. 58
(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
5 as a result of donor treatment or donor
(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 Registrar must
disclose to the parent or donor identifying
10 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
15 (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
20 consent; and
(iii) the child has not indicated to the
Registrar that the child does not want
the information disclosed.
(2) If a child born as a result of a donor treatment
25 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.
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 60
59 Disclosure of information to persons born as a result
of donor treatment procedure
On receipt of an application under section 56 from
a person born as a result of a donor treatment
5 procedure, the Registrar must disclose to the
person identifying information about another
person if--
(a) the applicant--
(i) is an adult; or
10 (ii) if the person is a child--
(A) the person's parent or guardian has
consented to the making of the
application; or
(B) a counsellor has provided
15 counselling to the person and
advised the Registrar, in writing,
that the person is sufficiently
mature to understand the
consequences of the disclosure;
20 and
(b) the applicant was conceived--
(i) using gametes donated after
31 December 1997; or
(ii) the person was conceived using
25 gametes donated between 1 July 1988
and 31 December 1997 and the donor
has given consent to the disclosure.
60 Disclosure of information to persons descended
from persons born as a result of donor treatment
30 procedure
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
Registrar may disclose to the person identifying
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 61
information about the donor from whom the
person is descended.
61 Requirement for counselling
(1) The Registrar may disclose information to a
5 person who makes an application under section 56
only if--
(a) in the case of the disclosure of non-
identifying information--the Registrar has
offered the person counselling by a
10 counsellor; or
(b) in the case of identifying information--the
Registrar is satisfied the person has received
counselling, from a counsellor, about the
potential consequences of disclosure of
15 information from the Central Register.
(2) This section applies despite any other provision of
this Division.
(3) In this section--
counsellor means a counsellor--
20 (a) who provides counselling on behalf of a
registered ART provider; or
(b) who is an approved counsellor within
the meaning of the Adoption Act 1984.
62 Notice to be given of intended disclosure
25 If the Registrar intends to disclose identifying
information under this Division, the Registrar
must make all reasonable efforts to give notice of
the intended disclosure to the person to whom the
information relates.
30 63 Disclosure of information to Authority
The Registrar may disclose information on the
Central Register to the Authority only for
purposes relating to the Authority's functions.
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Assisted Reproductive Treatment Bill 2008
Part 6--Registers and Access to Information
s. 64
Division 4--General provisions
64 Information
Any reference in this Act or the regulations to the
disclosure of identifying information means the
5 disclosure of information from which a person
will or may be identified, directly or indirectly.
65 Disclosure of information to doctor
(1) This section applies if--
(a) a person has applied for information under
10 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
15 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
20 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
25 Part or the regulations must keep a record of--
(a) the person to whom the information is
disclosed; and
(b) the information disclosed.
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Part 6--Registers and Access to Information
s. 67
67 Consent
(1) This section applies if, under this Part or the
regulations, consent is required to be given before
information may be disclosed.
5 (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,
10 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.
15 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
20 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
25 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
30 treatment procedure; or
(b) it is the Central Register or part of the
Central Register.
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Part 6--Registers and Access to Information
s. 68
(2) Despite subsection (1), a document is not an
exempt document under subsection (1)(a)--
(a) to the extent that it only contains
information--
5 (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
10 (b) in the prescribed circumstances and to the
extent the document does not contain
identifying information.
__________________
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CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 7--Voluntary Register
s. 69
PART 7--VOLUNTARY REGISTER
69 Application of Part
This Part applies despite Part 6.
70 Registrar to keep Voluntary Register
5 (1) The 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
10 Register.
71 Information to be recorded in Voluntary Register
(1) The following may be entered in the Voluntary
Register--
(a) the names and addresses of persons who
15 have asked the Registrar, in writing, to enter
their names and addresses in the Register,
including--
(i) persons born as a result of donor
treatment procedures; and
20 (ii) the descendants of persons born as a
result of donor treatment procedures;
and
(iii) donors; and
(iv) women who have undergone donor
25 treatment procedures and their partners,
if any; and
(v) the relatives of persons referred to in
subparagraph (i), (ii), (iii) or (iv).
(b) in relation to each person whose name is
30 entered in the Register, the wishes of the
person in relation to--
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Part 7--Voluntary Register
s. 72
(i) obtaining information about another
person whose name is, or may in the
future be, entered in the Register; or
(ii) another person whose name is, or may
5 in the future be, entered in the Register
obtaining information about the person;
and
(c) in relation to each person whose name is
entered in the register, any other information
10 the person has asked to have recorded in the
Register.
(2) The Registrar may from time to time publicise the
establishment and purpose of the Voluntary
Register.
15 (3) The Registrar must, if asked by a person whose
name is entered in the Voluntary Register, amend
or cancel the entry relating to that person, or give
the person a copy of the entry.
(4) The Voluntary Register must be kept in
20 accordance with the regulations.
72 Disclosure of information
The Registrar may disclose information about a
person from the Voluntary Register only in
accordance with the wishes of that person.
25 73 Requirement for counselling
(1) The Registrar may disclose information in the
Voluntary Register to a person only if--
(a) in the case of the disclosure of non-
identifying information--the Registrar has
30 offered the person counselling by a
counsellor; or
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Assisted Reproductive Treatment Bill 2008
Part 7--Voluntary Register
s. 73
(b) in the case of identifying information--the
Registrar is satisfied the person has received
counselling, from a counsellor, about the
potential consequences of disclosure of
5 information from the Voluntary Register.
(2) This section applies despite any other provision of
this Part.
(3) In this section--
counsellor means a counsellor--
10 (a) who provides counselling on behalf of a
registered ART provider; or
(b) who is an approved counsellor within
the meaning of the Adoption Act 1984.
_______________
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Assisted Reproductive Treatment Bill 2008
Part 8--Registration and Designated Officers
s. 74
PART 8--REGISTRATION AND DESIGNATED OFFICERS
Division 1--Registration as an ART provider
74 Registration as an ART provider
(1) A person who holds RTAC accreditation may
5 apply to the Authority for registration as a
registered ART provider under this Act.
(2) An application must--
(a) be in writing; and
(b) be accompanied by evidence that the person
10 holds RTAC accreditation; and
(c) include any other information or be
accompanied by any other document
required by the regulations.
(3) If the Authority receives an application from a
15 person in accordance with subsection (2), the
Authority must grant the person's application.
(4) A person ceases to be a registered ART provider if
the person no longer holds RTAC accreditation.
75 Authority may impose conditions on registration
20 (1) The Authority may impose conditions on the
registration of a person as a registered ART
provider under this Act only if the Authority
considers it necessary in the public interest.
(2) A condition imposed under this section on a
25 person's registration must not be inconsistent with
a condition imposed on the person's RTAC
accreditation and, to the extent of any
inconsistency, is invalid.
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(3) As soon as practicable after imposing a condition
on a person's registration under this section, the
Authority must give the Minister written notice
about--
5 (a) the imposition of the condition; and
(b) the reason for the imposition of the
condition.
Division 2--General provisions about registrations
76 Suspension of registration
10 (1) The Authority may, by written notice given to a
registered ART provider, suspend the provider's
registration, either in whole or part, if--
(a) the Authority reasonably believes the
provider has contravened a condition of the
15 provider's registration; or
(b) the Authority is otherwise satisfied there are
reasonable grounds for the suspension.
(2) A written notice suspending a registered ART
provider's registration must specify the grounds
20 for the suspension, including any action the
provider must take to rectify the matter that
formed the grounds.
(3) Before suspending the registration, the Authority
must allow the registered ART provider the
25 opportunity to make written submissions to the
Authority about the proposed suspension.
(4) The Authority must have regard to any written
submissions made under subsection (3).
(5) A suspension under this section has effect--
30 (a) from the time at which notice of the
suspension is given to the registered ART
provider under subsection (1); and
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(b) for the period decided by the Authority and
specified in the notice.
(6) The period of suspension specified in the notice
must be no longer than is reasonably necessary to
5 enable the registered ART provider to rectify the
matter that formed the grounds for the suspension.
77 Immediate suspension of registration
(1) The Authority may suspend a registered ART
provider's registration without allowing the
10 provider an opportunity to make submissions
about the proposed suspension if--
(a) the Authority reasonably believes there is an
overriding public interest that requires the
registration to be suspended immediately;
15 and
(b) the Minister has consented to the immediate
suspension of the provider's registration.
(2) A suspension under subsection (1)--
(a) has effect from the time at which written
20 notice of the suspension is given to the
registered ART provider; and
(b) remains in force for the period decided by
the Authority and specified in the notice.
(3) The period under subsection (2)(b) must be no
25 longer than is reasonably necessary to safeguard
the public interest for which the suspension was
imposed.
(4) At any time during the period of suspension, the
Authority must allow the ART provider to make
30 written submissions about the suspension.
(5) The Authority may revoke the suspension at any
time, and must have regard to any submissions
made under subsection (4) in deciding whether or
not to do so.
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Assisted Reproductive Treatment Bill 2008
Part 8--Registration and Designated Officers
s. 78
78 Offence of failing to notify authority if RTAC
accreditation no longer held
(1) This section applies if a person who is a registered
ART provider no longer holds RTAC
5 accreditation.
(2) The person must immediately give the Authority
written notice that the person no longer holds the
accreditation.
Penalty: 240 penalty units or 2 years
10 imprisonment or both.
Note
If a registered ART provider no longer holds RTAC accreditation
the provider's registration under this Act also ceases and the
provider may no longer carry out treatment procedures.
15 79 Notification to Minister
The Authority must notify the Minister
immediately if a registered ART provider no
longer holds RTAC accreditation.
Division 3--Designated officers
20 80 Designated officers for registered ART providers
(1) A registered ART provider must ensure that at all
times a designated officer is appointed, employed
or engaged by the provider.
Penalty: 50 penalty units.
25 (2) The appointment, employment or engagement
must be in writing.
Division 4--List of registered ART providers
81 Authority to keep list
(1) The Authority must keep a list of registered ART
30 providers.
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Assisted Reproductive Treatment Bill 2008
Part 8--Registration and Designated Officers
s. 81
(2) The list must record the following information for
each registered ART provider--
(a) the registered ART provider's name;
(b) the address of each premises at which the
5 registered ART provider carries out
treatment procedures;
(c) the period for which the registered ART
provider holds RTAC accreditation;
(d) details of the registered ART provider's
10 Internet site, if any.
(3) The Authority must make the list available for
inspection by members of the public, free of
charge--
(a) at the Authority's offices during business
15 hours; and
(b) on the Authority's Internet site.
__________________
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STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 82
PART 9--PATIENT REVIEW PANEL
Division 1--Constitution and procedures of Patient Review
Panel
82 Establishment of Panel
5 The Patient Review Panel is established.
83 Constitution of Panel
(1) The Patient Review Panel consists of 5 members.
(2) The members of the Patient Review Panel are to
include--
10 (a) a chairperson appointed by the Governor in
Council; and
(b) a deputy chairperson appointed by the
Governor in Council; and
(c) 3 other members appointed by the
15 chairperson and chosen from the list of
approved names under section 84.
(3) Of the members appointed under subsection
(2)(c), at least one member must have expertise in
child protection matters.
20 84 List of approved names
The Governor in Council, on the recommendation
of the Minister, is to approve a list of names of
persons suitable for appointment to the Patient
Review Panel.
25 85 Functions of Panel
The functions of the Patient Review Panel are--
(a) to consider applications for surrogacy
arrangements; and
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 86
(b) to consider whether there is a barrier to
treatment if a presumption against treatment
applies; and
(c) to consider applications for posthumous use
5 of gametes and embryos; and
(d) to consider applications for treatment in
circumstances in which a registered ART
provider or doctor is concerned about the
risk of abuse or neglect of a child that may
10 be born as a result of the treatment; and
(e) to consider applications for treatment in
circumstances in which the applicant does
not meet the criteria for treatment; and
(f) to consider applications for extended storage
15 periods of gametes or embryos or removal of
embryos from storage; and
(g) any other functions given to the Panel by this
Act or by the Minister.
86 Chairperson and deputy chairperson
20 (1) The chairperson and deputy chairperson of the
Patient Review Panel hold office for the period,
not more than 3 years, specified in the person's
instrument of appointment.
(2) A person appointed as chairperson or deputy
25 chairperson may resign that office by written
notice given to the Minister.
(3) The Governor in Council may, at any time,
remove the chairperson or deputy chairperson
from office.
30 87 Removal of name from approved list
(1) A person whose name is on the approved list may,
by written notice given to the Minister, ask that
the person's name be removed from the approved
list.
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 88
(2) The Governor in Council may, at any time,
remove a person's name from the approved list.
88 Payment of members
A member of the Patient Review Panel, other than
5 a member who is an employee of the public
service within the meaning of the Public
Administration Act 2004, is entitled to receive
the fees that are fixed from time to time by the
Minister for that member.
10 89 Notice of hearing
(1) On receiving an application, the chairperson of the
Patient Review Panel must--
(a) fix a time and place for the hearing of the
application to be conducted; and
15 (b) serve a notice of the hearing on the applicant
that states--
(i) the nature of the hearing; and
(ii) the time and place of the hearing; and
(iii) that the applicant is entitled to be
20 present at the hearing, to make
submissions and to be accompanied by
another person; and
(iv) that the hearing is not open to the
public; and
25 (v) that there is no right to legal
representation at the hearing without
leave from the Panel; and
(vi) the possible findings or orders that the
Panel may make.
30 (2) The chairperson of the Patient Review Panel must
ensure the hearing of an application is arranged
and conducted as expeditiously as practicable.
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 90
90 Conduct of hearing
(1) At a hearing, the Patient Review Panel must hear
and determine the application before it.
(2) Subject to subsection (3), the procedure of the
5 Patient Review Panel is in the Panel's discretion.
(3) At a hearing of an application by the Patient
Review Panel--
(a) the proceedings must be conducted with as
little formality and technicality as proper
10 consideration of the application permits; and
(b) there is no right to legal representation unless
the Panel grants leave to the applicant to
have legal representation; and
(c) the applicant is entitled to--
15 (i) be present; and
(ii) to make submissions; and
(iii) to be accompanied by another person;
and
(d) the proceedings must not be open to the
20 public; and
(e) subject to paragraph (f), the Panel is bound
by the rules of natural justice; and
(f) the Panel is not bound by the rules of
evidence and may inform itself in any way it
25 thinks fit.
91 Decision by Patient Review Panel
(1) Within 14 days after hearing the application, the
Patient Review Panel must decide--
(a) for an application for approval of a surrogacy
30 arrangement, to approve or not to approve
the arrangement; or
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 91
(b) for an application by a person to whom a
presumption against treatment applies,
whether or not a barrier to treatment applies;
or
5 (c) for an application for posthumous use of
gametes or an embryo, whether or not the
gametes or embryo may be used; or
(d) for an application for treatment in
circumstances in which the registered ART
10 provider is concerned about the risk of abuse
or neglect of a child that may be born as a
result of the treatment, whether or not there
is a barrier to treatment; or
(e) for an application for treatment in
15 circumstances in which the applicant does
not meet the criteria for treatment, whether
or not there is a barrier to treatment; or
(f) for an application for an extended storage
period of gametes or an embryo, whether or
20 not an extended storage period is approved;
or
(g) for an application for removal of an embryo
from storage, whether or not the removal is
approved.
25 (2) In making the decision, the Patient Review Panel
must have regard to the guiding principles set out
in section 5 and any other relevant criteria
specified by this Act in determining the
application.
30 (3) The Patient Review Panel may impose the
conditions it considers necessary and reasonable
in the circumstances on the decision.
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 92
92 Written reasons for decisions
(1) The Patient Review Panel must give written
reasons for a decision made by the Panel under
section 91 to the applicant.
5 (2) Also, if a decision made by the Patient Review
Panel under section 91 may reasonably be
expected to have a significant impact on the way
in which treatment procedures are carried out in
Victoria, the Panel must give a copy of the
10 reasons for the decision to the Authority.
93 Effect of vacancy or defect
An act or decision of the Patient Review Panel is
not invalid only because--
(a) of a vacancy in its membership; or
15 (b) of a defect or irregularity in the appointment
of any of its members.
94 Immunity
(1) A member of the Patient Review Panel is not
personally liable for anything done or omitted to
20 be done in good faith--
(a) in the exercise of a power or the discharge of
a duty under this Act; or
(b) in the reasonable belief that this Act or
omission was in the exercise of a power or
25 the discharge of a duty under this Act.
(2) Any liability resulting from an act or omission
that would, but for subsection (1), attach to a
member of the Patient Review Panel attaches
instead to the Crown.
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 95
95 Evidence
In any proceedings under this Act, a copy of a
decision made or given under this Act by the
Patient Review Panel and sealed and certified by
5 the chairperson of the Panel to be a true copy and
to have been so made or given is evidence of the
making or giving of the decision.
Division 2--Review of Patient Review Panel's decisions
96 Reviewable decisions
10 An application may be made to the Victorian Civil
and Administrative Tribunal for review of a
decision of the Patient Review Panel--
(a) that there is a barrier to treatment of a person
under this Act; or
15 (b) not to approve a surrogacy arrangement; or
(c) not to allow the posthumous use of a person's
gametes or embryo; or
(d) not to approve the period during which
gametes or an embryo may be stored; or
20 (e) to remove or not to remove an embryo from
storage.
97 Who may apply for review
An application under section 96 may only be
made by a person whose interests are affected
25 by--
(a) the decision of the Patient Review Panel; or
(b) the failure of the Patient Review Panel to act.
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Assisted Reproductive Treatment Bill 2008
Part 9--Patient Review Panel
s. 98
98 When application must be made
An application for review must be made within
28 days after the day on which the decision is
made.
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Assisted Reproductive Treatment Bill 2008
Part 10--Victorian Assisted Reproductive Treatment Authority
s. 99
PART 10--VICTORIAN ASSISTED REPRODUCTIVE
TREATMENT AUTHORITY
Division 1--Constitution of the Authority
99 Establishment of Authority
5 (1) The Victorian Assisted Reproductive Treatment
Authority is established.
(2) The Authority--
(a) is a body corporate with perpetual
succession; and
10 (b) has a common seal; and
(c) may sue and be sued in its corporate name;
and
(d) may acquire, hold and dispose of real and
personal property; and
15 (e) may do and suffer all acts and things that a
body corporate may, by law, do and suffer.
(3) The common seal must be kept as directed by the
Authority and must not be used except as
authorised by the Authority.
20 (4) All courts must take judicial notice of the seal of
the Authority on a document and, until the
contrary is proved, must presume that the
document was properly sealed.
100 Powers, functions, duties and consultation
25 requirements
(1) The Authority has the following functions--
(a) to administer the registration system under
this Act;
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 100
(b) to undertake public education about
treatment procedures and the best interests of
children born as a result of treatment
procedures;
5 (c) to undertake community consultation about
matters relevant to this Act;
(d) to monitor--
(i) programs and activities carried out
under this Act; and
10 (ii) programs and activities carried out
relating to the causes and prevention of
infertility; and
(iii) programs and procedures relating to
treatment procedures carried out
15 outside Victoria;
(e) to keep under regular review and, if it thinks
fit, to make recommendations to the Minister
about its functions, operation or
composition;
20 (f) to promote research into the causes and
prevention of infertility;
(g) to approve the bringing of donor gametes or
an embryo formed from donor gametes into
or the taking of them from Victoria, and to
25 provide for the exemption from particular
provisions of this Act in accordance with
section 37;
(h) any other functions conferred on the
Authority by or under this or any other Act.
30 (2) The Authority must, without delay, advise the
Minister of any of the following matters that come
to its notice--
(a) a contravention of this Act or the regulations;
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Assisted Reproductive Treatment Bill 2008
Part 10--Victorian Assisted Reproductive Treatment Authority
s. 101
(b) a contravention of a registered ART
provider's registration;
(c) a development in relation to the following,
whether in Victoria or elsewhere, that the
5 Authority considers of major importance or
views with concern--
(i) research relating to infertility;
(ii) treatment for infertility.
(3) The Authority has all the powers necessary to
10 enable it to perform its functions.
(4) The Authority must have regard to the Minister's
advice in carrying out its functions and exercising
its powers.
101 Membership
15 (1) The Authority is to consist of not more than
7 members nominated by the Minister and
appointed by the Governor in Council.
(2) In making nominations for appointments to the
Authority, the Minister must have regard to the
20 need for diversity of expertise and experience and
to the need to appoint persons who have the
expertise to carry out the functions of the
Authority or to ensure that those functions are
carried out.
25 102 Terms of office
(1) A member of the Authority holds office--
(a) for the period specified in the member's
instrument of appointment; and
(b) on the terms and conditions specified in that
30 instrument.
(2) A member of the Authority is eligible for
reappointment.
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 103
(3) The Public Administration Act 2004 (other than
Part 3 of that Act) applies to a member in respect
of the office of member.
103 Resignation and removal
5 (1) A member of the Authority may resign the
member's office by writing signed by the member
and addressed to the Governor in Council.
(2) The Governor in Council may at any time remove
a member of the Authority from office.
10 (3) If a member of the Authority dies, resigns or is
removed from office, the Governor in Council
may, in accordance with this Act, on the
nomination of the Minister, fill the vacant office.
(4) A member appointed under subsection (3) holds
15 office for the rest of the term of appointment of
the member whose place the new member fills.
104 Chairperson and deputy chairperson
(1) The Governor in Council may appoint members of
the Authority to be chairperson and deputy
20 chairperson.
(2) A person appointed to an office under
subsection (1) holds office for the term specified
in the person's instrument of appointment and is
eligible for reappointment.
25 (3) A person appointed to an office under
subsection (1) may resign office by writing signed
by the person and addressed to the Governor in
Council.
(4) The Governor in Council may at any time remove
30 a person appointed under subsection (1) from
office.
(5) A person appointed to an office under
subsection (1) ceases to hold office on ceasing to
be a member of the Authority.
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 105
105 Acting member
(1) If a member of the Authority is unable to perform
the duties or functions of the office, the Governor
in Council may appoint a person qualified to be
5 appointed as a member to act as the member
during the period of inability.
(2) The Governor in Council may--
(a) subject to this Act, determine the terms and
conditions of appointment of an acting
10 member; and
(b) at any time terminate the appointment.
(3) An acting member has and may exercise all the
powers and perform all the duties and functions of
the member.
15 106 Payment of members
(1) A member or acting member of the Authority,
other than a member who is an employee in the
public service within the meaning of the Public
Administration Act 2004, is entitled to receive
20 the fees that are fixed from time to time by the
Governor in Council for that member.
(2) Each member or acting member of the Authority
is entitled to receive the allowances that are fixed
from time to time by the Governor in Council for
25 that member.
107 Procedure of Authority
(1) The chairperson or, in the absence of the
chairperson, the deputy chairperson, must preside
at a meeting of the Authority at which she or he is
30 present.
(2) If neither the chairperson nor deputy chairperson
are present at a meeting the members present may
elect a member to preside at the meeting.
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 108
(3) The person presiding at a meeting has a
deliberative vote and a second or casting vote.
(4) A majority of the members of the Authority
currently holding office constitutes a quorum.
5 (5) Except as otherwise provided for in this Act or the
regulations, the Authority may regulate its own
proceedings.
108 Effect of vacancy or defect
An act or decision of the Authority is not invalid
10 only because--
(a) of a vacancy in its membership; or
(b) of a defect or irregularity in the appointment
of any of its members; or
(c) in the case of an acting member, the occasion
15 for that member so acting had not arisen or
had ceased.
109 Member's interests
(1) This section applies if a member has--
(a) a pecuniary interest in any matter in which
20 the Authority is concerned; or
(b) any other substantial interest in any matter in
which the Authority is concerned which the
member considers might appear to raise a
material conflict between the member's
25 private interest and the member's functions
as a member of the Authority.
(2) The member must--
(a) if the member is present at a meeting of the
Authority at which the matter is to be
30 considered, disclose the nature of the interest
immediately before the consideration of that
matter; or
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 110
(b) if the member is aware that the matter is to
be considered at a meeting of the Authority
at which the member does not intend to be
present, disclose the nature of the interest to
5 the chairperson or deputy chairperson of the
Authority before the meeting is held.
(3) The member--
(a) may take part in the discussion in the
meeting; and
10 (b) must leave the meeting while any vote is
taken on a question relating to the matter.
110 Immunity
(1) A member of the Authority is not personally liable
for anything done or omitted to be done in good
15 faith--
(a) in the exercise of a power or the discharge of
a duty under this Act; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
20 the discharge of a duty under this Act.
(2) Any liability resulting from an act or omission
that would, but for subsection (1), attach to a
member of the Authority attaches instead to the
Authority.
25 111 Engagement or employment of persons
The Authority may employ or engage a chief
executive officer and any other persons that are
necessary for the purposes of the administration of
the Authority and the carrying out of its powers
30 and functions.
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 112
112 Delegation
(1) The Authority may, in writing, delegate to a
committee established under section 113 any of its
powers and functions under this Act or the
5 regulations.
(2) A delegation may be--
(a) made only with the approval of the Minister;
and
(b) subject to any conditions or limitations
10 imposed by the Minister.
113 Committees
The Authority may appoint one or more
committees of members of the Authority to
discharge the Authority's powers, functions and
15 duties delegated to it under section 112.
Division 2--Reporting and financial provisions
114 Report to Minister
(1) The Authority must, by 30 September in each
year, report to the Minister on the following
20 matters--
(a) the programs under which, in the preceding
financial year, treatment procedures were
conducted and embryos and gametes were
stored by each registered ART provider;
25 (b) particulars of each program including--
(i) the number of treatment procedures
carried out under this Act during the
preceding financial year and the nature
and outcome of those procedures; and
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 115
(ii) the number of participants in treatment
procedures carried out by each
registered ART provider during the
preceding financial year; and
5 (iii) the number of embryos formed by each
registered ART provider during the
preceding financial year;
(c) any other matter on which the Minister asks
the Authority to report.
10 (2) The Minister must cause each report made by the
Authority under subsection (1) to be laid before
each House of the Parliament before the
expiration of the 14th sitting day of that House
after the Minister receives the report.
15 115 Victorian Assisted Reproductive Treatment
Authority Fund
(1) The Authority must establish and keep a Victorian
Assisted Reproductive Treatment Authority Fund.
(2) The Authority must pay into the Fund--
20 (a) any money received by it by way of fees paid
to or recovered by it; and
(b) any income from the investments of the
Fund; and
(c) any other money received by the Authority.
25 (3) The Authority may pay out of the Fund--
(a) any expenses incurred in its administration
or in the carrying out of its functions, powers
and duties under this Act; and
(b) any payments to be made to members of the
30 Authority under this Act and any payments
to be made to other persons by the Authority
in the course of the exercise of its powers
and functions under this Act; and
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Part 10--Victorian Assisted Reproductive Treatment Authority
s. 116
(c) any other payments recommended by the
Authority and approved by the Minister; and
(d) any other payments authorised under any
other Act.
5 116 Investment powers
The Authority may invest money credited to the
Fund that it does not immediately require--
(a) in any way authorised by section 5 of the
Trustee Act 1958; or
10 (b) in any other way that the Minister approves.
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Assisted Reproductive Treatment Bill 2008
Part 11--General
s. 117
PART 11--GENERAL
117 No action if gametes used without knowing consent
withdrawn or lapsed
(1) This section applies if--
5 (a) a person has carried out a treatment
procedure for which consent was required;
and
(b) before the treatment procedure was carried
out, the consent was withdrawn under this
10 Act.
(2) No civil or criminal proceeding lies against the
person because of the withdrawal of the consent
if, at the time the treatment procedure was carried
out, the person did not know and could not
15 reasonably be expected to have known that the
consent had been withdrawn.
118 Identity cards
The Authority may issue an identity card to each
member of the Authority.
20 119 Powers and duties of members of Authority to
inspect documents
(1) A member of the Authority may exercise powers
under this section only to the extent that it is
reasonably necessary to do so for the purpose of
25 determining compliance with a registration under
this Act.
(2) A member of the Authority with any necessary
assistants may enter the premises of a registered
ART provider at any time during ordinary
30 business hours.
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Part 11--General
s. 120
(3) After entering premises under subsection (2) the
member may--
(a) require a person to produce for inspection a
record or other document, including a
5 document containing information required to
be kept as a condition of a registration under
this Act; and
(b) inspect a document produced under
paragraph (a); and
10 (c) take possession of a document produced
under paragraph (a) for so long as is
necessary to make copies of or take extracts
from the document.
(4) A member of the Authority who enters premises
15 under this section--
(a) must advise the occupier of the premises of
the purpose of the member's visit; and
(b) may not exercise any powers under this
section if the member fails to produce, on
20 request, the member's identity card for
inspection by the occupier of the premises.
(5) A member of the Authority may not take
possession of a document apparently in the
custody of a person unless the member makes out
25 and tenders to the person a receipt for the
document taken.
120 Offence to obstruct or hinder
A person must not obstruct or hinder a member of
the Authority in exercising the member's powers
30 or duties under section 119.
Penalty: 50 penalty units.
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Assisted Reproductive Treatment Bill 2008
Part 11--General
s. 121
121 Prohibition on destruction of documents
A person must not destroy, remove or cancel a
document required to be kept by or under this Act
or the regulations unless authorised by this Act or
5 the regulations to do so.
Penalty: 50 penalty units.
122 Requirements if registered ART provider ceases to
operate
(1) This section applies if a registered ART provider
10 intends to cease operating.
(2) Before the registered ART provider ceases to
operate the registered ART provider must make
all reasonable efforts to--
(a) transfer to another registered ART provider
15 or a hospital any gametes or embryos stored
by the registered ART provider; and
(b) transfer to another registered ART provider,
a hospital or the Registrar any record
required, by or under this Act or the
20 regulations, to be kept by the registered ART
provider; and
(c) notify patients that the registered ART
provider intends to cease to operate.
Example
25 By placing an advertisement in a newspaper published
in the area in which the registered ART provider
operates.
(3) In this section--
hospital means any of the following hospitals--
30 (a) a denominational hospital within the
meaning of the Health Services Act
1988;
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(b) a metropolitan hospital within the
meaning of the Health Services Act
1988;
(c) a privately-operated hospital within the
5 meaning of the Health Services Act
1988;
(d) a public hospital within the meaning of
the Health Services Act 1988.
123 Indictable offences
10 An offence under section 7, 8, 34(1) or 35 is an
indictable offence.
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Part 12--Regulations
s. 124
PART 12--REGULATIONS
124 Regulations
The Governor in Council may make regulations
for or with respect to any of the following--
5 (a) forms for notices or other documents
required under this Act;
(b) fees for the purposes of this Act;
(c) the conditions to be included in registrations;
(d) counselling required by this Act, including
10 the matters it must address and the form it
must take;
(e) surrogacy arrangements, including matters to
be considered in deciding the emotional
maturity and health of proposed surrogate
15 mothers and other parties to the
arrangements, the tests that parties to
surrogacy arrangements may be required to
undertake before an arrangement may be
approved and the payments that may be
20 made to surrogate mothers;
(f) the keeping of records and registers for the
purposes of this Act, including the Central
Register and the Voluntary Register.
(g) the giving of information by registered ART
25 providers and doctors to the Registrar, the
Patient Review Panel and the Authority;
(h) the disclosure of information from the
Central Registrar, Voluntary Register and
other registers and records kept under this
30 Act;
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(i) matters relating to consents under this Act,
including the persons with whom or places at
which consents or withdrawals of consents
under this Act are to be given;
5 (j) the disposal of embryos removed from
storage;
(k) requirements regarding the transfer of
information relating to gametes or embryos
that has been or is to be transferred from one
10 place to another place;
(l) penalties, not exceeding 20 penalty units, for
contraventions of the regulations;
(m) generally prescribing any matter or thing
required or permitted by this Act to be
15 prescribed or necessary to be prescribed to
give effect to this Act.
125 Application etc of regulations
Regulations made under this Act may--
(a) be of general or limited application; and
20 (b) differ according to differences in time, place
and circumstance; and
(c) confer a discretionary authority or impose a
duty on, or leave any matter or thing to be
determined or approved by, a specified
25 person or class of persons; and
(d) apply, adopt or incorporate any matter
contained in any document, code, standard,
rule, specification, or method, formulated,
issued, prescribed or published by any
30 person whether--
(i) wholly or partially or as amended by
the regulations; or
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(ii) as formulated, issued, prescribed or
published at the time the regulations are
made or at any time before then; or
(iii) as formulated, issued, prescribed or
5 published from time to time.
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Part 13--Repeal, Savings and Transitional Provisions
s. 126
PART 13--REPEAL, SAVINGS AND TRANSITIONAL
PROVISIONS
Division 1--Repeal
126 Repeal
5 See: The Infertility Treatment Act 1995 is repealed.
Act No.
63/1995.
Reprint No. 3 Division 2--Transitional provisions
as at
12 June 2007
and
amending
Act Nos
97/2005,
24/2006 and
46/2008.
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127 Definitions
In this Division--
commencement means the commencement of this
10 section;
repealed Act means the Infertility Treatment
Act 1995.
128 References to repealed Act etc
From the commencement, a reference in an Act
15 (other than this Act) or a document--
(a) to the repealed Act is taken, if the context
permits, to be a reference to this Act; and
(b) to a licensed centre under the repealed Act is
taken to be a reference to a registered ART
20 provider under this Act; and
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(c) to the Central Register under the repealed
Act is taken to be a reference to the Central
Register kept under this Act; and
(d) to a register kept by a licensed centre under
5 the repealed Act is taken to be a reference to
a register kept under this Act by a registered
ART provider.
129 Consents
(1) This section applies to a consent given under the
10 repealed Act and not withdrawn or lapsed
immediately before the commencement.
(2) From the commencement, the consent is taken to
be a consent given under this Act.
130 Registers
15 A register kept by a licensed provider of ART
services under the repealed Act is taken to be a
register kept by a registered ART provider under
this Act.
131 Licence holders
20 A person who was, immediately before the
commencement, a licence holder under the
repealed Act is taken, from the commencement, to
be registered under this Act.
132 Authority
25 (1) The Infertility Treatment Authority established
under the repealed Act is taken, on the
commencement, to be the Victorian Assisted
Reproductive Treatment Authority.
(2) A person who was, immediately before the
30 commencement, a member of the Infertility
Treatment Authority continues from the
commencement as a member of the Victorian
Assisted Reproductive Treatment Authority.
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(3) The Infertility Treatment Authority Fund kept by
the Infertility Treatment Authority under the
repealed Act is taken on the commencement to be
the Victorian Assisted Reproductive Treatment
5 Authority Fund under this Act.
133 Applications
(1) This section applies if--
(a) before the commencement a person had
applied to the Infertility Treatment Authority
10 for access to information on a register kept
under the repealed Act; and
(b) immediately before the commencement the
application had not been dealt with.
(2) From the commencement, the application is taken
15 to be an application made to the Registrar under
this Act.
134 Transitional regulations
(1) The Governor in Council may make regulations
containing provisions of a savings or transitional
20 nature consequent on the enactment of this Act.
(2) A provision mentioned in subsection (1) may be
retrospective in operation to the commencement
of section 126.
(3) Regulations made under this section have effect
25 despite anything to the contrary in any Act (other
than this Act and the Charter of Human Rights
and Responsibilities) or in any subordinate
instrument.
(4) This section expires on 1 January 2011.
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Division 3--Savings provision
135 Continued operation of Infertility Treatment
Regulations
Despite the Subordinate Legislation Act 1994,
5 the Infertility Treatment Regulations 1997, as in
force immediately before the commencement of
this section, continue until the commencement of
section 124.
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Part 14--Amendments to the Status of Children Act 1974
s. 136
PART 14--AMENDMENTS TO THE STATUS OF CHILDREN
ACT 1974
136 Principal Act
See: In this Part, the Status of Children Act 1974 is
Act No.
5 8602. called the Principal Act.
Reprint No. 2
as at
1 November
1998
and
amending
Act Nos
74/2000 and
11/2003.
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137 Definitions
At the end of section 2 of the Principal Act
insert--
"(2) In this Act--
10 embryo has the meaning given by the
Assisted Reproductive Treatment
Act 2008;
non-birth mother means a woman who is a
parent of a child by operation of a
15 presumption in Part III;
ovum in the process of fertilisation means
an ovum at any stage of human
development from the commencement
of penetration of the ovum by human
20 sperm up to but not including the
appearance of 2 pro-nuclei;
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partner, in relation to a person, means--
(a) the person's spouse; or
(b) a person who lives with the first
person as a couple on a genuine
5 domestic basis;
spouse means a person to whom another
person is married.".
138 Evidence of parentage
(1) Insert the following heading to section 8 of the
10 Principal Act--
"Evidence of parentage".
(2) In sections 8(1) and 8(5) of the Principal Act, for
"the father" (wherever occurring) substitute "a
parent".
15 (3) After section 8(2) of the Principal Act insert--
"(2A) An instrument signed by the mother of a
child and any person certifying that she is the
non-birth mother of the child is, if executed
as a deed or by each of those persons in the
20 presence of a legal practitioner, prima facie
evidence that the person named as the non-
birth mother is a parent of the child.".
139 Instruments may be filed with Registrar of Births,
Deaths and Marriages
25 (1) Insert the following heading to section 9 of the
Principal Act--
"Instruments may be filed with Registrar of
Births, Deaths and Marriages".
(2) In section 9(1) of the Principal Act, for
30 "subsection (2)" substitute "subsection (2)
or (2A)".
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(3) In section 9(3) of the Principal Act--
(a) for "paternity" substitute "parentage"; and
(b) for "subsection (2)" substitute "subsection
(2) or (2A)".
5 140 Application to Supreme Court for declaration of
parentage
(1) Insert the following heading to section 10 of the
Principal Act--
"Application to Supreme Court for declaration
10 of parentage".
(2) For section 10(1) of the Principal Act
substitute--
"(1) Any person (the first person) who--
(a) claims that any named person is a
15 parent of the first person's child; or
(b) claims that a relationship of parent and
child exists between the first person and
any other named person; or
(c) has a proper interest in the result who
20 wishes to have a determination whether
the relationship of parent and child
exists between two named persons--
may apply to the Supreme Court for a
declaration of parentage and if it is proved to
25 the satisfaction of the Court that the
relationship exists the Court may make a
declaration of parentage whether or not the
parent or the child or both of them are living
or dead.".
30 (3) In section 10(2) of the Principal Act, for "father"
substitute "parent".
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141 Substitute heading to Part II
For the heading to Part II of the Principal Act
substitute--
"PART II--STATUS OF CHILDREN--MEDICAL
5 PROCEDURES--WOMEN WITH A MALE
PARTNER".
142 Interpretation
Section 10A(3) of the Principal Act and the note
at the foot of that section are repealed.
10 143 Artificial insemination: presumption as to status of
child
For section 10C(3)(b) of the Principal Act
substitute--
"(b) prevails over--
15 (i) any conflicting presumption that arises
under section 8; or
(ii) any conflicting declaration made under
section 10.".
144 Implantation procedures: presumption as to status
20 of child where donor semen used
For section 10D(3)(b) of the Principal Act
substitute--
"(b) prevails over--
(i) any conflicting presumption that arises
25 under section 8; or
(ii) any conflicting declaration made under
section 10.".
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145 Implantation procedures: presumption as to status
of child where donor ovum used
For section 10E(3)(b) of the Principal Act
substitute--
5 "(b) prevails over--
(i) any conflicting presumption that arises
under section 8; or
(ii) any conflicting declaration made under
section 10.".
10 146 Donor semen used in artificial insemination of
certain women
Section 10F of the Principal Act is repealed.
147 Substitute Part III
For Part III of the Principal Act substitute--
15 "PART III--STATUS OF CHILDREN--
MEDICAL PROCEDURES--WOMEN WITH A
FEMALE PARTNER OR WITHOUT A
PARTNER
11 Interpretation
20 In this Part--
procedure means the following procedures
within the meaning of the Assisted
Reproductive Treatment Act 2008--
(a) assisted reproductive treatment;
25 (b) artificial insemination.
12 Application of Part
This Part applies in respect of a woman who
undergoes a procedure and who, at the time
of the procedure--
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(a) has a female partner; or
(b) does not have a partner, whether female
or male.
13 Women with a female partner:
5 presumption as to status of child
(1) If a woman undergoes a procedure as a result
of which she becomes pregnant--
(a) the woman is presumed, for all
purposes, to be the mother of any child
10 born as a result of the pregnancy; and
(b) the woman's female partner is
presumed, for all purposes, to be a legal
parent of any child born as a result of
the pregnancy if she--
15 (i) was the woman's female partner
when the woman underwent the
procedure as a result of which she
became pregnant; and
(ii) consented to the procedure as a
20 result of which the woman
became pregnant; and
(c) the man who produced the semen used
in the procedure is presumed, for all
purposes, not to be the father of any
25 child born as a result of the pregnancy,
whether or not the man is known to the
woman or her female partner.
(2) A presumption of law that arises under
subsection (1)--
30 (a) is irrebuttable; and
(b) prevails over--
(i) any conflicting presumption that
arises under section 8; or
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(ii) any conflicting declaration made
under section 10.
(3) In any proceedings in which the operation of
subsection (1) is relevant, the woman's
5 female partner's consent to the carrying out
of the procedure in respect of the woman is
presumed but that presumption is rebuttable.
14 Women with a female partner:
presumption as to status of child where
10 donor ovum used
(1) If a woman undergoes a procedure using a
donor ovum as a result of which she
becomes pregnant--
(a) the woman is presumed, for all
15 purposes, to have become pregnant as a
result of fertilisation of an ovum
produced by her and to be the mother of
any child born as a result of the
pregnancy; and
20 (b) the woman's female partner is
presumed, for all purposes, to be a legal
parent of any child born as a result of
the pregnancy if she--
(i) was the woman's female partner
25 when the woman underwent the
procedure as a result of which she
became pregnant; and
(ii) consented to the procedure as a
result of which the woman
30 became pregnant; and
(c) the man who produced the semen used
in the procedure is presumed, for all
purposes, not to be the father of any
child born as a result of the pregnancy,
35 whether or not the man is known to the
woman or her female partner; and
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(d) the woman who produced the ovum
used in the procedure is presumed, for
all purposes, not to be the mother of
any child born as a result of the
5 pregnancy.
(2) A presumption of law that arises under
subsection (1)--
(a) is irrebuttable; and
(b) prevails over--
10 (i) any conflicting presumption that
arises under section 8; or
(ii) any conflicting declaration made
under section 10.
(3) In any proceedings in which the operation of
15 subsection (1) is relevant, the woman's
female partner's consent to the carrying out
of the procedure in respect of the woman is
presumed but that presumption is rebuttable.
15 Women with no partner: presumption as
20 to status of child
(1) If a woman who does not have a partner
undergoes a procedure as a result of which
she becomes pregnant--
(a) the woman is presumed, for all
25 purposes, to be the mother of any child
born as a result of the pregnancy; and
(b) the man who produced the semen used
in the procedure is presumed, for all
purposes, not to be the father of any
30 child born as a result of the pregnancy,
whether or not the man is known to the
woman.
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(2) A presumption of law that arises under
subsection (1)--
(a) is irrebuttable; and
(b) prevails over--
5 (i) any conflicting presumption that
arises under section 8; or
(ii) any conflicting declaration made
under section 10.
16 Women with no partner: presumption as
10 to status of child where donor ovum used
(1) If a woman who does not have a partner
undergoes a procedure using a donor ovum
as a result of which she becomes pregnant--
(a) the woman is presumed, for all
15 purposes, to have become pregnant as a
result of fertilisation of an ovum
produced by her and to be the mother of
any child born as a result of the
pregnancy; and
20 (b) the man who produced the semen used
in the procedure is presumed, for all
purposes, not to be the father of any
child born as a result of the pregnancy,
whether or not the man is known to the
25 woman; and
(c) the woman who produced the ovum
used in the procedure is presumed, for
all purposes, not to be the mother of
any child born as a result of the
30 pregnancy.
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(2) A presumption of law that arises under
subsection (1)--
(a) is irrebuttable; and
(b) prevails over--
5 (i) any conflicting presumption that
arises under section 8; or
(ii) any conflicting declaration made
under section 10.
PART IV--STATUS OF CHILDREN IN
10 SURROGACY ARRANGEMENTS
Division 1--Preliminary
17 Interpretation
(1) In this Part--
artificial insemination has the meaning
15 given by the Assisted Reproductive
Treatment Act 2008;
commissioning parents, in relation to a child
born under a surrogacy arrangement,
means the person or persons who
20 entered into the surrogacy arrangement
for a woman to carry the child on
behalf of the person or persons;
court means the Supreme Court or the
County Court;
25 registered ART provider has the meaning
given by the Assisted Reproductive
Treatment Act 2008;
substitute parentage order means an order
made under section 22;
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surrogacy arrangement has the meaning
given by the Assisted Reproductive
Treatment Act 2008;
surrogate mother means the woman who
5 carries and gives birth to a child under a
surrogacy arrangement.
(2) In this Part, a reference to the surrogate
mother's partner means the person who was
the surrogate mother's partner at the time the
10 surrogacy arrangement was entered into.
18 Jurisdiction of courts
(1) The court that has jurisdiction to make a
substitute parentage order or any other order
under this Part is--
15 (a) the Supreme Court; or
(b) at the applicant's option, the County
Court.
(2) If an application for a substitute parentage
order or other order under this Part is made
20 to the County Court, and the County Court
considers that, in all the circumstances of the
case, the matter should be dealt with by the
Supreme Court, the County Court may direct
that the application be transferred to the
25 Supreme Court.
19 Surrogacy arrangements--presumption
as to status of child
The presumptions of law that arise under
Part II, III or V of this Act--
30 (a) apply in respect of a child that is born
as a result of a surrogacy arrangement;
but
(b) do not prevail over a substitute
parentage order.
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Division 2--Substitute parentage orders
Subdivision 1--Making substitute parentage
orders
20 Application for a substitute parentage
5 order
(1) The commissioning parents of a child born
under a surrogacy arrangement may apply to
the court for a substitute parentage order if--
(a) the child was conceived as a result of a
10 procedure carried out in Victoria; and
(b) the commissioning parents live in
Victoria at the time of making the
application.
(2) An application for a substitute parentage
15 order must be made--
(a) not less than 28 days, and not more
than 6 months after the birth of the
child; or
(b) at another time with leave of the court.
20 (3) Before the court hears the application, the
commissioning parents must file a certified
copy of the child's birth certificate (if
available) with the court.
21 Commissioning parents presumed to be
25 named as legal parents
(1) If the court decides to make a substitute
parentage order, it is presumed that the
commissioning parents will be named on the
order as the child's legal parents.
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(2) A presumption under subsection (1) is only
rebuttable by evidence that a person named
as a commissioning parent did not consent to
the surrogacy arrangement.
5 22 Court may make substitute parentage
order
(1) The court may make a substitute parentage
order in favour of the commissioning parents
if it is satisfied--
10 (a) that making the order is in the best
interests of the child; and
(b) if the surrogacy arrangement was
commissioned with the assistance of a
registered ART provider, that the
15 Patient Review Panel approved the
surrogacy arrangement before the
arrangement was entered into; and
(c) that the child was living with the
commissioning parents at the time the
20 application was made; and
(d) that the surrogate mother and, if her
partner is a party to the arrangement,
her partner have not received any
material benefit or advantage from the
25 surrogacy arrangement; and
(e) that the surrogate mother freely
consents to the making of the order.
(2) In deciding whether to make a substitute
parentage order, the court may take into
30 account any other considerations it thinks
relevant.
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(3) If the surrogate mother's partner is a party to
the surrogacy arrangement, before making a
substitute parentage order the court must also
consider whether her partner consents to the
5 making of the order.
(4) To avoid doubt, the reimbursement of costs
as permitted by section 44 of the Assisted
Reproductive Treatment Act 2008 is not a
material benefit or advantage for the
10 purposes of subsection (1)(d).
23 Additional requirements for surrogacy
arrangements without assistance of
registered ART provider
(1) This section applies if--
15 (a) a surrogacy arrangement was
commissioned without the assistance of
a registered ART provider; and
(b) the surrogate mother became pregnant
as a result of artificial insemination;
20 and
(c) the commissioning parents apply under
section 20 for a substitute parentage
order.
(2) In addition to the matters set out in
25 section 22, the court must also be satisfied--
(a) that the surrogate mother was at least
25 years of age before entering the
arrangement; and
(b) that the commissioning parents, the
30 surrogate mother and, if her partner is a
party to the surrogacy arrangement, her
partner have--
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(i) received counselling about the
social and psychological
implications of making the
substitute parentage order,
5 including counselling, if relevant,
about any of the matters
prescribed for the purposes of
section 43(a) of the Assisted
Reproductive Treatment Act
10 2008; and
(ii) received counselling about the
implications of the relinquishment
of the child and the relationship
between the surrogate mother and
15 the child once the substitute
parentage order is made; and
(iii) obtained information about the
legal consequences of making the
substitute parentage order.
20 (3) For the purposes of subsection (2)(b), the
person must receive counselling from a
counsellor within the meaning of section
61(3) of the Assisted Reproductive
Treatment Act 2008.
25 24 Circumstances in which consent not
required
(1) Despite section 22(1)(e), the court may
dispense with consent of the surrogate
mother if satisfied--
30 (a) that the commissioning parents cannot,
after reasonable inquiries, find the
surrogate mother; or
(b) that the surrogate mother is deceased;
or
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(c) on evidence given in accordance with
subsection (4), that the surrogate
mother is, and is likely to continue to
be, in such a physical or mental
5 condition as to be incapable of properly
considering whether to give consent.
(2) Despite section 22(3), the court may
dispense with consent of the surrogate
mother's partner if satisfied--
10 (a) that the commissioning parents cannot,
after reasonable inquiries, find the
surrogate mother's partner; or
(b) that the surrogate mother's partner is
deceased; or
15 (c) on evidence given in accordance with
subsection (4), that the surrogate
mother's partner is, and is likely to
continue to be, in such a physical or
mental condition as to be incapable of
20 properly considering whether to give
consent.
(3) For the purposes of subsections (1)(a) and
(2)(a), the commissioning parents have made
reasonable inquiries if they have--
25 (a) sent the person a letter, by registered
post, to the person's last known place of
residence and seeking the person's
consent; and
(b) sent a letter referred to in paragraph (a)
30 to the address of any other person that
the commissioning parents believe may
know where the person may be found;
and
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(c) searched the roll of electors under the
Commonwealth Electoral Act 1918 and
confirmed that the address of the person
could not be found; and
5 (d) made enquiries of such persons, bodies,
agencies and government departments
as might reasonably be expected to
have known where the person may be
found; and
10 (e) made any other enquiries the court
determines.
(4) For the purposes of subsections (1)(c) and
(2)(c), the evidence required is a certificate
signed by at least two medical practitioners
15 registered under the Health Professions
Registration Act 2005 certifying as to the
matters referred to in that paragraph.
25 Ancillary orders
On making a substitute parentage order, the
20 court may make any consequential or
ancillary order it thinks fit--
(a) in the interests of justice; or
(b) for the welfare and in the best interests
of the child in respect of whom the
25 order is made.
26 Effect of substitute parentage order
(1) If the court makes a substitute parentage
order in respect of a child, the provisions of
the Adoption Act 1984 set out in
30 subsection (2) (the applied provisions) apply
in relation to the substitute parentage order
as if that order were an adoption order made
under that Act and as if the child were an
adopted child.
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(2) The applied provisions are sections 53 to 58
of the Adoption Act 1984, except sections
53(1)(d) and (e).
(3) An applied provision applies to a substitute
5 parentage order as if--
(a) a reference to an adopted child were a
reference to a child who is the subject
of a substitute parentage order; and
(b) a reference to an adoptive parent were a
10 reference to the commissioning parents
in whose favour the substitute
parentage order was made; and
(c) a reference to the commencement of the
Adoption of Children Act 1964 were a
15 reference to the commencement of the
Assisted Reproductive Treatment
Act 2008; and
(d) a reference to an adoption order were a
reference to a substitute parentage order
20 made under this Act; and
(e) any other necessary changes have been
made to the applied provision.
Note
The applied provisions clarify the effect of a substitute
25 parentage order by reference to the Adoption Act 1984
rather than inserting new provisions in this Act. However, a
substitute parentage order is not an adoption order and a
child who is the subject of a substitute parentage order is not
an adopted child.
30 The applied provisions provide for the following--
· the general effect of a substitute parentage order,
including that the child is to be treated in law as a child
of the commissioning parents as if the child had been
born to the commissioning parents (section 53);
35 · the disposition of property, whether by will or
otherwise, in circumstances in which a substitute
parentage order has been made (section 54);
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· bequests by will to an unascertained person who is the
subject of a substitute parentage order (section 55);
· the names of a child who is the subject of a substitute
parentage order (section 56);
5 · the domicile of a child who is the subject of a substitute
parentage order (section 57);
· that a substitute parentage order does not affect the
distribution of property by trustees or personal
representatives except in certain circumstances
10 (section 58).
Subdivision 2--Discharge of substitute
parentage orders
27 Who may apply for discharge of substitute
parentage order
15 (1) The following persons may apply for an
order discharging a substitute parentage
order--
(a) the Attorney-General;
(b) the Secretary of the Department of
20 Justice;
(c) a child whose parentage was transferred
by the substitute parentage order and
who has reached the age of 18 years.
(2) Any person may apply for leave to intervene
25 in an application under subsection (1) and
the court may make an order entitling the
person to intervene in the application.
(3) A person who is permitted under
subsection (2) to intervene in an application
30 under subsection (1) is to be treated as a
party to the application with all the rights,
duties and liabilities of a party, unless the
court orders otherwise.
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28 Court may order discharge of substitute
parentage order
(1) On an application under section 27, the court
may make an order discharging a substitute
5 parentage order if it is satisfied that--
(a) the substitute parentage order was
obtained by fraud, duress or other
improper means; or
(b) a consent relied on for the making of
10 the substitute parentage order was not
an effective consent because it was
obtained by fraud, duress or material
inducement; or
(c) there is an exceptional reason the
15 substitute parentage order should be
discharged.
(2) The court must not make an order under
subsection (1) discharging a substitute
parentage order unless--
20 (a) the order is in the best interests of the
child whose parentage would be
affected; and
(b) the court is satisfied that reasonable
efforts have been made to give notice
25 of the application to--
(i) the surrogate mother of the child
whose parentage would be
affected; and
(ii) if the surrogate mother had a
30 partner who was also a party to
the surrogacy arrangement, that
partner; and
(iii) each of the commissioning
parents; and
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(iv) if the court considers it
appropriate having regard to the
child's age, the child whose
parentage would be affected.
5 (3) If the court makes an order discharging the
substitute parentage order, the court must
declare the name by which the child is to be
known, having regard to the principle that a
child's first name should not be changed
10 except in special circumstances.
(4) A declaration under subsection (3) does not
prevent a subsequent change of name under a
law of the State.
(5) On making an order discharging a substitute
15 parentage order, the court may make any
consequential or ancillary order it thinks fit
in the interests of justice or in the best
interests of the child whose parentage is
affected, including any order relating to--
20 (a) the ownership or possession of
property; or
(b) any matter affecting the child in
relation to the duties, powers,
responsibilities and authority which, by
25 law, parents have in relation to
children; or
(c) the domicile of the child.
(6) For the purposes of subsection (1), material
inducement does not include the
30 reimbursement of costs as permitted by
section 44 of the Assisted Reproductive
Treatment Act 2008.
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29 Effect of discharge of a substitute
parentage order
(1) On the discharge of a substitute parentage
order, the rights, duties, liabilities and
5 relationships of persons are as if the
substitute parentage order had not been
made.
(2) Subsection (1)--
(a) does not apply to the extent that its
10 application would be inconsistent with
any order made under section 28; and
(b) does not affect--
(i) anything lawfully done while the
substitute parentage order was in
15 force; or
(ii) the consequences of anything
lawfully done while the substitute
parentage order was in force; or
(iii) any proprietary right or interest
20 that became vested in any person,
while the substitute parentage
order was in force.
Subdivision 3--Appeals
30 Appeals
25 (1) A party to a proceeding under this Part may
appeal to the Court of Appeal against an
order of the court in the proceeding or a
refusal of the court to make an order.
(2) In this section party includes an intervener in
30 an application under section 27.
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Division 3--Proceedings under this Part
31 Registrar of Births, Deaths and Marriages
to receive copy of orders
The court must serve a sealed copy of the
5 order on the Registrar of Births, Deaths and
Marriages if the court makes either of the
following orders--
(a) a substitute parentage order; or
(b) a discharge order.
10 32 Proceedings to be heard in closed court
(1) Any proceeding to which this Part applies
must be heard in closed court, and all
persons other than the parties to the
proceedings and their legal representatives
15 (if any) are to be excluded during the
proceedings, except as otherwise directed by
the court.
(2) The court may order any person to leave the
courtroom or other place during the
20 examination of a witness in the proceedings.
33 Restrictions on publication of proceedings
(1) This section applies to--
(a) a proceeding under this Part; or
(b) an order made under this Part.
25 (2) A person must not publish, or cause to be
published, a report of the proceeding or
about the order that contains any particulars
likely to lead to the identification of a party
to a surrogacy arrangement or a child who is
30 the subject of a surrogacy arrangement.
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Penalty: 1000 penalty units, in the case of a
body corporate;
100 penalty units or imprisonment
for 2 years, in the case of an
5 individual.
(3) In this section--
publish means--
(a) publish in any newspaper; or
(b) publish by means of television,
10 radio or the Internet; or
(c) otherwise disseminate to the
public.
34 Access to court records
(1) A person must not access the court record for
15 a proceeding under this Part without leave of
the court.
(2) The court may grant leave for access to the
court record on application in writing by--
(a) a child to whom the proceeding relates;
20 or
(b) a surrogate mother of the child; or
(c) if the surrogate mother had a partner
who was also a party to the surrogacy
arrangement, the partner; or
25 (d) a commissioning parent of the child; or
(e) an intervener in a proceeding under
section 27; or
(f) any other person who was a party to the
proceeding.
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(3) The court may refuse the application--
(a) if the applicant has not produced to the
registrar of the court proof of the
applicant's identity; or
5 (b) if granting access would be contrary to
any court order in relation to exclusion
of persons from the hearing of the
proceedings; or
(c) for any other reason the court considers
10 appropriate in the circumstances.
35 Access to court records if person deceased
or cannot be found
(1) If a person referred to in section 34(2) is
deceased, an application under that section
15 may be made by an adult who is--
(a) a parent or grandparent of the deceased;
or
(b) a child or grandchild of the deceased;
or
20 (c) a sibling of the deceased.
(2) If the child to whom the proceeding related
is now an adult and cannot be found or
contacted after making reasonable inquiries,
an application under section 34(2) may be
25 made by an adult who is--
(a) a parent or grandparent of the child; or
(b) a child or grandchild of the child; or
(c) a sibling of the child.
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PART V--POSTHUMOUS USE OF GAMETES--
STATUS OF CHILDREN
36 Definitions
In this Part--
5 treatment procedure has the meaning given
in the Assisted Reproductive
Treatment Act 2008.
37 Presumption as to status of child if male
partner is deceased
10 (1) This section applies if--
(a) a woman undergoes a treatment
procedure in accordance with Part 5 of
the Assisted Reproductive Treatment
Act 2008 as a result of which she
15 becomes pregnant; and
(b) either of the following applies--
(i) the semen used in the procedure--
(A) was produced by the
woman's partner before his
20 death; or
(B) was collected from the
woman's partner after his
death; or
(ii) the embryo used in the procedure
25 was created before the woman's
partner died using sperm produced
by him.
(2) If a woman becomes pregnant--
(a) the woman who gave birth is the
30 mother of any child born as a result of
the pregnancy; and
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(b) her partner is taken to be the father of
any child born as a result of the
pregnancy for the sole purpose of
enabling the particulars of the deceased
5 to be entered as the particulars of the
child's parent in the Register of births
kept under the Births, Deaths and
Marriages Registration Act 1996; and
(c) if a donor ovum, or an embryo created
10 from a donor ovum, was used in the
procedure, the woman who produced
the ovum is presumed, for all purposes,
not to be a parent of any child born as a
result of the pregnancy.
15 38 Presumption as to status of child if female
partner is deceased
(1) This section applies if--
(a) a woman undergoes a treatment
procedure in accordance with Part 5 of
20 the Assisted Reproductive Treatment
Act 2008 as a result of which she
becomes pregnant; and
(b) either of the following applies--
(i) the ovum used in the procedure--
25 (A) was produced by the
woman's partner before her
death; or
(B) was collected from the
woman's partner after her
30 death; or
(ii) the embryo used in the procedure
was created before the woman's
partner died using an ovum
produced by her.
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(2) If a woman becomes pregnant--
(a) the woman who gave birth is the
mother of any child born as a result of
the pregnancy; and
5 (b) the deceased is taken to be a parent of
any child born as a result of the
pregnancy for the sole purpose of
enabling the particulars of the deceased
to be entered as the particulars of the
10 child's parent in the Register of births
kept under the Births, Deaths and
Marriages Registration Act 1996; and
(c) the man who produced the semen used
in the procedure, or used to create the
15 embryo used in the procedure, is
presumed, for all purposes, not to be
the father of any child born as a result
of the pregnancy, whether or not the
man is or was known to the woman or
20 the deceased.
39 Presumption as to status of child if female
partner is deceased--surrogacy
arrangements
(1) This section applies if--
25 (a) a man commissions a surrogacy
arrangement in accordance with the
Assisted Reproductive Treatment
Act 2008; and
(b) the surrogate mother undergoes a
30 procedure as a result of which she
becomes pregnant; and
(c) either of the following applies--
(i) the ovum used in the procedure--
(A) was produced by the man's
35 partner before her death; or
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(B) was collected from the man's
partner after her death; or
(ii) the embryo used in the procedure
was created before the man's
5 partner died using an ovum
produced by her.
(2) If the surrogate mother becomes pregnant,
the man may apply to the court under
section 20 for a substitute parentage order to
10 be made in respect of the child and in favour
of the man and the deceased.
(3) In addition to the matters set out in
section 22, the court must also be satisfied as
to the matters set out in Part 5 of the
15 Assisted Reproductive Treatment Act
2008.
(4) If a substitute parentage order is made, the
deceased is taken to be a parent of any child
born as a result of the pregnancy for the sole
20 purpose of enabling the particulars of the
deceased to be entered as the particulars of
the child's parent in the Register of births
kept under the Births, Deaths and
Marriages Registration Act 1996.
25 40 Legal status of deceased parent
(1) A deceased person referred to in section 37,
38 or 39--
(a) is to be treated in law as a parent of the
child for the purpose referred to in that
30 section; but
(b) is not to be treated in law as a parent of
the child for any other purpose.
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(2) To avoid doubt, this section does not apply
in relation to a will executed by the deceased
that expressly refers to a child born as a
result of a procedure referred to in section
5 37, 38 or 39.
PART VI--GENERAL
41 Regulations
The Governor in Council may make
regulations for or with respect to--
10 (a) forms for the purposes of this Act;
(b) fees to be charged under this Act;
(c) generally, any matter or thing which is
authorised or required to be prescribed
for carrying this Act into effect.
15 PART VII--TRANSITIONAL PROVISIONS--
ASSISTED REPRODUCTIVE TREATMENT
ACT 2008
42 Definition
In this Part, 2008 Act means the Assisted
20 Reproductive Treatment Act 2008.
43 Transitional--Definitions
For the purposes of Part II, on and from the
commencement of Part 14 of the 2008 Act--
(a) embryo includes an embryo as defined
25 in section 10A(3) as in force
immediately before its repeal;
(b) ovum in the process of fertilisation
includes an ovum in the process of
fertilisation as defined in section
30 10A(3) as in force immediately before
its repeal;
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(c) syngamy includes syngamy as defined
in section 10A(3) as in force
immediately before its repeal.
44 Transitional--Repeal of section 10F
5 (1) This section applies if, before the
commencement of section 146 of the 2008
Act--
(a) a man produced semen that was used in
a procedure of artificial insemination of
10 a woman who was not a married
woman or of a married woman
otherwise than in accordance with the
consent of her husband; and
(b) as a result of that procedure the woman
15 became pregnant.
(2) Despite its repeal, section 10F continues to
apply in respect of a child born as a result of
a pregnancy referred to in subsection (1).
45 Transitional--Application of Part III
20 (1) On and from the commencement of Part 14
of the 2008 Act, the provisions of Part III
apply--
(a) in respect of a pregnancy referred to in
Part III, whether the pregnancy
25 occurred before or after the
commencement of Part 14 of the 2008
Act and whether or not it resulted from
a procedure carried out in Victoria; and
(b) in respect of any child born in Victoria
30 as a result of a pregnancy referred to in
Part III, whether the child was born
before or after the commencement of
Part 14 of the 2008 Act.
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(2) Nothing in this Part affects the vesting in
possession or in interest of any property that
occurred before the commencement of
Part 14 of the 2008 Act.
5 46 Transitional--Application of Part IV
(1) Part IV applies in respect of a child born to a
surrogate mother under a surrogacy
arrangement if--
(a) the child was born--
10 (i) before the commencement of
Part 14 of the 2008 Act; or
(ii) within 10 months of that
commencement; and
(b) the commissioning parents were
15 ordinarily resident in Victoria at the
time the child was conceived.
(2) Subsection (1) applies whether or not the
child was conceived in Victoria.
(3) Nothing in Part IV affects the vesting in
20 possession or in interest of any property that
occurred before the commencement of
Part 14 of the 2008 Act.
47 Transitional--Application of Part V
(1) Part V applies in respect of a pregnancy
25 which resulted from a procedure carried out
in Victoria after the commencement of
Part 14 of the 2008 Act.
(2) Nothing in Part V affects the vesting in
possession or in interest of any property that
30 occurred before the commencement of
Part 14 of the 2008 Act.".
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148 Repeal of Part
This Part is repealed on the first anniversary of its
commencement.
__________________
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1996
PART 15--AMENDMENTS TO BIRTHS, DEATHS AND
MARRIAGES REGISTRATION ACT 1996
149 Purposes
After section 3(c) of the Births, Deaths and See:
Act No.
5 Marriages Registration Act 1996 insert-- 43/1996.
Reprint No. 2
"(caa) the keeping of information relating to donors as at
16 November
and surrogacy arrangements under the 2006
Assisted Reproductive Treatment Act and
amending
2008; and". Act Nos
97/2005,
12/2008 and
46/2008.
LawToday:
www.
legislation.
vic.gov.au
10 150 Definitions
(1) In section 4(1) of the Births, Deaths and
Marriages Registration Act 1996 insert the
following definitions--
"parent means a person who is presumed under
15 the Status of Children Act 1974 to be the
mother, father or parent of a child;
partner, in relation to a person, means--
(a) the person's spouse; or
(b) a person who lives with the first person
20 as a couple on a genuine domestic
basis;
surrogacy arrangement has the meaning given by
the Assisted Reproductive Treatment Act
2008;
25 surrogate mother means a woman who gives birth
to a child pursuant to a surrogacy
arrangement;".
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1996
(2) In section 4(1) of the Births, Deaths and
Marriages Registration Act 1996, in the
definition of registrable event, for "or adoption"
substitute ", adoption or surrogacy arrangement".
5 151 Registrar's general functions
After section 6(ba) of the Births, Deaths and
Marriages Registration Act 1996 insert--
"(bb) to perform functions given to the Registrar
by the Assisted Reproductive Treatment
10 Act 2008; and".
152 Registration of parentage details
In section 16(1)(a) of the Births, Deaths and
Marriages Registration Act 1996 for "father and
the mother" substitute "parents".
15 153 New section 17A
After section 17 of the Births, Deaths and
Marriages Registration Act 1996 insert--
"17A Addition of details after birth
registration--registration of partner
20 (1) This section applies if--
(a) a woman has undergone a procedure
within the meaning of Part III of the
Status of Children Act 1974 as a
result of which she became pregnant
25 and gave birth to a child; and
(b) by application of a presumption in that
Part the woman's female partner is
presumed to be a parent of the child;
and
30 (c) the child's birth was registered before
the commencement of the Assisted
Reproductive Treatment Act 2008.
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1996
(2) If the Register only names the mother of the
child, the mother and her partner may apply
to amend the Register to name the partner as
a parent of the child.
5 (3) If the Register names the mother and father
of the child, the Register must not be
amended to name the partner as a parent of
the child without a court order.
(4) An application under subsection (2) must be
10 accompanied by a statutory declaration made
by the woman's partner stating that she
consented to the procedure that resulted in
the pregnancy.".
154 New section 19A
15 After section 19 of the Births, Deaths and
Marriages Registration Act 1996 insert--
'19A Surrogate birth registration
(1) If the court makes a substitute parentage
order under the Status of Children Act
20 1974, on receipt of the sealed copy of the
substitute parentage order the Registrar
must--
(a) register the surrogacy by entering the
prescribed particulars in the Surrogate
25 Birth Register; and
(b) mark the words "closed--surrogate"
against the original birth entry in the
Register.
(2) If the court makes an order under the Status
30 of Children Act 1974 for the discharge of a
substitute parentage order, on receipt of the
sealed copy of the discharge order the
Registrar must--
(a) cancel the relevant entry in the
35 Surrogate Birth Register; and
561232B.I-9/10/2008 125 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
Assisted Reproductive Treatment Bill 2008
Part 15--Amendments to Births, Deaths and Marriages Registration Act
s. 154
1996
(b) remove the words "closed--surrogate"
from the original birth entry in the
Register.'.
__________________
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Assisted Reproductive Treatment Bill 2008
Part 16--Consequential Amendments of other Acts
s. 155
PART 16--CONSEQUENTIAL AMENDMENTS OF OTHER
ACTS
Division 1--Amendment of Freedom of Information Act
1982
5 155 Document affecting personal privacy
In section 33(8) of the Freedom of Information
Act 1982, for "Division 1 of Part 7 of the
Infertility Treatment Act 1995" substitute
"Division 1 of Part 6 of the Assisted
10 Reproductive Treatment Act 2008".
Division 2--Amendment of Magistrates' Court Act 1989
156 Amendment of Schedule 4
For clause 62 of Schedule 4 to the Magistrates'
Court Act 1989 substitute--
15 "62 Assisted Reproductive Treatment Act
2008
Indictable offences under the Assisted
Reproductive Treatment Act 2008.".
Division 3--Amendment of Public Health and Wellbeing Act
20 2008
157 Tissue donations
In section 152(1)(b)(i) of the Public Health
and Wellbeing Act 2008, for "fertilisation
procedure within the meaning of the
25 Infertility Treatment Act 1995" substitute
"treatment procedure within the meaning of
the Assisted Reproductive Treatment Act
2008".
561232B.I-9/10/2008 127 BILL LA INTRODUCTION AS
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Assisted Reproductive Treatment Bill 2008
Part 16--Consequential Amendments of other Acts
s. 158
158 Definition of Secretary
Section 278 of the Public Health and
Wellbeing Act 2008 is repealed.
Division 4--Amendment of Victorian Civil and
5 Administrative Tribunal Act 1998
159 Amendment of Schedule 1
After Part 2 of Schedule 1 of the Victorian Civil
and Administrative Tribunal Act 1998 insert--
"PART 2A--ASSISTED REPRODUCTIVE
10 TREATMENT ACT 2008
4A Fees
Despite section 68, no fee is payable in
respect of an application under the Assisted
Reproductive Treatment Act 2008.
15 4B Constitution of Tribunal for hearings
The Tribunal is to be constituted for the
purposes of reviewing a decision under
Division 2 of Part 9 of the Assisted
Reproductive Treatment Act 2008 by at
20 least 3 members, of whom at least one must
be a woman.".
561232B.I-9/10/2008 128 BILL LA INTRODUCTION AS
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Assisted Reproductive Treatment Bill 2008
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561232B.I-9/10/2008 129 BILL LA INTRODUCTION AS
CORRECTED BY THE CLERK UNDER
STANDING ORDER 81: 9/10/2008
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