Victorian Consolidated Legislation

Health Act 1958 - SECT 133

Tissue donations

133. Tissue donations



(1) This section applies to an action brought by or on behalf of-

   (a)  a person who claims-

   (i)  to have been infected with HIV or Hepatitis C because he or she
        received tissue (other than semen) taken from a person or the body of
        a dead person; or

   (ii) to have been infected with HIV or Hepatitis C by another person who
        received such tissue; or

   (b)  a person who claims-

   (i)  to have been infected with HIV or Hepatitis C as a result of the
        carrying out in relation to the person of artificial insemination or a
        fertilization procedure within the meaning of the
        Infertility Treatment Act 1995; or

   (ii) to have been infected with HIV or Hepatitis C by another person in
        relation to whom such a procedure was carried out; or

   (c)  a dependant of a person who died as a result of having been infected
        with HIV or Hepatitis C as mentioned in paragraph (a) or (b).

(2) In an action to which this section applies brought against a person
specified in column 1 of the Table to this section it is a defence to prove
the facts or matters specified in column 2 of that Table unless any of the
facts or circumstances mentioned in column 3 of that Table apply.

TABLE Column 1 Person against whom action brought Column 2

Defences Column 3 Exception to defences s. 133 A hospital registered medical
practitioner or a person dealing with tissue. Either- (a) in the case of
tissue (other than semen) taken from a living person-

   (i)  the donor completed a statement in the prescribed form before the
        tissue was taken; and

   (ii) a sample of the donor's blood was tested in an The hospital or other
        person had reasonable grounds for believing that the tissue or semen
        was likely to contain HIV or Hepatitis C (as the case may be) and did
        not take reasonable steps to ensure that the tissue or semen was not
        used in a way that might infect the person with HIV Column 1 Person
        against whom action brought Column 2

Defences Column 3 Exception to defences s. 133

approved manner for the presence of HIV or Hepatitis C (as the case may be);
and

   (iii) the result of the test was negative; or (b) in the case of tissue
        (other than semen) taken from the body of a dead person-

   (i)  a sample of the blood of the dead person was tested in an approved
        manner for the presence of HIV or Hepatitis C (as the case may be);
        and

   (ii) the result of the test was negative; and or Hepatitis C (as the case
        may be).

   (iii) the registered medical practitioner who transplanted the tissue made
        or caused to be made reasonable enquiries about the behaviour of the
        dead person to find out whether that person was at a high risk of
        being infected with HIV or Hepatitis C (as the case may be); or

(c) in the case of the use of semen in the carrying out of artificial
insemination or a fertilization procedure-









Column 1 Person against whom action brought Column 2

Defences Column 3 Exception to defences

   (i)  before the semen was provided by a donor, the donor completed a
        statement in the prescribed form; and

   (ii) at the time the donation and, upon the expiry of the prescribed period
        after that time, a sample of the donor's blood was tested in an
        approved manner for the presence of HIV or Hepatitis C (as the case
        may be); and

   (iii) the result of the test was negative; and

   (iv) the semen was not used until after the prescribed quarantine period.