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HUMAN REPRODUCTIVE TECHNOLOGY ACT 1991 - SECT 3

HUMAN REPRODUCTIVE TECHNOLOGY ACT 1991 - SECT 3

3 .         Terms used and application

        (1)         In this Act, unless the contrary intention appears —

        artificial fertilisation procedure means any —

            (a)         artificial insemination procedure; or

            (b)         in vitro fertilisation procedure;

        artificial insemination procedure means a procedure where human sperm are introduced, by a non-coital method, into the reproductive system of a woman but which is not, and is not an integral part of, an in vitro fertilisation procedure;

        authorised officer means —

            (a)         the CEO; or

            (b)         a person authorised by the CEO, generally or in relation to particular functions, circumstances, or purposes, as may be specified in the relevant certificate issued under section 59(2);

            (c)         in relation to the powers referred to in section 44(3)(c) or 49(4)(b), includes a reference to the CEO as defined in section 3 of the Children and Community Services Act 2004 or an officer as defined in that section authorised in writing by that CEO;

            (d)         in relation to the powers referred to in section 54, a person on whom the powers are conferred by the CEO under section 53ZQ(4);

        biological parent means a person who —

            (a)         is the source of a human egg or human sperm used in an artificial fertilisation procedure; and

            (b)         is the genetic parent of a human embryo developed, or of a child born, as a consequence of that procedure;

        CEO has the meaning given by section 3 of the Health Legislation Administration Act 1984 ;

        Chairperson means the member appointed to that office under clause 1(1) of the Schedule, and includes a reference to a person acting in that office;

        Code of Practice or Code means the Code of Practice compiled under section 14(1)(c), as from time to time amended and in force;

        committee means a committee of the Council;

        Commonwealth Human Embryo Act means the Research Involving Human Embryos Act 2002 of the Commonwealth;

        condition in relation to a licence or exemption, includes —

            (a)         a limitation, restriction or prohibition; and

            (b)         any other provision of that licence or exemption affecting its operation or the authorisation conferred,

        whether or not it purports to be expressed by way of a condition;

        Council means the Western Australian Reproductive Technology Council established by section 8;

        counselling services include —

            (a)         the screening or assessment of potential participants; and

            (b)         the provision of information; and

            (c)         generally, assisting participants to address personal issues arising from infertility and its treatment;

        Deputy Chairperson means the member for the time being appointed or selected to that office under clause 1(3) of the Schedule, and includes a reference to a person acting in that office;

        directions means directions given under Division 2 of Part 4;

        director , in relation to a body corporate, includes —

            (a)         a member of the board or committee of management of the body corporate; and

            (b)         a person occupying or acting in a position to which paragraph (a) refers, by whatever name the position is called and whether or not validly appointed to occupy or duly authorised to act in the position; and

            (c)         any person in accordance with whose directions or instructions directors of the body corporate are accustomed to act;

        effective consent is to be construed in accordance with section 22(8);

        excess ART embryo has the meaning given to that term in section 53T;

        Executive Officer means the person appointed as the Executive Officer of the Council under section 8(2)(b), and includes a reference to a deputy to that person appointed under clause 2(2) of the Schedule when acting in the place of that person;

        exemption means —

            (a)         an exemption that is applied for and is not refused, or is specifically issued, under section 28; or

            (b)         an exemption under section 28A;

        fertilisation , for the purposes of this Act, means the process that commences at the moment of inclusion of a sperm head within the plasma membrane of an egg, and is completed when an embryo is formed;

        guidelines means, except in section 14(3), the information set out in Part 2 of the Code;

        human egg means a live human egg;

        human embryo has the meaning given to that term in section 3A;

        human gamete means a human egg or a human sperm;

        human sperm means live human sperm or spermatids;

        in vitro fertilisation procedure means a procedure, not being a storage procedure, which —

            (a)         is consequent upon the removal of a human egg from the body of a woman, and carried out for one or more of the following purposes —

                  (i)         the fertilisation of that egg, within or outside her body; or

                  (ii)         the keeping or use of that egg with intent to derive from it a human egg undergoing fertilisation or a human embryo; or

                  (iii)         the keeping or use of that human egg undergoing fertilisation or human embryo so derived;

                or

            (b)         is directed at the introduction into the body of a woman of —

                  (i)         a human egg;

                  (ii)         a human egg undergoing fertilisation or a human embryo, whether or not fertilisation began outside the body into which it is introduced;

                or

            (c)         is a procedure in relation to artificially assisted human conception which is prescribed for the purposes of this definition;

        Institutional Ethics Committee means a body which is recognised by the Council, as having —

            (a)         in relation to ethical matters, the role of overseeing all the aspects of a reproductive technology practice, or of research, carried on by a licensee; and

            (b)         functions, and a composition, complying with requirements of the NHMRC relating to ethical oversight of research involving humans;

        licence means a licence granted under Part 4;

        licence supervisor , in relation to a licence or exemption, means the individual under whose supervision the storage or practice authorised is, or is to be, carried on;

        licensee means a person holding a licence under Part 4 and also includes a reference to —

            (aa)         a person who holds an exemption under section 28A; and

            (a)         a person who is authorised under section 30 to carry on the practice of a licensee; and

            (b)         the licence supervisor, in relation to any licence or exemption; and

            (c)         a person authorised or permitted, in accordance with section 51, to carry on, supervise or manage a reproductive technology practice or specified activities; and

            (d)         a registered medical practitioner to whom an exemption under section 28 applies; and

            (e)         in relation to the duties of keeping, and maintaining the confidentiality of, any record to which this Act relates, a person who as a licensee has, or at any earlier time had, such a duty under this Act in respect of that record;

        medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession;

        member means member of the Council, and includes a reference to a deputy or other person acting in the place of a member;

        NHMRC means the National Health and Medical Research Council established by the National Health and Medical Research Council Act 1992 of the Commonwealth;

        NHMRC licence means a licence granted under —

            (a)         section 53ZB; or

            (b)         section 21 of the Commonwealth Human Embryo Act;

        nominated member means a member of the Council, other than the Executive Officer;

        participant , in relation to any artificial fertilisation procedure, means —

            (a)         a person who —

                  (i)         undergoes that procedure; or

                  (ii)         is the donor, or being a woman is the recipient, of human gametes, of a human egg undergoing fertilisation or of a human embryo used in that procedure;

                or

            (b)         a person from whom, by reason of this Act, a consent to the carrying out of that procedure is required;

        person to whom the licence applies is to be construed in accordance with subsection (5);

        premises includes any land, any vehicle, vessel or aircraft, and any part of premises;

        procedure means any treatment, course of treatment or cycle of treatment involving reproductive technology, but may also include any part of such treatment or any other service or process which is defined in and described by the Code as constituting for the purposes of this Act a procedure of a specified kind;

        proprietary company means a proprietary company within the meaning of the Corporations Act 2001 of the Commonwealth;

        Public Health Official means a person designated by the CEO under section 60A(1);

        record means —

            (a)         any book, account, document, financial records (within the meaning of the Corporations Act 2001 of the Commonwealth), paper, return, register or other source of information compiled, recorded or stored in written or encoded form or on microfilm, or by electronic or other means or process; and

            (b)         the contents, in a printout or other intelligible format, of records that are kept, by computer or otherwise, in a format that is not readily intelligible; and

            (c)         any other sources of information prescribed for the purposes of this definition;

        related body corporate , in relation to a specified body corporate, means a body corporate that is, within the meaning of the Corporations Act 2001 of the Commonwealth, related to the specified body corporate;

        reproductive technology means that branch of medical science which is concerned with —

            (a)         artificial fertilisation procedures; or

            (b)         the keeping or use of human gametes intended for use in an artificial fertilisation procedure, human eggs undergoing fertilisation or human embryos; or

            (c)         other procedures or matters incidental thereto;

        research means systematic investigations carried out for the primary purpose of adding to general knowledge but includes the carrying out of an experiment, and project of research shall be construed accordingly;

        Rules means the rules contained in Part 1 of the Code;

        storage procedure shall be construed in accordance with subsection (4);

        subsidiary legislation includes the Rules and any direction having legislative effect;

        summary conviction penalty , in relation to a crime, has the same meaning as that term has in section 5 of The Criminal Code ;

        this Act includes a reference to —

            (a)         the regulations; and

            (b)         the Rules and the guidelines; and

            (c)         such directions as are published in the Gazette ;

        treatment includes medical, surgical and obstetric services;

        woman means any female human.

        (2)         This Act, other than Part 4A or 4B so far as it relates to the keeping or use of, or any offence relating to, a human egg undergoing fertilisation or a human embryo applies —

            (a)         only to such keeping or use as takes place outside the body of a woman; and

            (b)         only if the egg or the embryo has been or is developed in consequence of an in vitro fertilisation procedure.

        (3)         In this Act, a reference —

        [(a)         deleted]

            (b)         to a human egg, except where the context otherwise indicates, does not include a reference to a human egg undergoing fertilisation; and

            (c)         to a reproductive technology practice or practice includes all activities authorised under a licence issued or exemption granted under this Act, including storage, unless the context otherwise requires; and

            (d)         to the keeping of human sperm, does not include keeping for purposes other than for use in an artificial fertilisation procedure.

        (4)         In relation to human gametes, a human egg undergoing fertilisation or a human embryo a reference in this Act —

            (a)         to keeping, includes storing, whether by cryo-preservation or in any other way, in such a state as temporarily arrests or suspends metabolic function; and

            (b)         to any human gametes which are or a human egg or embryo which is, stored , means kept in such a state,

                and store and storage shall be construed accordingly.

        (5)         References in this Act to a “person to whom the licence applies” are to —

            (a)         the licensee; and

            (b)         the licence supervisor; and

            (c)         any person designated in a notice given to the CEO by the licensee or the licence supervisor, as a person to whom the licence applies; and

            (d)         any person acting under the direction of the licensee, the licence supervisor or of the person so designated.

        (6)         In this Act a reference to what is “proper” or “suitable” shall be construed having regard to any relevant provision of the Code.

        (7)         A requirement in this Act to provide or produce a record includes, where the record is not written or not written in the English language, a requirement that any person having the power to do so provide or produce a statement written in the English language supported by details of any encoding involved, setting forth such of the particulars in the record as are not written or are not written in the English language in such a manner as to allow for verification.

        (8)         Where directions are published in the Gazette those directions are to be taken to be subsidiary legislation to which the Interpretation Act 1984 applies, but not to be regulations within the meaning or for the purposes of section 42 of that Act.

        (9)         For the purposes of this Act, a person occupies a position of authority in a body if that person —

            (a)         where the body is a body corporate, is a director; or

            (b)         exercises or exerts, or is in a position to exercise or exert, control or substantial influence over the body in the conduct of its affairs; or

            (c)         manages, or is deemed to manage, the business of the practice to be carried on under a licence,

                or, where a body corporate is a proprietary company, if that person is a shareholder in that proprietary company.

        (9a)         Nothing in this Act, or in a licence, authorisation or approval under this Act, authorises or permits the use of a human embryo for technical or commercial purposes in the testing, creation or manufacture of cosmetic products such as lipstick, mascara, face moisturising creams and other like beauty products.

        (10)         This Act binds the Crown.

        [Section 3 amended: No. 57 of 1997 s. 75; No. 10 of 2001 s. 108; No. 17 of 2004 s. 5; No. 18 of 2004 s. 4; No. 34 of 2004 Sch. 2 cl. 14; No. 55 of 2004 s. 522 and 540; No. 28 of 2006 s. 266 and 270(1); No. 22 of 2008 Sch. 3 cl. 28; No. 35 of 2010 s. 95; No. 19 of 2016 s. 157.]