HUMAN REPRODUCTIVE TECHNOLOGY ACT 1991 - SECT 49

HUMAN REPRODUCTIVE TECHNOLOGY ACT 1991 - SECT 49

49 .         Confidentiality

        (1)         A person shall not divulge, or communicate to any other person, any information disclosed or obtained by reason of this Act respecting the identity of —

            (a)         a donor of human gametes, a human egg undergoing fertilisation or a human embryo; or

            (b)         a participant in any procedure involving reproductive technology; or

            (c)         a child born as a result of any artificial fertilisation procedure,

                unless subsection (2) applies.

        (2)         Information to which subsection (1) applies may be divulged or communicated —

            (a)         for a purpose necessary to the carrying out of any procedure, or the conduct of any research, to which this Act applies; or

            (b)         for the purposes of and in the course of the administration of this Act, or pursuant to a request of the Minister made for the purposes of section 5; or

            (c)         as may be authorised or required by the Code or the regulations; or

            (d)         subject to subsections (2a) to (2c), with the consent of each donor, participant or child in question or other person whose identity may be disclosed in so far as it does not identify any person who was a participant in the relevant procedure and who has not given such consent; or

            (e)         under an authorisation conferred by another written law.

        (2a)         Information that would identify a child born as a result of the relevant procedure who has not reached 16 years of age cannot be divulged or communicated under paragraph (d) of subsection (2) unless each person who has given consent for the purposes of that paragraph has completed approved counselling before giving that consent.

        (2b)         Except as provided in subsection (2c), a child who has not reached 16 years of age cannot consent for the purposes of subsection (2)(d).

        (2c)         A person who has parental responsibility (as defined in section 68 of the Family Court Act 1997 ) for the child may, after completing approved counselling, consent for the purposes of paragraph (d) of subsection (2) on behalf of that child and in that case the child is to be taken to have consented for the purposes of that paragraph.

        (2d)         Subject to subsection (2e), information to which subsection (1)(a) applies may be divulged or communicated to a child resulting from the donation who has reached 16 years of age and who has completed approved counselling.

        (2e)         Information cannot be divulged or communicated under subsection (2d) unless —

            (a)         the donation was made on or after the day on which the Human Reproductive Technology Amendment Act 2004 came into operation (the commencement day ); or

            (b)         the donation was made before the commencement day and —

                  (i)         was used with the effective consent of the donor given on or after the commencement day; or

                  (ii)         the CEO is satisfied that the donor was, before the donation, adequately informed that future changes in legislation might enable the information to be divulged or communicated to the child without the donor’s consent.

        (2f)         In subsections (2a), (2c) and (2d) —

        approved counselling means counselling approved by the CEO in relation to the divulging or communication of information to which subsection (1) applies.

        (3)         A person shall not produce in any court or to any other person, or permit any other person to have access to, a record that is, in the course of the administration of this Act or for purposes authorised by this Act, in the custody of that person and discloses, or may disclose, the identity of —

            (a)         a donor of human gametes, a human egg undergoing fertilisation or a human embryo; or

            (b)         a participant in any procedure involving reproductive technology; or

            (c)         a child born as a result of any artificial fertilisation procedure,

                unless subsection (4) applies.

        (4)         Subsection (3) shall not apply where the production or access —

            (a)         has been approved by the CEO, or a person to whom the function of approving it is delegated, and is required for the purposes of any proceedings —

                  (i)         of the Council; or

                  (ii)         of the State Administrative Tribunal; or

                  (iii)         in respect of an offence under this Act;

                or

            (b)         is required by an authorised officer for the purpose of carrying into effect the provisions of this Act; or

            (c)         is authorised under any other written law,

                but in any such case so far as is practicable the information which is necessary in respect of any particular matter shall be provided in a manner that will not identify the individual to whom it refers.

        (5)         A person who contravenes subsection (1) or subsection (3) commits an offence.

        Penalty: $5 000, or imprisonment for 12 months.

        [Section 49 amended: No. 17 of 2004 s. 33; No. 55 of 2004 s. 537; No. 28 of 2006 s. 270(1).]