Version No. 010
Infertility Treatment Act 1995
Act No. 63/1995
Version incorporating amendments as at 1 January 1998
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1.
2.
3.
4.
5.
1
Purposes
Commencement
Definitions
Interpretation
Guiding principles
1
2
2
8
9
PART 2—TREATMENT PROCEDURES
11
Division 1—General
11
6.
7.
Fertilisation procedures
Donor insemination
11
11
Division 2—General requirements for treatment procedures
8.
9.
10.
11.
Persons who may undergo treatment procedures
Requirements as to consent
Information
Counselling
Division 3—Requirements for donors
12.
13.
14.
15.
16.
17.
18.
19.
Donation of gametes, zygotes or embryos
Consent of spouse of donor
Requirements as to consent
Objection by later spouse
Counselling requirements
Requirements as to the giving and receiving of information
Identified donors
Requirements as to consent to use of gamete etc. from identified
donor
Division 4—Requirements for donor treatment procedures
i
12
12
13
13
14
14
14
16
18
19
20
20
21
22
23
Section
20.
21.
Page
Circumstances in which donor procedure may be used
Information and advice
23
25
PART 3—RESEARCH
26
Division 1—Offences
26
22.
23.
24.
25.
26.
Research
Places for research
Ban on destructive research on embryos
Authority must not approve destructive research on embryos
Authority must not approve certain research on zygotes
26
27
27
28
29
Division 2—Preliminary requirements for research involving zygotes,
embryos or the formation of zygotes
29
27.
28.
29.
30.
31.
32.
Consent to research involving zygotes or embryos or the
formation of zygotes
Consent of spouse of donor
Requirements as to consent
Objection by later spouse
Counselling requirements
Information requirements
Division 3—Requirements for research involving parthenogenesis
33.
Power of Authority to impose requirements
Division 4—Preliminary requirements for other research involving
gametes
34.
35.
Consent to research using gametes
Requirements as to consent
PART 4—PROCEDURES RELATING TO CONSENTS
36.
37.
38.
Approved form to be used
Withdrawal of consent
Lapsing of consent
29
30
31
31
32
33
33
33
34
34
34
36
36
36
36
PART 5—OFFENCES
38
Division 1—Prohibited procedures
38
39.
40.
41.
42.
43.
44.
Alteration of constitution of a gamete, zygote or embryo
Transfer of gametes, zygotes or embryos used for research
Ban on procedures involving gametes produced by children
Ban on procedures involving oocytes derived from a foetus
Ban on procedures involving gametes of people known to be
dead
Ban on use of zygotes or embryos removed from the body
ii
38
38
39
39
39
40
Section
45.
46.
47.
48.
49.
50.
Page
Ban on mixing human and animal gametes etc.
Ban on mixing gametes, zygotes or embryos from more than one
person
Ban on cloning
Ban on certain experimental procedures
Formation of embryos and zygotes
Ban on sex selection
Division 2—Storage
51.
52.
53.
54.
55.
Storing gametes
Storing zygotes or embryos
Removal of zygotes or embryos from storage
Places of storage
Ban on use of gametes, zygotes or embryos not stored at licensed
centre
44
44
46
47
47
48
Import or export of gametes, zygotes and embryos
No compensation for gamete donation
False or misleading information
PART 6—SURROGATE MOTHERHOOD
59.
60.
61.
41
42
42
42
43
44
Division 3—General offences
56.
57.
58.
40
Surrogacy
Surrogacy—advertising
Surrogacy agreements void
48
49
50
51
51
51
52
PART 7—RECORDS AND ACCESS TO INFORMATION
53
Division 1—Records
53
62.
63.
64.
65.
66.
67.
68.
69.
70.
Register to be kept for licensed centre
Register to be kept by doctor carrying out donor insemination
Information to be given to the Authority by licensed centres
Information to be given to the Authority by doctors not at
licensed centres
Information to be given under section 64 and 65
Information to be given to the Authority about births by other
persons
Authority to keep a central register
Authority to correct central register
Inspection of Registers
Division 2—Information to be given by licensed centres and doctors
iii
53
55
57
58
58
59
61
61
61
62
Section
71.
72.
73.
Page
Information recorded by licensed centre or doctor which is to be
given to persons undergoing donor treatment procedures
62
Information recorded by licensed centre or doctor which is to be
given to donors
64
Information about pregnancy, birth or transfer
66
Division 3—Information to be given from central register
74.
75.
76.
77.
78.
79.
80.
81.
82.
Application by parents for information contained on central
register
Authority to give information about donor to parents
Application by donor for information about persons born as a
result of donor treatment procedures and parents of such persons
Authority to give information about person born as a result of a
donor treatment procedure
Authority to give information about parents
Application by person born as a result of a donor treatment
procedure or descendant for information about donor
Authority to give information about donor to person born as the
result of a procedure
Counselling not applicable in certain circumstances
Donor treatment procedure information register
Division 4—General provisions
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
67
67
68
69
70
71
73
73
74
75
76
Information
Waiver of fees
Disclosure of information to a medical practitioner
Records of information given
Consent
Authority may refuse to give information
Confidentiality—information which may identify
Confidentiality—non-identifying information
Closure of court or tribunal
Exemption from Freedom of Information Act 1982
76
76
76
77
77
77
78
82
84
84
PART 8—LICENCES, APPROVALS AND DESIGNATED
OFFICERS
86
Division 1—Licensing of places
86
93.
94.
95.
96.
97.
Licence application—hospitals and day procedure centres
Licence application—research institutions
Designation of principal doctor or principal scientist
Licence applications—general procedure
Authority may grant or refuse licence
Division 2—Approval to carry out research
98.
Application for approval to carry out research
iv
86
86
87
88
88
89
89
Section
Page
99. Approval by Authority to carry out research
100. Report of results of research to Authority
Division 3—Approval of persons carrying out treatment procedures
or research
101. Application for approval of doctor or scientist
102. Authority may grant or refuse approval
Division 4—Approved counsellors
Division 5—General provisions about licences, approvals and
exemptions
111.
112.
113.
114.
115.
116.
117.
118.
91
91
92
93
103. Application for approval of counsellors
104. Authority may grant or refuse approval
105.
106.
107.
108.
109.
110.
90
91
Form and content of licence or approval
Power of Authority to impose conditions
Provision of information
Variation of conditions of licences or approvals under this Part
Variation of approvals and exemptions under Part 5
Offence of failing to comply with terms etc. of licence or
approval
Duration and renewal of licence or approval
Application for renewal
Suspension of licence, approval or exemption
Immediate suspension
Cancellation of licence, approval or exemption
Orders
Notification about approvals and licences
Notification to Minister
Division 6—Designated officers
93
93
93
94
94
95
95
96
96
97
97
98
99
99
101
105
105
106
119. Designated officers for licensed centres
120. If no designated officer appointed
106
106
PART 9—INFERTILITY TREATMENT AUTHORITY
108
Division 1—Constitution of the Authority
108
121.
122.
123.
124.
125.
126.
127.
128.
129.
Establishment of Authority
Powers, functions, duties and consultation requirements
Membership
Terms of office
Resignation and removal
Chairperson and Deputy Chairperson
Acting member
Payment of members
Procedure of Authority
v
108
108
110
111
111
111
112
112
113
Section
130.
131.
132.
133.
134.
135.
Page
Effect of vacancy or defect
Member's interests
Immunity
Engagement or employment of persons
Delegation
Committees
Division 2—Supplementary Powers
113
114
114
115
115
116
116
136. Powers of Authority in relation to fees
116
Division 3—Reporting and financial provisions
117
137. Report to Minister
138. Infertility Treatment Authority Fund
139. Investment powers
117
118
119
PART 10—Repealed
120
140–148. Repealed
120
PART 11—REVIEW OF DECISIONS
149. Review of decisions
120
120
PART 12—GENERAL
122
150. Decisions by Authority not reviewable
151. No action if gametes used without knowing consent withdrawn
or lapsed
152. Conscientious objections
153. Record of consent or objection and withdrawal of consent or
objection
154. Transfer of documents
155. Authorised officers
156. Powers and duties of members of Authority and authorised
officers
157. Offence to obstruct or hinder
158. Additional liability for offences
159. Application of Public Records Act 1973
160. Prohibition on destruction of documents
161. Evidence
162. Search warrants
125
126
126
127
127
127
128
163. Indictable offences
164. Supreme Court—limitation of jurisdiction
130
130
PART 13—REGULATIONS
122
122
122
123
124
125
132
165. Regulations
132
vi
Section
Page
PART 14—REPEALS, AMENDMENTS AND TRANSITIONAL
PROVISIONS
137
Division 1—Repeals and amendments
137
166.
167.
168.
169.
Repeals
Amendment of Health Act 1958
Amendment of Human Tissue Act 1982
Amendment of Magistrates' Court Act 1989
62. Infertility Treatment Act
170. Amendment of Status of Children Act 1974
Division 2—Transitional provisions
171.
172.
173.
174.
175.
176.
177.
178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
Definitions
General transitional provision
Regulations
Donations
Consents
Eligibility for fertilisation procedures
Eligibility to undergo donor insemination
Eligibility—research procedures
Partial compliance
Identified donors under section 16 of the repealed Act
Recording and disclosing information—general
Registers and records
Recording and giving information
Access to information
Gametes, zygotes and embryos in storage
Application of time limits for storage of zygotes and embryos
Removal from storage
Use of stored gametes, zygotes and embryos
Approval of research procedures
Approval of counsellors
Approval of premises
Review of Ministerial decisions
Ministerial directions
Abolition of former Committee
Repealed
Exemptions
Existing immunity not affected
Superseded references
Further savings and transitional provisions
═══════════════
137
137
137
138
138
138
142
142
145
145
145
146
148
148
149
150
152
153
159
160
161
164
164
165
165
165
166
166
169
169
170
171
170
171
172
173
NOTES
175
1. General Information
175
vii
Section
Page
2. Table of Amendments
176
3. Explanatory Details
177
viii
Version No. 010
Infertility Treatment Act 1995
Act No. 63/1995
Version incorporating amendments as at 1 January 1998
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The main purposes of this Act are—
(a) to regulate the use of in-vitro and other
fertilisation procedures and donor
insemination procedures;
(b) to regulate access to information about
treatment procedures carried out under this
Act and the Infertility (Medical
Procedures) Act 1984;
(c) to regulate research using human gametes,
zygotes and embryos;
(d) to promote research into the incidence and
causes of infertility;
(e) to make provisions with respect to surrogacy
agreements;
S. 1(f)
amended by
No. 37/1997
s. 5(1)(a).
(f) to establish the Infertility Treatment
Authority;
(g) to repeal the Infertility (Medical
Procedures) Act 1984 and amend various
other Acts.
3-30/12/97
1
Infertility Treatment Act 1995
Act No. 63/1995
s. 2
2. Commencement
(1) This Part (except section 5) comes into operation
on the day on which this Act receives the Royal
Assent.
(2) Section 170 is deemed to have come into
operation on 1 July 1988.
(3) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 January 1998, it
comes into operation on that day.
S. 3
amended by
No. 37/1997
s. 6(1).
3. Definitions
(1) In this Act—
"approval" means an approval granted or
renewed by the Authority under section 40,
51, 52 or 56 or Part 8;
"approved research" means research for which
approval has been given by the Authority
under Division 2 of Part 8;
"artificial insemination" means a procedure of
transferring sperm without also transferring
an oocyte into the vagina, cervical canal or
uterus of a woman;
"authorised officer" means an authorised officer
under Part 12;
"Authority" means the Infertility Treatment
Authority established under Part 9;
"central register" means the register kept by the
Authority under section 68;
"clone" means to form, outside the human body,
a human embryo that is genetically identical
to another human embryo or person;
3-30/12/97
S. 2(4)
substituted by
No. 37/1997
s. 4.
2
Infertility Treatment Act 1995
Act No. 63/1995
s. 3
*
S. 3(1) def. of
"Committee"
repealed by
No. 37/1997
s. 5(1)(b).
*
*
*
*
"day procedure centre" has the same meaning
as in the Health Services Act 1988;
S. 3(1) def. of
"de facto
relationship"
inserted by
No. 37/1997
s. 6(2).
"de facto relationship" means the relationship of
a man and a woman who are living together
as husband and wife on a genuine domestic
basis, although not married;
"denominational hospital" has the same
meaning as in the Health Services Act
1988;
"designated officer" in relation to a licensed
centre means a person appointed, employed
or engaged for that centre under Division 6
of Part 8;
"doctor" means a registered medical practitioner
under the Medical Practice Act 1994;
"donor" means a person who has given a consent
under section 12, 27 or 34 or who consents
to his or her gametes being used in research
under section 22(2);
"donor embryo" means an embryo in respect of
which consent has been given under section
12 or 27;
"donor gametes" means donor sperm or a donor
oocyte;
"donor insemination" means artificial
insemination with donor sperm;
"donor oocyte" means an oocyte in respect of
which consent has been given under section
12, 27 or 34;
3-30/12/97
3
Infertility Treatment Act 1995
Act No. 63/1995
"donor sperm" means sperm in respect of which
consent has been given under section 12, 27
or 34;
"donor treatment procedure" means a treatment
procedure where donor gametes or a donor
zygote or a donor embryo is used;
"donor zygote" means a zygote in respect of
which consent has been given under section
12 or 27;
"embryo" means any stage of human embryonic
development at and from syngamy;
"exemption" means an exemption under section
56;
"fertilisation procedure" means—
(a) the medical procedure of transferring to
the body of a woman a zygote formed
outside the body of any woman; or
(b) the medical procedure of transferring to
the body of a woman an embryo formed
outside the body of any woman; or
(c) the medical procedure of transferring—
(i) an oocyte, without also
transferring sperm, to the body of
a woman; or
(ii) sperm (other than by artificial
insemination) to the body of a
woman; or
(iii) an oocyte and sperm to the body
of a woman;
"gamete" means an oocyte or sperm;
3-30/12/97
4
s. 3
Infertility Treatment Act 1995
Act No. 63/1995
s. 3
"husband", in relation to a woman who is living
with a man in a de facto relationship, means
the man with whom she is living in that de
facto relationship;
S. 3(1) def. of
"husband"
inserted by
No. 37/1997
s. 6(2).
"licensed centre" means a place in respect of
which a licence under Part 8 is in force;
"licensee" in relation to a licensed centre, means
the person who is the holder of the licence;
"oocyte" means an ovum from a woman but does
not include a parthenogenetic oocyte;
"parthenogenesis" means cell division in an
oocyte which only involves the
chromosomes of an oocyte;
"parthenogenetic oocyte" means an oocyte in
which parthenogenesis has occurred or is
occurring;
"private hospital" has the same meaning as in
the Health Services Act 1988;
"proprietor" in relation to a private hospital or
day procedure centre, has the same meaning
as in the Health Services Act 1988;
"public hospital" has the same meaning as in the
Health Services Act 1988;
"research" includes—
(a) an experimental procedure or clinical
trial; and
(b) the activities referred to in section
22(2)(a) and (b);
"Secretary" means—
(a) in relation to any act to which section
6(3) of the Health Act 1958 applies,
the body corporate established by
section 6 of that Act; or
3-30/12/97
5
Infertility Treatment Act 1995
Act No. 63/1995
s. 3
(b) in any other case, the Department Head
(within the meaning of the Public
Sector Management Act 1992) of the
Department of Health and Community
Services;
"sperm" means sperm from a man;
"spouse"—
(a) in relation to a man who is living with a
woman in a de facto relationship,
means the woman with whom he is
living in that de facto relationship;
(b) in relation to a woman who is living
with a man in a de facto relationship,
means the man with whom she is living
in that de facto relationship;
"store" means—
(a) to freeze an oocyte, zygote, embryo, or
sperm; or
(b) to otherwise preserve an oocyte,
zygote, embryo, or sperm by a
prescribed method;
"surrogacy agreement" means an agreement,
arrangement or understanding, whether
formal or informal, under which—
(a) a woman agrees (whether or not for
payment or reward) with another
person to become or try to become
pregnant, with the intention—
(i) 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, agreement or
otherwise); or
3-30/12/97
6
S. 3(1) def. of
"spouse"
inserted by
No. 37/1997
s. 6(2).
Infertility Treatment Act 1995
Act No. 63/1995
s. 3
(ii) of transferring custody or
guardianship in a child born as a
result of the pregnancy to another
person or persons; or
(iii) that the right to care for a child
born as result of the pregnancy be
permanently surrendered to
another person or persons;
(b) a pregnant woman agrees (whether or
not for payment or reward) with
another person—
(i) that a child born as a result of the
pregnancy is to be treated as a
child, not of her, but of another
person or persons (whether by
adoption, agreement or
otherwise); or
(ii) to transfer custody or
guardianship in a child born as a
result of the pregnancy to another
person or persons; or
(iii) that the right to care for a child
born as a result of the pregnancy
be permanently surrendered to
another person or persons;
"syngamy" means that stage of development of a
fertilised oocyte where the chromosomes
derived from the male and female pronuclei
align on the mitotic spindle;
"treatment procedure" means—
3-30/12/97
7
Infertility Treatment Act 1995
Act No. 63/1995
s. 4
(a) artificial insemination of a woman with
sperm from a man who is not the
husband of the woman; or
(b) a fertilisation procedure;
"university" means a body listed in Schedule 1 to
the Tertiary Education Act 1993;
"wife", in relation to a man who is living with a
woman in a de facto relationship, means the
woman with whom he is living in that de
facto relationship;
S. 3(1) def. of
"wife"
inserted by
No. 37/1997
s. 6(2).
"zygote" means the stages of human development
from the commencement of penetration of an
oocyte by sperm up to but not including
syngamy.
(2) If a man or woman living in a de facto
relationship is also married, a reference in this Act
to a husband, wife or spouse of such a man or
woman (as the case requires) does not include a
reference to the husband or wife to whom the man
or woman is married.
4. Interpretation
(1) In this Act, unless the contrary intention appears,
a reference to—
(a) a kind of procedure; or
(b) a kind of fertilisation procedure; or
(c) a kind of treatment procedure; or
(d) a procedure, fertilisation procedure or
treatment procedure of a particular kind—
includes—
(e) the nature or type of procedure or transfer;
and
3-30/12/97
8
S. 3(2)
inserted by
No. 37/1997
s. 6(3).
Infertility Treatment Act 1995
Act No. 63/1995
s. 5
(f) whether the procedure involves the use of a
donor oocyte or donor sperm, or a zygote or
embryo formed from sperm or an oocyte of a
donor (or both); and
(g) in relation to a consent, objection or
withdrawal of consent or objection of a
donor or his or her spouse, whether—
(i) a gamete, zygote or embryo may be
used in a treatment procedure to be
carried out on a woman who is not the
donor or the spouse of the donor; and
(ii) a gamete, zygote or embryo may be
used in such a procedure to be carried
out on any woman, or only on a named
woman.
S. 4(2)
amended by
No. 37/1997
s. 19(a).
(2) In sections 62, 63, 66 and 82 and in any
prescribed provision, unless the contrary intention
appears, a reference to the husband of a woman
who has undergone a treatment procedure,
fertilisation procedure, donor treatment procedure,
artificial insemination or donor insemination
includes a reference to a man who was the
woman's husband when the procedure was carried
out.
5. Guiding principles
(1) 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—
(a) the welfare and interests of any person born
or to be born as a result of a treatment
procedure are paramount;
(b) human life should be preserved and
protected;
3-30/12/97
9
Infertility Treatment Act 1995
Act No. 63/1995
(c) the interests of the family should be
considered;
(d) infertile couples should be assisted in
fulfilling their desire to have children.
(2) These principles are listed in descending order of
importance and must be applied in that order.
_______________
3-30/12/97
10
s. 5
Infertility Treatment Act 1995
Act No. 63/1995
s. 6
PART 2—TREATMENT PROCEDURES
Division 1—General
6. Fertilisation procedures
A person may only carry out a fertilisation
procedure if—
(a) he or she is a doctor who is approved under
Part 8 to carry out a fertilisation procedure of
the kind carried out; and
(b) he or she is satisfied that the requirements of
Divisions 2, 3 and 4 and section 36 have
been met; and
(c) the procedure is carried out at a place
licensed under Part 8 for the carrying out of
that kind of fertilisation procedure.
Penalty: 480 penalty units or 4 years
imprisonment or both.
7. Donor insemination
(1) A person may only carry out artificial
insemination of a woman using sperm from a man
who is not the husband of the woman at a place
other than a hospital or centre licensed under Part
8 for the carrying out of donor insemination if he
or she—
(a) is a doctor who is approved under Part 8 to
carry out donor insemination; and
(b) is satisfied that the requirements of Divisions
2, 3 and 4 and section 36 have been met.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(2) A person may only carry out artificial
insemination of a woman using sperm from a man
3-30/12/97
11
Infertility Treatment Act 1995
Act No. 63/1995
s. 8
who is not the husband of the woman at a place
that is a hospital or centre licensed under Part 8
for the carrying out of donor insemination—
(a) if—
(i) he or she is a doctor who is approved
under Part 8 to carry out donor
insemination; or
(ii) the woman on whom the insemination
is to be carried out is in the charge of a
doctor who is approved under Part 8 to
carry out donor insemination; and
(b) in either case, that doctor is satisfied that the
requirements of Divisions 2, 3 and 4 and
section 36 have been met.
Penalty: 480 penalty units or 4 years
imprisonment or both.
Division 2—General requirements for treatment procedures
8. Persons who may undergo treatment procedures
(1) A woman who undergoes a treatment procedure
must—
(a) be married and living with her husband on a
genuine domestic basis; or
(b) be living with a man in a de facto
relationship.
(2) Before a woman undergoes a treatment procedure
she and her husband must consent to the carrying
out of the kind of procedure to be carried out.
(3) Before a woman undergoes a treatment
procedure—
(a) a doctor must be satisfied, on reasonable
grounds, from an examination or from
treatment he or she has carried out that the
3-30/12/97
12
S. 8(1)
substituted by
No. 37/1997
s. 7.
Infertility Treatment Act 1995
Act No. 63/1995
s. 9
woman is unlikely to become pregnant from
an oocyte produced by her and sperm
produced by her husband other than by a
treatment procedure; or
(b) a doctor, who has specialist qualifications in
human genetics, must be satisfied, from an
examination he or she has carried out, that if
the woman became pregnant from an oocyte
produced by her and sperm produced by her
husband, a genetic abnormality or a disease
might be transmitted to a person born as a
result of the pregnancy.
9. Requirements as to consent
(1) A consent under section 8—
(a) must be in writing; and
(b) must specify that the woman and her
husband have consented to undergo the kind
of treatment procedure specified in the
consent; and
(c) must not have been withdrawn or have
lapsed when the procedure takes place.
(2) The person giving the consent must lodge the
consent or cause the consent to be lodged—
(a) with the designated officer of the licensed
centre where the procedure is to take place;
or
(b) if the procedure is to take place at a place
other than a licensed centre, with the doctor
in charge of the woman's case.
10. Information
(1) Before a woman consents to undergo a treatment
procedure the doctor in charge of the woman's
case must give to the woman and her husband—
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Infertility Treatment Act 1995
Act No. 63/1995
(a) a list of counsellors who have been approved
under Part 8 to give counselling to women
undergoing treatment procedures and their
husbands; and
(b) enough information about the procedure and
the alternatives to the procedure to enable
the woman and her husband to make an
informed decision about whether or not to
undergo the procedure.
(2) Before a woman undergoes a treatment procedure,
she and her husband must give the prescribed
information required to be recorded in the
Register under section 62 or 63 for women
undergoing treatment procedures and their
husbands.
11. Counselling
(1) Before a woman consents to undergo a treatment
procedure, she and her husband must have
received counselling (including counselling in
relation to the prescribed matters) from a
counsellor who has been approved under Part 8 to
give counselling to women undergoing treatment
procedures and their husbands.
(2) Before a woman undergoes a treatment procedure,
the doctor in charge of that woman's case must
take all reasonable steps to ensure that a
counsellor who has been approved under Part 8 to
give counselling to women undergoing treatment
procedures and their husbands is available to give
further counselling to the woman and her husband
after the procedure is carried out.
Division 3—Requirements for donors
12. Donation of gametes, zygotes or embryos
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14
s. 11
Infertility Treatment Act 1995
Act No. 63/1995
s. 12
(1) Sperm is not to be used in a treatment procedure
to be carried out on a woman who is not the wife
of the man who produced the sperm, unless,
before the sperm is used, that man consented to
the use of the sperm in the kind of procedure
proposed.
(2) An oocyte produced by a woman must not be used
in a treatment procedure to be carried out on
another woman unless, before the oocyte is used,
the woman who produced the oocyte consented to
the use of the oocyte in the kind of procedure
proposed.
(3) A zygote or embryo must not be used in a
treatment procedure to be carried out on a woman,
if the sperm used to form the zygote or embryo is
not the sperm of the husband of that woman,
unless—
(a) before the zygote or embryo is formed, the
man who produced the sperm consented to
the use of the sperm to form a zygote or
embryo to be used in the kind of procedure
proposed; or
(b) the sperm has already been used to form a
zygote or embryo outside the body of a
woman to be transferred to the wife of the
man who produced the sperm or to another
woman and—
(i) the zygote or embryo is not required to
be transferred to the body of that
woman; and
(ii) that man has consented to the use of the
zygote or embryo in the kind of
procedure proposed.
(4) A zygote or embryo must not be used in a
treatment procedure to be carried out on a woman
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15
Infertility Treatment Act 1995
Act No. 63/1995
s. 13
if another woman produced the oocyte used to
form the zygote or embryo, unless—
(a) before the zygote or embryo is formed, the
woman who produced the oocyte consented
to the use of the oocyte to form a zygote or
embryo to be used in the kind of procedure
proposed; or
(b) the oocyte has already been used to form a
zygote or embryo outside the body of a
woman to be transferred to the woman who
produced the oocyte or to another woman
and—
(i) the zygote or embryo is not required to
be transferred to the body of that
woman; and
(ii) the woman who produced the oocyte
has consented to the use of the zygote
or embryo in the kind of procedure
proposed.
(5) A zygote or embryo must not be used in a
treatment procedure to be carried out on a woman
if the zygote or embryo has been formed from
sperm produced by a man who is not the woman's
husband and an oocyte produced by another
woman unless the requirements of sub-sections
(3) and (4) are met.
13. Consent of spouse of donor
(1) If a donor who gives a consent under section 12
is, at the time consent is given, married or living
in a de facto relationship, the oocyte, sperm,
zygote, or embryo in respect of which consent has
been given must not be used unless the spouse of
the donor also consented to the kind of treatment
procedure to be carried out.
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16
S. 13(1)
amended by
No. 37/1997
s. 8(a).
Infertility Treatment Act 1995
Act No. 63/1995
s. 13
(2) If—
S. 13(2)
amended by
No. 37/1997
s. 8(b).
(a) the spouse of a donor has consented under
sub-section (1); and
(b) the donor and that spouse divorce after the
spouse has given that consent; and
(c) a procedure which has been consented to is
to be carried out after that divorce—
this Act applies to that procedure as if the donor
was not, at the time the donor gave consent,
married or living in a de facto relationship.
(3) For the purposes of sub-section (2) a donor and
spouse divorce—
(a) when a decree of dissolution of the marriage
becomes absolute under the Family Law Act
1975 of the Commonwealth; or
(b) on the granting of a decree of nullity in
respect of the marriage by the Family Court
of Australia; or
S. 13(3)(c)
amended by
No. 37/1997
s. 8(c).
(c) on the dissolution or annulment of the
marriage in accordance with the law of a
place outside Australia, but only if that
dissolution or annulment is recognised in
Australia under the Family Law Act 1975 of
the Commonwealth; or
S. 13(3)(d)
inserted by
No. 37/1997
s. 8(c).
(d) in the case of a de facto relationship, when
the donor and spouse cease to live together
as husband and wife on a genuine domestic
basis.
S. 13(4)
amended by
No. 37/1997
s. 8(d).
(4) This section does not apply if the zygote or
embryo is formed from gametes of a woman and a
man who are married to each other or are living
together in a de facto relationship (as the case
requires) and who have both consented under
section 12.
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Infertility Treatment Act 1995
Act No. 63/1995
14. Requirements as to consent
(1) A consent under section 12 or 13—
(a) must be in writing; and
(b) must specify that the donor and, if the case
so requires, the donor's spouse, have
consented to the use of the oocyte, sperm,
zygote or embryo, as the case so requires, in
a treatment procedure of a particular kind on
a woman other than the donor or the wife of
the donor; and
(c) must not have been withdrawn or have
lapsed when the procedure takes place.
(2) A consent under section 12 or 13 may specify that
the gamete, zygote or embryo may only be used in
a treatment procedure to be carried out on a
specified woman.
(3) A person giving consent to the use of sperm or an
oocyte produced by that person or the spouse of
that person must lodge the consent or cause the
consent to be lodged—
(a) if the donation is made—
(i) at a licensed centre, with the designated
officer of the licensed centre; or
(ii) at a place other than a licensed centre,
with a doctor approved under Part 8 to
carry out donor insemination and who
carries out donor insemination at that
place; or
(b) where the sperm or oocyte is kept or stored;
or
(c) in accordance with the regulations.
3-30/12/97
18
s. 14
Infertility Treatment Act 1995
Act No. 63/1995
s. 15
(4) A person giving consent to the use of a zygote or
embryo formed from sperm or an oocyte produced
by that person or the spouse of that person must
lodge the consent or cause the consent to be
lodged with the designated officer of the licensed
centre where the zygote or embryo is kept or
stored.
15. Objection by later spouse
(1) If—
S. 15(1)(a)
substituted by
No. 37/1997
s. 9(a).
(a) after the donor has given consent under
section 12 in respect of an oocyte, sperm,
zygote or embryo, the donor marries or
commences living in a de facto relationship;
and
(b) the spouse of the donor objects to the use of
the oocyte, sperm, zygote or embryo in any
treatment procedure, or a treatment
procedure of a particular kind or in a
particular case—
the oocyte, sperm, zygote or embryo must not be
used in any treatment procedure, or in a treatment
procedure of the particular kind or in a particular
case, as the case requires.
(2) An objection—
(a) must be in writing; and
(b) must be lodged—
(i) at the place where the consent of the
donor was lodged; or
(ii) at the place where the sperm, oocyte,
zygote or embryo to which the consent
relates is kept or stored or where it is to
be used; or
(iii) in accordance with the regulations.
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19
Infertility Treatment Act 1995
Act No. 63/1995
s. 16
(3) An objection may be withdrawn at any time.
(4) The withdrawal of an objection—
(a) must be in writing; and
(b) must be lodged—
(i) at the place where the objection was
lodged; or
(ii) at the place where the sperm, oocyte,
zygote or embryo to which the consent
relates is kept or stored or where it is to
be used; or
(iii) in accordance with the regulations.
(5) An objection by a spouse of a donor lapses if the
person who made it ceases to be married to the
donor or ceases to live in a de facto relationship
with the donor (as the case requires).
16. Counselling requirements
Before a person gives consent under section 12 or
13, he or she must have received counselling
(including counselling in relation to the prescribed
matters) from a counsellor who has been approved
under Part 8 to give counselling to persons giving
consent under section 12 or 13.
17. Requirements as to the giving and receiving of
information
At the time at which a donor gives consent under
section 12, he or she—
(a) must give the prescribed information
required to be recorded in the Register under
section 62 or 63 in relation to donors of
gametes, zygotes or embryos which are to be
used in treatment procedures; and
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20
S. 15(5)
amended by
No. 37/1997
s. 9(b).
Infertility Treatment Act 1995
Act No. 63/1995
s. 18
(b) must be advised, in writing—
(i) of the rights of any person born as a
result of a donor treatment procedure,
the parents of that person and any other
persons to information under Division 3
of Part 7; and
(ii) as to the nature of the information
about the donor which is recorded in
the central register; and
(iii) as to the donor's rights to obtain
information under Divisions 2 and 3 of
Part 7; and
(iv) as to the existence and function of the
register kept under section 82.
18. Identified donors
(1) Sperm, an oocyte, a zygote or an embryo from a
named donor may only be used in a treatment
procedure if, before the procedure takes place—
(a) the woman who is to undergo the procedure
and her husband have requested that it be
used; and
(b) the donor and the spouse of the donor (if
any) have consented to its use in the
procedure, knowing that the donor has been
identified; and
(c) the woman and her husband, the donor and
the spouse of the donor (if any) have
received counselling as to its use from a
counsellor approved under Part 8 to give
counselling about the use of sperm, oocytes,
zygotes or embryos from named donors.
(2) A request under sub-section (1) must be—
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21
Infertility Treatment Act 1995
Act No. 63/1995
s. 19
(a) in writing; and
(b) made to the doctor who is to carry out the
procedure, or, in the case of donor
insemination, if the procedure is not to be
carried out by a doctor, the doctor in charge
of the woman's case.
(3) In this section, "spouse", in relation to a donor,
means a person who was, at the time the donor
gave consent under sub-section (1)(b), married to
the donor or living in a de facto relationship with
the donor.
19. Requirements as to consent to use of gamete etc. from
identified donor
(1) A consent under section 18(1)(b)—
(a) must be in writing; and
(b) must specify that the donor and the spouse of
the donor (if any) have consented to the use
of the sperm, oocyte, zygote or embryo (as
the case may be); and
(c) must acknowledge that the person is aware
that the donor has been identified; and
(d) must not have been withdrawn or have
lapsed when the procedure takes place.
(2) A person giving consent under section 18(1)(b),
where the consent relates to the use of gametes in
the treatment procedure, must lodge the consent or
cause the consent to be lodged—
(a) if the consent is given—
(i) at a licensed centre, with the designated
officer of the licensed centre; or
(ii) at a place other than a licensed centre,
with a doctor approved under Part 8 to
carry out donor insemination; or
3-30/12/97
22
S. 18(3)
substituted by
No. 37/1997
s. 10.
Infertility Treatment Act 1995
Act No. 63/1995
s. 20
(b) where the gametes are kept or stored; or
(c) in accordance with the regulations.
(3) A person giving consent under section 18(1)(b), if
the consent relates to the use of a zygote or an
embryo in the treatment procedure, must lodge the
consent or cause the consent to be lodged with the
designated officer of the licensed centre where the
zygote or embryo is kept or stored.
S. 19(4)
substituted by
No. 37/1997
s. 11.
(4) In this section, "spouse", in relation to a donor,
means a person who was, at the time the donor
gave consent under section 18(1)(b), married to
the donor or living in a de facto relationship with
the donor.
Division 4—Requirements for donor treatment procedures
20. Circumstances in which donor procedure may be used
(1) A treatment procedure must not be carried out on
a woman involving the use of sperm produced by
a man who is not the woman's husband or of a
zygote or embryo formed from an oocyte
produced by that woman and sperm produced by a
man who is not her husband unless—
(a) the woman is unlikely to become pregnant
from the sperm of her husband or from a
zygote or an embryo formed from his sperm;
or
(b) if the woman became pregnant from the
sperm of her husband or from a zygote or an
embryo formed from his sperm, a genetic
abnormality or a disease might be
transmitted to a person born as a result of
that pregnancy.
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23
Infertility Treatment Act 1995
Act No. 63/1995
(2) A treatment procedure must not be carried out on
a woman involving the use of a zygote or embryo
formed from sperm of the woman's husband and
an oocyte produced by another woman or of an
oocyte produced by another woman unless—
(a) the woman who is to undergo the procedure
is unlikely to become pregnant from an
oocyte produced by her or from a zygote or
an embryo formed from an oocyte produced
by her; or
(b) if the woman who is to undergo the
procedure became pregnant from an oocyte
produced by her or from a zygote or an
embryo formed from an oocyte produced by
her, a genetic abnormality or a disease might
be transmitted to a person born as a result of
that pregnancy.
(3) A treatment procedure must not be carried out on
a woman involving the use of both sperm
produced by a man who is not the woman's
husband and an oocyte produced by another
woman, or a zygote or embryo formed from sperm
produced by a man who is not the woman's
husband and an oocyte produced by another
woman unless—
(a) the woman who is to undergo the procedure
is unlikely to become pregnant from both the
sperm of her husband and an oocyte
produced by her or from a zygote or an
embryo formed from such sperm and such an
oocyte; or
(b) if the woman who is to undergo the
procedure became pregnant from both the
sperm of her husband and an oocyte
produced by her or from a zygote or an
embryo formed from such sperm and such an
3-30/12/97
24
s. 20
Infertility Treatment Act 1995
Act No. 63/1995
s. 21
oocyte, a genetic abnormality or a disease
might be transmitted to a person born as a
result of that pregnancy from the use of both
the sperm and the oocyte.
21. Information and advice
Before a woman undergoes a donor treatment
procedure, she and her husband must be advised,
in writing—
(a) of the rights of any person born as a result of
that procedure, the donor and any other
persons to information under Division 3 of
Part 7; and
(b) as to the nature of the information about the
woman and her husband which is recorded in
the central register; and
(c) as to the effect of section 67; and
(d) as to the woman's and her husband's rights to
obtain information under Divisions 2 and 3
of Part 7; and
(e) as to the existence and function of the
register kept under section 82.
_______________
3-30/12/97
25
Infertility Treatment Act 1995
Act No. 63/1995
PART 3—RESEARCH
Division 1—Offences
22. Research
(1) A person may only—
(a) carry out research, outside the body of a
woman, involving the formation of a zygote;
or
(b) carry out research, outside the body of a
woman, involving a zygote or embryo—
if—
(c) he or she is—
(i) a doctor or scientist who has been
approved under Part 8 to carry out that
kind of research; or
(ii) a person working under the direction
and supervision of a doctor or scientist
who has been approved under Part 8 to
carry out that kind of research and who
is responsible for the carrying out of
that research; and
(d) the research is approved research; and
(e) the research is conducted in accordance with
the approval; and
(f) he or she is satisfied that the requirements of
Division 2 and section 36 have been met.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(2) A person may only—
3-30/12/97
26
s. 22
Infertility Treatment Act 1995
Act No. 63/1995
s. 24
23
(a) bring about or attempt to bring about
parthenogenesis in an oocyte outside the
body of a woman; or
S. 22(2)(a)
amended by
No. 37/1997
s. 20(a).
(b) form or attempt to form a parthenogenetic
oocyte or a parthenogene outside the body of
a woman; or
(c) carry out research on a parthenogenetic
oocyte or parthenogene outside the body of a
woman—
if—
(d) the research is approved research; and
(e) the research is carried out in accordance with
the approval; and
(f) he or she is satisfied that the requirements of
the Authority under Division 3 have been met.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(3) A person may only carry out research, outside the
body of a woman, involving the use of an oocyte
or sperm, which is not research under sub-section
(1) or (2), if he or she is satisfied that the
requirements of Division 4 and section 36 have
been met.
Penalty: 240 penalty units or 2 years
imprisonment or both.
23. Places for research
A person may only undertake approved research
described in section 22 at a place licensed for the
purpose under Part 8.
Penalty: 480 penalty units or 4 years
imprisonment or both.
24. Ban on destructive research on embryos
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27
Infertility Treatment Act 1995
Act No. 63/1995
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
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
woman; or
(iii) reduce the likelihood of a pregnancy
resulting from the transfer of the
embryo.
Penalty: 480 penalty units or 4 years
imprisonment or both.
25. Authority must not approve destructive research on
embryos
The Authority must not approve the carrying out
of research outside the body of a woman
involving the use of an embryo if it considers
that—
(a) the embryo is unfit for transfer to a woman;
or
(b) in the case of an embryo which is fit for
transfer to a woman, the research would—
(i) harm the embryo; or
(ii) make the embryo unfit for transfer to a
woman; or
(iii) reduce the likelihood of a pregnancy
resulting from transfer of the embryo;
or
(iv) otherwise be an offence under this Act.
3-30/12/97
28
Infertility Treatment Act 1995
Act No. 63/1995
s. 26
26. Authority must not approve certain research on
zygotes
The Authority must not approve the carrying out
of research involving the formation or use of a
zygote if the research proposes that the zygote
continue to develop to syngamy.
Division 2—Preliminary requirements for research
involving zygotes, embryos or the formation of zygotes
27. Consent to research involving zygotes or embryos or
the formation of zygotes
(1) Research involving the formation of a zygote must
not be carried out unless—
(a) before the zygote is formed, each person
who produced a gamete to be used in the
research consented to the use of the gamete
in the particular procedure which the person
who is to conduct the research intends to
carry out; and
(b) the research will be carried out in accordance
with the terms of each consent.
(2) Research involving a zygote or an embryo under
section 22(1)(b) must not be carried out unless—
(a) the zygote or embryo was formed for use in a
treatment procedure; and
(b) in relation to a zygote, the zygote is not
required for use in a treatment procedure;
and
(c) before the research begins, each person who
produced a gamete which was used to form
the zygote or embryo consented to the use of
the zygote or embryo for the carrying out of
the particular procedure which the person
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29
Infertility Treatment Act 1995
Act No. 63/1995
s. 28
who is to conduct the research intends to
carry out; and
(d) the research will be carried out in accordance
with the terms of each consent.
28. Consent of spouse of donor
(1) If a donor who gives a consent under section 27
is, at the time consent is given, married or living
in a de facto relationship, the research must not be
carried out unless the spouse of the donor also
consented to the use of the gamete, zygote or
embryo (as the case requires) in the particular
procedure to be carried out.
S. 28(1)
amended by
No. 37/1997
s. 12(a).
(2) If—
S. 28(2)
amended by
No. 37/1997
s. 12(b).
(a) the spouse of a donor has consented under
sub-section (1); and
(b) the donor and that spouse divorce after the
spouse has given that consent; and
(c) a procedure which has been consented to is
to be carried out after that divorce—
this Act applies to that procedure as if the donor
was not, at the time the donor gave consent,
married or living in a de facto relationship.
(3) For the purposes of sub-section (2) a donor and
spouse divorce—
(a) when a decree of dissolution of the marriage
becomes absolute under the Family Law Act
1975 of the Commonwealth; or
(b) on the granting of a decree of nullity in
respect of the marriage by the Family Court
of Australia; or
(c) on the dissolution or annulment of the
marriage in accordance with the law of a
place outside Australia, but only if that
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30
S. 28(3)(c)
amended by
No. 37/1997
s. 12(c).
Infertility Treatment Act 1995
Act No. 63/1995
s. 29
dissolution or annulment is recognised in
Australia under the Family Law Act 1975 of
the Commonwealth; or
S. 28(3)(d)
inserted by
No. 37/1997
s. 12(c).
(d) in the case of a de facto relationship, when
the donor and spouse cease to live together
as husband and wife on a genuine domestic
basis.
29. Requirements as to consent
(1) A consent under section 27 or 28—
(a) must be in writing; and
(b) must specify that the donor and, if the case
so requires, the donor's spouse, have
consented to the particular use of the gamete,
zygote or embryo, as the case so requires, in
the research; and
(c) must not have been withdrawn or have
lapsed when the gamete, zygote or embryo is
used for the research.
(2) A person giving consent under section 27 or 28,
must lodge the consent or cause the consent to be
lodged with the designated officer of the licensed
centre at which the research is to take place.
S. 29(3)
inserted by
No. 37/1997
s. 13.
(3) In this section, "spouse", in relation to a donor,
means a person who was, at the time the donor
gave consent under section 27 or 28, married to
the donor or living in a de facto relationship with
the donor.
30. Objection by later spouse
S. 30(1)
amended by
No. 37/1997
s. 14(a).
(1) If, after a donor has given consent under section
27, he or she marries or commences living in a
de facto relationship, the oocyte, sperm, zygote or
embryo in respect of which consent has been
given must not be used in the research if that
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31
Infertility Treatment Act 1995
Act No. 63/1995
s. 31
spouse objects to the use of the oocyte, sperm,
zygote or embryo.
(2) An objection—
(a) must be in writing; and
(b) must be lodged—
(i) at the place where the consent of the
donor was lodged; or
(ii) at the place where the sperm, oocyte,
zygote or embryo to which the consent
relates is kept or stored or where it is to
be used; or
(iii) in accordance with the regulations.
(3) An objection may be withdrawn at any time.
(4) The withdrawal of an objection—
(a) must be in writing; and
(b) must be lodged—
(i) at the place where the objection was
lodged; or
(ii) at the place where the sperm, oocyte,
zygote or embryo to which the consent
relates is kept or stored or where it is to
be used; or
(iii) in accordance with the regulations.
(5) An objection by a spouse of a donor lapses if the
person who made it ceases to be married to the
donor or ceases to live in a de facto relationship
with the donor (as the case requires).
31. Counselling requirements
Before a person gives consent under section 27 or
28, that person must have received counselling,
including counselling in relation to the prescribed
matters, from a counsellor who has been approved
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32
S. 30(5)
amended by
No. 37/1997
s. 14(b).
Infertility Treatment Act 1995
Act No. 63/1995
s. 32
under Part 8 to give counselling to people who
propose to give consent under section 27 or 28.
32. Information requirements
(1) Before a person gives consent under section 27,
he or she—
(a) must give the prescribed information
required to be recorded in the Register under
section 62, for donors of gametes, zygotes or
embryos to be used for research; and
(b) must be given enough information about the
proposed research from the doctor or
scientist carrying out the research to enable
him or her to make an informed decision
about whether to consent.
(2) Before a person gives consent under section 28,
he or she must be given enough information about
the proposed research from the doctor or scientist
carrying out the research to enable him or her to
make an informed decision about whether to
consent.
Division 3—Requirements for research involving
parthenogenesis
33. Power of Authority to impose requirements
(1) The Authority may specify requirements in
relation to approved research under section 22(2)
regarding—
(a) the consent of a person whose gametes are to
be used in the research, and the consent of
such a person's spouse, and where those
consents are to be lodged;
(b) objections by a spouse in relation to the use
of a person's gametes in such research;
(c) the lapsing of such consents or objections;
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Infertility Treatment Act 1995
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(d) the withdrawal of such consents and
objections;
(e) counselling and the provision of information
to a person whose gametes are to be used
and of his or her spouse in relation to such
research; and
(f) any other matter, including the application of
a provision of this Act or the regulations,
with any necessary modifications, to such
research or to a parthenogenetic oocyte or
parthenogene, that the Authority considers
relevant.
(2) The requirements imposed under sub-section (1)
may be of general or limited application.
Division 4—Preliminary requirements for other research
involving gametes
34. Consent to research using gametes
Research involving the use of a gamete (which is
not research under section 22(1) or (2)) must not
be carried out unless—
(a) before the gamete is used for research, the
person who produced the gamete consented
to the use of the gamete for the purpose of
research or for the carrying out of the
particular procedure which the person who is
to conduct the research intends to carry out;
and
(b) the research will be carried out in accordance
with the terms of that consent.
35. Requirements as to consent
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s. 35
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Infertility Treatment Act 1995
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(1) A consent under section 34—
(a) must be in writing; and
(b) must specify that the donor has consented to
the use of the gamete for the particular
research or for research generally; and
(c) must not have been withdrawn or have
lapsed when the procedure using the gamete
takes place.
(2) A person giving consent under section 34 must
lodge the consent or cause the consent to be
lodged in accordance with the regulations.
_______________
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PART 4—PROCEDURES RELATING TO CONSENTS
36. Approved form to be used
(1) If the Authority has approved a form for the
giving of consent, a person giving consent under
Part 2 or 3 must give it on the approved form.
(2) The Authority may approve a different form
according to place, class of person, type of
procedure or other circumstance.
37. Withdrawal of consent
(1) A person who gives a consent under Part 2 or 3
may withdraw it at any time before the 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 lodge the
withdrawal or cause the withdrawal to be lodged
as soon as practicable—
(a) at the place where the consent was lodged; or
(b) at the place where the sperm, oocyte, zygote
or embryo to which the consent relates is
kept or stored or where it is to be used; or
(c) in accordance with the regulations.
38. Lapsing of consent
(1) In the case of donor gametes, the consent of the
donor and the spouse (if any) of the donor given
under Part 2 or Part 3 lapses—
(a) 10 years after it has been given; or
(b) if any lesser period has been specified in the
consent by the person who gave the consent,
at the end of that period.
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s. 36
Infertility Treatment Act 1995
Act No. 63/1995
s. 38
(2) In the case of a donor zygote or donor embryo, the
consent of each donor and the spouse (if any) of
each donor under Part 2 or Part 3 lapses—
(a) 5 years after it has been given; or
(b) if any lesser period has been specified in the
consent by the person who gave the consent,
at the end of that period.
_______________
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Infertility Treatment Act 1995
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PART 5—OFFENCES
Division 1—Prohibited procedures
39. Alteration of constitution of a gamete, zygote or
embryo
(1) A person must not alter the genetic constitution of a
gamete which is intended to be used in a treatment
procedure or to form a zygote or embryo.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(2) A person must not alter the genetic, pro-nuclear or
nuclear constitution of a zygote or an embryo
except to alter the somatic cells for therapeutic
purposes.
Penalty: 480 penalty units or 4 years
imprisonment or both.
40. Transfer of gametes, zygotes or embryos used for
research
(1) A person must not transfer to the body of a
woman—
(a) a gamete or zygote used for research; or
(b) an embryo formed from a zygote or gamete
used for research; or
(c) a zygote formed from a gamete used for
research; or
(d) an embryo used for research—
unless that person has first obtained the approval
of the Authority to do so, and conducts the
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s. 39
Infertility Treatment Act 1995
Act No. 63/1995
s. 43
41
transfer in accordance with the terms and
conditions of the approval.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) An approval under sub-section (1) must be in
writing and is subject to any terms and conditions
the Authority sees fit to impose.
41. Ban on procedures involving gametes produced by
children
A person must not use for a treatment procedure
or research—
S. 41(a)
amended by
No. 37/1997
s. 15.
(a) a gamete produced by a person less than 18
years old; or
S. 41(b)
amended by
No. 37/1997
s. 15.
(b) a zygote or an embryo formed from gametes
produced by a person less than 18 years
old—
except in accordance with the regulations.
Penalty: 240 penalty units or 2 years
imprisonment or both.
42. Ban on procedures involving oocytes derived from a
foetus
A person must not use oocytes derived from a
foetus in a treatment procedure or research.
Penalty: 240 penalty units or 2 years
imprisonment or both.
43. Ban on procedures involving gametes of people
known to be dead
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Infertility Treatment Act 1995
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A person must not—
(a) inseminate a woman with sperm from a man
known to be dead; or
(b) transfer to a woman a gamete from a person
known to be dead; or
(c) transfer to a woman a zygote or an embryo
formed from a gamete from a person known
to be dead; or
(d) form a zygote with sperm from a man known
to be dead; or
(e) form a zygote, if the woman who produced
the oocyte used to form the zygote is known
to be dead.
Penalty: 240 penalty units or 2 years
imprisonment or both.
44. Ban on use of zygotes or embryos removed from the
body
A person must not carry out a treatment procedure
or research involving the use of a zygote or an
embryo removed from the body of a woman.
Penalty: 240 penalty units or 2 years
imprisonment or both.
45. Ban on mixing human and animal gametes etc.
(1) A person must not carry out a procedure involving
the mixing of sperm or ova produced by an
animal—
(a) with a gamete produced by a man or woman;
or
(b) with a zygote or an embryo formed from the
gametes of a man and woman—
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s. 46
unless the procedure is that of mixing animal ova
with human sperm and is prescribed by the
regulations and is carried out for diagnostic
purposes only.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(2) A person must not carry out a procedure involving
the insertion of the gene of an animal into—
(a) a gamete produced by a man or woman; or
(b) a zygote or embryo formed from gametes
produced by a man and woman.
Penalty: 480 penalty units or 4 years
imprisonment or both.
46. Ban on mixing gametes, zygotes or embryos from
more than one person
(1) A person must not carry out a treatment
procedure—
(a) using sperm produced by more than one
person or oocytes produced by more than
one person; or
(b) in which more than one zygote or embryo is
used if the gametes from which each zygote
or embryo is formed are not produced by the
same two people; or
(c) using a zygote or an embryo formed from the
mixing of—
(i) an oocyte with sperm produced by
more than one man; or
(ii) sperm with more than one oocyte, if the
oocytes are produced by more than one
woman.
Penalty: 240 penalty units or 2 years
imprisonment or both.
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Infertility Treatment Act 1995
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(2) A person must not form or attempt to form a
zygote or embryo outside the body of a woman
from sperm produced by more than one man.
Penalty: 240 penalty units or 2 years
imprisonment or both.
47. Ban on cloning
A person must not carry out or attempt to carry
out cloning.
Penalty: 480 penalty units or 4 years
imprisonment or both.
48. Ban on certain experimental procedures
A person must not carry out a procedure or
research involving—
(a) the transfer of a zygote or an embryo into the
body of a man or an animal; or
(b) the transfer of a parthenogenetic oocyte or
parthenogene to the body of a person or an
animal.
Penalty: 240 penalty units or 2 years
imprisonment or both.
49. Formation of embryos and zygotes
(1) A person must not knowingly or recklessly form
or attempt to form an embryo outside the body of
a woman except for the purposes of a treatment
procedure to be carried out in accordance with this
Act.
Penalty: 480 penalty units or 4 years
imprisonment or both.
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s. 47
Infertility Treatment Act 1995
Act No. 63/1995
s. 50
(2) A person must not knowingly or recklessly form
or attempt to form a zygote outside the body of a
woman except for the purposes of—
(a) a treatment procedure to be carried out in
accordance with this Act; or
(b) approved research to be carried out in
accordance with this Act.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(3) A person who is not a doctor or scientist who has
been approved under Part 8 for the purpose of
forming embryos outside the body of a woman
must not knowingly or recklessly form or attempt
to form an embryo outside the body of a woman.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(4) A person must not knowingly or recklessly form
or attempt to form an embryo outside the body of
a woman, except at a place licensed for the
purpose under Part 8.
Penalty: 480 penalty units or 4 years
imprisonment or both.
50. Ban on sex selection
(1) If a person is carrying out artificial insemination
or a treatment procedure, that person must not—
(a) use a gamete, zygote or embryo; or
(b) perform the procedure in a particular
manner—
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.
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(2) Sub-section (1) does not apply if 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 disease to the child.
Division 2—Storage
51. Storing gametes
(1) A person must not cause or permit gametes to
remain in storage—
(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
(ii) if the Authority has approved a longer
storage period, for more than that
approved period.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) The Authority may approve in writing a longer
storage period if it considers that there are
reasonable grounds to do so in the particular case.
(3) An approval under sub-section (2) may be subject
to conditions.
52. Storing zygotes or embryos
(1) A person must not cause or permit a zygote or an
embryo to be placed or remain in storage.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) Sub-section (1) does not apply if—
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s. 52
51
Infertility Treatment Act 1995
Act No. 63/1995
(a) it is intended to—
(i) transfer the zygote or embryo to the
body of a woman in a treatment
procedure in accordance with this Act;
or
(ii) use the zygote for the purposes of
approved research; and
(b) the persons who have produced the gametes
from which the zygote or embryo has been
formed have consented to its storage for the
purpose of later use or transfer.
(3) A consent under sub-section (2)(b)—
(a) must be in writing; and
(b) must be lodged as soon as practicable after
the consent has been given with the person
storing the zygote or embryo.
(4) A person must not cause or permit a zygote or
embryo to which sub-section (2) applies to remain
in storage—
(a) if a person who has consented to storage has
specified a period of less than 5 years, after
that period; or
(b) in any other case, after—
(i) 5 years; or
(ii) any longer period approved by the
Authority.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(5) The Authority may approve in writing a longer
period for storage of a zygote or embryo if it
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Infertility Treatment Act 1995
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s. 53
considers that there are reasonable grounds for
doing so in the particular case.
(6) An approval under sub-section (5) may be subject
to conditions.
53. Removal of zygotes or embryos from storage
(1) A person must not remove a zygote or an embryo
from storage or cause or permit a zygote or an
embryo to be so removed unless—
(a) it is to be used, in accordance with this Act,
in a treatment procedure; or
(b) it is to be used, in accordance with this Act,
for approved research; or
(c) one or both of the persons who produced the
gametes from which the zygote or embryo is
formed, die; or
(d) consent to its removal has been given to the
designated officer in writing by both of the
persons who produced the gametes from
which the zygote or embryo is formed and if
either of those persons is, at the time of
giving of the consent, married or living in a
de facto relationship, the consent of that
person's spouse for the removal must also be
given to the designated officer in writing; or
(e) it is required to be removed by reason of the
operation of section 52(4) or Part 14.
Penalty: 480 penalty units or 4 years
imprisonment or both.
(2) A person who removes from storage a zygote or
embryo which is not to be used for a treatment
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S. 53(1)(d)
amended by
No. 37/1997
s. 16.
Infertility Treatment Act 1995
Act No. 63/1995
s. 54
procedure or approved research must ensure
that—
(a) it is not removed from its container (except
for the sole purpose of observing the zygote
or embryo); and
(b) it is disposed of in accordance with the
regulations.
Penalty: 240 penalty units or 2 years
imprisonment or both.
54. Places of storage
A person must not—
(a) store a zygote or embryo; or
(b) store a gamete to be used in a treatment
procedure; or
(c) store a gamete to be used to form a zygote or
an embryo—
except at a place licensed for the purpose under
this Act.
Penalty: 480 penalty units or 4 years
imprisonment or both.
55. Ban on use of gametes, zygotes or embryos not stored
at licensed centre
If an embryo, zygote or gamete has been stored at
a place which is not licensed under this Act as a
place at which an embryo, zygote or gamete (as
the case may be) may be stored, a person must not
use, in a treatment procedure—
(a) that embryo, zygote or gamete; or
(b) an embryo formed from such a zygote or
gamete; or
(c) a zygote formed from such a gamete.
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Penalty: 240 penalty units or 2 years
imprisonment or both.
Division 3—General offences
56. Import or export of gametes, zygotes and embryos
(1) A person must not—
(a) bring a gamete, zygote or embryo into
Victoria outside the human body; or
(b) take a gamete, zygote or embryo from
Victoria outside the human body.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) Sub-section (1) does not apply if the gamete,
zygote or embryo is brought into or taken from
Victoria in accordance with the written approval
of the Authority.
(3) The Authority's approval under sub-section (2)
may apply to a particular case or class of cases
and may be subject to conditions imposed by the
Authority.
(4) If a person has approval under sub-section (2) to
bring a gamete, zygote or embryo into Victoria the
Authority may exempt a person in relation to—
(a) the gamete, zygote or embryo; or
(b) the donor of the gamete, zygote or embryo—
from compliance with sections 14(3) and (4),
15(2) and (4), 16, 17, 18, 19, 36, 37(3), 52(1)(b)
and (3) and 55, Division 1 of Part 7 and any other
prescribed provision of the Act or the regulations,
if the Authority is satisfied that—
(c) similar procedures have taken place outside
Victoria; and
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s. 56
Infertility Treatment Act 1995
Act No. 63/1995
s. 57
56
(d) there are special circumstances which
warrant the exemption.
(5) If a person has approval under sub-section (2) to
take a gamete, zygote or embryo from Victoria the
Authority may exempt a person in relation to the
gamete, zygote or embryo from compliance with
sections 49(1) and (2), 52(2) and (3), 53, 89 and
90 and any other prescribed provision of the Act
or the regulations, if the Authority is satisfied
that—
(a) the gamete, zygote or embryo will be used in
a manner which is consistent with this Act;
and
(b) there are special circumstances which
warrant the exemption.
(6) An exemption granted under this section must be
made in writing, and may relate to the whole or a
part of a provision, and may be subject to
conditions.
(7) A person granted an approval or exemption under
this section must comply with any condition
imposed by the Authority under this section.
Penalty: 240 penalty units or 2 years
imprisonment or both.
57. No compensation for gamete donation
(1) A person must not receive or hold himself or
herself out as being willing to receive a payment,
reward, benefit or advantage for donating a
gamete, zygote or embryo or, in the case of the
spouse of such a person, for that spouse's husband
or wife making such a donation.
Penalty: 50 penalty units.
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(2) A person must not give or offer to give a payment,
reward, benefit or advantage to a person for
donating a gamete, zygote or embryo or, in the
case of the spouse of such a person, for that
spouse's husband or wife making such a donation.
Penalty: 50 penalty units.
(3) Sub-sections (1) and (2) do not apply to—
(a) the giving or receiving of an amount, not
exceeding an amount calculated at the rate
fixed by Order of the Governor in Council
and published in the Government Gazette, in
respect of expenses incurred by a donor for
travelling to or attending the place at which
the donation is made; or
(b) giving or receiving reimbursement for
medical expenses incurred by a donor in
connection with a donation.
58. 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
this Act; or
(b) with respect to the giving of information
which is required—
(i) to be given under this Act; or
(ii) to be included in a Register, record or
notice under this Act.
Penalty: 50 penalty units.
_______________
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50
s. 58
Infertility Treatment Act 1995
Act No. 63/1995
s. 59
PART 6—SURROGATE MOTHERHOOD
59. Surrogacy
A person must not make, give or receive or agree
to make, give or receive a payment or reward in
relation to or under a surrogacy agreement or the
arrangement of a surrogacy agreement or an
arrangement to act as a surrogate mother.
Penalty: 240 penalty units or 2 years
imprisonment or both.
60. Surrogacy—advertising
A person must not publish or cause to be
published a statement, advertisement, notice or
document—
(a) to the effect that a person is or may be
willing to enter into a surrogacy agreement;
or
(b) to the effect that a person is seeking another
person who is or may be willing to enter into
a surrogacy agreement or to act as a
surrogate mother or to arrange a surrogacy
agreement; or
(c) to the effect that a person is or may be
willing to arrange a surrogacy agreement; or
(d) to the effect that a person is or may be
willing to accept any benefit under a
surrogacy agreement, whether for himself or
herself or for another person; or
(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
willing to act as a surrogate mother.
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Penalty: 240 penalty units or 2 years
imprisonment or both.
61. Surrogacy agreements void
A surrogacy agreement is void whether made
before or after the commencement of this section.
_______________
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s. 61
Infertility Treatment Act 1995
Act No. 63/1995
s. 62
PART 7—RECORDS AND ACCESS TO INFORMATION
Division 1—Records
62. Register to be kept for licensed centre
(1) The licensee of a licensed centre must keep a
Register for that centre at the centre or at another
place that is specified in the licence for the centre.
Penalty: 50 penalty units.
(2) The designated officer of a licensed centre must
ensure that there is recorded in the Register, in the
prescribed manner, the prescribed information in
relation to the following—
(a) the donors of gametes, zygotes and embryos
kept or stored at the centre including any
known physical abnormality of each donor;
(b) the destruction or disposal at the centre of
any gametes, zygotes or embryos formed
outside the body of a woman;
(c) the formation or attempted formation at the
centre of a zygote or embryo outside the
body of a woman;
(d) each woman who undergoes a treatment
procedure at the centre and the husband of
that woman including any known physical
abnormality of the woman or her husband;
(e) any treatment procedure carried out on a
woman at the centre;
(f) the use of a gamete, zygote or embryo in a
treatment procedure or research under Part 3
at the centre;
(g) any gametes, zygotes or embryos transferred
from the centre to another licensed centre or
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Infertility Treatment Act 1995
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to a doctor who has been approved under
Part 8 to carry out donor insemination at a
place other than a licensed centre;
(h) any gametes, zygotes or embryos, transferred
from another licensed centre or a doctor who
has been approved under Part 8 to carry out
donor insemination at a place other than a
licensed centre to the centre;
(i) the collection and storage of gametes,
zygotes or embryos at the centre;
(j) the consents and withdrawals of consent to
the storage and removal from storage of
gametes, zygotes or embryos at the centre;
(k) the bringing into or taking out of the State of
any gametes, zygotes or embryos which have
been or are stored or kept at the centre;
(l) each consent, objection, withdrawal or
lapsing of consent or objection given under
this Act for a treatment procedure or
research under Part 3 carried out at the
centre;
(m) any amounts paid to donors in respect of
donations made at the centre;
(n) the outcome of a treatment procedure, if this
information is available at the centre or
known to the designated officer, including
particulars of—
(i) a confirmed pregnancy resulting from a
treatment procedure carried out at the
centre; and
(ii) the miscarriage of a pregnancy from a
treatment procedure carried out at the
centre or the death of an embryo or
foetus carried by a woman as a result of
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s. 62
Infertility Treatment Act 1995
Act No. 63/1995
s. 63
a treatment procedure carried out at the
centre;
(o) a person born as a result of a treatment
procedure at the centre, if this information is
available at the centre or known to the
designated officer, including particulars of—
(i) the birth of the person; and
(ii) any physical abnormality of the person,
identified at or about the time of birth
of the person.
Penalty: 50 penalty units.
(3) The designated officer must ensure that there is
recorded in the Register, in the manner
determined by the Authority, any information
required to be recorded in the Register by a
licence condition imposed by the Authority.
Penalty: 50 penalty units.
63. Register to be kept by doctor carrying out donor
insemination
(1) A doctor who has been approved under Part 8 to
carry out donor insemination at a place other than
a licensed centre must keep a Register at premises
specified in the approval.
Penalty: 50 penalty units.
(2) For each artificial insemination of a woman with
sperm from a man who is not the husband of the
woman carried out by the doctor at a place other
than a licensed centre, the doctor must record in
the Register, in the prescribed manner, the
prescribed information in relation to the
following—
(a) the insemination;
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Infertility Treatment Act 1995
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s. 63
(b) the donor of the sperm used in the
insemination, including any known physical
abnormality of that donor;
(c) the woman who is inseminated with the
donated sperm and her husband, including
any known physical abnormality of that
woman or her husband;
(d) any amount paid to the donor of sperm in
respect of the donation for the insemination;
(e) the outcome of the insemination, if this is
known to the doctor, including—
(i) a confirmed pregnancy resulting from
the insemination; and
(ii) the miscarriage of a pregnancy
resulting from the insemination or the
death of an embryo or a foetus carried
by a woman as a result of the
insemination; and
(f) a person born as the result of the
insemination, if this is known to the doctor,
including particulars of—
(i) the birth of the person; and
(ii) any physical abnormality of the person,
identified at or about the time of birth
of the person.
Penalty: 50 penalty units.
(3) A doctor who has been approved under Part 8 to
carry out donor insemination at a place other than
a licensed centre must record in the Register kept
by the doctor, in the prescribed manner, the
prescribed information relating to the following—
(a) the destruction or disposal of any sperm;
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S. 63(2)(c)
amended by
No. 37/1997
s. 19(b).
Infertility Treatment Act 1995
Act No. 63/1995
s. 64
(b) each consent, withdrawal or lapsing of
consent or objection given under this Act for
donor insemination;
(c) each objection or withdrawal of objection to
the use of the donated sperm;
(d) any sperm transferred from the premises
where an insemination may be carried out;
and
(e) any sperm kept at the premises where an
insemination is to be carried out.
(4) The doctor must record in the Register in the
manner determined by the Authority, any
information required to be recorded in the
Register by a condition imposed on the doctor's
approval by the Authority.
Penalty: 50 penalty units.
64. Information to be given to the Authority by licensed
centres
Within one month of the expiration of every
prescribed 6 month period, the designated officer
of a licensed centre must give to the Authority, in
the prescribed manner, the information specified
in section 66 with respect to—
(a) every birth of a person born as a result of a
donor treatment procedure carried out at the
centre, which birth becomes known to the
designated officer within that 6 month
period;
(b) every pregnancy which has occurred as a
result of a donor treatment procedure carried
out at the centre, and which is known to the
designated officer within that 6 month
period;
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(c) in the circumstances specified in writing by
the Authority, every donor treatment
procedure carried out at the centre, where the
outcome of that procedure is not known by
the designated officer; and
(d) any other prescribed circumstances.
Penalty: 50 penalty units.
65. Information to be given to the Authority by doctors
not at licensed centres
Within one month of the expiry of every
prescribed 6 month period, a doctor who has been
approved under Part 8 to carry out donor
insemination at a place other than a licensed
centre must give to the Authority, in the
prescribed manner, the information specified in
section 66 with respect to—
(a) every birth of a person born as a result of
such a donor insemination carried out by the
doctor, which birth becomes known to the
doctor within that 6 month period;
(b) every pregnancy which has occurred as a
result of such a donor insemination carried
out by the doctor, and which is known to the
doctor within that 6 month period;
(c) in the circumstances specified in writing by
the Authority, every such donor insemination
carried out by the doctor, where the outcome
of the procedure is not known by the doctor;
and
(d) any other prescribed circumstances.
Penalty: 50 penalty units.
66. Information to be given under section 64 and 65
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s. 65
Infertility Treatment Act 1995
Act No. 63/1995
s. 67
The information to be given under sections 64 and
65 must include the prescribed information in
relation to the following—
(a) in the case of a birth, the person born as a
result of the donor treatment procedure
including particulars of any physical
abnormality of the person identified at or
about the time of his or her birth;
(b) in all cases, the donor or donors, including
particulars of any known physical
abnormality of the donor;
S. 66(c)
amended by
No. 37/1997
s. 19(c).
(c) in all cases, the woman who underwent the
procedure and her husband, including
particulars of any known physical
abnormality of either person; and
(d) in all cases, the procedure.
67. Information to be given to the Authority about births
by other persons
(1) If a person has been born as the result of a donor
treatment procedure the woman who gave birth or
her husband must give written notice in
accordance with this section of the birth to the
Authority in the prescribed manner.
Penalty: 20 penalty units.
(2) If a doctor or a registered nurse—
(a) attends the birth of a person; and
(b) knows that the pregnancy resulted from a
donor treatment procedure—
the doctor or registered nurse must give written
notice of the birth to the Authority in the
prescribed manner.
Penalty: 20 penalty units.
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(3) A doctor who—
(a) attends a woman during pregnancy and is
aware that a person has been born as a result
of that pregnancy; and
(b) knows that the pregnancy resulted from a
donor treatment procedure—
must give written notice of the birth to the
Authority in the prescribed manner.
Penalty: 20 penalty units.
(4) A notice under sub-section (1), (2) or (3) must
include the following—
(a) the names of the woman who gave birth and
her husband;
(b) the name and sex of the person who has been
born, and particulars of any physical
abnormality of the person identified at or
about the time of birth;
(c) if—
(i) the procedure was performed at a
licensed centre, the name of that centre,
if known; or
(ii) if the procedure was not performed at a
licensed centre, the name of the doctor
who performed it, if known;
(d) any other prescribed information.
(5) A person does not commit an offence under this
section—
(a) if that person reasonably believes that
another person has already given a notice
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s. 68
under this section which contains all of the
information described in sub-section (4); or
(b) in prescribed circumstances.
68. Authority to keep a central register
The Authority must, in the prescribed manner,
keep a central register containing the information
given to the Authority under this Division and the
prescribed information (if any).
69. Authority to correct central register
(1) A person in respect of whom information is
recorded in the central register may, at any time,
request the Authority to correct or amend any
information on the central register which is
inaccurate, incomplete, out of date or misleading.
(2) A request under sub-section (1)—
(a) must be in writing; and
(b) must specify the amendment or correction
the person wishes to have made and the
reasons why the person wishes to have the
amendment or correction made.
(3) If the Authority is of the opinion that the
amendment or correction requested will make the
Register more accurate or complete, the Authority
must make the amendment or correction to the
Register that is necessary in its opinion.
(4) The Authority must notify a person who makes a
request under this Part of its decision about that
request within 30 days of making that decision.
70. Inspection of Registers
(1) A person of or over 18 years of age in respect of
whom information is kept in a Register under this
Division may, at any time during ordinary
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s. 71
business hours, inspect that information if the
information does not also relate to someone else.
(2) The parent or guardian of a person under 18 years
of age in respect of whom information is kept in a
Register under this Division may, at any time
during ordinary business hours, inspect that
information, if the information does not also relate
to someone other than the child.
Division 2—Information to be given by licensed centres and
doctors
71. Information recorded by licensed centre or doctor
which is to be given to persons undergoing donor
treatment procedures
(1) Before a woman undergoes a donor treatment
procedure at a licensed centre, the designated
officer of the centre must, in writing, offer to give
information required to be recorded in the
Register kept at the centre to the woman and her
husband, about a donor whose gametes or a
zygote or embryo formed from his or her gametes
are to be or may be used in the procedure.
S. 71(1)
amended by
No. 37/1997
s. 19(d).
Penalty: 50 penalty units.
(2) Before a woman undergoes a donor treatment
procedure at a licensed centre, she and her
husband may ask the designated officer to give to
them information required to be recorded in the
Register about a donor, being either or both of the
following—
(a) information about the donor (other than
information from which the donor will or
may be identified);
(b) information which will or may identify the
donor.
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S. 71(2)
amended by
No. 37/1997
s. 19(d).
Infertility Treatment Act 1995
Act No. 63/1995
s. 71
(3) On receiving a request for information under subsection (2)(a), the designated officer must, in
writing give to the woman and her husband any
such information recorded in the Register kept at
the centre.
S. 71(3)
amended by
No. 37/1997
s. 19(d).
Penalty: 50 penalty units.
(4) On receiving a request for information under subsection (2)(b), the designated officer must give
any such information recorded in the Register
kept at the centre, if the donor has first consented
to the giving of that information.
Penalty: 50 penalty units.
(5) Information given under sub-section (4) must be
given—
(a) in writing; and
(b) in accordance with any conditions or
limitations imposed by the donor.
S. 71(6)
amended by
No. 37/1997
s. 19(d).
(6) Before a woman undergoes a donor insemination
at a place other than a licensed centre, the doctor
who is to carry out the procedure must, in writing,
offer to give information required to be recorded
in the Register kept by the doctor to the woman
and her husband about the donor of the sperm
which is to be or may be used.
Penalty: 50 penalty units.
S. 71(7)
amended by
No. 37/1997
s. 19(d).
(7) Before a woman undergoes a donor insemination
at a place other than a licensed centre, she and her
husband may ask the doctor to give to them
information required to be recorded in the
Register about the donor, being either or both of
the following—
(a) information about the donor (other than
information from which the donor will or
may be identified);
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s. 72
(b) information which will or may identify the
donor.
(8) On receiving a request for information under subsection (7)(a) the doctor must, in writing, give to
the woman and her husband any such information
recorded in the Register kept by the doctor.
S. 71(8)
amended by
No. 37/1997
s. 19(d).
Penalty: 50 penalty units.
(9) On receiving a request for information under subsection (7)(b) the doctor must give to the woman
and her husband any such information recorded in
the Register kept by the doctor if the donor has
first consented to the giving of that information.
S. 71(9)
amended by
No. 37/1997
s. 19(d).
Penalty: 50 penalty units.
(10) Information given under sub-section (9) must be
given—
(a) in writing; and
(b) in accordance with any conditions or
limitations imposed by the donor.
Penalty: 50 penalty units.
72. Information recorded by licensed centre or doctor
which is to be given to donors
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(1) A donor may ask the designated officer of a
licensed centre at which a donor treatment
procedure is proposed to be carried out, for any
information required to be recorded in the
Register kept at the centre, if his or her gametes,
or a zygote or embryo formed from such gametes,
are to be used in the procedure, about the woman
on whom the procedure is proposed to be carried
out and her husband, being either or both of the
following—
S. 72(1)
amended by
No. 37/1997
s. 19(d).
(a) information about that woman or her
husband (other than information from which
the woman or her husband will or may be
S. 72(1)(a)
amended by
No. 37/1997
s. 19(d).
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s. 72
identified); and
S. 72(1)(b)
amended by
No. 37/1997
s. 19(d).
(b) information which will or may identify that
woman or her husband.
(2) On receiving a request for information under subsection (1)(a) the designated officer must, in
writing, give to the donor any such information
recorded in the Register kept at the centre.
Penalty: 50 penalty units.
S. 72(3)
amended by
No. 37/1997
s. 19(d).
(3) On receiving a request for information under subsection (1)(b) the designated officer must give any
such information recorded in the Register kept at
the centre, if the woman and her husband have
first consented to the giving of that information.
Penalty: 50 penalty units.
(4) Information given under sub-section (3) must be
given—
(a) in writing; and
S. 72(4)(b)
amended by
No. 37/1997
s. 19(d).
(b) in accordance with any conditions or
limitations imposed by the woman or her
husband.
S. 72(5)
amended by
No. 37/1997
s. 19(d).
(5) A donor may ask a doctor who proposes to carry
out a donor insemination at a place other than a
licensed centre using sperm from that donor for
information required to be recorded in the
Register kept by the doctor about the woman who
is to or may undergo the insemination and her
husband, being either or both of the following—
S. 72(5)(a)
amended by
No. 37/1997
s. 19(d).
(a) information about that woman or her
husband (other than information from which
the woman or her husband will or may be
identified);
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Infertility Treatment Act 1995
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(b) information which will or may identify that
woman or her husband.
(6) On receiving a request for information under subsection (5)(a) the doctor must, in writing, give to
the donor any such information recorded in the
Register kept by the doctor.
s. 73
S. 72(5)(b)
amended by
No. 37/1997
s. 19(d).
Penalty: 50 penalty units.
(7) On receiving a request for information under subsection (5)(b), the doctor must give any such
information recorded in the Register kept at the
centre, if the woman and her husband have first
consented to the giving of that information.
S. 72(7)
amended by
No. 37/1997
s. 19(d).
Penalty: 50 penalty units.
(8) Information given under sub-section (7) must be
given—
(a) in writing; and
(b) in accordance with any conditions or
limitations imposed by the woman or her
husband.
73. Information about pregnancy, birth or transfer
(1) A donor may ask the designated officer of a
licensed centre where gametes of the donor or a
zygote or an embryo formed from gametes of the
donor may have been used in a treatment
procedure at the centre whether or not a
pregnancy has occurred or a person has been born
as a result of such a procedure.
(2) On receiving a request under sub-section (1), the
designated officer must, in writing, advise the
donor, as to whether or not, to the designated
officer's knowledge, a pregnancy has occurred or
a person has been born as a result of such a
procedure.
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S. 72(8)(b)
amended by
No. 37/1997
s. 19(d).
Infertility Treatment Act 1995
Act No. 63/1995
s. 74
(3) A donor may ask a doctor who carries out donor
insemination at a place other than a licensed
centre who may have used sperm from the donor
in such a procedure as to whether or not a
pregnancy has occurred or a person has been born
as a result of such a procedure.
(4) On receiving a request under sub-section (3), the
doctor must, in writing, advise the donor as to
whether or not, to the doctor's knowledge, a
pregnancy has occurred or a person has been born
as a result of such a procedure.
(5) At the request of a donor, the designated officer of
a licensed centre where the donor's gametes were
stored or kept or donated, or a doctor who may
have kept or received the donor's gametes must, if
the gametes or a zygote or embryo formed from
the gametes have been transferred to another
place, give to the donor the name of the doctor to
whom or the licensed centre or other place to
which the gametes, zygote or embryo have been
transferred.
Penalty applying to this section: 50 penalty units.
Division 3—Information to be given from central register
74. Application by parents for information contained on
central register
(1) The parents or guardian of a person born as a
result of a donor treatment procedure may apply
to the Authority for information required to be
recorded in the central register about a donor
whose gametes were used in the procedure or
whose gametes were used to form a zygote or an
embryo used in the procedure, being either or both
of the following—
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Infertility Treatment Act 1995
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(a) information about the donor (other than
information from which the donor will or
may be identified);
(b) information which will or may identify the
donor.
(2) An application under this section must—
(a) be in writing; and
(b) be in the prescribed form and accompanied
by the prescribed fee.
75. Authority to give information about donor to parents
(1) On receiving an application for information under
section 74(1)(a) the Authority must give, in
writing, any such information recorded in the
central register to the applicant, if the Authority is
satisfied that the applicant has been offered
counselling about the potential consequences of
the disclosure of that information from a
counsellor who has been approved under Part 8 to
give counselling to persons applying for
information under section 74.
(2) On receiving an application under section 74(1)(b)
the Authority must give, in writing, any such
information recorded in the central register to the
applicant—
(a) if the donor has first consented to the giving
of that information; and
(b) if the information is given in accordance
with any conditions or limitations imposed
by the donor; and
(c) if the Authority is satisfied that the applicant
has received counselling about the potential
consequences of the disclosure of that
information from a counsellor who has been
approved under Part 8 to give counselling to
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s. 75
Infertility Treatment Act 1995
Act No. 63/1995
s. 76
persons applying for information under
section 74.
(3) The Authority must make reasonable efforts to
find the person whose consent is required under
sub-section (2).
(4) Before seeking the consent for the giving of
information to an applicant under sub-section (2),
the Authority must advise the person whose
consent is required that he or she may need
counselling and provide him or her with the
names of counsellors approved under Part 8 to
give counselling to persons in respect of whom an
application has been made under section 74.
(5) If a person consents to the giving of the
information under sub-section (2), before the
information is given the Authority must make
reasonable efforts to advise that person that the
information is about to be given.
76. Application by donor for information about persons
born as a result of donor treatment procedures and
parents of such persons
(1) A donor may apply to the Authority for
information required to be recorded in the central
register about any person born as a result of a
treatment procedure, and a parent or the parents of
any such person, if gametes produced by the
donor, or a zygote or an embryo formed from
gametes produced by the donor were used in the
treatment procedure, being any or all of the
following—
(a) information about the person born as a result
of the procedure (other than information
from which the person will or may be
identified);
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(b) information which will or may identify the
person born as a result of the procedure;
(c) information about a parent or both parents
(other than information from which either or
both of them will or may be identified);
(d) information which will or may identify either
or both of the parents.
(2) An application under this section must—
(a) be in writing; and
(b) be in the prescribed form and accompanied
by the prescribed fee.
77. Authority to give information about person born as a
result of a donor treatment procedure
(1) On receiving an application for information under
section 76(1)(a) the Authority must give, in
writing, any such information recorded in the
central Register to the applicant, if the Authority
is satisfied that the applicant has been offered
counselling about the potential consequences of
the disclosure of that information from a
counsellor approved under Part 8 to give
counselling to persons applying for information
under 76.
(2) On receiving an application for information under
section 76(1)(b) the Authority must give, in
writing, any such information recorded in the
central register to the applicant—
(a) if—
(i) in the case of a person who is under 18
years of age, both parents or a guardian
of that person have first consented to
the giving of that information; or
(ii) in the case of a person who has attained
the age of 18 years, the person has
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s. 77
Infertility Treatment Act 1995
Act No. 63/1995
s. 78
consented to the giving of that
information; and
(b) if the information is given in accordance
with any conditions or limitations imposed
by each person who has consented; and
(c) if the Authority is satisfied that the applicant
has received counselling about the potential
consequences of the disclosure of the
information from a counsellor approved
under Part 8 to give counselling to persons
applying for information under 76.
(3) The Authority must make reasonable efforts to
find a person whose consent is required under
sub-section (2).
(4) Before seeking consent to the giving of
information to an applicant under sub-section (2),
the Authority must advise a person whose consent
is required that he or she may need counselling
and provide the person with the names of
counsellors approved under Part 8 to give
counselling to a person in respect of whom an
application has been made under section 76.
(5) If a person consents to the giving of the
information under sub-section (2), before the
information is given the Authority must make
reasonable efforts to advise that person that the
information is about to be given.
78. Authority to give information about parents
(1) On receiving an application for information under
section 76(1)(c) the Authority must give, in
writing, any such information recorded in the
central register to the applicant, if the Authority is
satisfied that the applicant has been offered
counselling about the potential consequences of
the disclosure of that information from a
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counsellor who has been approved under Part 8 to
give counselling to persons applying for
information under section 76.
(2) On receiving an application for information under
section 76(1)(d) the Authority must give, in
writing, any such information recorded in the
central register about a parent to the applicant—
(a) if the person has first consented to the giving
of that information; and
(b) if information would also identify the person
born as the result of a donor treatment
procedure and the person is over 18 years of
age, that person has consented to the giving
of that information; and
(c) if information will or may also identify the
other parent, that parent has also consented
to the giving that information; and
(d) if the information is given in accordance
with any conditions or limitations imposed
by each person who has consented; and
(e) if the Authority is satisfied that the applicant
has received counselling about the potential
consequences of the disclosure of the
information from a counsellor who has been
approved under Part 8 to give counselling to
persons applying for information under
section 76.
(3) The Authority must make reasonable efforts to
find a person whose consent is required under
sub-section (2).
(4) Before seeking consent to the giving of
information to an applicant under sub-section (2),
the Authority must advise a person whose consent
is required that he or she may need counselling
and provide the person with the names of
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s. 78
Infertility Treatment Act 1995
Act No. 63/1995
s. 79
counsellors approved under Part 8 to give
counselling to a person in respect of whom an
application has been made under 76.
(5) If a person consents to the giving of the
information under sub-section (2), before the
information is given the Authority must make
reasonable efforts to advise that person that the
information is about to be given.
79. Application by person born as a result of a donor
treatment procedure or descendant for information
about donor
(1) A person who is or may have been born as the
result of a donor treatment procedure or who is
the descendant of such a person may, on attaining
the age of 18 years, apply to the Authority for
information required to be recorded in the central
register about a donor whose gametes were used
in the procedure or whose gametes were used to
form a zygote or embryo used in the procedure,
being either or both of the following—
(a) information about the donor (other than
information from which the donor will or
may be identified);
(b) information which will or may identify the
donor.
(2) An application under this section must—
(a) be in writing; and
(b) be in the prescribed form and accompanied
by the prescribed fee.
80. Authority to give information about donor to person
born as the result of a procedure
(1) On receiving an application for information under
section 79(1)(a) the Authority must give, in
writing, any such information recorded in the
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central register to the applicant, if the Authority is
satisfied that the applicant has been offered
counselling about the potential consequences of
the disclosure of that information from a
counsellor who has been approved under Part 8 to
give counselling to persons applying for
information under section 79.
(2) On receiving an application for information under
section 79(1)(b), the Authority must—
(a) give, in writing, any such information
recorded in the central register to the
applicant if it is satisfied that the applicant
has received counselling about the potential
consequences of the disclosure of the
information from a counsellor who has been
approved under Part 8 to give counselling to
persons applying for information under
section 79; and
(b) prior to the giving of the information make
reasonable efforts—
(i) to advise the donor that the information
is about to be given; and
(ii) to advise the donor that he or she may
need counselling and provide the donor
with the names of counsellors approved
under Part 8 to give counselling to
persons in respect of whom
applications have been made under
section 79.
81. Counselling not applicable in certain circumstances
The Authority may waive a requirement in this
Division requiring it to be satisfied that an
applicant for information has received counselling
if it is satisfied that the applicant is already aware
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Infertility Treatment Act 1995
Act No. 63/1995
s. 82
of the substance of the information to be given
and that counselling is not appropriate.
82. Donor treatment procedure information register
(1) The Authority shall establish and maintain a
donor treatment procedure information Register.
(2) There shall be entered in the Register—
(a) the names and addresses of persons,
including—
(i) persons born as a result of donor
treatment procedures;
(ii) the descendants of persons born as a
result of donor treatment procedures;
(iii) donors;
(iv) women who have undergone donor
treatment procedures and their
husbands; and
(v) the relatives of persons described in
this section—
who have requested the Authority in writing
to so enter their names and addresses; and
(b) in relation to each person so registered, the
wishes of the person in relation to—
(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
in the future be, entered in the Register
obtaining information about him or her.
(3) The Authority shall from time to time publicise
the establishment and purpose of the Register.
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(4) The Authority shall upon the request of a person
whose name is entered in the Register, amend or
cancel the entry relating to that person, or give the
person a copy of the entry.
(5) The Register is not part of the central register.
(6) The Register shall be kept in accordance with the
regulations.
Division 4—General provisions
83. Information
Any reference to the giving of information which
will or may identify a person in this Act or the
regulations means the giving, disclosing or
publication of information from which a person
will or may be identified, directly or indirectly.
84. Waiver of fees
The Authority may waive or reduce, in a
particular case or class of cases, fees that would
otherwise be payable to it under this Part or the
regulations.
85. Disclosure of information to a medical practitioner
If a person has applied for information under this
Part or the regulations, and the person to whom
the application has been made considers that the
disclosure of information which is of a medical or
psychiatric nature to the applicant might be
prejudicial to the physical or mental health or
well-being of the applicant, the person to whom
the application has been made may decide not to
disclose that information to the applicant but to
disclose it instead to a medical practitioner
nominated by the applicant.
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s. 83
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Act No. 63/1995
s. 86
86. Records of information given
A person who gives any information under this
Division or Division 2 or 3 or the regulations must
keep a record of the person to whom the
information has been given and of the information
given.
Penalty: 50 penalty units.
87. Consent
(1) In this Division, Divisions 2 and 3 and the
regulations, if consent is required to be given and
the person to whom the consent relates 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.
(2) In this Division and the regulations, if consent is
required to be given and the person to whom the
consent relates is a person under the age of 18
years, the consent may be given by both parents of
the child or by the child's guardian.
(3) In this Division, Divisions 2 and 3 and the
regulations, when information may only be given
with consent, information must not be given if that
consent is subsequently withdrawn in writing
prior to the giving of the information.
88. Authority may refuse to give information
If an application for information about a person
under the age of 18 years has been made under
this Part or the regulations which requires the
consent of the parent or guardian of that person,
and if that person has advised the Authority that
he or she does not want the information to be
given by the Authority, the Authority may refuse
the application.
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89. Confidentiality—information which may identify
(1) A listed person must not, except to the extent
necessary—
(a) to carry out functions under this Act or any
other Act or regulations made under this Act
or any other Act; or
(b) to give any information he or she is
expressly authorised, permitted or required
to give under this or any other Act (other
than section 141(3) of the Health Services
Act 1988) or regulations made under this
Act or any other Act—
give to any other person, whether directly or
indirectly, any information acquired by reason of
being a listed person if—
(c) a person who is or has been a donor, or a
woman who is to undergo, or may undergo, a
treatment procedure or who has undergone a
treatment procedure or a man who is or has
been the husband of such a person, or a
person who was born as a result of a
treatment procedure, will or may be
identified from that information; or
(d) the information is the name or address
entered in the Register kept under section 82
in relation to a person not referred to in
paragraph (c).
Penalty: 50 penalty units.
(2) Sub-section (1) does not apply—
(a) subject to sub-sections (5), (6) and (7), to the
giving of information with the prior consent
in writing of the person about whom the
information relates and any other person who
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will or may be identified from the giving of
that information; or
(b) to the giving of information to a court or
tribunal in the course of legal proceedings;
or
(c) to the giving of information pursuant to an
order of a court or tribunal made under
another Act or law; or
(d) to the giving of information as described in
section 141(3)(d), (f) or (ga) of the Health
Services Act 1988 in relation to all of the
persons referred to in sub-section (1)(c); or
(e) to the giving of information as described in
section 141(3)(c) of the Health Services Act
1988 in relation to a patient who is a woman
that is to undergo, or may undergo, a
treatment procedure or who has undergone a
treatment procedure or who is the husband of
such a woman; or
(f) to the giving of information with the consent
of the Minister and in accordance with the
conditions specified by the Minister, if the
Minister is of the opinion that it is in the
public interest that the information be so
given; or
(g) to the giving of information to the extent
reasonably required to enable the
enforcement or investigation of the criminal
law; or
(h) where the information relates to a woman
who is to undergo, or may undergo, a
treatment procedure or who has undergone a
treatment procedure or to the husband of
such a woman, the giving of information
where it is reasonably required for the
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medical treatment of the woman or her
husband; or
(i) to the giving of information to another listed
person to the extent necessary to carry out
any procedure, research or other activity
authorised or regulated by this Act.
(3) In this section—
"listed person" means—
(a) the licensee of a licensed centre and
any person who is or has been a
member or officer of the governing
body of that licensee; or
(b) a person who—
(i) is or has been involved in the
management of, engaged or
employed at or worked for or at a
licensed centre; or
(ii) is or has been a doctor approved
under Part 8 to carry out donor
insemination at a place other than
a licensed centre or any person
who is or has been engaged or
employed by or worked for or
with such a doctor; or
(c) a person who is or had been a
designated officer or an approved
doctor, scientist or counsellor; or
(d) any person who carries out or has
carried out or is or has been involved in
the carrying out of—
(i) a treatment procedure, whether or
not at a licensed centre; or
(ii) research under Part 3 at a licensed
centre; or
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(iii) anything authorised to be done
under this Act;
(iv) any other function under this Act;
or
(e) the Authority established under this Act
or any person who is or has been a
member of that Authority or employed
or engaged to assist the Authority to
carry out its functions; or
S. 89(3)(f)
repealed by
No. 37/1997
s. 5(1)(c).
*
*
*
*
*
(g) any person who is or has been an
authorised officer; or
(h) any person who is or has been involved
in the administration of this Act or any
corresponding previous enactment.
(4) A reference to any other Act or to a regulation
made under any other Act in sub-section (1) does
not include a reference to—
(a) a provision which requires or permits the
giving of information with the consent of the
person to whom the information relates or
the consent of the senior available next of
kin of that person, if he or she has died, or of
the consent of a parent or guardian of such a
person; or
(b) the Freedom of Information Act 1982 or a
regulation made under that Act, except to the
extent provided for in section 92.
(5) Consent cannot be given by a person under subsection (2)(a) to the giving of information to
another person—
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(a) where that other person has made or may
make an application for that information
under Divisions 2 or 3 or the regulations in
relation to that person; or
(b) in the prescribed circumstances.
(6) Consent cannot be given under sub-section (2)(a)
by a person described in sub-section (1)(c) to the
giving of the entry in the Register kept under
section 82 in relation to the address of that person,
or to the giving of that person's current address, to
another person who has made or may make an
application for information in relation to that
person under Division 3 or the regulations, unless
the person who is seeking the information has
made such an application under the relevant
provisions or the regulations (as the case may be)
and has been given the name of the person to be
identified in accordance with the Act or the
regulations.
(7) To the extent that information will or may identify
both a person who was born as a result of a
treatment procedure and any other person
described in sub-section (1), the information may
be given under sub-section (2)(a) if—
(a) the person to whom the information relates
was born as a result of the procedure, and
has attained the age of 18 years; and
(b) that person consents to the giving of the
information—
notwithstanding that the other person who will or
may be identified does not consent.
90. Confidentiality—non-identifying information
(1) A listed person (within the meaning of section 89)
must not give to another person, directly or
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indirectly, any information acquired by reason of
being a listed person which can be the subject
matter of an application under Divisions 2 or 3 or
the regulations (other than information from
which a person will or may be identified), where
that person can make or has made an application
for that information under Divisions 2 or 3 or the
regulations, except in accordance with those
provisions or section 184, or to the extent
necessary—
(a) to carry out other functions under this Act or
any other Act or a regulation made under this
Act or any other Act; or
(b) to give information he or she is otherwise
expressly authorised, permitted or required
to give under this or any other Act or a
regulation made under this Act or any other
Act.
Penalty: 50 penalty units.
(2) Sub-section (1) does not apply to—
(a) the giving of information with the consent of
the Minister and in accordance with the
conditions specified by the Minister, if the
Minister is of the opinion that it is in the
public interest that the information be so
given; or
(b) the giving of information pursuant to an
order of a court or tribunal made under
another Act or law.
(3) A reference to any other Act or to a regulation
made under any other Act in sub-section (1) does
not include a reference to the Freedom of
Information Act 1982 or a regulation made under
that Act, except to the extent provided for in
section 92.
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91. Closure of court or tribunal
(1) If, in a matter before a court or tribunal, evidence
is proposed to be given of any information
referred to in section 89(1)(c) or (d), the court or
tribunal, in addition to any other powers the court
or tribunal may have, if it is of the opinion that it
is necessary to do so because it is appropriate to
protect the privacy of the person to whom the
information relates, may—
(a) order that the whole or any part of the
proceedings be heard in closed session; or
(b) order that only persons specified by it may
be present during the whole or any part of
the proceedings; or
(c) make an order prohibiting the publication of
a report of the whole or any part of the
proceedings or of any information derived
from the proceedings.
(2) If an order has been made under this section, the
court or tribunal must cause a copy of it to be
posted on a door of, or in another conspicuous
place at, the place at which the court or tribunal is
being held.
(3) A person must not contravene an order made and
posted under this section.
Penalty: 50 penalty units.
92. Exemption from Freedom of Information Act 1982
(1) Subject to sub-sections (2) and (3), 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
Part) about or provided by a person as—
(i) a donor or the spouse of a donor; or
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(ii) a woman who is to undergo, or may
undergo, a treatment procedure or who
has undergone a treatment procedure;
or
(iii) a person who is or has been the
husband of a woman referred to in
paragraph (ii); or
(iv) a person who was born as a result of a
treatment procedure; or
(b) it is the Register, or part of the Register,
under section 82.
(2) A document is not an exempt document under
sub-section (1)(a) to the extent that it only
contains information—
(a) about or provided by the applicant and no
other person; or
(b) about or provided by one person only and the
applicant is that person's guardian.
(3) A document that contains information about or
provided by a person referred to in sub-section
(1)(a) (other than information from which that
person will or may be identified) is not an exempt
document in the prescribed circumstances.
_______________
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PART 8—LICENCES, APPROVALS AND DESIGNATED
OFFICERS
Division 1—Licensing of places
93. Licence application—hospitals and day procedure
centres
An application may be made by—
(a) a public hospital; or
(b) a denominational hospital, or, if the hospital
is not a legal person, a nominee of the
hospital who is a legal person; or
(c) the proprietor of a private hospital or day
procedure centre, or, if the proprietor is not a
legal person, a nominee of the proprietor
who is a legal person—
to the Authority for a licence for all or any of the
following activities at the premises of the hospital
or centre—
(d) the carrying out of treatment procedures or
treatment procedures of a particular kind;
(e) the forming of an embryo outside the body
of a woman;
(f) the storage of gametes, zygotes or embryos;
(g) the undertaking of approved research of the
kind described in section 22(1)(a) or (b).
94. Licence application—research institutions
An application may be made by—
(a) a university; or
(b) any other research or educational institution
or institution where research is undertaken,
or the proprietor of such an institution, or the
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governing body of such an institution, where
the institution, proprietor or governing body
is a legal person; or
(c) in relation to an institution described in
paragraph (b), where the institution,
proprietor and governing body are not legal
persons, a nominee of the proprietor or
governing body who is a legal person—
to the Authority for a licence for either or both of
the following activities at premises of the
university or institution—
(d) the undertaking of approved research of the
kind described in section 22(1)(a) or (b);
(e) the storage of gametes, zygotes or embryos.
95. Designation of principal doctor or principal scientist
(1) On an application under section 93(g) or 94(d) or
sub-section (2) or (3) of this section, the
Authority, after considering nominations from the
applicant, must designate a doctor or scientist
approved under Division 3 to carry out research or
a person who has applied to be such a doctor or
scientist to be the principal doctor or principal
scientist responsible for the undertaking of the
approved research at the premises to which the
application relates.
(2) If, during the course of the licence, the principal
doctor or principal scientist dies, resigns, is
suspended or ceases to be a approved under
Division 3 to carry out research, the licensee must,
within 14 days after that event, apply to the
Authority to designate another doctor or scientist
who has been approved under Division 3 to carry
out research to be the principal doctor or principal
scientist or to be that doctor or scientist during the
period of suspension, as the case requires.
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(3) If, during the course of the licence, the licensee
wishes to make any other change in the principal
doctor or principal scientist, the licensee must first
apply to the Authority to designate another doctor
or scientist to be the principal doctor or principal
scientist.
96. Licence applications—general procedure
(1) An application for a licence must—
(a) be in writing; and
(b) specify the activities for which the licence is
sought; and
(c) be in the form determined by the Authority
and accompanied by the fee determined by
the Authority.
(2) The Authority may require the applicant to
provide further information or material in respect
of the application and may, with the consent of the
applicant, enter and inspect any premises in
respect of which a licence application has been
made.
(3) The Authority may refuse to consider an
application for a licence until the information or
material requested under sub-section (2) is
provided.
(4) The Authority may refuse to grant an application
for a licence if the applicant refuses to consent to
an entry or inspection of premises under subsection (2).
97. Authority may grant or refuse licence
(1) The Authority may grant or refuse to grant a
licence to the applicant.
(2) The Authority may determine a fee that is payable
by the applicant prior to the issuing of a licence.
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(3) A licence authorises the carrying out of the
activities specified in the licence at the premises
specified in the licence.
(4) The Authority must not—
(a) grant a licence in relation to an activity
described in section 93(g) or 94(d) unless it
is satisfied that, if a person has been
designated under section 95 who was not, at
the time a scientist approved under Division
3 to carry out research or a doctor approved
under Division 3 to carry out research, that
person has been granted approval under
Division 3 to carry out research; or
(b) grant a licence in relation to an activity
described in section 93(d), (e) or (g) or 94(d)
unless it is satisfied that the applicant, in
order to approve and monitor the licensed
activities at the premises to be licensed, has
established an ethics committee, or is able to
use the services of an ethics committee
established by another licensee; or
(c) grant a licence unless it is satisfied that there
are facilities at the premises to be licensed
which are appropriate for the carrying out of
the activities for which the licence is sought.
Division 2—Approval to carry out research
98. Application for approval to carry out research
(1) A doctor or scientist who has been approved
under Division 3 to carry out research may apply
to the Authority for approval to carry out research
of the kind described in section 22(1)(a) or (b).
(2) A doctor or scientist may apply to the Authority
for approval to carry out research of the kind
described in section 22(2)(a), (b) or (c).
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(3) An application under this section must—
(a) be in writing; and
(b) be in the form determined by the Authority
and accompanied by the fee determined by
the Authority; and
(c) specify the research proposed to be carried
out, and the premises at which it is to be
carried out.
(4) The Authority may require the applicant to
provide further information or material in respect
of the application and may, with the consent of the
applicant, enter and inspect any premises in
respect of which the application has been made.
(5) The Authority may refuse to consider an
application for approval until the information or
material requested under sub-section (4) is
provided.
(6) The Authority may refuse to grant an application
for approval if the applicant refuses to consent to
an entry or inspection of premises under subsection (3).
*
*
*
*
*
S. 98(7)(8)
repealed by
No. 37/1997
s. 5(1)(d).
99. Approval by Authority to carry out research
(1) The Authority may grant or refuse an application
for approval under section 98.
*
*
*
*
*
(3) The Authority may determine a fee that is payable
by the applicant prior to the issue of an approval.
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S. 99(1)
amended by
No. 37/1997
s. 5(1)(e)(i).
S. 99(2)
repealed by
No. 37/1997
s. 5(1)(e)(ii).
Infertility Treatment Act 1995
Act No. 63/1995
s. 100
(4) An approval authorises the holder or a person
working under the direction or supervision of the
holder to carry out the research specified in the
approval at the premises specified in the approval.
100. Report of results of research to Authority
(1) A doctor or scientist who has received the
approval of the Authority under this Division
must—
(a) if the research does not go on for more that
12 months, report the results of that research
to the Authority as soon as possible after
completing that research; or
(b) if the research goes on for more than 12
months, report the results of that research to
the Authority, at the intervals determined by
the Authority and advised in writing to the
doctor or scientist.
Penalty: 50 penalty units.
S. 100(2)
repealed by
No. 37/1997
s. 5(1)(f).
*
*
*
*
*
Division 3—Approval of persons carrying out treatment
procedures or research
101. Application for approval of doctor or scientist
(1) A doctor may apply to the Authority for
approval—
(a) to carry out treatment procedures of a
particular kind; or
(b) to form an embryo outside the body of a
woman; or
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(c) to carry out and be responsible for the
carrying out of approved research under
section 22(1).
(2) A scientist of an institution may apply to the
Authority for approval—
(a) to carry out and be responsible for the
carrying out of approved research under
section 22(1); or
(b) to form an embryo outside the body of a
woman.
(3) An application under this section must—
(a) be in writing; and
(b) be in the form determined by the Authority
and accompanied by the fee determined by
the Authority.
(4) The Authority may require the applicant to
provide further information or material in respect
of the application.
(5) The Authority may refuse to consider an
application for a licence until the information or
material requested under sub-section (4) is
provided.
102. Authority may grant or refuse approval
(1) The Authority may grant or refuse an application
for approval under section 101.
(2) The Authority may determine a fee that is payable
by the applicant prior to the issue of the approval.
(3) An approval authorises the holder to carry out the
activities specified in the approval.
(4) In relation to donor insemination, an approval
must specify whether or not the doctor may carry
out donor insemination at a place other than a
licensed centre.
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Division 4—Approved counsellors
103. Application for approval of counsellors
(1) A person who wishes to be an approved
counsellor may apply to the Authority for
approval under this Division.
(2) The application must—
(a) be in writing; and
(b) in the form approved by the Authority and
accompanied by the fee determined by the
Authority.
(3) The Authority may require an applicant to provide
further information or material in respect of an
application.
(4) The Authority may refuse to consider an
application for approval until the information or
material requested under sub-section (2) is
provided.
104. Authority may grant or refuse approval
(1) The Authority may grant or refuse an application
for approval under section 103.
(2) The Authority may determine a fee that is payable
by the applicant prior to the issue of the approval.
(3) An approval authorises the holder to act as an
approved counsellor—
(a) for the kinds of treatment procedures,
research or other circumstances specified in
the approval;
(b) for the classes of people specified in the
approval.
Division 5—General provisions about licences, approvals
and exemptions
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105. Form and content of licence or approval
(1) A licence or approval under this Part must be in
writing.
(2) A licence or approval must specify—
(a) the matters required to be specified by this
Part; and
(b) any conditions, limitations or restrictions—
(i) prescribed for that class of licences or
approvals; or
(ii) imposed under section 106 or 107; and
(c) any other prescribed information.
106. Power of Authority to impose conditions
(1) In an approval or a licence granted or renewed
under this Part, the Authority may impose
conditions, limitations or restrictions.
(2) The matters about which the Authority may
impose conditions, limitations or restrictions
include but are not limited to all or any of the
following—
(a) the collection, use, storage and removal from
storage of gametes and the formation, use or
storage of embryos and zygotes;
(b) the manner in which procedures ancillary to
the performance of treatment procedures are
to be carried out;
(c) the manner in which approved research or
treatment procedures are to be carried out;
(d) the manner in which diagnostic services
related to infertility or treatments regulated
by this Act for genetic abnormality or
disease may be performed;
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(e) the obtaining of information under Parts 2, 3
and 7;
(f) counselling required by this Act;
(g) the manner in which research under section
22(3) is performed by doctors or scientists
approved to perform research under Division
3 or at a place licensed under Division 1;
(h) the provision of information by doctors
under Parts 2 and 3.
107. Provision of information
It is a condition of each licence or approval or
exemption that the licensee or approval holder or
exemption holder must, at the written direction of
the Authority, provide to the Authority in the form
and at the intervals specified in the direction—
(a) copies of or extracts from any information
which the licensee or approval holder or
exemption holder is required to record under
this Act; and
(b) any other information relating to activities at
the licensed centre or the premises of the
approved person or the premises where the
research or approved or exempt activity is
carried out which the Authority considers
relevant to the carrying out of the Authority's
functions under this Act.
108. Variation of conditions of licences or approvals under
this Part
(1) The Authority may, by notice in writing given to
the licensee or approval holder, vary any
condition, limitation or restriction of the licence or
an approval under Part 8.
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(2) The Authority cannot under this section vary a
prescribed condition, limitation or restriction
included in the licence or approval.
(3) Before varying a condition, limitation or
restriction of the licence or approval, the
Authority must allow the licensee or approval
holder the opportunity to make written
submissions.
(4) The Authority must have regard to any
submissions made under sub-section (3) and may
have regard to any other relevant matters.
109. Variation of approvals and exemptions under Part 5
(1) An approval or exemption under sections 40, 51,
52, or 56 or the terms or conditions of such an
approval or exemption may be amended or varied
by the Authority, by notice in writing given to the
holder of the approval or exemption.
(2) Before making an amendment or variation under
this section, the Authority must allow the approval
or exemption holder the opportunity to make
written submissions.
(3) The Authority must have regard to any
submissions made under sub-section (2) and may
have regard to any other relevant matters.
110. Offence of failing to comply with terms etc. of licence
or approval
A person to whom a licence or approval has been
granted or renewed under this Part or section 51
or 52 must—
(a) comply with the terms, conditions,
limitations or restrictions of the licence or
approval; or
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s. 111
(b) if the condition, limitation or restriction must
be complied with by another person, take
reasonable steps to ensure that the term,
condition or restriction is complied with.
Penalty: 240 penalty units or 2 years
imprisonment or both.
111. Duration and renewal of licence or approval
(1) If the Authority determines that a fee is payable
by an applicant as described in section 97(2),
99(3), 102(2) or 104(2), the licence or approval in
question does not take effect until the fee is paid
and the licence or approval is issued.
(2) A licence or approval continues in force for the
period determined by the Authority and specified
in the licence or approval, which may be either—
(a) for that licence or approval; or
(b) for the class of licences or approvals of
which that licence or approval is one.
(3) A licence or approval granted under Division 1, 3
or 4 may be renewed.
112. Application for renewal
(1) An application for renewal of a licence or
approval—
(a) must be made to the Authority, in the time
specified by the Authority, before the
existing licence or approval expires; and
(b) must be made in the form determined by the
Authority; and
(c) must be accompanied by the fee determined
by the Authority;
(d) must comply in all other respects with the
requirements for an application for a licence
or approval under this Part.
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(2) Subject to sub-section (4), sections 95, 96(2), (3)
and (4), 97, 101(4) and (5), 102, 103 (3) and (4)
and 104 and the prescribed provisions (if any)
apply to the renewal of a licence or approval.
(3) This Division and any other provision of this Act
or the regulations that relates to a licence or
approval applies to a licence or approval that has
been renewed, unless the contrary intention
appears.
(4) The Authority may grant a temporary renewal
even if it is not satisfied that a renewal is
appropriate, pending the outcome of an
investigation, inquiry or other matter commenced
or under consideration by the Authority, prior to
the expiry of the approval or licence; and for this
purpose that investigation, inquiry or other matter
or consideration may continue to apply, so that the
Authority may consider whether to suspend or
revoke the renewed licence or approval.
113. Suspension of licence, approval or exemption
(1) The Authority may, by notice in writing given to
the licensee or the approval holder or exemption
holder, suspend a licence or approval or
exemption granted or renewed under this Part or
section 56, either in whole or in part if the
Authority is satisfied that there are reasonable
grounds to do so.
(2) Before suspending a licence or approval, the
Authority must allow the licensee, approval
holder or exemption holder the opportunity to
make written submissions.
(3) The Authority must have regard to any written
submissions made under sub-section (2).
(4) A suspension under this section has effect—
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114
(a) from the time at which notice of it is given to
the licensee, approval holder or exemption
holder; and
(b) for the period determined by the Authority.
114. Immediate suspension
(1) Despite section 113, the Authority may suspend a
licence, approval or exemption referred to in that
provision without allowing the licensee, approval
holder or exemption holder an opportunity to
make submissions if—
(a) the Authority is of the opinion that there is
an overriding public interest which requires
the licence, approval or exemption to be
suspended immediately; and
(b) the Authority has obtained the Minister's
approval to do so.
(2) A suspension under sub-section (1)—
(a) has effect from the time at which notice of it
is given to the licensee, approval holder or
exemption holder; and
(b) remains in force for that period, determined
by the Authority, which must be no longer
than is reasonably necessary to safeguard the
public interest for which the suspension was
imposed.
(3) At any time during the period of the suspension,
the Authority must allow the licensee, approval
holder or exemption holder to make written
submissions about the suspension.
(4) The Authority may revoke the suspension at any
time, and must have regard to any submissions
made under sub-section (3) in determining
whether or not to do so.
115. Cancellation of licence, approval or exemption
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(1) The Authority may, by notice in writing, given to
the licensee, approval holder or exemption holder
cancel a licence or approval or exemption, either
in whole or in part if—
(a) the Authority is satisfied that there are
reasonable grounds to do so; or
(b) without limiting the generality of paragraph
(a)—
(i) in the case of a licence, a person has
been found guilty of an offence against
this Act, the regulations, the Infertility
(Medical Procedures) Act 1984 or the
regulations under that Act, at the
licensed centre (whether before or after
the commencement of this section); or
(ii) in the case of an approval or exemption,
the approved person or a person acting
under his or her supervision or any
other holder of an approval or
exemption has been found guilty of an
offence against this Act, the
regulations, the Infertility (Medical
Procedures) Act 1984, or the
regulations under that Act (whether
before or after the commencement of
this section); or
(iii) in the case of a licence or approved
research, a person has breached this
Act, the regulations, the Infertility
(Medical Procedures) Act 1984 or the
regulations under that Act, at the
premises which are the subject of the
licence or approval (whether before or
after the commencement of this
section); or
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(iv) in the case of an approval or exemption,
the approved person or a person acting
under his or her supervision, or any
other holder of an approval or
exemption has breached this Act, the
regulations, the Infertility (Medical
Procedures) Act 1984 or the
regulations under that Act (whether
before or after the commencement of
this section); or
(v) there has been a breach (whether or not
before or after the commencement of
this section) of a condition, limitation,
restriction or term of a licence,
approval or an exemption or a breach of
a term or condition of an approval
given under the Infertility (Medical
Procedures) Act 1984.
(2) Before cancelling a licence or approval, the
Authority must allow the licensee, approval
holder or exemption holder the opportunity to
make written submissions.
(3) The Authority must have regard to any written
submissions made under sub-section (2).
(4) A cancellation under this section has effect from
the time at which notice of it is given to the
licensee, approval holder or exemption holder.
116. Orders
(1) If the Authority cancels or suspends a licence, the
Authority, having first obtained the Minister's
approval may, by notice in writing given to the
former licensee, make any order that the Authority
thinks fit in relation to all or any of the
following—
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(a) the appointment of an administrator to carry
out the functions of the licensee in relation to
any activities affected by the cancellation or
suspension;
(b) the continuation of any treatment procedures
affected by the cancellation or suspension;
(c) the manner of dealing with gametes, zygotes
or embryos stored at any place for treatment
procedures or for research, and the transfer
of gametes, zygotes or embryos so stored to
a licensed centre;
(d) the directions to be given about the transfer
of research or treatment procedures affected
by the cancellation or suspension to the
person who has agreed to accept the transfer;
(e) the keeping and transfer of records;
(f) any other matter that the Authority considers
relevant.
(2) If the Authority cancels or suspends an approval
under Division 2, the Authority, having first
obtained the Minister's approval may, by notice in
writing given to the licensee or the holder of the
approval to carry out the research, make any order
that the Authority thinks fit in relation to all or
any of the following—
(a) the appointment of an administrator to carry
out the functions of the licensee or holder of
the approval in relation to research affected
by the cancellation or suspension;
(b) the manner of dealing with, and the transfer
of, gametes, zygotes, embryos,
parthenogenetic oocytes or parthenogenes
stored or kept at any place for research;
(c) the directions to be given about the transfer
of research affected by the cancellation or
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suspension to the person who has agreed to
accept the transfer;
(d) the keeping and transfer of records;
(e) any other matter that the Authority considers
relevant.
(3) If the Authority cancels or suspends an approval
under Division 3, the Authority, having first
obtained the Minister's approval, may, by notice
in writing given to the person whose approval has
been cancelled or suspended, make any order that
the Authority thinks fit in relation to all or any of
the following—
(a) the appointment of another person to carry
out the functions of the person whose
approval has been cancelled or suspended in
relation to any activities affected by the
cancellation or suspension;
(b) the continuation of any treatment procedures
or research affected by the cancellation or
suspension;
(c) the directions to be given about the transfer
of research or treatment procedures affected
by the cancellation or suspension to the
person who has agreed to accept the transfer;
(d) the keeping and transfer of records;
(e) any other matter that the Authority considers
relevant.
(4) If the Authority cancels or suspends an approval
or exemption under section 40 or 56, the
Authority, having first obtained the Minister's
approval, may, by notice in writing given to the
person whose approval or exemption has been
suspended or cancelled, make any order that the
Authority thinks fit.
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(5) An order under this section may be subject to any
conditions imposed by the Authority.
(6) A person or body to whom an order made under
this section applies must comply with that order
and its conditions.
Penalty: 50 penalty units.
(7) An order under this section must be published in
the Government Gazette.
(8) An administrator appointed by an order under this
section has all the powers and may exercise any of
the duties of the licensee in relation to the activities
in respect of which the appointment is made.
(9) If an administrator is appointed by an order under
this section the Governor in Council may, on the
recommendation of the Minister, by Order in
Council published in the Government Gazette,
make the administrator the governing body of the
hospital, centre, university or other institution for
the purpose of, and only to the extent necessary,
to enable the carrying out of the activities
specified in the order.
(10) If an administrator is made the governing body of
a hospital, centre, university or other institution as
described in sub-section (9)—
(a) the administrator has all the powers, may
exercise any of the duties, and is subject to
the duties, of the governing body of the
hospital, centre, university, or other
institution for the purpose of, and only to the
extent necessary, to enable the carrying out
of the activities specified in the order; and
(b) the pre-existing governing body of the
hospital, centre, university or other
institution ceases to have any power as a
governing body in relation to those activities
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and cannot override any directions given by
the administrator regarding those activities,
but will otherwise continue to exist as the
governing body and have all its powers.
117. Notification about approvals and licences
(1) The Authority must, in accordance with the
regulations—
(a) give written notice of each approval, renewal
of approval or variation, suspension or
cancellation of approval under this Part to
the licensee of each licensed centre; and
(b) give written notice of each approval under
Division 2 and 4 to a doctor approved to
carry out donor insemination at a place other
than a licensed centre; and
(c) publish notice of each licence or approval
granted under this Part, or renewal, variation,
suspension or cancellation of such an
approval or licence, in the Government
Gazette.
(2) If requested by the Authority in writing, the
designated officer of each licensed centre must
give written notice of any notice given to the
licensee under sub-section (1) to each doctor and
scientist who has been approved under Division 3
or who is working at the centre.
Penalty: 50 penalty units.
118. Notification to Minister
S. 118(1)
amended by
No. 37/1997
s. 5(1)(g).
(1) The Authority must cause the Minister to be
notified immediately of—
(a) any grant or renewal of a licence, approval
or exemption; or
(b) any suspension or cancellation of a licence,
approval or exemption; or
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(c) any variation of a condition, term, limitation
or restriction of a licence, approval or
exemption.
(2) If requested by the Minister, the Authority must—
(a) give reasons for any action taken of which
notice has been given under sub-section (1)
to the Minister; and
(b) give any further information requested by the
Minister.
(3) When the Minister is notified of the grant under
Division 2 of Part 8 of an approval to carry out
research, the Minister must cause the notice to be
laid before both Houses of Parliament within 14
sitting days after the Minister receives the notice.
Division 6—Designated officers
119. Designated officers for licensed centres
(1) The licensee of a licensed centre must ensure that
at all times a designated officer is appointed,
employed or engaged for that centre.
Penalty: 50 penalty units.
(2) That appointment, employment or engagement
must be in writing.
(3) The licensee of a licensed centre must notify the
Authority and the Secretary immediately—
(a) of the appointment, employment or
engagement of a designated officer for that
centre; or
(b) of the cessation of the appointment,
employment or engagement of a designated
officer for that centre.
Penalty: 50 penalty units.
120. If no designated officer appointed
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If at any time there is no designated officer for a
licensed centre—
(a) the medical superintendent of the centre (by
whatever name known) or if he or she is
absent from or not on duty at the centre, a
person acting in his or her place; or
(b) if there is no position of medical
superintendent at the centre, the principal
executive officer of the centre (by whatever
name known), or if he or she is absent from
or not on duty at the centre, a person acting
in his or her place—
is to perform the functions of the designated
officer for the purposes of this Act until a
designated officer is appointed.
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PART 9—INFERTILITY TREATMENT AUTHORITY
Division 1—Constitution of the Authority
121. Establishment of Authority
(1) There is established an Authority to be called the
Infertility Treatment Authority.
(2) The Authority—
(a) is a body corporate with perpetual
succession; and
(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
(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.
(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.
122. Powers, functions, duties and consultation
requirements
(1) The Authority has the following functions—
(a) to administer the compiling and keeping of
records under Part 7 and access to those
records;
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(b) to administer the licensing and approvals
systems under this Act and to grant
exemptions under this Act;
(c) to monitor compliance with licences,
approvals and exemptions given under this
Act;
(d) to consider requests to approve the extension
of the maximum storage period for gametes,
zygotes or embryos and, if it thinks fit, to
approve that extension;
(e) to keep under regular review the progress of
approved research;
(f) to keep records about—
(i) programs and activities carried out
under this Act; and
(ii) programs and procedures relating to
infertility carried out outside Victoria;
(g) to keep under regular review and, if it thinks
fit, to make recommendations to the Minister
about its functions, operation or
composition;
(h) to promote research into the causes of
infertility;
(i) to approve the bringing of gametes, zygotes
or embryos into or the taking of them from
the State, and to provide for the exemption
from particular provisions of this Act in
accordance with section 56;
(j) without limiting the generality of the
preceding paragraphs, any other functions
conferred on the Authority by or under this
or any other Act.
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(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
or the Infertility (Medical Procedures) Act
1984 or regulations made under that Act;
(b) a breach of a licence, approval or exemption
given under this Act or the Infertility
(Medical Procedures) Act 1984;
(c) a development in—
(i) research relating to infertility; or
(ii) treatment for infertility—
whether in Victoria or elsewhere, which the
Authority considers of major importance or views
with concern.
(3) The Authority has all the powers necessary to
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.
*
*
*
*
*
123. Membership
(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
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
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S. 122(5)
repealed by
No. 37/1997
s. 5(1)(h).
Infertility Treatment Act 1995
Act No. 63/1995
s. 124
Authority or to ensure that those functions are
carried out.
124. Terms of office
(1) A member of the Authority holds office—
(a) for the period; and
(b) on the terms and conditions—
specified in his or her instrument of appointment.
(2) A member of the Authority is eligible for
reappointment.
(3) The Public Sector Management Act 1992
(except Part 9 or in accordance with Part 8) does
not apply to a member in respect of the office of
member.
125. Resignation and removal
(1) A member of the Authority may resign the office
of member 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.
(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 sub-section (3) holds
office for the rest of the term of appointment of
the member whose place she or he fills.
126. Chairperson and Deputy Chairperson
(1) The Governor in Council may appoint members of
the Authority to be Chairperson and Deputy
Chairperson.
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(2) A person appointed to an office under sub-section
(1) holds that office for the term specified in her
or his instrument of appointment and is eligible
for reappointment.
(3) A person appointed to an office under sub-section
(1) may resign that office by writing signed by the
person and addressed to the Governor in Council.
(4) The Governor in Council may at any time remove
a person appointed under sub-section (1) from
office.
(5) A person appointed to an office under sub-section
(1) ceases to hold that office on ceasing to be a
member of the Authority.
127. 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
appointed as a member to act as the member
during the period of inability.
(2) The Governor in Council—
(a) subject to this Act, may determine the terms
and conditions of appointment of an acting
member; and
(b) may at any time terminate the appointment.
(3) While the appointment of an acting member
remains in force, the acting member has and may
exercise all the powers and perform all the duties
and functions of the member.
128. Payment of members
(1) A member or acting member of the Authority,
other than a member who is an officer or
employee of the public service within the meaning
of the Public Sector Management Act 1992, is
entitled to receive the fees that are fixed from time
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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.
129. 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 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.
(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) Except as otherwise provided for in this Act or the
regulations, the Authority may regulate its own
proceedings.
130. Effect of vacancy or defect
An act or decision of the Authority is not invalid
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 for that member so acting had not
arisen or had ceased.
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131. Member's interests
(1) A member who has—
(a) a pecuniary interest in any matter in which
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 his or her private
interest and his or her functions as a member
of the Authority—
must—
(c) if the member is present at a meeting of the
Authority at which the matter is to be
considered, disclose the nature of the interest
immediately before the consideration of that
matter; or
(d) 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
the Chairperson or Deputy Chairperson of
the Authority before the meeting is held.
(2) The member—
(a) may take part in the discussion in the
meeting; and
(b) must leave the meeting while any vote is
taken on a question relating to the matter.
132. Immunity
(1) A member of the Authority is not personally liable
for anything done or omitted to be done in good
faith and without negligence—
(a) in the exercise of a power or the discharge of
a duty under this Act; or
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(b) in the reasonable belief that the act or
omission was in the exercise of a power or
the discharge of a duty under this Act.
(2) Any liability resulting from an act or omission
that would but for sub-section (1), attach to a
member of the Authority attaches instead to the
Authority.
133. 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
and functions.
134. Delegation
The Authority may, in writing, with the approval
of the Minister and subject to any conditions or
limitations the Minister may impose, delegate
to—
(a) a committee established under section 135,
its powers and functions under this Act and
the regulations, other than—
(i) the power to approve research under
Division 2 of Part 8; or
(ii) the power to approve under section 40;
or
(iii) the variation, suspension or revocation
of an approval under section 40 or
under Division 2 of Part 8; or
(iv) the power to appoint authorised
officers; or
(v) the power to give orders under section
116; or
(vi) this power to delegate; and
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(b) a person employed or engaged under section
133, its powers and functions under Part 7,
section 184 and the regulations.
135. Committees
The Authority may appoint one or more
committees of members of the Authority to
discharge the Authority's powers, functions and
duties.
Division 2—Supplementary Powers
136. Powers of Authority in relation to fees
(1) In the case of any fee for an application for, or
renewal or issue of a licence or approval which
the Authority is empowered to fix under this
Act—
(a) the Authority must determine the fee to be
paid; and
(b) the Authority may amend or vary such a fee;
and
(c) the Authority may determine a different fee
for a different case or class of case and may
allow for the reduction or refund, in whole or
in part, of any such fee; and
(d) before determining, amending or varying any
fee as described in paragraph (a) or (b), the
Authority must consult with the Minister;
and
(e) the Authority must cause any fee it has
determined, amended or varied as described
in paragraph (a) or (b) to be published in the
Government Gazette.
(2) In fixing fees under this Act the Authority is
entitled to ensure that the amount of money
collected in fees under this Act is sufficient to
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cover the cost to the Authority of its
administration and of carrying out its powers,
functions and duties under this Act.
Division 3—Reporting and financial provisions
137. Report to Minister
(1) The Authority must on 30 September in each year
report to the Minister on the following matters—
(a) the programs under which treatment
procedures and research are conducted and
under which embryos, gametes and zygotes
are stored at licensed centres; and
(b) particulars of each program including—
(i) the number of treatment procedures
carried out under this Act during the
year and the nature and outcome of
those procedures; and
(ii) the number and kind of approvals for
research given by the Authority during
the year; and
(iii) the number of participants in research
or treatment procedures carried out at
each licensed centre during the year;
and
(iv) the kinds of research carried out at each
licensed centre during the year and the
results of that research; and
(iv) the number of embryos and zygotes
formed at each licensed centre during
the year; and
(c) the number of licences, approvals and
exemptions granted, varied, renewed,
suspended or cancelled during the year; and
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(d) any other matter on which the Minister asks
the Authority to report.
(2) The references to "year"—
(a) in sub-section (1)(a) and (b) are to the
calendar year prior to the year in which the
report is prepared; and
(b) in sub-section (1)(c) are to the year ending
on the preceding 30 June.
(3) The Minister must cause each report made by the
Authority under sub-section (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.
138. Infertility Treatment Authority Fund
(1) The Authority must establish and keep an
Infertility Treatment Authority Fund.
(2) The Authority must pay into the Fund—
(a) any money received by it by way of fees paid
to or recovered by it; and
(b) and any income from the investments of the
Fund; and
(c) any other money received by the Authority.
(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
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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(c) any other payments recommended by the
Authority and approved by the Minister; and
(d) any other payments authorised under any
other Act.
139. Investment powers
The Authority may invest money credited to the
Fund that it does not immediately require—
(a) in any manner authorised by section 4(1) of
the Trustee Act 1958; or
(b) in any other manner that the Minister
approves.
_______________
Pt 10
(Heading and
ss 140–148)
repealed by
No. 37/1997
s. 5(1)(i).
*
*
*
_______________
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*
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PART 11—REVIEW OF DECISIONS
149. Review of decisions
(1) An application may be made to the Administrative
Appeals Tribunal established under the
Administrative Appeals Tribunal Act 1984 for
the review of a decision of the Authority—
(a) to grant or refuse a licence or approval under
Part 8, except an approval under Division 2
of Part 8; or
(b) to grant or refuse to grant an approval under
section 51(2) or 52(5); or
(c) to grant or refuse an approval or exemption
under section 56; or
(d) to impose conditions, limitations or
restrictions on a licence or approval or
exemption, except an approval under section
40 or Division 2 of Part 8; or
(e) to renew or refuse to renew a licence or
approval under Part 8; or
(f) to vary or refuse to vary a licence, approval,
or exemption, except an approval under
section 40 or Division 2 of Part 8; or
(g) to suspend or cancel a licence, approval or
exemption, except an approval under section
40 or Division 2 of Part 8; or
or of a failure by the Authority to make such a
decision within a reasonable time.
(2) An application under sub-section (1) may only be
made by a person aggrieved by—
(a) the decision of the Authority; or
(b) the failure of the Authority to act.
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(3) If an application is made under sub-section (1)(c)
in relation to a decision to suspend a licence or
approval—
(a) the application does not stay the operation of
that decision; and
(b) section 46 of the Administrative Appeals
Tribunal Act 1984 does not apply to or in
relation to that decision.
(4) In this section "decision" has the same meaning as
in the Administrative Appeals Tribunal Act
1984.
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PART 12—GENERAL
150. Decisions by Authority not reviewable
A decision or purported decision of the Authority
under section 99(1) or a decision or purported
decision of the Authority under section 106 or 107
in relation to an approval under section 99(1)
cannot be appealed against, reviewed, challenged,
quashed or called in to question on any account in
any court or tribunal or before any person acting
judicially within the meaning of the Evidence Act
1958.
151. No action if gametes used without knowing consent
withdrawn or lapsed
If—
(a) a person has carried out research under Part
3 or a treatment procedure for which consent
was required; and
(b) before the research or treatment procedure
was carried out, the consent was withdrawn
or an objection was made under the Act—
no civil or criminal proceeding lies against that
person because of the withdrawal of the consent
or objection if, at the time the treatment procedure
or research was carried out, that person did not
know and could not reasonably be expected to
have known that the consent had been withdrawn
or the objection had been made.
152. Conscientious objections
(1) Despite any Act, law or agreement to the contrary
a person who has a conscientious objection to
research involving the use of gametes, zygotes or
embryos or to a treatment procedure does not have
to participate in that research or procedure unless
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S. 150
amended by
No. 37/1997
s. 5(1)(j)(i)(ii).
Infertility Treatment Act 1995
Act No. 63/1995
s. 153
it is necessary to do so because it is likely that a
person who is or was a participant in the research
or procedure will otherwise die.
(2) In any proceedings the burden of proving a
conscientious objection is on the person who
relies on it.
153. Record of consent or objection and withdrawal of
consent or objection
(1) Subject to section 154 and the regulations—
(a) the designated officer of a licensed centre;
and
(b) an approved doctor who carries out donor
insemination at a place other than a licensed
centre; and
(c) a prescribed person—
must—
(d) obtain and keep the original of each consent,
withdrawal of consent, objection or
withdrawal of objection lodged under Parts
2, 3 or 4 (as the case may be); and
(e) ensure that a certified copy of each such
consent, withdrawal of consent, objection or
withdrawal of objection is given to the
person who lodged the consent, withdrawal
of consent, objection or withdrawal of
objection.
Penalty: 50 penalty units.
(2) A copy of a document must be certified as a true
copy under this section in accordance with the
regulations.
Penalty: 50 penalty units.
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154. Transfer of documents
(1) Subject to the regulations, if a gamete, zygote,
embryo, parthenogenetic oocyte or parthenogene
is to be or has been transferred from—
(a) a licensed centre; or
(b) the premises of an approved doctor who
carries out donor insemination at a centre
other than a licensed centre; or
(c) a prescribed place—
to another place, the designated officer of the
licensed centre referred to in paragraph (a), the
approved doctor referred to in paragraph (b), or a
prescribed person in relation to a place described
in paragraph (c) (as the case may be), must ensure
that—
(d) a consent, objection or withdrawal of a
consent or an objection lodged at that place
or forwarded to that place which relates to
the gamete, zygote, embryo, parthenogenetic
oocyte or parthenogene; and
(e) any prescribed information—
is also transferred to that other place, in
accordance with the regulations.
Penalty: 50 penalty units.
(2) If a document is transferred under this provision a
certified copy must be kept by the designated
officer, approved doctor or prescribed person.
Penalty: 50 penalty units.
(3) A copy of a document must be certified as a true
copy under this section in accordance with the
regulations.
Penalty: 50 penalty units.
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155. Authorised officers
(1) The Authority may, in writing, appoint an
employee of the Authority as an authorised officer
for the purposes of determining whether or not
this Act, or the regulations or a licence, approval
or exemption, or the Infertility (Medical
Procedures) Act 1984, the regulations or an
approval made under that Act, are being or have
been complied with.
(2) The Authority must issue an identity card to each
member of the Authority and to each authorised
officer appointed by the Authority.
156. Powers and duties of members of Authority and
authorised officers
(1) A member of the Authority or an authorised
officer may exercise powers under this section
only to the extent that it is reasonably necessary to
do so for the purpose of determining compliance
with this Act, or the regulations, or a licence,
approval or exemption, or the Infertility
(Medical Procedures) Act 1984, or the
regulations or an approval made under that Act.
(2) A member of the Authority or an authorised
officer with any necessary assistants may enter a
licensed centre or premises on which a doctor
carries out donor insemination, or premises which
are the subject of an approval or exemption at any
time during ordinary working hours on any
business day and may—
(a) inspect the premises or anything found on
the premises; and
(b) require the production for inspection of any
records or other documents or documents
containing information required to be kept
under this Act or any licence, approval or
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exemption, or under the Infertility (Medical
Procedures) Act 1984 or an approval made
under that Act; and
(c) inspect any documents produced under
paragraph (b);
(d) take possession of any documents found on
the premises or produced under paragraph
(b) for so long as is necessary to make copies
of or take extracts from those documents.
(3) The member or authorised officer must as soon as
possible report the results of an inspection under
sub-section (2) to the Authority.
(4) A member of the Authority or an authorised
officer may not exercise any powers under this
section if the member or authorised officer fails to
produce, on request, his or her identity card for
inspection by the occupier of the premises.
(5) A member of the Authority or an authorised
officer may not take possession of any documents
apparently in the custody of a person unless the
member or authorised officer makes out and
tenders to the person a receipt for the documents
taken.
157. Offence to obstruct or hinder
A person must not obstruct or hinder a member of
the Authority or an authorised officer in carrying
out his or her powers or duties under section 156.
Penalty: 50 penalty units.
158. Additional liability for offences
(1) If a person commits an offence against this Act at
a licensed centre the licensee also commits an
offence against this section.
(2) A person who commits an offence against this
section is liable to a penalty—
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(a) in the case of a body corporate, 500 penalty
units; or
(b) in any other case, the equivalent penalty to
the original offence.
(3) It is a defence to a prosecution of a person for an
offence under this section to show that the person
prosecuted—
(a) did not know of and could not reasonably
have been aware of or prevented; or
(b) had taken reasonable steps to prevent—
the commission of the original offence.
(4) This section is in addition to, and does not take
away from, any other provision of this Act.
159. Application of Public Records Act 1973
The Public Records Act 1973 does not apply to a
Register or record required to be kept under Part 7
of this Act.
160. 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 to
do so.
Penalty: 50 penalty units.
161. Evidence
In any proceedings under this Act—
S. 161(a)
amended by
No. 37/1997
s. 5(k)(i)(ii).
(a) a copy of an order, request, direction,
authority, decision, determination or notice
made or given under this Act by the Minister
or the Authority and signed and certified by
the Minister, or sealed and certified by the
Authority to be a true copy and to have been
so made or given is evidence of the making
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or giving of the order, direction, authority,
decision or notice;
(b) in the absence of evidence to the contrary,
proof is not required of the appointment of a
person as an authorised officer under section
155.
162. Search warrants
(1) A member of the police force may apply to a
magistrate for the issue of a search warrant in
relation to particular place if the member of the
police force believes on reasonable grounds that
there is in that place a particular thing that may be
evidence of the commission of an offence against
this Act or the regulations or the Infertility
(Medical Procedures) Act 1984 or the
regulations made under that Act.
(2) The Authority may apply to a magistrate for the
issue of a search warrant in relation to a particular
place if the Authority believes on reasonable
grounds that there is in that place a gamete,
zygote, embryo, parthenogenetic oocyte or
parthenogene, or records, which may indicate that
a breach of section 116(6) has occurred.
(3) If a magistrate is satisfied by the evidence on oath,
whether oral or by affidavit, that there are—
(a) in relation to an application under subsection (1), reasonable grounds for believing
that there is in that place a particular thing
that may be evidence of the commission of
an offence against this Act or the regulations
or the Infertility (Medical Procedures) Act
1984 or the regulations made under that Act;
or
(b) in relation to an application under subsection (2), reasonable grounds for believing
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that there is in that place a gamete, zygote,
embryo, parthenogenetic oocyte or
parthenogene, or records which may indicate
that there has been a breach of section
116(6)—
the magistrate may issue a search warrant
authorising a member of the police force named in
the warrant and any assistants—
(c) to enter the place, or the part of the place,
named or described in the warrant; and
(d) to search for and seize a thing named or
described in the warrant.
(4) In addition to any other requirement, a search
warrant issued under this section must state—
(a) the offence or breach suspected; and
(b) the place to be searched; and
(c) a description of the thing to be searched for;
and
(d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made at any
time or during stated hours; and
(f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
(5) A search warrant must be issued in accordance
with the Magistrates' Court Act 1989 and in the
form prescribed under that Act.
(6) Subject to sub-section (7), the rules to be observed
with respect to search warrants in the
Magistrates' Court Act 1989 extend and apply to
warrants under this section.
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s. 163
(7) If a gamete, zygote, embryo, parthenogenetic
oocyte or parthenogene or records are seized
under a warrant issued following an application
by the Authority under sub-section (2), the
gamete, zygote, embryo, parthenogenetic oocyte
or parthenogene, or records seized must, if the
Authority so requests, be taken to the Authority as
soon as practicable to enable arrangements to be
made for the transfer, use, storage or destruction
of the gamete, zygote, embryo, parthenogene or
parthenogenetic oocyte or the keeping of the
records.
163. Indictable offences
(1) An offence under section 6, 7, 22(1) or (2), 23, 24,
39, 45, 47, 49, 53(1) or 54 is an indictable offence.
(2) An offence under section 158 is an indictable
offence if the original offence is an indictable
offence.
164. Supreme Court—limitation of jurisdiction
It is the intention of this section to alter or vary
section 85 of the Constitution Act 1975 to the
extent necessary to prevent the Supreme Court
from—
(a) entertaining an action in which a decision or
purported decision of the Authority under
section 99(1) or a decision or purported
decision of the Authority under section 106
or 107 in relation to an approval under
section 99(1) is sought to be appealed
against, reviewed, challenged, quashed or
called in question; or
(b) entertaining an action of the kind referred to
in section 151.
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S. 164(a)
amended by
No. 37/1997
s. 5(1)(l)(i)(ii).
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s. 164
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PART 13—REGULATIONS
165. Regulations
(1) The Governor in Council may make regulations
for or with respect to any of the following—
(a) forms for notices or other documents
required under this Act;
(b) fees, other than fees fixed by the Authority—
(i) for the purposes of this Act; or
(ii) payable in relation to applications for
information made under the
regulations;
(c) the terms and conditions to be included in
licences (other than licences to undertake
approved research) and approvals under this
Act;
(d) the giving of information for inclusion in
records and registers required or permitted to
be kept, and notices required or permitted to
be given, under this Act;
(e) if counselling is required by this Act, the
matters which it must address and the form it
must take;
(f) the giving of information and the keeping of
records for the purposes of this Act;
(g) limiting, in so far as it is not already
provided for in the Act, the persons to
whom, conditions under which, and
circumstances in which information may be
given;
(h) specifying, in so far as it is not already
provided for in the Act, the conditions under
which, and circumstances in which an
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application may be made for the giving of
information (other than information from
which a person will or may be identified),
and when such information must, or must
not, or may be given;
(i) specifying, in so far as it is not already
provided for in the Act, the conditions under
which, and circumstances in which
information (other than information from
which a person will or may be identified)
may be given under section 90;
(j) specifying, in so far as it is not already
provided for in the Act, the conditions under
which, and circumstances in which
applications may be made for the giving of
information which will or may identify a
person, and when such information may, or
must, be given with that persons's consent, or
when it must not be given;
(k) prescribing persons or places where consents
or objections or withdrawals of consents or
objections under this Act are to be lodged;
(l) the disposal of zygotes or embryos removed
from storage;
(m) the manner of the recording of information in
registers and the nature of information to be
so recorded;
(n) the manner of giving notice of birth to the
Authority and the nature of the information
to be given in the notice;
(o) the manner of keeping the central register,
and the register under section 82;
(p) specifying, in so far as it is not already
provided for in the Act, requirements
regarding—
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(i) the transfer of information relating to a
gamete, zygote, embryo,
parthenogenetic oocyte or parthenogene
which has been or is to be transferred
from one place to another place; and
(ii) the obtaining, keeping of and
forwarding of consents, objections or
the withdrawal of consents or
objections or of certified copies of such
documents (including, but not limited
to, the circumstances where a consent,
objection or withdrawal of a consent or
objection relates to more than one
gamete, zygote, embryo,
parthenogenetic oocyte or parthenogene
or activity or procedure); and
(iii) the retaining of copies of consents,
objections, or the withdrawals of
consents or objections, and the
certification of such documents; and
(iv) specifying, to the extent not already
provided for in this Act, requirements
regarding the obtaining, keeping or
transferring of consents or withdrawals
of consents made under the Infertility
(Medical Procedures) Act 1984, or
other consents or withdrawals of
consents in relation to a procedure,
research, or a gamete, zygote, embryo,
parthenogenetic embryo or
parthenogene made prior to the repeal
of that Act or of a provision of that Act;
(q) in so far as it has not already been provided
for in this Act, the use of, storage of,
activities relating to, and the keeping of
records about parthenogenetic oocytes or
parthenogenes;
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(r) for the purposes of section 181, to—
(i) prescribe circumstances in which
sections 62, 63, 64, 65 and 66 are not to
apply to a matter, procedure, research,
person or thing; and
(ii) provide alternative powers, functions or
duties in such circumstances;
(s) penalties, not exceeding 20 penalty units, for
breaches of the regulations;
(t) generally prescribing any matter or thing
required or permitted by this Act to be
prescribed or necessary to be prescribed to
give effect to this Act.
(2) The regulations—
(a) may be of general or limited application; and
(b) may differ according to differences in time,
place and circumstance; and
(c) may confer a discretionary authority or
impose a duty on, or leave any matter or
thing to be determined or approved by, a
specified person or class of persons; and
(d) may apply, adopt or incorporate any matter
contained in any document, code, standard,
rule, specification, or method, formulated,
issued, prescribed or published by any
person whether—
(i) wholly or partially or as amended by
the regulations; or
(ii) as formulated, issued, prescribed or
published at the time the regulations are
made or at any time before them; or
(iii) as formulated, issued, prescribed or
published from time to time.
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s. 165
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s. 166
PART 14—REPEALS, AMENDMENTS AND TRANSITIONAL
PROVISIONS
Division 1—Repeals and amendments
166. Repeals
(1) Sections 6(3) and (4) of the Infertility (Medical
Procedures) Act 1984 are repealed.
(2) Part V of the Infertility (Medical Procedures)
Act 1984 is repealed.
(3) The Infertility (Medical Procedures) Act 1984
is repealed.
(4) Section 181 of the Health Services Act 1988 is
repealed.
167. Amendment of Health Act 1958
In section 133 of the Health Act 1958—
(a) in sub-section (1)(b)(i) for "Infertility
(Medical Procedures) Act 1984" substitute
"Infertility Treatment Act 1995";
(b) in sub-section (1)(b)(ii) omit "relevant".
168. Amendment of Human Tissue Act 1982
(1) After section 38(2) of the Human Tissue Act
1982 insert—
"(3) Sub-section (1) does not apply to the
receiving of an amount to which section
57(3) of the Infertility Treatment Act 1995
applies.".
(2) After section 39(1) of the Human Tissue Act
1982 insert—
"(1A) Sub-section (1) does not apply to the giving
of an amount to which section 55(3) of the
Infertility Treatment Act 1995 applies.".
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(3) In section 40 of the Human Tissue Act 1982,
after "selling or buying of tissue" insert "or the
donation of tissue".
169. Amendment of Magistrates' Court Act 1989
In Schedule 4 to the Magistrates' Court Act
1989, after item 61 insert—
"62. Infertility Treatment Act
Indictable offences under the Infertility
Treatment Act 1995.".
170. Amendment of Status of Children Act 1974
(1) After section 10A(2) of the Status of Children
Act 1974 insert—
'(3) In this Part—
"embryo" includes an embryo within the
meaning of the Infertility Treatment
Act 1995;
"ovum in the process of fertilisation"
means an ovum at any stage of human
development from the commencement
of penetration of an ovum by sperm up
to but not including syngamy;
"semen" includes sperm;
"syngamy" has the same meaning as in the
Infertility Treatment Act 1995.'.
(2) In section 10B(1) of the Status of Children Act
1974 for "The provisions" substitute "Subject to
sub-section (3), the provisions".
(3) After section 10B(2) of the Status of Children
Act 1974 insert—
"(3) The amendments made to this Part by the
Infertility Treatment Act 1995 apply—
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s. 170
(a) in respect of a pregnancy referred to in
section 10D or 10E which resulted from
a procedure carried out in or outside
Victoria whether before or after the
commencement of section 170 of the
Infertility Treatment Act 1995; and
(b) in respect of any child born as a result
of a pregnancy referred to in section
10D or 10E resulting from a procedure
carried out whether before or after the
commencement of section 170 of the
Infertility Treatment Act 1995.
(4) Nothing in the amendments made to this Part
by the Infertility Treatment Act 1995
affects the vesting in possession or in interest
of any property that occurred before the date
on which that Act received the Royal
Assent.".
(4) In section 10D(1) of the Status of Children Act
1974, after "womb of a woman" insert ", or
otherwise transferring to the body of a woman,".
(5) After section 10D(1) of the Status of Children
Act 1974 insert—
"(1A) A reference in this section to a procedure
includes a reference to—
(a) the procedure of transferring to the
body of a woman, otherwise than by
artificial insemination—
(i) semen produced by a man other
than her husband; or
(ii) semen produced by a man other
than her husband and an ovum
produced by her; and
(b) the procedure of transferring to the
body of a woman an ovum in the
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process of fertilisation, if the ovum was
produced by her and the process of
fertilisation commenced outside her
body from semen produced by a man
other than her husband.".
(6) After section 10D(2)(b) of the Status of Children
Act 1974 insert—
"(c) the husband shall be presumed, for all
purposes, to have produced the semen—
(i) used in the procedure; or
(ii) used for the fertilisation of the ovum
used in the procedure; or
(iii) used for the fertilisation of the ovum
from which the embryo used in the
procedure was derived—
and to be the father of any child born as a
result of the pregnancy; and
(d) the man who produced the semen—
(i) used in the procedure; or
(ii) used for the fertilisation of the ovum
used in the procedure; or
(iii) used for the fertilisation of the ovum
from which the embryo used in the
procedure was derived—
shall, for all purposes, be presumed not to
have produced that semen and not to be the
father of any child born as the result of the
pregnancy.".
(7) In section 10E(1) of the Status of Children Act
1974, after "womb of a woman" insert ", or
otherwise transferring to the body of a woman,".
(8) After section 10E(1) of the Status of Children
Act 1974 insert—
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"(1A) A reference in this section to a procedure
includes a reference to—
(a) the procedure of transferring to the
body of a woman an ovum produced by
another woman, including an ovum in
the process of fertilisation, where that
process commenced outside the body of
the first-mentioned woman; and
(b) the procedure of transferring to the
body of a woman an ovum produced by
another woman and semen—
whether any semen transferred, or any semen
which is used to fertilise the ovum (if any) is
produced by the husband of the firstmentioned woman or by another man.".
(9) In section 10E(2)(b) of the Status of Children
Act 1974 after "ovum" insert "used in the
procedure or".
(10) After section 10E(2) of the Status of Children
Act 1974 insert—
"(e) where the semen used—
(i) in the procedure; or
(ii) for the fertilisation of the ovum used in
the procedure—
was produced by the husband of the married
woman, the husband shall be presumed, for
all purposes, to be the father of any child
born as a result of the pregnancy; and
(f) where the semen used—
(i) in the procedure; or
(ii) for the fertilisation of the ovum used in
the procedure—
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was produced by a man other than the
husband of the married woman—
(iii) the husband shall be presumed, for all
purposes, to have produced the semen
and to be the father of any child born as
a result of the pregnancy; and
(iv) the man who produced the semen shall
be presumed, for all purposes, not to
have produced that semen and not to be
the father of any child born as a result
of the pregnancy.".
Division 2—Transitional provisions
171. Definitions
(1) In this Division—
"donor" (in relation to the repealed Act or to
things done before the commencement of
Part 2) means—
(a) a woman who, under the repealed Act,
consented to an oocyte produced by her
or a zygote or an embryo formed from
such an oocyte being used in a relevant
procedure to be carried out on another
woman or in a procedure under section
9A of the repealed Act; and
(b) a man who, under the repealed Act,
consented to his sperm or a zygote or
an embryo formed from his sperm
being used in a fertilisation procedure
to be carried out on a woman who is
not his wife or in a procedure under
section 9A of the repealed Act; and
(c) a man who before the commencement
of Part 2 consented to his sperm being
used in artificial insemination to be
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carried out on a woman other than his
wife; and
(d) a person who has consented to an
embryo or zygote being used in an
experimental procedure under section
6(3) of the repealed Act; and
(e) a person who before the
commencement of section 22 consented
to his or her gametes being used in
research (other than research described
in section 22(1) or (2)); and
(f) any other person who is a donor for the
purposes of the repealed Act including,
but not limited to, the persons referred
to as a donor in sections 9A, 11, 12, 13
and 13A of that Act; and
(g) a prescribed person;
"former Committee" means the Standing
Review and Advisory Committee established
under the repealed Act;
"relevant procedure" has the same meaning as
in the repealed Act and includes artificial
insemination;
"repealed Act" means the Infertility (Medical
Procedures) Act 1984;
"specified procedure" means—
(a) a relevant procedure carried out under
the repealed Act; or
(b) a treatment procedure which is or is to
be or may be carried out under this Act,
where a consent was given by a woman
who is to or may undergo the
procedure, or by her husband, or by a
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s. 171
donor or the husband or wife of a
donor—
(i) under the repealed Act; or
(ii) before the commencement of Part
2 (in relation to artificial
insemination)—
to the carrying out of a fertilisation
procedure or artificial insemination or
to the use of a gamete, zygote or an
embryo in a fertilisation procedure or
artificial insemination (as the case may
be); or
(c) research which is or is to be or may be
carried out under this Act where a
consent was given to the use of a
gamete or a zygote or an embryo for
such research—
(i) under section 9A of the repealed
Act; or
(ii) in relation to other research,
before the commencement of
section 22; or
(d) any other prescribed activity which was
lawfully commenced before the
commencement of this section.
(2) Terms (other than terms defined in sub-section
(1)) used in this Division and defined in section
3(2) or any other provision of the repealed Act
have the same meanings as in that section or
provision, unless the contrary intention appears.
(3) Unless the contrary intention appears, the
definitions of "husband", "spouse" and "wife" in
section 3(1) of this Act do not apply to this
Division.
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S. 171(3)
inserted by
No. 37/1997
s. 17(1).
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s. 172
172. General transitional provision
(1) Subject to sub-section (2), this Division does not
affect or take away from the operation of the
Interpretation of Legislation Act 1984.
(2) If a provision of this Division is inconsistent with
a provision of the Interpretation of Legislation
Act 1984, the provision of this Division prevails.
(3) This Division applies despite anything to the
contrary in this Act or the repealed Act.
S. 173
amended by
No. 37/1997
s. 20(b).
173. Regulations
The regulations in force under the repealed Act
immediately before the commencement of this
section have effect, on and from that
commencement—
(a) to the extent to which regulations to a like
effect could be made under this Act, as if
made under this Act and may be amended or
revoked accordingly; and
(b) where a regulation relates to a provision of
the repealed Act that is in operation at the
commencement of this section or is
otherwise continuing to apply, that
regulation will also continue to apply to that
provision, and may be amended or revoked
under the repealed Act, notwithstanding the
repeal of an empowering provision under
that Act.
174. Donations
(1) On the commencement of this section, a gamete,
zygote or embryo donated for the purposes of a
relevant procedure—
(a) to be carried out on another woman, or on
the wife of another man (as the case may be);
or
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(b) to be carried out under section 9A of the
repealed Act—
but not used for that procedure at that
commencement, must be taken to have been
donated for the purpose of a treatment procedure
or research under this Act corresponding to that
procedure.
(2) On the commencement of this section, a gamete
donated for the purposes of research of the kind
described in section 22(3) but not used for that
research at that commencement must be taken to
have been donated for the purposes of equivalent
research under this Act.
(3) Subject to section 181, on the commencement of
this section, a person who was the donor of a
gamete, zygote or embryo referred to in subsection (1) or (2) must be taken to be a donor of
that gamete, zygote or embryo for the purposes of
this Act.
175. Consents
(1) If, before the commencement of this section—
(a) a consent has been given for the purposes of
a fertilisation procedure under the repealed
Act or for the purposes of artificial
insemination using sperm of a donor, by—
(i) a donor; or
(ii) a donor's spouse; or
(iii) a woman who is to undergo the
procedure or her husband—
and has not been withdrawn at the
commencement of this section; and
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(b) at the commencement of this section the
procedure has not been carried out—
the consent is deemed, subject to section 180, to
be a consent made under and complying with
Parts 2 and 4 of this Act to the carrying out of a
treatment procedure that corresponds to that
procedure, or to the use of a gamete, zygote or
embryo in a treatment procedure that corresponds
to that procedure.
(2) If—
(a) a consent has been given for the purposes of
a procedure to which section 9A of the
repealed Act applies and has not been
withdrawn before the commencement of this
section; and
(b) at the commencement of this section the
procedure has not been carried out—
the consent is deemed to be a consent made under
and complying with Parts 3 and 4 of this Act to
the carrying out of that procedure in accordance
with Parts 3 and 4.
(3) The designated officer of a licensed centre which,
before the commencement of this section, was an
approved hospital within the meaning of the
repealed Act must, subject to the regulations,
continue to keep consent documents held at the
centre at the commencement of this section and
relating to relevant procedures carried out under
the repealed Act at the centre before that
commencement.
(4) If—
(a) a consent has been given to the use of a
gamete in research (other than research
described in section 22(1) or (2)) and has not
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been withdrawn before the commencement
of this section; and
(b) at the commencement of this section the
research has not been carried out—
sections 35(2) and 36 do not apply to the consent
to the use of that gamete in research under section
34.
(5) If sub-section (1) applies so that a consent is
deemed to be a consent complying with section 8,
12 or 13, section 10(1) or 17 (as the case may be)
does not apply in relation to that consent.
176. Eligibility for fertilisation procedures
(1) If all of the requirements of the repealed Act that
have to be met before a fertilisation procedure can
be carried out under the repealed Act on a woman
have been met before the commencement of this
section but that procedure has not been carried out
at that commencement, a treatment procedure
corresponding to that procedure may only be
carried out on that woman in accordance with this
Act and for that purpose compliance with those
requirements is deemed to be compliance with the
requirements of Divisions 2, 3 and 4 of Part 2 of
this Act.
(2) This section does not affect or limit the operation
of Division 1 or section 9(1)(c), 10(2), 11(2),
14(1)(c), 15, 21 or 175.
177. Eligibility to undergo donor insemination
(1) If—
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(a) the requirements regarding counselling in
section 18 of the repealed Act that have to be
met before artificial insemination can be
carried out on a woman have been met
before the commencement of this section;
and
(b) the proposed procedure involves the use of
sperm from a man who is not the woman's
husband—
and that procedure has not been carried out at that
commencement, the procedure may only be
carried out under this Act and for that purpose,
section 11(1) is deemed to have been complied
with.
(2) Section 8(3), Division 3 of Part 2 (except sections
12(1), 14(1) and (2) and 15) and section 20 do not
apply to the carrying out of the artificial
insemination after commencement of this section
in the circumstances outlined in sub-section (1).
(3) Sections 13, 14(3) and (4), 16 and 17 only apply
to the carrying out of artificial insemination after
the commencement of this section in the
circumstances outlined in sub-section (1) if the
donor consents under section 12 after that
commencement.
(4) This section does not affect or limit the operation
of section 180(4).
178. Eligibility—research procedures
(1) If all of the requirements under the repealed Act
that have to be met before a procedure to which
section 9A of that Act applies can be carried out
under the repealed Act have been met before the
commencement of this section but at that
commencement that procedure has not been
carried out, that procedure may only be carried
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out in accordance with Part 3 of this Act and for
that purpose compliance with the requirements of
those requirements is deemed to be compliance
with Divisions 1 and 2 of Part 3.
(2) This section does not affect or limit the operation
of sections 29(1)(c), 30 or 175.
179. Partial compliance
(1) If—
(a) one or more, but not all, of the requirements
which have to be met for a fertilisation
procedure under the repealed Act to be
carried out on a woman under that Act have
been met before the commencement of this
section; and
(b) the procedure is to be carried out after that
commencement—
counselling of—
(c) the woman who is to undergo the procedure;
or
(d) the husband of a woman who is to undergo
the procedure; or
(e) a donor; or
(f) a spouse of a donor—
under the repealed Act is deemed to be the
equivalent counselling under and in accordance
with this Act.
(2) If—
(a) one or more, but not all, of the requirements
which have to be met for a fertilisation
procedure under the repealed Act to be
carried out on a woman under that Act have
been met before the commencement of this
section; and
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(b) the procedure is to be carried out after that
commencement; and
(c) an assessment of eligibility to undergo a
fertilisation procedure following
examination or treatment has been conducted
under section 10(3)(c) and (d), 11(3)(c) and
(d), 12(3)(c) and (d), 13(3)(c) and (d) or
13A(3)(c) and (d) of the repealed Act—
and the woman was eligible to undergo a
procedure under that section—
(d) the woman is deemed to be eligible to
undergo a fertilisation procedure under this
Act that corresponds to that procedure; and
(e) the use of sperm, an oocyte, a zygote or an
embryo including sperm, an oocyte, a zygote
or an embryo from a donor (as the case may
be) as would have been permitted under the
repealed Act is permitted in the
corresponding procedure under this Act—
if, in all other respects, the requirements of this
Act (including the requirements in relation to
consents under sections 8, 12 and 13) are met.
(3) This section does not affect or limit the operation
of section 175.
(4) If section 175 applies so that a consent is deemed
to be a consent complying with section 8, 12 or 13
but the person who has given the consent has not
undergone counselling (where counselling is
required) under the repealed Act, the counselling
referred to in section 11(1) or 16 (as the case may
be) in relation to that person must take place
before the performance of the procedure to which
the consent has been given.
(5) Subject to section 189, if one or more, but not all,
of the requirements which have to be met for a
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procedure to which section 9A of the repealed Act
applies can be carried out under that Act have
been met before the commencement of this
section, the procedure may only be carried out
after that commencement under this Act and for
that purpose—
(a) a consent which complies with section
9A(2)(b)(iii) or 9A(3)(b) of the repealed Act
is deemed to be a consent given under and in
accordance with section 27(1)(a) or 28(1)
and in accordance with sections 29 and 36;
and
(b) counselling in compliance with section
9A(2)(b)(iv) or 9A(3)(c) of the repealed Act
is deemed to be counselling under and in
accordance with section 31; and
(c) if a consent has been given as described in
paragraph (a)—
(i) section 32 does not apply to a person
who has given that consent; and
(ii) if counselling has not taken place as
described in paragraph (b), the
counselling described in section 31
must take place before the carrying out
of the research.
180. Identified donors under section 16 of the repealed Act
(1) Counselling carried out under section 16 of the
repealed Act before the commencement of this
section is deemed to be counselling under and in
accordance with section 18(1)(c), in relation to a
procedure to be carried out after that
commencement.
(2) A request by a woman and her husband under
section 16 of the repealed Act prior to the
commencement of this section with respect to
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gametes to be given by a specified person to be
used in a relevant procedure is deemed to be a
request under section 18(1)(a) and (2), in relation
to a procedure to be carried out after that
commencement.
(3) Section 18(1)(b) does not apply to the carrying out
of a fertilisation procedure if a donor has given
consent in the circumstances described in section
175(1) and, before the commencement of this
section, has undergone counselling under section
16(b) of the repealed Act.
(4) Section 18(1)(b) applies to the carrying out of a
treatment procedure if—
S. 180(4)(a)
amended by
No. 37/1997
ss 17(2), 20(c).
(a) the woman who is to undergo the procedure
or her husband (within the meaning of
section 3(1) of this Act) knew the identity of
a donor before the commencement of this
section; and
(b) the donor has given or will give consent
under section 12.
(5) Section 18(1)(b) applies to the carrying out of a
fertilisation procedure if a donor has given
consent in the circumstances described in section
175(1) and has not undergone counselling under
section 16(b) of the repealed Act before the
commencement of this section.
181. Recording and disclosing information—general
(1) Subject to this Division and to the regulations,
Divisions 3 and 4 of Part 7, and sections 62(1),
63(1), 68, 69, 70 and 73 and any other prescribed
provisions apply to—
(a) a relevant procedure carried out under the
repealed Act or an experimental procedure
carried out under section 6(3) of the repealed
Act; and
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(b) a donor who gave a gamete, zygote or an
embryo which was used in a procedure
referred to in paragraph (a) carried out under
the repealed Act, or who gave a gamete or a
zygote which was used to form a zygote or
an embryo (as the case may be) which was
used in such a procedure carried out under
the repealed Act; and
(c) the husband or wife of a person referred to in
paragraph (b); and
(d) a woman who underwent a relevant
procedure under the repealed Act and her
husband; and
(e) a person born as a result of the carrying out
of a relevant procedure under the repealed
Act; and
(f) a gamete, zygote or an embryo used in a
procedure referred to in paragraph (a) which
was carried out under the repealed Act, or
which was used to form a zygote or an
embryo (as the case may be) which was used
in such a procedure carried out under the
repealed Act; and
(g) information in connection with a procedure
carried out under the repealed Act or a
person or thing referred to in paragraph (a),
(b), (c), (d), (e) or (f).
(2) Despite their repeal, sections 19 and 21 of the
repealed Act continue to apply in relation to—
(a) things required to be done, but not done,
prior to the repeal of those provisions; and
(b) those things which would have been required
to be done but for the repeal of those
provisions—
but—
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s. 181
(c) if information is or was required to be given
to the Chief General Manager or to the
Secretary of the Department of Health and
Community Services under section 19 or 21
of the repealed Act, each section is to be
taken—
(i) to apply only to a procedure involving
the use of a gamete, zygote or an
embryo from a donor, and to the birth
of a child from such a procedure; and
(ii) to provide that the information is to be
given to the Authority (rather than to
the Chief General Manager or the
Secretary) for inclusion in the central
register; and
(d) if, after the commencement of Part 7,
information is required to be kept in a
register or written record under section 19 or
21 of the repealed Act, and the approved
hospital or medical practitioner to whom the
provision applies is subject to section 62 or
63 of this Act, the information must be kept
in the equivalent register under those
provisions rather than as required under
section 19 or 21 of the repealed Act.
(3) Subject to this Division and to the regulations,
Part 7 applies—
(a) if a treatment procedure or research is or
may be carried out after the commencement
of Part 2, where—
(i) a consent or other requirement in
relation to a donor, the woman who is
to undergo the procedure or her
husband or some other person; or
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(ii) any other requirement in relation to that
procedure or research—
was given or begun or otherwise commenced
under the repealed Act or prior to the
commencement of Part 2, to—
(iii) that treatment procedure or research;
and
(iv) a donor who has given a gamete, zygote
or an embryo which has been or may be
used in such a treatment procedure or
research or which may be or has been
used to form a zygote or an embryo
which has been or may be used (as the
case may be) in such a treatment
procedure or research and the spouse of
such a person; and
(v) a woman who may undergo or has
undergone such a treatment procedure
and her husband; and
(vi) a person born as a result of such a
treatment procedure; and
(vii) a gamete, zygote or an embryo used or
which may be used in such a treatment
procedure or research or which was
used or may be used to form a zygote
or an embryo which has been or may be
used (as the case may be) in such a
treatment procedure or research; and
(viii) information in connection with a
treatment procedure, research, person
or thing referred to in sub-paragraph
(iii), (iv), (v), (vi) or (vii); and
(b) to any information which is not referred to in
sub-section (1) which is kept or required to
be kept in the register of a hospital or a
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written record of a doctor under section 19 or
21 of the repealed Act or in the central
register under section 22 of that Act.
(4) For the purposes of sub-sections (1) and (3), and
in addition to section 174, Part 7 applies with any
necessary modifications, including the
following—
(a) a reference to a licensed centre is to include
a reference to an approved hospital; and
(b) a reference to the central register includes a
reference to the central register under section
22 of the repealed Act;
(c) a reference to a donor includes a reference to
a donor within the meaning of section
171(1);
(d) a reference to a treatment procedure includes
a reference to a fertilisation procedure or
artificial insemination under the repealed
Act; and
(e) a reference to a donor treatment procedure
includes a reference to a fertilisation
procedure under the repealed Act using
gametes from a donor or a zygote or embryo
donated by or formed from a gamete donated
by a donor, and to artificial insemination
using sperm of a donor.
(5) In sub-sections (1)(e) and (3)(f), "information in
connection with", includes information about—
(a) gametes, zygotes or embryos; and
(b) a person who produces gametes; and
(c) consents; and
(d) the outcome of a procedure, including
pregnancy or miscarriage; and
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(e) the birth of a child as a result of a procedure.
(6) For the purposes of this section, "listed person"
in sections 89(3) and 90 includes, in addition to
the persons referred to in section 89(3)—
(a) a person who—
(i) is or has been involved in the
management of, engaged or employed
at or worked for or at an approved
hospital; or
(ii) is or has been a doctor who has carried
out artificial insemination at a place
other than an approved hospital or any
person who is or has been engaged or
employed by or worked for or with
such a doctor; or
(b) a person who is or has been a designated
officer or an approved counsellor; or
(c) a person who carries out or has carried out or
is or has been involved in the carrying out
of—
(i) a relevant procedure, whether or not at
an approved hospital; or
(ii) an experimental procedure under
section 6(3) of the repealed Act; or
(iii) anything authorised to be done under
the repealed Act;
(iv) any other function under the repealed
Act; or
(d) the former Committee or any person who is or
has been a member of that Committee or who
has been employed or engaged to assist that
Committee in carrying out its functions; or
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(e) any person who is or has been involved in
the administration of the repealed Act.
(7) Section 70 applies to a register or written record
kept under section 19 or 21 of the repealed Act if
the register or record is not, by virtue of section
182, a register under section 62 and 63.
(8) In this section, a reference to information in
section 165 includes a reference to—
(a) information kept or required to be kept under
the repealed Act; and
(b) information about a matter, thing or person
referred to in sub-section (1) or (3).
(9) Despite any other provision in this Division, Part
7 does not apply to a treatment procedure or
artificial insemination carried out before 1 July
1988 or to a donor whose gamete, zygote or
embryo was used in such a procedure or
insemination except—
(a) in relation to information required to be
recorded in a register or written record under
section 19 or 21 of the repealed Act or in the
central register under section 22 of the
repealed Act; or
(b) in the prescribed circumstances.
182. Registers and records
(1) A Register existing immediately before the
commencement of this section under section 19 of
the repealed Act in respect of an approved
hospital that becomes a licensed centre by virtue
of section 191 forms part of the Register to be
kept at that centre under section 62.
(2) A written record existing under section 21 of the
repealed Act immediately before the
commencement of this section and kept by a
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doctor who is an approved doctor under Part 8
forms part of the record to be kept by that doctor
under section 63.
(3) The central Register existing under section 22 of
the repealed Act immediately before the
commencement of this section forms part of the
central Register kept under section 68 of this Act.
183. Recording and giving information
(1) Subject to the regulations, on the commencement
of this section information recorded or given
before that commencement or given after that
commencement in accordance with this Act under
a provision of the repealed Act specified in
column 1 of the Table as required by that
provision or this Act is deemed to be information
referred to in, and recorded or given in accordance
with, a provision of this Act appearing opposite in
column 2 of the Table, to the extent that a
provision in column 2 imposes a type of
requirement equivalent to the type of requirement
imposed under the provision in column 1.
(2) The regulations may prescribe further provisions
for the purpose of this section.
Table
Provision of repealed
Act
Provision of this Act
Section 19(2)(a)
Section 19(2)(b)
Section 19(2)(c)
Section 19(2)(d)
Section 19(2)(e)
Section 62(2)(a) (d) and (i)
Section 62(2)(l)
Section 62(2)(m)
Section 62(2)(b)
Section 62(2)(a), (b), (c),
(e), (f), (i), (j) and (n)
Section 62(2)(b), (c), (f),
(g), (i) and (j)
Section 62(2)(b), (c), (f)
and (i)
Section 19(2)(f)
Section 19(2)(g)
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Provision of repealed
Act
Provision of this Act
Section 19(2)(h)
Section 19(3)(a)
Section 62(2)(d) and (o)
Section 64(a) and 66(b)
and (c)
Section 64(a) and 66(a)
Section 154
Section 62(2)(h)
Section 71(3)
Section 72(2) and 73(5)
Section 63(2)(a), (b), (e)
and (f)
Section 63(2)(c) and (f)
Section 65(a) and 66.
Section 19(3)(b)
Section 19(4)(a)
Section 19(4)(b)
Section 20(1)
Section 20(2)
Section 21(a)
Section 21(b)
Section 21
184. Access to information
(1) A request under section 20 (3) of the repealed Act
that has not been complied with before the
commencement of this section is deemed to be a
request made under section 73(1) of this Act.
(2) An application under section 23(2) of the repealed
Act that has not been dealt with under section
23(3) of that Act before the commencement of
this section is deemed to be an application under
section 79(1)(a) of this Act and must be forwarded
to the Authority.
(3) On receiving an application made under section
79(1)(a) by a person—
(a) who is or may have been born as the result of
a specified procedure in which—
(i) a gamete or a zygote or an embryo
given by a donor was used; and
(ii) the donor gave consent to the use of the
gamete, zygote or embryo in relation to
such a procedure under the repealed
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Act or prior to the commencement of
Part 2; or
(b) who is the descendant of a person who has or
may have been born as the result of such a
specified procedure—
the Authority must give, in writing, any such
information recorded in the Central Register to the
applicant, if the Authority is satisfied that the
applicant, has been offered counselling about the
potential consequences of the disclosure of that
information from a counsellor approved under
Part 8 to give counselling to persons applying for
information under section 79.
(4) On receiving an application made under section
79(1)(b) by a person—
(a) who is or may have been born as the result of
a specified procedure in which—
(i) a gamete or a zygote or an embryo
given by a donor was used; and
(ii) the donor gave consent to the use of the
gamete, zygote or embryo in relation to
such a procedure under the repealed
Act or prior to the commencement of
Part 2; or
(b) who is the descendant of a person who has or
may have been born as the result of such a
specified procedure—
the Authority must give, in writing, any such
information recorded in the Central Register to the
applicant—
(c) if the Authority is satisfied that the donor has
first consented in writing to the giving of that
information; and
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(d) the information is given in accordance with
any conditions or limitations imposed by the
donor; and
(e) the Authority is satisfied that the applicant
has received counselling about the potential
consequences of the disclosure of that
information from a counsellor approved
under Part 8 to give counselling to persons
applying for information under section 79;
and
(f) the donor's consent has not been withdrawn
in writing.
(5) For the purposes of sub-section (4), the Authority
must make reasonable efforts—
(a) to find the donor whose consent is required;
and
(b) before seeking the consent, to advise the
donor that he or she may need counselling
and provide the donor with the names of
counsellors approved under Part 8 to give
counselling to a person in respect of whom
an application has been made under section
79; and
(c) if the donor consents to the giving of the
information, before the information is given,
to advise the donor that the information is
about to be given.
(6) Section 80 does not apply to an application to
which sub-section (3) or (4) applies or to an
application in relation to a treatment procedure or
artificial insemination carried out before 1 July
1988.
(7) Information or a consent given or required to be
given under sub-section (3) or (4) is deemed for
the purposes of Part 7 to be information or a
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consent given or required to be given under
Division 3 of that Part.
(8) Section 81 applies to this section.
185. Gametes, zygotes and embryos in storage
(1) A gamete, zygote or embryo which, immediately
before the commencement of this section, was in
storage may be used in accordance with this Act
in a treatment procedure or research.
(2) Subject to sections 186, 187, 188, this Division
and the regulations, this Act (except section 52)
applies to gametes, zygotes and embryos in
storage at the commencement of this section.
186. Application of time limits for storage of zygotes and
embryos
(1) A person must not cause or permit a zygote or
embryo in storage at the commencement of
section 185 to remain in storage at or after that
commencement—
(a) if a person who has produced a gamete from
which the zygote or embryo was formed has
specified in writing a maximum total period
of storage of less than five years, after that
period; or
(b) in any other case, after—
(i) five years from the date on which the
zygote or embryo was first placed in
storage; or
(ii) any longer period approved by the
Authority.
Penalty: 240 penalty units or 2 years
imprisonment or both.
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187
(2) The Authority may approve in writing a longer
period of storage under sub-section (1), with or
without conditions, if it considers that there are
reasonable grounds to do so in the particular case.
(3) For the purposes of this Act an approval by the
Authority under this section is deemed to be an
approval under section 52(4).
(4) Sub-section (1)(b)(i) does not apply to a zygote or
embryo until the second anniversary of the day on
which this Act receives the Royal Assent.
(5) Section 51(1)(b)(i) does not apply to a gamete in
storage at the commencement of section 185 until
the second anniversary of the day on which this
Act receives the Royal Assent.
187. Removal from storage
If a zygote or embryo is stored at a place that is
not an approved hospital at the commencement of
this section, section 53(1) does not apply to such a
zygote or embryo.
188. Use of stored gametes, zygotes and embryos
Section 55 applies to a gamete, zygote or embryo
in storage at the commencement of this section,
but only in relation to its storage after that
commencement.
189. Approval of research procedures
(1) In this section "specified approval" means an
approval—
(a) given by the former Committee under
section 9A of the repealed Act; and
(b) in force, or varied and in force, immediately
before the commencement of this section.
(2) On the commencement of this sub-section—
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(a) an approval in force under section 6(3) of the
repealed Act ceases to have effect; and
(b) a request for approval under that sub-section
not determined at the date of commencement
of this section lapses.
(3) On the commencement of this sub-section a
specified approval to which this section applies is
deemed to have been given by the Authority under
Division 2 of Part 8 and may be varied or
cancelled accordingly.
(4) Section 22(1)(c) does not apply to the carrying out
of research under an approval deemed to have
been given by the Authority under sub-section (3).
190. Approval of counsellors
(1) An approval of a person as a counsellor—
(a) given by the Minister under the repealed
Act; and
(b) in force, or varied and in force, immediately
before the commencement of this section—
is deemed to be an approval given by the
Authority under Division 4 of Part 8 and may be
varied, suspended, or cancelled accordingly.
(2) Sub-section (1) does not affect the continuity of
the terms and conditions of an approval to which
it applies.
191. Approval of premises
(1) Subject to sub-section (11), an approval of a
public hospital, private hospital or denominational
hospital—
(a) under section 7 of the repealed Act; and
(b) in force, or varied and in force, immediately
before the commencement of this section—
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is deemed to be a licence granted by the Authority
under Division 1 of Part 8 on the same terms and
conditions as those applying to the approval, and
may be varied or cancelled or renewed
accordingly.
(2) A licence referred to in sub-section (1) that
applies to a public hospital, denominational
hospital or private hospital must be taken to
authorise the carrying out, by a doctor or other
person, of donor insemination but only if the
hospital was, immediately before the
commencement of this sub-section, approved as a
place at which the procedure of artificial
insemination may be carried out.
(3) Subject to sub-section (4), the prescribed
conditions do not apply to a licence referred to in
sub-section (1).
(4) As soon as practicable after the commencement of
this section but not later than the end of 6 months
after that commencement of this section the
Authority must, in accordance with this Act, vary
a licence referred to in sub-section (1)—
(a) to include in the licence—
(i) the prescribed conditions applying to
licences granted after the
commencement of this section for
activities, and authorising procedures,
of the same kind as those covered by
the licence to be varied; and
(ii) any terms and conditions that the
Authority wishes to impose under subsection (5); and
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(b) to remove any inconsistency between the
existing terms and conditions of the licence
and those included under paragraph (a).
(5) Section 106 applies to a licence referred to in subsection (1) for six months after the
commencement of this section, so as to empower
the Authority to impose conditions during that six
month period.
(6) Sections 107 and 110 apply to a licence referred
to in sub-section (1) as if that licence was granted
under Part 8.
(7) Sub-section (4) does not apply to an activity at
premises which has become subject to a licence
granted or renewed under Part 8.
(8) If a licence referred to in sub-section (1) refers to
a procedure or to a provision of the repealed Act
to describe a procedure authorised by the licence,
that licence is deemed to authorise the carrying
out under this Act of a procedure corresponding to
that procedure.
(9) A licence referred to in sub-section (1) must be
taken to authorise the storage of gametes, zygotes
and embryos at the licensed centre.
(10) Part 8 does not apply to the variation of a licence
under sub-section (4).
(11) The Authority must designate a person who is to
be the licensee in relation to a licence referred to
in sub-section (1) and for that purpose a licensee
must be—
(a) in relation to a hospital that is a legal person,
that hospital; or
(b) in relation to a denominational hospital that
is not a legal person, a nominee of the
hospital who is a legal person; or
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s. 192
(c) in relation to a private hospital, the
proprietor and, if the proprietor is not a legal
person, a nominee of the proprietor who is a
legal person—
and a licence referred to in sub-section (1) is not
deemed to be a licence granted under Division 1
of Part 8 until that designation is made.
192. Review of Ministerial decisions
Despite its repeal, Part VI of the repealed Act (as
in force immediately before the commencement of
this section) continues to apply to a decision of
the Minister under that Act.
193. Ministerial directions
(1) This Part does not affect the continuity of the
status and effect of a direction given under section
7 of the repealed Act and anything required or
authorised by the direction that has not been done
at the commencement of this section must be done
or completed in accordance with that direction
and this Act.
(2) This Act applies to a zygote or an embryo which,
before the commencement of this section, in
accordance with section 14(1)(a) of the repealed
Act has been made available for use in a relevant
procedure but at the commencement has not been
used for that procedure.
(3) This Act applies if—
(a) under section 14(1)(b) of the repealed Act, a
direction has been given that a zygote or an
embryo be made available for use in a
relevant procedure; and
(b) at the commencement of this section the
procedure has not been carried out—
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s. 194
as if all relevant consents had been given under
this Act to the carrying out of a treatment
procedure or research corresponding to that
procedure.
194. Abolition of former Committee
(1) The former Committee is abolished and its
members go out of office.
(2) The Authority may, in accordance with this Act,
continue and complete any thing of a continuing
nature commenced by the former Committee.
*
*
*
*
*
S. 194(2)
substituted by
No. 37/1997
s. 5(2).
S. 194(3)
repealed by
No. 37/1997
s. 5(2).
(4) The Authority must prepare the Annual Report
that the former Committee would have been
required to prepare in accordance with the
requirements of section 29(9) of the repealed Act,
if that provision had not been repealed.
*
*
*
*
*
196. Exemptions
(1) The Authority may, in writing, with the approval
of the Minister exempt a person from all or any of
the provisions of this Act (other than section 24)
or the regulations or any part of a provision of this
Act (other than section 24) or the regulations in
respect of—
(a) a specified procedure; or
(b) a procedure involving the use of a zygote or
an embryo referred to in section 193(2) or
(3); or
(c) anything done in accordance with the
repealed Act; or
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S. 195
repealed by
No. 37/1997
s. 18.
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s. 197
196
(d) a continuing matter commenced under the
repealed Act but not completed at the
commencement of this section.
(2) An exemption—
(a) may be general or limited in application to
any particular case or class of cases; and
(b) may be made subject to any conditions that
the Authority specifies in the exemption; and
(c) may specify who must comply with any
conditions of the exemption.
(3) A person required to comply with a condition of
an exemption must comply with that condition.
Penalty: 50 penalty units.
(4) The Authority may, in writing, amend or revoke
an exemption.
(5) As soon as possible after making, amending or
revoking an exemption the Authority must give
written notice of this to each person to whom it
applies or will apply.
(6) This section applies despite anything to the
contrary in this Division.
(7) Without limiting sub-section (1)(d), "continuing
matter" under that sub-section includes—
(a) a case where section 176, 177, 179 or 180
applies; and
(b) a gamete, zygote or embryo in storage before
the commencement of this section or section
185.
197. Existing immunity not affected
(1) The amendments made to section 133 of the
Health Act 1958 by Division 1 do not affect any
immunity existing under that section immediately
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before the date of commencement of this subsection.
(2) Despite the repeal of section 15(2) or 24 of the
repealed Act, those provisions continue to apply
to a relevant procedure carried out under that Act.
198. Superseded references
(1) On the commencement of this section and unless
inconsistent with the context or subject matter, a
reference in an Act or regulations (other than this
Act) or a document, in relation to a period on or
after that commencement—
(a) to an approved hospital under the repealed
Act is deemed to be a reference to a licensed
centre; and
(b) to the central Register under the repealed Act
is deemed to be a reference to the central
Register under Part 7 of this Act; and
(c) to a Register under section 19 of the repealed
Act is deemed to be a reference to a Register
under section 62 of this Act; and
(d) except in relation to approving research, to
the former Committee is deemed to be a
reference to the Committee; and
(e) to the former Committee, in relation to
approving research, is deemed to be a
reference to the Authority; and
(f) to a record kept under section 21 of the
repealed Act is deemed to be a reference to a
record under section 63; and
(g) to the designated officer of an approved
hospital under the repealed Act is deemed to
be a reference to the designated officer of a
licensed centre; and
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s. 199
(h) to a fertilisation procedure is deemed to be a
reference to a fertilisation procedure under
this Act; and
(i) to a relevant procedure, other than a
procedure under section 9A of the repealed
Act, is deemed to be a reference to a
treatment procedure; and
(j) to an approved counsellor under the repealed
Act is deemed to be a reference to a
counsellor approved under Part 8 of this Act;
and
(k) to the repealed Act is deemed to be a
reference to this Act; and
(l) to the regulations made under the repealed
Act is deemed to be a reference to the
regulations made under this Act.
(2) Regulations may be made prescribing superseded
references.
199. Further savings and transitional provisions
(1) The regulations may contain provisions of a
savings or transitional nature consequent on—
(a) the coming into operation of any provision
of this Act; or
(b) the repeal of any provision of the repealed
Act; or
(c) the coming into operation of a regulation
under this Act; or
(d) the revocation of a regulation under the
repealed Act.
(2) The regulations may provide for the presumed or
deemed construction of a consent, assessment of
eligibility or other document—
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(a) made under or in relation to the repealed
Act; or
(b) made before the commencement of section
22 or Part 2.
(3) Sub-section (2) does not limit or affect subsection (1).
═══════════════
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Notes
NOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 4 May 1995
Legislative Council: 6 June 1995
The long title for the Bill for this Act was "A Bill to regulate procedures for
the treatment of infertility and research using human reproductive material,
to make provisions with respect to surrogacy agreements, to repeal the
Infertility (Medical Procedures) Act 1984 and to amend various other Acts
and for other purposes.".
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 4 May 1995
Legislative Council: 6 June 1995
Absolute majorities:
Legislative Assembly: 20 May 1995 and 1 June 1995
Legislative Council: 7 June 1995
The Infertility Treatment Act 1995 was assented to on 27 June 1995 and
came into operation as follows:
Sections 1–4 on 27 June 1995: s. 2(1); section 170 on 1 July 1988: s. 2(2);
sections 5, 121, 122(1)(g)(j)(2)–(5), 123–136, 138, 139, 165, 199 on
1 September 1995: Government Gazette 31 August 1995 page 2284; rest of
Act on 1 January 1998: s. 2(4).
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2. Table of Amendments
This version incorporates amendments made to the Infertility Treatment
Act 1995 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Infertility Treatment (Amendment) Act 1997, No. 37/1997
Assent Date:
3.6.97
Commencement Date:
3.6.97: s. 2
Current State:
All of Act in operation
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
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Notes
3. Explanatory Details
No entries at date of publication.
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