Current Australian legislation

The law and donor conception

HUMAN RIGHTS TREATIES 

Australia is a signatory to 7 International human rights treaties, and these treaties or conventions help to ensure that the laws made in this country provide those human rights to all Australian citizens. The UN Convention of Human Rights (‘the UNCHR’) and the Convention on the Rights of the Child (‘the UNCRC’) set out the rights, responsibilities and duties of parents, and the special rights of all children. One such right is that the best interests of the child shall be the paramount consideration. Our law here reflects that principle, and our family court judges are guided by that principle. There are several relevant articles in the UNCRC pertaining to donor conception, namely 3, 7.1, and 8.1.  

 

FEDERAL LEGISLATION 

The Family Law Act 1975 (Cth) (‘the FLA’) is the governing legislation on all things related to the family – from de facto relationships and marriage to separation and divorce, and of course parenting and children. It is national legislation, so it applies in all Australian states and territories. Section 60H of the Family Law Act applies to children born as a result of artificial conception procedures. Other national legislation is also relevant, including the Prohibition of Human Cloning for Reproduction Act 2002 (Cth), and the Research Involving Human Embryos Act 2022 (Cth).

 

STATE LEGISLATION (set out below) 

This deals more extensively with donor conception and surrogacy.  In addition, state Status of Children Acts apply alongside the Family Law Act. These Acts set out presumptions of parentage and stipulate an irrebuttable presumption that a donor is not a legal parent.

CASE LAW evolves the body of law in a particular area as disputes proceed through the court. Judges interpret the applicable federal and state legislation in the context of the issues at hand, and in light of the current values of society. This sets precedents which can be relied upon as Australian common law. In addition, cases in other jurisdictions (particularly in other Commonwealth countries) can provide guidance. 

We also have what we call ‘soft law’, such as ethical GUIDELINES issued by the National Health and Medical Research Council (the ‘NHMRC Guidelines’). These guidelines set out appropriate practices regarding donor conception.

State legislation:

  • VIC:

    • Assisted Reproductive Treatment Act (Vic) 2008 (incorporating all amendments)

      • Amended 2010 to mandate addendum to birth certificates

      • Amended 2016 to allow for equal access to info for all by retrospectively removing anonymity

      • Amended 2021 to allow for importation of sperm from international donors, clarify other terms

  • NSW:

    • Assisted Reproductive Technology Act 2007

  • WA:

    • Human Reproductive Technology Act 1991

  • SA:

    • Assisted Reproductive Treatment Act (SA) 1988

      • Amended November 2021 to establish the Donor Conception Register and to allow for equal access to info for all by retrospectively removing anonymity

  • ACT:

    • No specific legislation, guided by NHMRC Guidelines

  • QLD:

    • No specific legislation, guided by NHMRC Guidelines

  • NT:

    • No specific legislation, guided by NHMRC Guidelines

  • TAS:

    • No specific legislation, guided by NHMRC Guidelines

Access to information and assistance

  • Central Register (established 1988)

    • access to identifying info in files governed by legislation ($75 fee applies)

    • mandatory counselling provided

    Voluntary Register

    • exchange of info by matching details with others on register by consent where no access to info from files (no cost)

    CONTACT:

    VARTA – the Victorian Assisted Reproductive Treatment Authority

  • Central Register (established 2010)

    • access to info for those aged 18+ or to a parent in certain circumstances (eg medical reasons)

    Voluntary Register

    • exchange of info by matching details with others on register by consent where no access to info from files (no cost)

    CONTACT:

  • Reproductive Technology Register (established 1993)

    • conceived >2004: access to identifying info for those aged 16+

    • conceived <2004: applications for non-identifying info

    • mandatory counselling provided

    Voluntary Register

    • exchange info by matching details with others on register by consent where no access to info from files (no cost)

    CONTACT:

    Jigsaw DNA Connect

    (funded by WA Department of Health)

    Reproductive Technology Register managed by WA Department of Health, Maternal & Child Health Team

  • Donor Conception Register

    • currrently being established 2022)

      • to apply retrospectively (as in Vic)

    CONTACT:

    SA Health

  • No register

    CONTACT:

    Relevant fertility clinic

  • No register (Inquiry proposed 2022)

    CONTACT:

  • No register

    CONTACT:

    Relevant fertility clinic

  • No register

    • conceived >2004: access to identifying info for those aged 18+ under NHMRC Guidelines

    CONTACT:

    Relevant fertility clinic

Inquiries

COMMONWEALTH:

  • 2010 – Inquiry into Donor conception practices in Australia

VIC:

  • 2011 – Inquiry into Access by DC People to Information about Donors 

  • 2021 – Review

NSW:

  • 2011 – Inclusion of Donor Details on the Register of Births 

  • 2012 – Managing Donor Conception Information

WA:

  • 2018 – Independent Review of Human Reproductive Technology Act 1991 and Surrogacy Act 2008

SA:

  • 2016 – Review of Assisted Reproductive Treatment Act (SA) 1988

ACT:

  • 2021 – Internal Government Review

QLD:

  • 2022 – Government (Legal Affairs and Safety Committee) inquiry proposed

NT:

  • 2019 – Inquiry into legislating re surrogacy

TAS:

  • 2016 – Inquiry into Donor Conception Practices in Tasmania

Outcome of inquiries

  • 2010:

    • Recommended that States without legislation immediately legislate;

    • Recommended that a national register be established, and if this is not achieved then States establish their own centralised registers, and that there be a consistent approach to the granting of access to information

  • 2011:

    • Allow all donor conceived people to obtain identifying info regardless of when conceived;

    • Provide for lodging contact vetoes (if conception <1998);

    • Include penalty for breaches of vetoes;

    • Allow for contact preferences from donors;

    • Mandate counselling prior to obtaining identifying info;

    • Encourage agencies/persons holding info to release non-identifying info;

    • Legislate to empower one agency to provide all services relating to information, linking, counselling, education and media.

    2021

    • Clarify searches that may be undertaken to support the right-to-know framework;

    • Clarify consent following embryo formation, separation;

    • Expand persons permitted to provide counselling services;

    • Permit importation of sperm from international donors;

    • Increase family limit from 10 women to 10 families (enabling women in same sex couples to use same donor);

    • Introduce gender-neutral language to increase accessibility and inclusivity.

  • 2011:

    • A nationally consistent system for registration, management and release of information in relation to donor conception be developed;

    • Gamete donors’ details continue to be held on the ART Central Register and not be included on the Register of Births or on birth certificates.

    2012:

    • Amendment of legislation to make it an offence to destroy, tamper with, or falsify any donor conception records;

    • A new donor conception management agency established to collect all records from clinics and establish a register, and to provide support to those involved in donor conception;

    • Allow those conceived < 1 January 2010 to access:

      • non-identifying information about donor, regardless of consent of donor; and

      • identifying information with consent of donor.

  • 2018:

    • Establish one central donor conception register, maintained at Office of Births Deaths & Marriages, with an independent agent contracted to provide support and search services;

    • Retrospective release of info with contact veto for those conceived <2004;

    • Access to identifying info made available to donors with consent, and to donor conceived siblings with consent except where heritable illness;

    • Counselling optional;

    • Support services cost-free;

    • Donors notified of live birth, year and gender of child;

    • Donor conceived people notified of donor conceived siblings;

    • Addendum to birth certificate notifying of info on register.

  • 2016:

    • Amend legislation to establish register at Births Deaths & Marriages;

    • Retrospective release of info with contact veto;

    • Prohibit destruction of records;

    • Mandate transfer of records to register.

  • 2021:

    • Report pending, anticipated August 2022

  • 2022:

    • Report pending, anticipated August/September 2022

  • No outcomes reached as of yet.

  • 2016:

    • Recommended enacting legislation with 12 months to enshrine NHMRC Guidelines (not yet enacted as at Feb 2022);

    • Recommended prohibiting destruction of records and allowing 2 year timeframe from commencement of legislation for collection of pre-2004 records, with no release of info without consent until after that time;

    • Recommended establishing a central authority to operate a registry to assist searches, provide counselling and contact management, deliver public education;

    • Recommended contact veto which expires and can be renewed.