Final report—Key recommendations

• Legislated principles should guide all decision making, these include: putting the interests of the child first, protecting the health and wellbeing of all people involved, a right to information about genetic parents, and no discrimination on grounds of marital status, sexuality, race or religion.

• Presumption against treatment in clinics for people with convictions for sexual and serious violent offences or who have had a child protection order made against them. People would have the right of review by an independent review panel.

• Clinical ethics committees review whether aspiring parents pose a potential risk to an unborn child.

• Removal of requirement for women accessing treatment to be married or in de facto relationship and definition of partner to be broadened to recognise same-sex couples.

• The “unlikely to become pregnant” requirement for access to treatment in the current Act to be expanded to include reasons other than clinical infertility.

• Clinics continue to offer sperm screening and counselling services for people who self-inseminate.

• It should not be an offence for a partner or friend of a woman to help her self-inseminate.

• Retain the ban on non-medical sex selection.

• Donors should not be able to put qualifications on who receives their sperm or ova, unless they are donating to a known woman or couple.

• The sperm and ova of people who die can only be used if they leave written consent.

• The ITA ethics committee should decide whether clinics can use new treatments

• Same-sex couples and single people should be allowed to adopt under existing access criteria.

• The law should recognise the female partner of a birth mother as the child’s parent.

• The Victorian government should work towards national reform to ensure the non-birth mother is considered a parent under the federal Family Law Act and Child Support (Assessment) Act.

• Sperm and ova donors are not considered the parents of children born from their sperm and ova, regardless of who receives the donation.

• Birth certificates to include the option of parent, as well as mother and father. Changes to parents listed on birth certificates may be retrospective.

• Parents of children born from donated sperm, ova or embryos should receive ongoing counselling and support to help them tell their children of their genetic origins.

• Sperm and ova donors should not be able to directly contact their genetic children, but the ITA should continue to maintain information registers to allow contact when children initiate it.

• The ITA should facilitate contact between people born before 1998 and anonymous donors by writing to clinics and donors about the donor registers and offering counselling to donors.

• A new independent service to manage the donor registers should be established.

• Eligibility for fertility treatment for surrogacy should apply to the people commissioning a surrogacy arrangement and not the surrogate mother and her partner, if she has one.

• Surrogate mothers should be 25 years or older but past pregnancies should not be a prerequisite.

• Surrogate mothers who use their own ovum should undergo specific counselling.

• Commissioning parents should be recognised as the child’s parents if a court is satisfied it’s in the best interests of the child and the surrogate agrees to the transfer of parentage.

• Once a court has transferred parentage the parents on the birth certificate can be changed.

Final report—Access to ART

Victoria

In Victoria, the Infertility Treatment Act 1995 governs who can access assisted reproductive technology (ART). Under this Act, only women who are married or in a heterosexual de facto relationship can use ART.

This requirement was challenged in the 2000 case McBain v The State of Victoria & Ors. The Federal Court found the Act was inconsistent with federal anti-discrimination legislation and was therefore invalid, so now Victorian clinics cannot use a woman’s relationship status to block access to ART. However, women without male partners are required to be clinically infertile or at risk of transmitting a genetic disorder in order to access treatment. This is a different test to that which applies in practice for same-sex couples.

Other states

In New South Wales, Queensland, ACT, and Tasmania anyone can access ART services, according to NHMRC guidelines. However, in 2000, the Queensland Anti-discrimination Tribunal rejected an appeal from a woman in a same-sex relationship who was refused treatment. In Western Australia, anyone can access donor insemination services, but more invasive ART procedures, such as IVF, are restricted to clinically infertile women who are not infertile because of age.

In South Australia, only infertile married or heterosexual long-term de facto couples may access ART services, although this has been found to be inconsistent with federal anti-discrimination laws. Since the Pearce case in 1996, anyone can access treatment if they are clinically infertile or at risk of transmitting a genetic disorder.

There is no direct regulation in the Northern Territory, but the Department of Health requires clinics to follow South Australian legislation.

Commission recommendations

• Legislated principles should guide all decision making, these include: putting the interests of the child first, protecting the health and wellbeing of all people involved, a right to information about genetic parents, and no discrimination on grounds of marital status, sexuality, race, or religion, and sexuality grounds.

• Presumption against treatment in clinics for people with convictions for sexual and serious violence offences or who have had a child protection order made against them.

• Clinical ethics committees to decide if aspiring parents pose a potential risk to an unborn child.

• Removal of requirement for women accessing treatment to be married or in de facto relationship and definition of partner to be broadened to recognise same-sex couples.

• The “unlikely to become pregnant” requirement for access to treatment in the current Act to be expanded to include reasons other than clinical infertility.

• The ITA ethics committee should decide whether clinics can use new treatments

• The ITA should decide case by case if people should be assisted to use ART for reasons other than those articulated in the legislation.

• Retain the ban on non-medical sex selection.

Final report—Parenting and adoption laws

Victoria

The legal relationship between children and their biological parents can be extinguished:

• via adoption (Adoption Act 1984); or

• if children are born from donated sperm or ova to heterosexual couples (Status of Children Act 1974).

Where a child conceived with donor sperm is born to a woman without a male partner, the parental status of the donor is not extinguished (although he has no rights and incurs no liabilities in respect of the child): Status of Children Act.

The female partner of the child’s birth mother cannot be recognised legally as a parent alongside the birth mother (other than through a Family Court parenting order), nor can she be registered as the child’s parent on a birth certificate. She is not responsible for paying child support if she and the birth mother separate. This is to be contrasted with the status of heterosexual parents who have had a child through donor conception.

The Adoption Act 1984 restricts adoption in a number of ways:

• Only people who are married or living in a heterosexual domestic relationship (2+ yrs) may adopt a child;

• Single people may adopt, but only in exceptional circumstances;

• Same-sex couples are not eligible to adopt;

• The same-sex partner of a parent is not permitted to adopt the parent’s child.

Other states

Western Australia, the ACT and Northern Territory recognise as a legal parent the same-sex partner of a person who undergoes an assisted reproductive procedure. In Tasmania, the same-sex partner can apply to adopt the child. In South Australia and Queensland, non-birth mothers are not legally recognised. In Western Australia, Tasmania and the ACT, same-sex couples can adopt children.

Commission recommendations

• The law should recognise the female partner of a birth mother.

• The Victorian government should work towards national reform to ensure the non-birth mother is considered a parent under the federal Family Law Act and Child Support (Assessment) Act.

• Sperm and ova donors are not considered the parents of children born from their sperm and ova.

• Birth certificates to include the option of parent, as well as mother and father. Changes to parents listed on birth certificates may be retrospective.

• A new independent service to manage the donor registers should be established.

• Parents of children born from donated sperm and/or ova should receive ongoing counselling and support to help them tell their children of their genetic origins.

• Same-sex couples and single people should be allowed to adopt under existing access criteria.

• Same-sex partners should be able to apply to adopt their partner’s child under existing criteria.

Final report—Surrogacy laws

Victoria

The Infertility Treatment Act 1995 prohibits commercial surrogacy but is silent on altruistic surrogacy. Surrogate arrangements are not recognised under the Status of Children Act 1974. This means that a surrogate mother who is married or in a de facto relationship is the mother of the child and her husband/partner is the father. The Act is silent about who the mother is when a single woman carries the fertilised egg of another woman. The commissioning couple cannot be recognised as parents even if they are both genetically related to the child.

Other states

Altruistic surrogacy is permitted in New South Wales subject to NHMRC guidelines. In the ACT, altruistic surrogacy is permitted and there is a process for transferring parentage from the surrogate to the commissioning parents under the Parentage Act 2004. In Tasmania altruistic surrogacy is permitted, but it is illegal to provide professional or technical services.

In Queensland, the Surrogate Parenthood Act 1988 forbids all forms of surrogacy, advertisements for surrogates or payments for surrogacy arrangements.

The Statutes Amendment (Surrogacy) Bill 2006 is before South Australian parliament and the Surrogacy Bill 2007 is before the Western Australia parliament. Both Bills would allow altruistic surrogacy and a process for transferring parentage from the surrogate to the commissioning couple.

Commission recommendations:

• Government should clarify whether altruistic surrogacy is allowed

• Commercial surrogacy ban to continue, although certain expenses can be reimbursed.

• Eligibility for fertility treatment should apply to the people commissioning a surrogacy arrangement and not the surrogate mother and her partner, if she has one.

• Surrogate mothers should be 25 years or older, but past pregnancies should not be a prerequisite.

• Surrogate mothers who use their own ovum should undergo specific counselling.

• Commissioning parents should be recognised as the child’s parents if a court is satisfied it’s in the best interests of the child and the surrogate agrees to the transfer of parentage.

• Surrogate mother can withhold her consent to transfer parentage after birth.

• Once a court has transferred parentage the parents on the birth certificate can be changed.

Final report—Posthumous use of sperm, ova and embryos

Victoria

The Act prohibits the use of a dead person’s gametes in an insemination procedure. In 2001 the Act was changed to allow a formed embryo to be used if one of the parents dies. In 2003 further changes allowed the use of the gametes of a dead person to subsequently form an embryo that can then be transferred to a woman’s body.

Other states

South Australia and Northern Territory permit posthumous use of gametes and embryos with consent of the deceased. New South Wales, Queensland, Tasmania and the ACT permit posthumous use but only in accordance with the NHMRC guidelines and with the express consent of the deceased. Western Australia does not permit posthumous use of gametes or embryos.

Commission recommendations

• All treatment using the sperm or ova of a dead person is banned unless written consent to the treatment was left by the person and should only be permitted in the context of a pre-existing relationship.

• Doctors are not permitted to remove sperm or ova from a dead person unless they are aware of written consent for the process.

• People wanting to use the sperm or ova of their dead partner must undergo counselling.

• All decisions of whether to allow the use of sperm or ova from a dead person must be vetted by a clinical ethics committee, who will consider whether it is in the best interests of any child to be born.

• The ITA should monitor research about the effects on children of being born from the sperm or ova of a dead person.

• Clinics should not use donated sperm or ova if they become aware that person has died.

• Clinics should contact all donors to ascertain what they want done with their sperm or ova after they die.

Terms of reference

1. The Victorian Law Reform Commission is to enquire and report on the desirability and feasibility of changes to the Infertility Treatment Act 1995 and the Adoption Act 1984 to expand eligibility criteria in respect of all or any forms of assisted reproduction and adoption; and make the recommendations for any consequential amendments which should be made to the:

• Status of Children Act 1974

• Births Deaths and Marriages Registration Act 1996

• Human Tissue Act 1982

• Equal Opportunity Act 1995

• and any other relevant Victorian legislation

2. In making its enquiry and report, the commission should take into account, to the extent it decides is necessary or desirable:

(i) social, ethical and legal issues related to assisted reproduction and adoption, with particular regard to the rights and best interests of children;

(ii) the public interest and the interests of, parents, single people and people in same sex relationships, infertile people and donors of gametes;

(iii) the nature of, and issues raised by arrangements and agreements relating to methods of conception other than sexual intercourse and other assisted reproduction in places licensed under the Infertility Treatment Act 1995 (“the Act”);

(iv) the penalties applicable to persons, including medical and other personnel, involved in the provision of assisted reproduction (whether through a licensed clinic or otherwise); and

(v) the laws relating to eligibility criteria for assisted reproduction and adoption and other related matters which apply in other states or countries and any evidence on the impact of such laws on the rights and best interests of children and the interests of parents, single people, people in same sex relationships, infertile people and donors of gametes.

3. In addition, the commission should consider whether changes should be made to the Act to reflect rapidly changing technology in the area of assisted reproduction.

4. The commission is also requested to consider the meaning and efficacy of sections 8, 20 and 59 in relation to altruistic surrogacy, and clarification of the legal status of any child born of such an arrangement.

In making its report the commission should consider the relationship between changes to Victorian legislation and any relevant Commonwealth legislation including the Family Law Act 1975 and the Sex Discrimination Act 1984 as well as any International conventions and instruments to which Australia is a signatory.