DCSG | Legislation

NSW Legislation

The Assisted reproductive technology Act 2007

The writing of the regulations to go with this Act is being done (commencing in July 2008) by the Legal Branch of the NSW Health Department.

The regulations will outline exactly how the Act will work and so how they are written is of extreme importance especially in the area of the Registers. The Act is quite general in some areas especially in that it does not refer to a voluntary register (a register for already existing donor conceived people) by name and just states:

(2) Despite subclause (1), the Director-General may enter in the register, in

accordance with section 33, information that relates to ART treatment

provided before the commencement of that section, if the individual to

whom the information relates makes an application for registration of

the information in the approved form.

The DCSG has already written to the Legal Branch outlining some of the issues that we feel need special attention in the writing of the regulations. We have also been informed that we will be sent a copy of the Draft Regulations when they are complete. Any member of the DCSG or the general public is allowed to make a submission or a comment about these regulations to the Legal Branch.

Contact Details for the Legal Branch of the NSW Health Department

The person in charge of writing the Regulations is Gemma Broderick gemma.broderick@doh.health.nsw.gov.au

Legal Branch
NSW Department of Health
Locked Mail Bag 961
North Sydney NSW 2059
DX 10674 North Sydney
phone: (02)9391-9606
fax: (02) 9391-9604
email: legalmail@doh.health.nsw.gov.au

Media Release

Minister for Health

Sunday 14 November 2007

ART BILL SET TO BE INTRODUCED INTO NSW PARLIAMENT

The NSW Government will this week introduce legislation to tighten the existing rules around assisted reproductive technologies, including sperm and egg donation.

NSW Minister for Health Reba Meagher said the Assisted Reproductive Technology (ART) Bill had been developed following a lengthy and detailed public consultation process.

Under the new legislation, a central donor register would be established to allow donor-conceived children to access important Information about their donor parent once they turn 18 - information such as the donor's name, date of birth and education, as well as important medical information.

"The rights of children will now be enshrined in the legislation so that any child born through Assisted Reproductive Technology (ART) will, after they turn 18, be able to know the details of their biological parents," Ms Meagher said.

"I have had representations from people in the past who have argued that they should have been able to find out who their donor fathers were, and I have always been sympathetic to that view. Donor conceived children who have turned 18 will also be able to consent to their donors receiving identifying information about them."

NSW Premier Morris lemma said it can be distressing not knowing who your other parent is.

"I have seen the joy on both sides when donor fathers have met up with the children they helped bring into the world," Mr lemma said.

"This new legislation also ensures that NSW ART services continue to maintain the highest standards of ethics and clinical quality in accordance with national standards."

An additional strength of the new legislation is that ART service providers will now be required to offer counselling to all ART participants so that they understand all the implications of the procedure, but leaves it open to whether or not they accept such offers.

The proposed mandatory register will apply only to future donors. Individuals who have in the past donated anonymously will not be required to provide information for the register, but can choose to provide details on a voluntary basis.

Ms Meagher stressed that under the new law, donors would not be obliged to have contact with their offspring and that the legislation would not make donors legally or financially responsible for those children.

"In fact, the Bill will offer additional protection for donors by providing that donated sperm and ova may only be used in a manner that complies with the donor's wishes," she said.

"For example, a donor from a distinct ethnic community may stipulate that their donation is only to be offered to members of that community."

Ms Meagher said the legislation will help to bring the regulation of ART in New South Wales into line with regulation in Victoria , South Australia and Western Australia and many overseas countries.

"The experience in other States which have already introduced similar legislation has been that this does not result in a reduction in donations," she said.

The ART Bill does not address cloning or research on embryos. These matters are addressed by the NSW Human Cloning and Other Prohibited Practices Act 2003 and the Commonwealth's Research Involving Human Embryos Act 2002.

Ms Meagher said the Bill also bans commercial surrogacy and noted that the Standing Committee of Attorneys General is currently reviewing laws relating to surrogacy on a national basis.

Media Contact Allison Bone 0434 568 421

Australian Legislation on Donor Conception

"Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research"

The above document was released last year by the National Health & Medical Research Council, we have been waiting for its release for some years now. This is a very important document because it is the guidelines by which all clinics in Australia are supposed to abide. It tells them what information to record on donors, parents & offspring, what information may be given to these people about each other.

These new guidelines are very different to the last ones which were released in 1996. the main changes are:

Clinics may only use donors that consent to being identified to donor offspring in future.
Clinics should help recipients to understand the significant biological connection between their children & the donor.
Clinics should encourage people who have been donors in the past, or donor offspring to contact clinics and register their consent to being contacted and sharing information.
Overseas gametes can only be used where they fulfil all the requirements of the guidelines.

The DCSG while happy that the NHMRC has agreed with what we see as vitally important for donor conceived families we are still very aware that these are only guidelines and in most states of Australia there is no legislation to back them up. We have written to the NHMRC to ask them when the guidelines are supposed to be put in to practice and how they propose to oversee clinics to ensure that they are following the new guidelines considering that some clinics are not due for another visit for accreditation for about 3 years.

The guidelines can be downloaded at www.nhmrc.gov.au or email nhmrc.publications@nhmrc.gov.au and ask for a copy to be sent to you or call 1800 020 103 extension 9520

If you have any questions about the new guidelines contact Caroline (02)9624 5110 or email cplorbach01@optusnet.com.au

State	Legislative Act	Access to identifying information	Access to non-identifying information
VIC	Infertility Treatment Act (1995)	Those conceived after commencement of the act in January 1998 will be able to know the identity of their donor/s when they reach the age of 18.	Can have access to non-identifying information when they reach the age of 18.
NSW	Assisted Reproductive Technology Act (2007)	This act while having passed through parliament has not yet been enacted, The regulations are currently being written which should include registers for donor offspring
ACT	No legislation
TAS	No legislation
SA	Reproductive Technology Act (1988)	While there is no right to access identifying information there is also nothing in the legislation which forbids access to identifying information if all parties consent.	Can have access to non-identifying information when they reach the age of 16.
QLD	No legislation
NT	No legislation
WA	Human Reproductive Technology Act (1991)	Under amendments to the HRT Act in December 2004, donor conceived persons upon reaching the age of 16 years having undertaken approved counselling have a right to access identifying information about the donor. As a result of these changes to legislation only those donors who consent to their identifying information being released to donor conceived persons upon reaching the age of 16 are able to donate human reproductive material.	There is a right to access non-identifying information by parents and mature offspring.

In those states that have no legislation regarding access to information clinics are expected to follow the National Health and Medical Research Council’s Ethical guidelines on assisted reproductive technology (1996).

Currently clinics in states where there is no legislation adher to the guidelines specified by RTAC - click here to go to their web site where you can download the guidelines.

The Reproductive Technology Accreditation Committee (RTAC), established by the Fertility Society of Australia in 1987, has expanded on the series of standards and associated explanatory notes.

These guidelines are to be observed by clinics or centres involved in the treatment of patients with ovulation induction, artificial insemination, IVF and related techniques such as gamete intrafallopian transfer (GIFT) and all procedures involving donated gametes or embryos. Such clinics or centres are called Assisted Reproductive Technology (ART) centres.

These guidelines are currently under review but state that records should be kept indefinitely and that “children born from the use of ART procedures are entitled to a knowledge of their biological parents.” According to the NHMRC this does not mean the right to know who their donors are.

There has been one case that I am aware of where a doctor has been prosecuted at a Professional Standards Committee and found guilty of failing to keep records of sperm and egg donors (Annual Report of the NSW Health Care Complaints Commission 2000-2001).