ETHICS
The National Health and Medical Research Council (NHMRC) provides ethical guidance to the provision of ART in Australia. The first set of guidelines were released in 1996 and the current revision was released in 2018: ‘Ethical guidelines on the use of assisted reproductive technology in clinical practice and research, 2017’ (Reference 1).
All Australian fertility clinics have formulated their policies and procedures to be consistent with these ethical guidelines and also with the relevant state and Commonwealth legislation.
In any ethical debate there will be differing views on a particular issue. The agreed position may not suit all parties but it is usually the position of the majority. In liberal societies which champion the autonomy of the individual this can lead to claims of discrimination. If a patient’s particular situation is not catered for within this ethical framework, then the patient can discuss the matter with the fertility specialist and the clinic counsellor.
LEGISLATION
ART legislation in Australia is piecemeal. The power to pass specific laws regulating ART falls to the states and territories. Therefore, we have a situation where 4 states (NSW, SA, Victoria and WA) have enacted comprehensive legislation, and the remaining states and territories have no regulating legislation, see table in Read more section below. The states that do provide regulation, do so in different ways, and there is no consistency.
For most patients seeking treatment these regulations do not present any barriers to the provision of that treatment. Most of the regulations concern the provision of donor services and provide frameworks for how donors are recruited, reimbursed and the release of parental identity to children born.
Three states, (Victoria, SA and WA), have regulations which seek to place restrictions or set criteria that must be met for eligibility of access to certain ART procedures. If patients are seeking treatment in any one of these states they need to be aware of these eligibility criteria. The fertility specialist and the fertility clinic they have chosen to attend will be aware of any restrictions that apply. If patients feel the restrictions are unfair and discriminate against them, they should first check that clinic policy is consistent with state legislation. The clinic cannot provide treatment that doesn’t comply with the relevant legislation as this could place their registration and accreditation in jeopardy. Patients should put any complaint in writing and forward it to the appropriate licensing body in their state or territory. Where appropriate they should seek legal advice. The website for Health Law Central (Reference 2) www.healthlawcentral.com provides some online information on the legislation in each state or territory and how access to services may be restricted in some states or territories.
Although there is no specific Commonwealth legislation that directly regulates ART, there are two pieces of federal legislation which provide some regulatory constraints on fertility treatment. The Prohibition of Human Cloning for Reproduction Act 2002 and the Research Involving Human Embryos Act 2002 provide regulatory input to all Australian states and territories. In some cases this interaction can contradict a state or territory legislation causing confusion. Further complicating this matter is legislation governing research involving human embryos, which can affect the normal operation of a fertility clinic and place restraints on services that may be offered. An example of this is the training of staff in clinical embryology, where training may viewed as experimentation and can be curtailed. TABLE OF ART REGULATION
State or Territory
ART legislation
Research legislation
Commonwealth
No legislation directly regulates ART
Prohibition Of Human Cloning for Reproduction Act 2002 & Research Involving Human Embryos Act 2002
ACT
No legislation directly regulates ART
Human Cloning and Embryo Research Act 2004
Queensland
No legislation directly regulates ART
Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 and the Research Involving Human Embryos and Prohibition of Human Cloning Regulation 2003
Northern Territory
No legislation directly regulates ART. Guided by South Australia.
No territory legislation. Guided by South Australia
NSW
Assisted Reproductive Technology Act 2007 & Assisted Reproductive Technology Regulations 2014
Research Involving Human Embryos (New South Wales) Act 2003 and the Human Cloning for Reproduction and Other Prohibited Practices Act 2003
South Australia
Assisted Reproductive Treatment Act 1988 & Assisted Reproductive Treatment Regulations 2010
Research Involving Human Embryos Act 2003 and the Prohibition of Human Cloning Act 2003
Tasmania
No legislation directly regulates ART
Human Cloning for Reproduction and Other Prohibited Practices Act 2003 and the Human Embryonic Research Regulation Act 2003
Victoria
Assisted Reproductive Treatment ACT 2008, Assisted Reproductive Treatment Regulations 2009 & Assisted Reproductive Treatment amendment ACT 2016
Research Involving Human embryos ACT 2008 & Prohibition of Human Cloning for Reproduction ACT 2008
Western Australia
Human Reproductive Technology Act 1991 & Human Reproductive Technology Act Directions 2004
Human Reproductive Technology Act 1991
Table of Regulations covering donor conception and surrogacy conception
State or Territory
Donor conception legislation
Surrogacy legislation
Commonwealth
No legislation directly regulates donor conception
No legislation directly regulates surrogacy
ACT
Parentage Act 2004
Parentage Act 2004
Queensland
Status of Children Act 1978
Surrogacy Act 2010
Northern Territory
Status of Children Act 1978
No legislation directly regulates surrogacy
NSW
Status of Children Act 1996
Surrogacy Act 2010 & Surrogacy Regulation 2011
South Australia
Family Relationships Act 1975
Family Relationships Act 1975
Tasmania
Status of Children Act 1974
Surrogacy Act 2012 & Surrogacy Regulations 2013
Victoria
Status of Children Act 1974, Births, Deaths and Marriages ACT 1996 & Human Tissue ACT 1982
Status of Children Act 1974, Births, Deaths and Marriages ACT 1996 & Human Tissue ACT 1982
Western Australia
Artificial Conception Act 1985
Surrogacy Act 2008, Family Court (Surrogacy) Rules 2009 & Surrogacy Regulations 2009
REFERENCE TO STATE REGULATORY BODIES
State or Territory
Specific state body
Address and contact details
Commonwealth
No specific body
ACT
No specific body
Queensland
No specific body
Northern Territory
No specific body
NSW
Private Health Care Unit Assisted Reproductive Technology
Department of Health Locked Mail Bag 961 North Sydney NSW 2059 Ph: (02) 9424 5955 Email: artphcu@doh.health.nsw.gov.au (link sends e-mail) Website: health.nsw.gov.au
South Australia
Research and Ethics Policy Unit
Policy and Intergovernmental Relations Division SA Health PO Box 287 Rundle Mall SA 5000 Ph: (08) 8226 6048 Email: art@health.sa.gov.au (link sends e-mail) Website: sahealth.sa.gov.au
Tasmania
No specific body
Victoria
Victorian Assisted Reproductive Treatment Authority
Level 30, 570 Bourke Street, Melbourne, VIC 3000 Australia Tel: 61 3 8601-5250 Email: varta@varta.org.au Website: https://www.varta.org.au/
Western Australia
Reproductive Technology Council
Department of Health 189 Royal St East Perth WA 6004 Ph: (08) 9222 4387 Email: rtc@health.wa.gov.au (link sends e-mail) Website: rtc.org.au
- National Health and Medical Research Council (2017). Ethical guidelines on the use of assisted reproductive technology in clinical practice and research. Canberra: National Health and Medical Research Council.
- http://www.healthlawcentral.com/assistedreproduction/