Victoria's New Assisted Reproductive Treatment Act

On 7 September 2021, the Assisted Reproductive Treatment Amendment Bill 2021 (Vic) (‘the Bill’) was introduced in the Victorian Legislative Assembly by Minister for Health Martin Foley (‘the Minister’).

The Bill later passed the lower house on 16 September 2021, and has yet to be introduced in the upper house.

The Bill builds on reforms already implemented following the Final Report of the Independent Review of Assisted Reproductive Treatment, also known as the Gorton Review ('the Review'). The Review was originally initiated by the Andrews Labor Government in April 2018 and investigated assisted reproductive treatment in the state. The Review made 80 recommendations in its final report, which was released in May 2019.  The Review was discussed in an earlier TimeBase article.

The Bill proposes amendments to address 10 of these recommendations. According to the Minister's second reading speech, legislation reform has the overall aim of:

Reforms in Context

The Minister began his second reading speech of the Bill by outlining the many reforms that have been made in Victoria in relation to reproductive treatments. He said that Victoria’s laws in this area have been evolving consistently to adapt to developments in technology and community expectations. He noted that specific reforms have included:

• the removal of requiring married, but separated women to require their spouse's approval to access reproductive treatments using a sperm donor; and
• the establishment of the first public sperm and egg bank in Australia.

The Minister continued to say in his second reading speech that:

Allowing Existing Families to Use the Same Donor Material 

As the legislation currently exists, a maximum of 10 women may use the same donors when undergoing reproductive treatment. This was to avoid future mishaps where two people enter a relationship without realising they are genetic siblings.

However, the Minister noted that the Gorton Review found that this 10 women limit “discriminates against women in same-sex relationships”. In the situation where two women in a same-sex relationship wanted to each carry a child using the same donor’s material, these women are treated separately according to the limit. This means that depending on how many women have used that donor’s material before, they may not both be able to undergo treatment. In other words, the legislation does not treat two women in a couple as one family.

Therefore, the Bill proposes amendments that would change the limit to 10 families, rather than 10 individual women. This would mean that existing families would be able to use the same donor material to have siblings for their existing children.

To reassure that this would have very minimal impact on the concerns for unknowing siblings forming relationships in the future, the Minister said in his second reading speech:

Increasing Access to Treatment

The Bill also contains several amendments seeking to make assisted reproductive treatment more accessible, both in terms of reducing discrimination and in terms of the practicalities of receiving treatment.

The Minister further explained in his second reading speech, that such amendments included:

• enabling “all people … [including] people who have been in same-sex relationships”, whose partners are deceased, to use that partner’s “eggs, sperm or embryos in accordance with their deceased partner’s wishes, to have a child through a surrogacy arrangement”;
• allowing “nurses and other properly trained health professionals to carry out artificial insemination under the supervision and direction of a doctor in an assisted reproductive treatment clinic”; and
• removing the “barrier that requires counselling prior to artificial insemination to occur only in a registered clinic” in order to allow people in rural and regional areas to access treatment closer to home.

Amendments in Relation to Surrogacy and Language 

The Bill seeks to further improve the legal landscape surrounding surrogacy. The Minister in his second reading speech explains that the Bill proposes amendments that would recognise that:

Furthermore, the Minister said that in response to the many out-of-pocket expenses that can arise during surrogacy, the Bill seeks to allow:

Previous reforms have already seen surrogate mothers able to be reimbursed for their expenses.

The Bill also proposes to alter some of the language used to describe surrogacy arrangements, including replacing the term “commissioning parents” with “intended parents”. This would allow for more sensitivity around the issue, and the change would also increase consistency between Victoria’s laws and the laws of other Australian jurisdictions.

The Minister reinforced the importance of this proposed amendment by stating in his second reading speech that:

The Minister concluded:

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Assisted Reproductive Treatment Amendment Bill 2021 (Vic) and additional explanatory materials available from TimeBase's LawOne service