Practical guide to legislation
What do I do if I want to import or export donated eggs, donated sperm or donated embryos into or out of Victoria?
Moving donated eggs or sperm (gametes) and embryos produced from donated gametes into and out of Victoria is subject to VARTA’s approval under section 36 of the Assisted Reproductive Treatments Act 2008 (ART Act).
The process for seeking VARTA approval involves the following steps:
- An application for import/export of the donated gametes or embryos is submitted to VARTA using the approved application form (see link below).
- VARTA receives the application and asks the applicant to provide additional supporting information if necessary.
- For an application made by an individual, VARTA will send the assisted reproductive treatment (ART) provider in Victoria a declaration to sign, which acknowledges that the application complies with all relevant laws.
- VARTA’s board considers the application and makes a decision, which may include placing conditions on an approval or granting an exemption from certain legislative requirements.
- VARTA notifies the applicant and their ART provider of the board’s decision.
Information relating to the application process is set out in the Guidelines to import and export donated gametes and embryos formed using donated gametes which has been developed by VARTA.
An application to import or export donor gametes or embryos that have been created with donor gametes into or out of Victoria should be submitted using VARTA's application form by email only to firstname.lastname@example.org.
What are the rules around the storage of eggs, sperm & embryos in Victoria?
The Assisted Reproductive Treatment Act 2008 (Vic) (ART Act) regulates the length of time that eggs and sperm (gametes and embryos) may be stored for treatment, and sets out the circumstances in which storage periods can be extended.
In Victoria, gametes must not be stored for longer than 10 years, except where:
- the gametes have been produced by a child or a person who is at a reasonable risk of becoming prematurely infertile due to a medical condition or procedure, the gametes may be stored for 20 years, or
- the Patient Review Panel has approved a longer storage period.
An embryo must not be stored for longer than five years from the day the embryo was placed in storage, except where:
- the persons whose gametes were used to form the embryo consent to storage for a further five years (extensions on this basis are managed by assisted reproductive treatment providers); or
- the Patient Review Panel has approved a longer or further storage period.
Assisted reproductive treatment providers are required by law to remove gametes or embryos in storage following the end of the approved storage periods. They may also remove gametes from storage if written consent has been given for removal. In the case of embryos, both of the people who produced the gametes to form the embryo must consent to its removal.
Clinics will attempt to discuss a patient's wishes in relation to the gametes or embryos they have in storage leading up to the end of the approved storage period. It is important that patient contact details are kept up-to-date to ensure these important conversations can take place at the appropriate time.
Extension of storage
In circumstances where gametes or embryos are required for longer than the prescribed storage periods, an application will need to be made to the Patient Review Panel for approval of a longer storage period. Details about how to make an application for an extension of storage time for gametes and embryos are available on the website of the Patient Review Panel.
Decisions about unused embryos
It is common for those who have embryos in storage for use in assisted reproductive treatment to find it difficult to decide what to do with the embryos when they are no longer receiving treatment. The ‘What to do with your unused embryos?’ brochure outlines the available options. An interactive decision tool for what to do with your unused embryos is also available to assist with decision –making.
Can I be refused treatment?
A fertility specialist has refused to provide treatment, what are my options?
What are my options if I am refused treatment?
Under section 15 of the Assisted Reproductive Treatment Act 2008 (ART Act), a person may apply to the Patient Review Panel for a review of a decision to refuse assisted reproductive treatment (ART) if:
- treatment is sought where a person does not meet the eligibility criteria under the legislation, or
- a registered ART provider or doctor is concerned that there is a risk of abuse or neglect of a child who may be born as a result of treatment.
Upon receipt of an application, the Patient Review Panel may determine that there is no barrier to the person undergoing ART procedures generally or of a specified kind. When considering the application, the Patient Review Panel must have regard to:
- the guiding principles in section 5 of the ART Act
- whether the treatment procedure is to be undertaken for therapeutic reasons, and
- the best interests of the child to be born as a result of a treatment procedure.
When determining an application for review, the Patient Review Panel may impose any conditions that it considers necessary and reasonable in the circumstances. Decisions of the Patient Review Panel are reviewable by the Victorian Civil and Administrative Tribunal.
Further information on making an application to the Patient Review Panel is available here.
I am donor-conceived – can I find out information about my donor?
What is legal parentage?
A woman who gives birth to a baby in Victoria is legally recognised as its mother and is recorded on the birth certificate as being so. Her partner (if any) is recorded as the father or other parent. In cases of surrogacy, the intended parent(s) can apply for a substitute parentage order.
Do I need to obtain a criminal record and child protection order check before I commence treatment?
No. This follows the Introduction of the Assisted Reproductive Treatment Amendment Act 2020 to remove police and child protection checks.
I am married but have separated from my partner. Do I need the consent of my spouse for treatment?
The requirement for married women to seek consent of a spouse for fertility treatment has been removed. You can read more here.
What type of applications does the Patient Review Panel consider?
The Patient Review Panel considers applications for a range of procedures under the ART Act related to assisted reproduction. These include the following:
- Pre-implantation genetic diagnosis (PGD) – applications to use PGD, or equivalent, to select the sex of your child.
- Posthumous use of gametes – if your partner is deceased and you wish to use their gametes or embryos formed from their gametes in an ART procedure.
- Removal of embryo from storage - if you currently have embryos in storage at an ART provider and you wish to remove those embryos from storage but the other gamete provider does not agree to that removal.
- Extension of storage for embryos if you and/or your partner (if applicable) have embryos currently in storage at an ART provider and you wish to extend that storage.
- Extension of storage for gametes - if you have sperm, eggs or ovarian tissue currently in storage at an ART provider and you wish to extend that storage.
- Surrogacy arrangement - if you and your partner (if applicable) are seeking to enter into a surrogacy arrangement.
- Criteria not met - if you and/or your partner (if applicable) do not meet the criteria for treatment stated in Section 10(2)(a) of the ART Act.
Who can I contact to complain about treatment I received at a Victorian fertility treatment clinic?
You can contact your clinic first to discuss your concerns. If you are not satisfied with their response, you can contact the Victorian Health Complaints Commissioner by calling 1300 582 113 or completing an online form here.
You can find a list of accredited fertility clinics here.