Practical guide to legislation
Can I choose the sex of my child when trying for a baby with IVF?
Selecting an embryo based on its sex for non-medical reasons is prohibited in Victoria. The law that applies is section 28 of the Assisted Reproductive Treatment Act 2008 (Vic). It prohibits sex selection in Victoria, except in two situations:
- where it is necessary for the child to be of a particular sex so as to avoid the risk of transmission of a genetic abnormality or a genetic disease to the child, or
- Victoria’s Patient Review Panel has otherwise approved the use of the gametes or embryo for the purpose of producing or attempting to produce a child of a particular sex.
People wanting to select the sex of embryos can apply for permission to Victoria’s Patient Review Panel (PRP). The PRP is an independent body established under the ART Act to consider applications for certain uses of fertility treatment, including applications for clinics to carry out sex selection using preimplantation genetic diagnosis (PGD).
PGD is also known as PGT-M (preimplantation genetic testing for monogenic disorders). It enables clinics to select and transfer embryos that are not affected by a specific detected disorder or abnormality to prevent that condition from being passed onto future children.
Please note that when reviewing applications for sex selection, the PRP considers Victorian law and the National Health and Medical Research Council Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research 2017. The NHMRC guidelines say PGD (for sex selection or otherwise) should only be used for prevention of conditions that severely limit the quality of life of the person to be born.
The PRP has more information for potential applicants and clinics about the process here. You can also contact the panel by emailing email@example.com.
Some people may also find it useful to seek independent and specialised legal advice which takes into account their personal circumstances.
Can I use sperm or eggs from my deceased partner?
Can I use an embryo that was created with the sperm or eggs of my deceased partner?
Can I use donated sperm or donated eggs from a donor who is now deceased?
Using somebody’s eggs or sperm after their death is only permitted in a limited set of circumstances in Victoria. For example, the deceased person must have provided written consent for their eggs, sperm or embryos to be used in the event of their death. In the case of a man’s death, treatment can only be carried out on his partner after he dies, not another person. In the case of a woman’s death, her partner may be able to use her eggs or embryos as part of a surrogacy arrangement. This is described in Parts 4 and 5 of the Assisted Reproductive Treatment Act 2008 (Vic) (the ART Act).
People wanting to use their deceased partner’s sperm, eggs or embryos can apply for permission to the Patient Review Panel. The PRP must approve the posthumous use of gametes or embryos by a partner.
The PRP has more information for potential applicants and clinics about the process here. You can contact the panel by emailing firstname.lastname@example.org.
Using donated eggs or sperm, or an embryo created from donated eggs or sperm, after the donor has died is not permitted in Victoria, even if the donor previously consented to this.
Given the complexity of this area, some people may find it useful to seek independent and specialised legal advice which takes into account their personal circumstances.
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.