In vitro fertilisation (“IVF”) is a form of assistive reproductive treatment (“ART”) whereby an egg is combined with sperm outside of the body in a specialised laboratory. IVF can be used to overcome a range of fertility issues and challenges which individuals and couples face when attempting to conceive a child. In Victoria, this procedure is regulated under the Assisted Reproductive Treatment Act 2008 (Vic) (“the Act”).

In 2018, the Victorian Government commissioned the ‘Independent Review of Assistive Reproductive Treatment’ (“the Gorton review”). The Final Report of this review was released in May 2019 and is the basis of the legislative changes regarding IVF procedures and parentage, put forward in the Assisted Reproductive Treatment Amendment Bill 2021 (Vic) (“the Bill”). Since the Bill has passed, the following reforms will occur:

Circumventing the 10 “women” limit

One key recommendation proposed by the Gorton review was a change to the phrasing of s 29 of the Act. This section imposes an upper limit of 10 “women” having children using the gametes from the same donor. This limit has failed to consider the needs of the LGBTIQA+ community and reinforced a hetero-normative bias in IVF procedures. Rainbow Families Victoria submitted that the phrasing ignores the fact that many women wish to choose to have families using the same donors. In essence, this limit heavily restricted women in a lesbian relationship from using the same donor, since they would be counted as separate individuals and therefore had a higher chance of being excluded from the 10 women eligible for a donor’s gametes.

Whilst this limit is intended to reduce the possibility of consanguinity between donor-conceived children, the Gorton review found that amending s 29 will not undermine this aim and will provide better emotional wellbeing for donor-conceived children. Consequently, clause 19 of the Bill seeks to permit existing families to have genetically related siblings from the same donor, even if the 10 “women” limit is breached.

Increasing the accessibility of IVF procedures

Presently, the Act has tight restrictions regarding who can perform relatively simple artificial insemination procedures. This regulation has resulted in increased costs and the closure of rural clinics which were deemed no longer sustainable to run. Consequently, access to these procedures has been made incredibly difficult for individuals in regional areas. Pursuant to Recommendation 3 of the Gorton review’s Interim report, the Bill proposes to expand number of people who can carry out an assistive reproduction procedure. Clause 6 of the Bill stipulates that s 8 of the Act should be amended. The amended section will enable an artificial insemination procedure to occur provided that the person carrying out the procedure is:

• A person who
  • Is a doctor; or
  • Carries out the artificial insemination under the supervision and direction of a doctor who is carrying out the treatment on behalf of a registered ART provider; and
• Satisfied that the requirements of Division 2, 3, and 4 of the Act have been met

By providing that the artificial insemination procedure is carried out under the direct or indirect supervision and direction of a doctor, patients will be afforded greater choice as to where to undertake their procedure, whist also having the safety of the procedure maintained. It is also hoped that this reform will lead to the reinstatement of rural services which were previously discontinued.

Increased rights in surrogacy arrangements

Clause 29 of the Bill seeks to insert s 44A into the Act. This section provides that a surrogate mother has the same rights as any other pregnant woman has to make decisions or take actions in relation to the management of the pregnancy and birth of the child. Anecdotal evidence in the Gorton review found that many surrogates may feel pressured to undergo certain medical treatments and procedures requested by the intended parents. The review found that a provision protecting a surrogate’s bodily autonomy will offer peace of mind to surrogates that they will not be forced to undertake any procedures they feel uncomfortable doing. The review recommended that the protecting a surrogate’s right to bodily autonomy was a principle which should prevail over anything that the parties to the surrogacy arrangement may have agreed upon.

Additionally, whilst there has already been an expansion of the range of reasonable out of pocket expenses to be reimbursed, this Bill is seeking to enable the partners of a surrogate mother to be reimbursed for costs incurred. Clause 26 of the Bill will insert s 44(2A) to the Act, which stipulates that even if the partner is a party to the surrogacy arrangement, that they are not prevented from being reimbursed for the prescribed costs actually incurred as a direct result of having entered into the surrogacy arrangement.

Notably, the Victorian Government is still considering implementing the remaining recommendations of the Gorton review and will undertake further community consultation as to how best implement these reforms.

At Nicholes Family Lawyers, our team have an excellent understanding of IVF and the associated legal issues, and can provide expert, tailored advice to individuals and couples seeking to conceive a child. Please reach out to us for more information on the legislative reforms, as well as your legal standing in IVF procedures.