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Legislative changes for IVF treatment for Victorians

For those Victorians who in the past wanted to apply for In Vitro Fertility (“IVF”) treatment, such people would customarily consult with an IVF specialist, at perhaps Monash or Melbourne IVF clinics, or other fertility clinics.  These fertility specialists would carry out initial investigations and medical checks.

The next step in this process was to obtain a National Police Record Check and a Child Protection Order check.  If these were all clear, then the applicants would confirm a treatment plan with their chosen fertility specialist.

These preliminary requirements were onerous, and in fact Victoria was the only jurisdiction in Australia which required couples and individuals who wanted either IVF treatment or other assisted reproductive treatments to undergo such checks. 

In March 2019, a wide-ranging review of the Assisted Reproductive Treatment (“ART”) Act was held, led by experienced lawyer Michael Gorton AM, former Chair of the Victorian Assisted Reproductive Treatment Authority and Patient Review Panel under the current ART legislation.  The review included a wide-ranging consultation with members of the public who had utilised ART and/or fertility treatment services, along with providers of those services.  

Dangerous and unethical practices by IVF providers had already been noted and enquired into by the Health Complaints Commissioner.  Given that one IVF cycle costs up to $15,000 and only about one third of people who undertake the treatment are successful, this was a timely enquiry.   

Feedback from consumers noted the preliminary requirements for Victorians; many applicants found these onerous, pointing out that Victoria was on its own in demanding such requirements.  Contributors to this enquiry wrote that they found the checks “unfair, humiliating and a cause of distress”. 

Victorian Minister for Health, Jenny Mikakos, said that Victorian applicants believed that they were suffering a form of discrimination which those who conceived naturally did not have to endure.  She said that “clinics gave us feedback that this was the biggest issue their clients were complaining to them about”, that this was “the most common concern that was raised”.

Complainants singled out the required police checks as one of the most unreasonable issues of concern, second only to the cost of an IVF treatment. 

Ms Mikakos pointed out that since such police checks were introduced, legislatively there have been significant changes, which included mandatory family violence reporting laws that displaced the need for police checks, as well as upgraded child protection laws.

In the past, few criminal record checks on those applying for IVF treatment had resulted in any adverse findings, in fact only 12 applicants had been denied treatment over the last 8 years, and there are 25,000 applications for ART each year in Victoria alone.

The result of this State Government initiative is that no longer will applicant Victorians need to pass a police check, nor a child welfare check, before being approved for ART treatment.  The “Assisted Reproductive Treatment Amendments Bill 2020” was introduced to the Victorian Parliament on 19 February 2020 and is currently before Parliament.  It is understood that this Bill has the support of both major parties.  If it is enacted, this legislation will take effect at a future date to be announced by the Victorian Parliament.  

Minister Mikakos said that ART clinics would still be required to consider the welfare of any child born by ART before proceeding with treatment.

By Nicholes Family Lawyers


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