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ART and Adoption - Fact Sheets - Interim Recommendations

These fact sheets were produced when the commission published Position Paper One: Access, Position Paper Two: Parentage and Position Paper Three: Surrogacy for the Assisted Reproductive Technology & Adoption project during 2005.

Surrogacy—Interim Recommendations

25 November 2005

The commission has made 27 interim recommendations in Position Paper Two: Parentage. Some of these interim recommendations include:

• Parents should be encouraged but not compelled to tell donor-conceived children about their genetic origins.
• Information about genetic heritage should be transferred from the Infertility Treatment Authority to the Registry of Births, Deaths and Marriages.
• Women who self-inseminate should notify the registry of the donor’s information.
• Donors should not have access to identifying information about their offspring, but should be able to have their name and contact details recorded on a voluntary register.
• Children should be able to access information about their donor before they are 18 years old, with appropriate counselling.
• The female partner of a woman who gives birth to a child should be able to be recognised as a parent and be listed on the child’s birth certificate as a parent.
• Where it’s in the best interests of the child, it should be possible for the sperm/egg donor to be recognised as a legal parent.
• A sperm/egg donor should not be considered the legal parent of a child unless he/she adopts the child.
• Same-sex couples and single people should be subject to the same eligibility criteria as heterosexual couples when they apply to adopt children.

Surrogacy—Legislative Background

25 November 2005

Victoria: Infertility Treatment Act 1995 prohibits commercial surrogacy but is silent on altruistic surrogacy. No money may be paid to a surrogate mother, including money for expenses. Surrogate arrangements are not recognised under the Status of Children Act 1974. This means that a surrogate mother who is married or in a de facto relationship is the mother of the child and her husband/partner is the father. The Act is silent about who the mother is when a single woman carries the fertilised egg of another woman.

Other States: NSW, Northern Territory and Western Australia have no surrogacy laws.

ACT: The Parentage Act 2004 forbids commercial surrogacy and the provision of professional services to commercial surrogacy. It allows altruistic surrogacy, including payments for expenses, as long as there are no advertisements or intermediaries. It allows commissioning parents to be recognised as the legal parents of a child.

Tasmania: The Surrogacy Contracts Act 1993 overrides any private contracts and forbids payment to surrogates, advertisements for surrogates, or the provision of professional services for surrogacy arrangements.

Queensland: The Surrogate Parenthood Act 1988 forbids all forms of surrogacy, advertisements for surrogates or payments for surrogacy arrangements.

South Australia: The Family Relationships Act 1975 overrides any surrogacy or surrogacy procurement contracts. Under surrogate arrangements using donated sperm and/or eggs the surrogate mother and her partner are considered the parents of the child.

Surrogacy Legislation in Australian Jurisdictions

Parentage—Interim Recommendations

22 July 2005

The commission has made 27 interim recommendations in Position Paper Two: Parentage. Some of these interim recommendations include:

• Parents should be encouraged but not compelled to tell donor-conceived children about their genetic origins.
• Information about genetic heritage should be transferred from the Infertility Treatment Authority to the Registry of Births, Deaths and Marriages.
• Women who self-inseminate should notify the registry of the donor’s information.
• Donors should not have access to identifying information about their offspring, but should be able to have their name and contact details recorded on a voluntary register.
• Children should be able to access information about their donor before they are 18 years old, with appropriate counselling.
• The female partner of a woman who gives birth to a child should be able to be recognised as a parent and be listed on the child’s birth certificate as a parent.
• Where it’s in the best interests of the child, it should be possible for the sperm/egg donor to be recognised as a legal parent.
• A sperm/egg donor should not be considered the legal parent of a child unless he/she adopts the child.
• Same-sex couples and single people should be subject to the same eligibility criteria as heterosexual couples when they apply to adopt children.

Current Parenting and Adoption Laws

22 July 2005

Victoria

The legal relationship between children and their biological parents can be extinguished:

• via adoption (Adoption Act 1984); or
• if children are born from donated sperm or ova to heterosexual couples (Status of Children Act 1974).

Where a child conceived with donor sperm is born to a woman without a male partner, the parental status of the donor is not extinguished (although he has no rights and incurs no liabilities in respect of the child): Status of Children Act.

The female partner of the child’s birth mother cannot be recognised legally as a parent alongside the birth mother (other than through a Family Court parenting order), nor can she be registered as the child’s parent on birth certificates. She is not responsible for paying child support if she and the birth mother separate.

The Adoption Act 1984 restricts adoption in a number of ways:

• Only people who are married or living in a heterosexual domestic relationship (2+ yrs) may adopt a child;
• Single people may adopt, but only in exceptional circumstances;
• Same-sex couples are not eligible to adopt;
• The same-sex partner of a parent is not permitted to adopt the parent’s child.

Western Australia, Tasmania, ACT, Northern Territory

Recognise as a legal parent the same-sex partner of a person who undergoes an assisted reproduction procedure. 

 

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Access to ART—Interim Recommendations

6 May 2005

Position Paper One: Access contains 30 interim recommendations, some of these include:

Access to ART

Implementation of legislated guidelines that:

• require decisions to take into account the wellbeing of children born from ART;
• ban exploitation of men, women and children involved with ART;
• give children a right to information about their genetic parents;
• require ART to be medically appropriate for people using it;
• ban discrimination based on marital status, sexuality, race, or religion.

People may not access ART if:

• They have been found guilty of a serious sexual or violent offence; or
• They have had a child protection order made against them.

Doctors who are worried about ART applicants’ physical and/or mental health and the effect this will have on future children must refer the application for treatment to a clinical ethics committee.

Applicants who are barred from ART by a clinical ethics committee can appeal the ban to an Infertility Treatment Authority review panel.

Self-Insemination

Insemination to be conducted in licensed clinics after counselling and other requirements are satisfied.

Act to clearly state it is not an offence for a woman, or her partner, to inseminate herself.

Posthumous Use of Gametes

Sperm or ova (gametes) may only be used after a person’s death if that person left consent in writing, this includes donor gametes.

People who want to use a dead person’s gametes, but do not have that person’s consent, are banned from exporting gametes to another state or territory which allows posthumous use.

Directed Donations

People will not be able to say what type of person will receive their donated gametes.

Access to ART—Legislative Background

6 May 2005

Position Paper One: Access contains 30 interim recommendations, some of these include:

Access to ART

Implementation of legislated guidelines that:

• require decisions to take into account the wellbeing of children born from ART;
• ban exploitation of men, women and children involved with ART;
• give children a right to information about their genetic parents;
• require ART to be medically appropriate for people using it;
• ban discrimination based on marital status, sexuality, race, or religion.

People may not access ART if:

• They have been found guilty of a serious sexual or violent offence; or
• They have had a child protection order made against them.

Doctors who are worried about ART applicants’ physical and/or mental health and the effect this will have on future children must refer the application for treatment to a clinical ethics committee.

Applicants who are barred from ART by a clinical ethics committee can appeal the ban to an Infertility Treatment Authority review panel.

Self-Insemination

Insemination to be conducted in licensed clinics after counselling and other requirements are satisfied.

Act to clearly state it is not an offence for a woman, or her partner, to inseminate herself.

Posthumous Use of Gametes

Sperm or ova (gametes) may only be used after a person’s death if that person left consent in writing, this includes donor gametes.

People who want to use a dead person’s gametes, but do not have that person’s consent, are banned from exporting gametes to another state or territory which allows posthumous use.

Directed Donations

People will not be able to say what type of person will receive their donated gametes.