New fertility law for Australian Capital Territory

The Australian Capital Territory has enacted the Assisted Reproductive Technology Act 2024, which requires the licensing of IVF clinics in the Territory, and sets up a central donor registry, with retrospective transparency from the beginning of donations, allowing all donor-conceived people access to information about their donors.

When beginning the review process last year, the Australian Capital Territory Government was keen to ensure that its laws, so far as possible, were consistent with those of New South Wales. For readers less familiar with Australian states, the Australian Capital Territory sits like an island within New South Wales, so the rationale is understandable. In large part, this Act's provisions are indeed in keeping with their neighbour's.

When considering whether to enact laws to regulate assisted reproductive technologies (ART), the Government noted feedback from community members included the high cost of fertility treatment and access issues, including access to donor gametes.

Removing donor anonymity

Pre-2004, gamete donors were anonymous. People born since then have been able to access the identity of their donor after reaching age 18. Older donor-conceived adults have advocated for a central registry and for retrospective transparency, so that they can find out where they came from.

The ACT joins Victoria and South Australia in legislating for retrospective transparency. Victoria was the first in the world to legislate, in 2017 (see BioNews 891). South Australia enacted its change in March, but those laws are yet to come into force.

Critically, the Act requires the retention of pre-commencement records kept by IVF clinics, so that those records can be sent to the central register, and then be available for donor-conceived individuals aged 16 or older.

With Queensland likely to enact an ART Act this year (see BioNews 1248), also introducing licences for IVF clinics, and setting up a central registry with retrospective transparency, there will be eight systems of regulation of IVF clinics in Australia, a country of 27 million. There will be six donor registries (one in every state except Tasmania, and in the Australian Capital Territory), none of which seem to be co-ordinated with each other.

Keeping tabs on donor family numbers

The Australian Capital Territory will allow private donor arrangements to be recorded on the central register. The consent of the donor will not be required to be recorded. There have been many media stories in Australia (here, here, here and here) about men who have been private donors and who have kept donating over and over again. In one case, a man donated sperm resulting in the birth of 60 children, while using four aliases. Parents only discovered the subterfuge while at a barbecue, and noticed the likeness of their children (see BioNews 1180). This approach contrasts with the Queensland bill, which requires all parties (including the donor) to consent to the private donation being recorded. This approach by the Australian Capital Territory seems sensible.

A significant change in this Act, due to come into force some time before 29 March 2025, is that on the birth of any donor-conceived child after commencement (even for donations prior to commencement) the parent will immediately be entitled to the identity of the donor, a radical departure from current practice in Australia, where donors have remained anonymous until the donor-conceived child is 16 or older.

An unintended outcome of that change is that donor gametes will likely be less available in the Australian Capital Territory, resulting in would-be parents either going to private donors, or interstate, to Queensland, Victoria or South Australia. Given the long waiting times to access donor gametes in some New South Wales clinics (as the cap in New South Wales is five families, but ten in those three other states), it is likely that intended parents will not be going to New South Wales clinics in great numbers, even though they are the closest.

Licensing fertility clinics

Under Commonwealth, state and Australian Capital Territory law, Australian IVF clinics must be accredited by the Fertility Society of Australia and New Zealand, and comply with ethical guidelines issued by the National Health and Medical Research Council (which act, in effect, as licensing requirements). Australian Capital Territory licensing is in addition to that accreditation. The Australian Capital Territory has joined New South Wales, South Australia, Victoria and Western Australia (and likely soon, Queensland) in requiring registration of IVF clinics. Licensing requirements commence on a date to be fixed, no later than 29 September.

There are many changes in the Australian Capital Territory governing how IVF clinics operate. It will be an offence to provide gametes from a donor to more than five families in the Australian Capital Territory or ten Australia-wide – recognition of the small population of the Australian Capital Territory, 400,000, and that to drive from one side to the other takes just over 30 minutes. It will also be an offence to create an embryo with a close family member or to export a gamete or embryo from the Australian Capital Territory without the gamete provider's consent.

Posthumous use will require either written consent of the gamete provider, or a court order permitting the domestic partner of the deceased to use. The latter is a significant change which will likely lead to widows accessing IVF in Queensland instead. Posthumous retrieval can occur Australia-wide. Posthumous use is not permitted in Western Australia, and is only allowed in New South Wales, South Australia and Victoria if the deceased gave written consent. Often retrieval occurs posthumously, and therefore written consent in advance by the deceased was not given.

As such, widows from those states have often exported their late partner's sperm to the Australian Capital Territory or Queensland to access treatment. Queensland, unlike the Australian Capital Territory will not require a court order to enable posthumous use, a recognition that to obtain an order can be a significant barrier to the bereaved.