Assisted Reproductive Treatment Reforms in Victoria
26 October 2022
On 15 August 2022, the remaining provisions of the Assisted Reproductive Treatment Amendment Act 2021 (Vic) (the 2021 Amendment Act) came into operation, along with the Assisted Reproductive Treatment Amendment Regulations 2021 (Vic). These amendments to Victoria’s assisted reproductive treatment (ART) regulatory framework implement further recommendations of the Review of Assisted Reproductive Treatment conducted by Michael Gorton AM in 2018 (the Gorton Review), the findings of which has driven significant legislative change over recent years. The suite of reforms intends to remove discriminatory requirements and create more inclusive legislation, strengthen the ART sector, and increase accessibility of the treatment to all Victorians. Kennedys examines the amendments to Victoria’s ART regulatory framework and highlight the significant progress that has been made for all Victorians to access ART.
In 2008, the Assisted Reproductive Treatment Act 2008 (Vic) (2008 Act) was passed, giving legal access to ART in Victoria to single women and same-sex couples, and enabling altruistic surrogacy. In the following years, changes in societal attitudes, reproductive medicine and health regulation exposed shortcomings of the 2008 Act. It simply “does not meet the standards of today”. 
In response, in 2018 the Victorian government initiated an independent review of the ART regulatory framework led by Michael Gorton AM. The Gorton Review made 80 recommendations, ranging from removing barriers to inclusive access to responding to the corporatisation of the ART sector, in order to ensure that fertility services better met the needs of all Victorians who relied on them. Following the review, the Victorian government has progressively implemented the recommendations.
For instance, in 2019 the Assisted Reproductive Treatment Amendment (Consent) Act 2019 (Vic) was passed to remove the requirement that women seek approval from their former partner to undergo in vitro fertilisation with donor sperm. A year later, the Assisted Reproductive Treatment Amendment Act 2020 (Vic) removed the requirement to conduct criminal record and child protection order checks prior to a woman accessing ART.
The 2021 Amendment Act introduces a variety of further reforms, including 10 priority recommendations of the Gorton Review, on matters including artificial insemination procedures, surrogacy arrangements, and consent and counselling requirements. The reforms aim to promote equitable access and informed care for all Victorians. The key reforms are outlined below.
Persons able to perform artificial insemination 
Previously, artificial insemination was required to be carried out by a doctor on behalf of a registered ART provider. The scope of those persons able to perform artificial insemination has been extended to include “a person carrying out artificial insemination under the supervision and direction of a doctor who is carrying out the treatment on behalf of a registered ART provider.” This enables nurses and other health professionals to perform artificial insemination under a doctor’s direction and supervision in registered ART clinics. The change is intended to provide Victorians with more access to lower cost treatment options, and choice about who performs the procedure.
Persons able to provide counselling 
The scope of those persons able to provide counselling has been extended, from “a counsellor who provides counselling on behalf of a registered ART provider” to also include “a person who meets the prescribed requirements for counselling”. As such, prospective parents can meet with any counsellor who meets the prescribed requirements to complete the counselling required before artificial insemination, not just those based at registered ART clinics. This removes barriers to those living in rural and regional areas, and gives prospective parents choice as to which counsellor they meet with.
Information and advice 
Previously, an ART provider had an obligation to give written information and advice to a donor who donated gametes or embryos. The amendments now extend this obligation to doctors carrying out artificial insemination not on behalf of an ART provider.
Consent to treatment withdrawn upon separation 
A new section has been introduced where a woman and her partner separate before a treatment procedure is performed. Where the woman and her partner have each given consent to a treatment procedure, and gametes produced by the woman’s partner are to be used in the treatment procedure, if the woman and her partner separate the consent given by each person is taken to be withdrawn on their separation.
Exception to prohibition on producing more than 10 families 
A new exception has been added to enable existing families to have siblings related to their existing children using the same donor. This amendment enables both women in a same-sex female relationship to have children using the same donor, even if the 10 family limit has been reached. The same applies to existing families who use more than one surrogate mother to have children who are genetic siblings. This exception addresses how the current restriction can prevent same-sex couples from having biologically related children.
Withdrawal of donor consent 
A person who donates gametes and gives consent for their donated gametes to be used in a treatment procedure now cannot withdraw consent once the gametes are used to form an embryo. Previously, a donor could withdraw consent “at any time before the procedure or action consented to is carried out”. This meant a donor could withdraw consent for the embryo created with their gametes up to the point it was transferred.
Consent regarding storage of embryos 
The amendments have removed requirements for donors to consent to the extension of storage or removal of embryos formed from donated gametes. Each “responsible person” in relation to donor embryos or embryos created from donor gametes now must consent in order for the embryos to be stored for an additional period of up to 5 years. Previously, consent was only required by the “persons who produced the gametes from which the embryo has been formed”. Conversely, the persons who can give written consent regarding the removal of embryos from storage has been changed from “both of the persons who produced the gametes from which the embryo is formed” to “responsible persons in relation to the embryo”. This is intended to provide women and their partners, as well as intended parents of surrogacy arrangements, with more control over the storage of embryos.
Reimbursement of costs incurred by the partner of a surrogate mother 
The current legislation has been extended to allow for reimbursement of costs incurred by a surrogate mother’s partner as a direct consequence of entering into a surrogacy arrangement, such as lost income.
Recognising the rights of surrogate mothers 
A new section has been added recognising that “the 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 the birth of the child.” This is intended to promote the autonomy of surrogates to make informed decisions about their own medical care. This section applies regardless of the agreed terms of the surrogacy arrangement.
Commissioning a surrogacy arrangement 
Previously, the legislation only permitted a deceased woman’s male partner to use her embryo in commissioning a surrogacy arrangement. The amendments now allow a deceased person’s partner to use their gametes or embryo in commissioning a surrogacy arrangement. This significantly widens the reach of the legislation and promotes equality in access, allowing all people whose partners have died, irrespective of gender, to use their eggs, sperm or embryos to have a child through a surrogacy arrangement.
Guiding principles 
The 2021 Amendment Act enacts changes to the language used, making it gender-neutral, non-discriminatory and more inclusive to all Victorians with respect to gender identity, sexuality or relationship status. The changes include substituting “men and women” for “individuals”; “genetic parents” for “donors”; and “marital status” for “marital or relationship status, gender identity, sex characteristics”.
The Gorton Review stated that “the verdict of the users of ART on the 2008 regulatory framework is clear: it does not meet the standards of today.”  Amendments to the regulatory framework in 2019 and 2020 have sought to rectify this, and the 2021 reforms highlight the continued progress that has been made to address the concerns of patients. The Victorian government has indicated that the remaining recommendations of the Gorton Review are still being considered and it will hold further community consultations. Further recommendations yet to be enacted include removing the prohibition on advertising of altruistic surrogacy arrangements. Nevertheless, significant progress has been made and Victoria’s ART reforms reflect the expectations of our modern community.
By Anjali Woodford and Jimmy Zhang
 Michael Gorton AM, ‘Helping Victorians Create Families with Assisted Reproductive Treatment: Final Report of the Independent Review of Assisted Reproductive Treatment’ (Final Report, May 2019) page i (‘Gorton Review’).
 Assisted Reproductive Treatment Act 2008 (Vic) s 8.
 Ibid s 13.
 Ibid ss 25, 55A.
 Ibid s 20A.
 Ibid s 29(3).
 Ibid s 20.
 Ibid ss 33(2)(b)(ii), 34(1).
 Ibid s 44.
 Ibid s 44A.
 Ibid s 46(a)(ii).
 Ibid s 5.
 Gorton Review (n 1).