Introduction

The Assisted Reproductive Technology Act 2007  (ART Act), which regulates many of the ethical and social aspects of assisted reproductive technology, commenced in 2010. The objects of the ART Act are:

  1. to prevent the commercialisation of human reproduction, and
  2. to protect the interests of the following persons:
    1. a person born as a result of ART treatment;
    2. person providing a gamete for use in ART treatment or for research in connection with ART treatment;
    3. a woman undergoing ART treatment

The ART Act aims to achieve these objectives by requiring ART providers to be registered with the NSW Ministry of Health and by setting core standards for the provision of ART treatment. For example the terms of the ART Act:

  • make it clear that gametes can only be used in a manner consistent with the gamete provider's consent, so individuals retain control over the use of their own genetic material;
  • prohibit anonymous donation of gametes;
  • require ART providers to place information about donors on a Central Register which children born as a result of ART treatment can access once they turn 18 years of age;
  • establish the Central Register to operate prospectively, from the commencement of the ART Act in January 2010, and provide a Voluntary Register for offspring born prior to the commencement of the ART Act.
  • require ART providers to keep ART records for 50 years, and 75 years for pre-2010 records, and make destruction and falsification of ART records an offence.

Transitional arrangements apply to women who had already conceived a child using donated gametes prior to the commencement of the ART Act, or had embryos in storage that were created prior to the commencement of the ART Act using donated gametes, to enable them to complete their families without the full effect of the ART Act applying.

The Central Register

I was donor conceived after 1 January 2010 

The ART Act and Regulation established the Central Register to hold information about donors, and children conceived after1 January 2010  as a result of ART treatment using donated gametes (sperm and ova).

Individuals conceived after 1 January 2010 using donated gametes can, once they turn 18 years of age, access information on the Central Register. This includes identifying information about their donor, any additional information provided by the donor as well as non-identifying information such as medical history.

Parents of post 2010 donor conceived individuals can, if their child is under 18 years of age, also access certain non-identifying information about their donor on the Central Register.

Further information on the Central Register is available.

The NSW Ministry of Health strongly recommends those considering applying for information or registering their own details should speak with a counsellor first.

I was donor conceived before 1 January 2010

Different rules apply for individuals conceived prior to 1 January 2010 as a result of ART treatment using donated gametes, and donor conceived individuals born after 1 January 2010 who fall within the transitional arrangements. The transitional arrangements apply where a woman:

  • had embryos that were created using donated gametes in storage before 1 January 2010, and who conceived a child using one of those embryos after 1 January 2010, or
  • had donated gametes in storage prior to 1 January 2010, had already conceived a child using one of those donated gametes prior to 1 January 2010 and who then used the another of the stored gametes after 1 January 2010 to conceive another child.

Pre 2010 donor conceived individuals and donor conceived individuals who fall within the transitional arrangements have a right to obtain certain non-identifying information about the donor, called “accessible information”.

"Accessible information" about a donor of is non-identifying information about:

  • the ethnicity and physical characteristics of the donor;
  • the relevant medical history of the donor; and
  • the sex and year of birth of each offspring of the donor.

Applications for this information can be made to either NSW Health or directly to an ART provider. Applications can be made by donor conceived individuals over the age of 18 years or the parent where the donor conceived person is a child.
 
When an ART provider receives an application for accessible information the ART provider must provide the information in writing to the applicant within 28 days. If the ART provider does not have the information, or has reason to believe that another ART provider has the information, a statement to that effect must be provided to the applicant. The ART provider must also give a copy of the information given to the applicant to the Secretary, NSW Health.
 
Where an application is made directly to NSW Health, the ART provider may be directed to provide the information to NSW Health who will provide the information to donor conceived individual or their parent.

You should be aware however that because there was no statutory regulation of ART prior to 1 January 2010, in some cases, accessible information may be of poor quality or may no longer exist.
 
The NSW Ministry of Health strongly recommends those considering applying for information or registering their own details should speak with a counsellor first.

Pre 2010 donor conceived individuals and donor conceived individuals who fall within the transitional provisions can only obtain identifying information about their donor with the consent of the donor. 
 
Donors may provide updated information to the Central Register which can be disclosed with their consent.
 
The donor may also provide updated non-identifying information, such as medical history, which can also be disclosed if the donor consents.
 

Surrogacy

The Surrogacy Act 2010 provides a framework for the Supreme Court to grant orders that transfer the full legal parentage of children from their birth parent/s to the intended parent/s under a surrogacy arrangement. The legislation sets out the requirements for the reporting of children born using a surrogate including the making of parentage orders.

Intended parents must now register information about themselves, their child and the surrogate, as well as any person who donated eggs or sperm or embryos, with the Central Register before the NSW Supreme Court will make a parentage order.

More information on Surrogacy is available.

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Page Updated: Tuesday 13 December 2016