Assisted Reproductive Treatment
Amendment Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1—Preliminary
Clause 1
sets out the purposes of the Bill which are to enable persons born
as a result of the use of gametes donated before 1 January 1998 to
obtain identifying information about donors without consent, to
provide for the lodging of contact preferences by persons who
donated gametes before 1 January 1998 including on behalf of
their children and by persons born as a result of donor treatment
procedures, to further provide for the keeping of the Central
Register and the Voluntary Register and for other purposes.
Clause 2
is the commencement provision, which provides for the Bill to
come into operation on a day or days to be proclaimed or on
1 March 2017 if not proclaimed before that date. The default
commencement date of 1 March 2017 is necessary as it is
anticipated that a period of up to 12 months will be required to
prepare for implementation. The Victorian Assisted
Reproductive Treatment Authority will require this time to
establish policies and procedures for management of the Central
Register and the Voluntary Register for which the Authority will
become responsible on the commencement of the Bill.
Clause 3
identifies the Assisted Reproductive Treatment Act 2008 as the
Principal Act.
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BILL LA INTRODUCTION 24/11/2015
Part 2—Assisted Reproductive Treatment Act 2008 amended
Clause 4
amends the definitions of Central Register and Voluntary
Register in section 3 of the Assisted Reproductive Treatment
Act 2008 to reflect that both Registers will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages.
The clause also inserts new definitions into section 3 of the
Assisted Reproductive Treatment Act 2008 required for the
amendments made by this Bill.
Clause 5
amends section 51 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Registered ART
providers will be required to report the information specified in
that section to the Authority and not the Registrar.
Clause 6
amends section 52 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Doctors will be
required to report the information specified in that section to the
Authority and not the Registrar.
Clause 7
inserts a new section 52AA into the Assisted Reproductive
Treatment Act 2008. The new section 52AA provides for
information that must be given by the Victorian Assisted
Reproductive Treatment Authority to the Registrar of Births,
Deaths and Marriages to enable the Registrar to perform
functions under new section 17B(1A) of the Births, Deaths and
Marriages Registration Act 1996.
Clause 8
amends section 52A of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Registered ART
providers will be required to report information about pre-1988
donor treatment procedures to the Authority and not the
Registrar.
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Clause 9
amends section 52B of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages and to extend the
operation of the provision to legal persons other than ART
providers. The clause amends section 52B to provide that
persons other than registered ART providers may report
information they hold about pre-1988 donor treatment procedures
to the Authority. Persons who forward information under this
provision will not be liable for prosecution of an offence, or to a
civil action, for providing the information.
Clause 10 amends section 53 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead
of the Registrar of Births, Deaths and Marriages. Section 53 of
the Principal Act specifies what information must be kept on
the Central Register. This clause adds the results described
in new sections 56L(2)(c) and 56M(2)(c) that are given to
the Authority in response to requests made under new
sections 56L(2) and 56M(2) to the information that must be
kept on the Central Register. Information contained on the
Central Register kept by the Registrar of Births, Deaths and
Marriages immediately before the commencement of this clause
is also to be included on the Central Register.
Clause 11 amends section 54 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 54 of the
Principal Act provides for the manner in which corrections may
be made to the Central Register on request.
Clause 12 amends section 54A of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 54A of
the Principal Act provides for the manner in which corrections
may be made to the Central Register without request and
specifies the various sources of information that may be used to
amend or correct information, or create a new entry, in the
Central Register. The clause amends section 54A(1) to enable
the Authority to use information provided under new section 63A
to amend or correct information or create a new entry in the
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Central Register. This clause amends section 54A(2) to enable
the Authority to use information or records obtained under new
sections 56B or 56J or under a production order to amend or
correct information or create a new entry in the Central Register.
Clause 13 amends section 56 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 56
provides for applications to be made for the disclosure of
information recorded on the Central Register.
Clause 14 amends section 56A of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 56A
provides for the Authority to have access to records transferred
to the Public Records Office from the Prince Henry's Institute
of Medical Research that relate to persons born as a result of a
pre-1988 donor treatment procedures.
Clause 15 inserts new sections 56B to 56N into the Assisted Reproductive
Treatment Act 2008.
New section 56B applies if an applicant under section 56(1)
requests information relating to a person born as a result of a
pre-1988 donor treatment procedure and the records relating to
the donor treatment procedure are not among records from Prince
Henry's Institute of Medical Research in the custody of the Public
Records Office.
The section provides that the Victorian Assisted Reproductive
Treatment Authority may ask a person other than a registered
ART provider who the Authority believes on reasonable grounds
is in possession of or has control of records relating to the
pre-1988 donor treatment procedures to locate the records and
give them to the Authority. The request must be in writing and
set out the requirements of new section 56B. The section does
not apply to a registered ART provider as section 52A of the
Principal Act requires ART providers to forward information
relating to pre-1988 donor treatment procedures to the Authority.
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New section 52B provides that the Authority must not request
records under that section from a child of a donor unless the
donor consents to the Authority making the request or the
child has previously initiated contact with the Authority.
This protection is necessary as in some cases of the donor will
not know that their parent is a donor.
The new section provides that a person who receives a request
under this section from the Authority must within 60 days make
all reasonable efforts to locate the requested records and provide
a written declaration to the Authority stating that the person has
made all reasonable efforts to locate the requested records and
stating whether or not the person is in possession of or has
control of the records. If the person does have possession or
control of the requested records, the person must, within 21 days
of providing the statement, give the records or a copy of them to
the Authority. A person is not liable for prosecution for any
offence or civil action only for giving records to the Authority in
accordance with section 56B.
New section 56C makes it an offence for a person who receives
a request to disclose, either directly or indirectly, to any other
person that the Victorian Assisted Treatment Authority has made
a request for information under section 56B(2). It is not an
offence if the disclosure is reasonably necessary for the purposes
of locating the requested records or if the disclosure is made to
the person to whom the requested records relate. It is also not an
offence if the Authority has not advised the person who received
the request that it is a criminal offence to disclose to any other
person that the Authority has made the request. A maximum
penalty of 50 penalty units applies to the offence.
New section 56D provides that the Victorian Assisted
Reproductive Treatment Authority may apply to the Magistrates'
Court for a production order. The section provides that if the
Authority requested a person under new section 56B to provide
records relating to a particular pre-1988 donor treatment
procedure and the person, within 90 days of the Authority giving
the request, does not provide the requested records or does not
provide all the requested records and the Authority considers on
reasonable grounds that the person is in possession of or has
control of those records, the Authority may apply to the
Magistrates' Court for a production order against the person.
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The Authority may make the application whether or not the
person has made a declaration under section 56B(5) stating that
the person does not have possession or control of the records.
The application must be supported by an affidavit made on behalf
of the Authority stating the particulars of the request that the
Authority has made under section 56B, whether the person
complied with any part of the request and the grounds on which it
considers the person is in possession of or has control of the
records that are the subject of the request. The application must
also be accompanied by any declaration made by the person
under section 56B(5).
New section 56D provides that as soon as practicable after the
Authority makes an application for a production order, the
Authority must serve a copy of the application and supporting
affidavit on the person against whom the order is sought.
New section 56E provides that the Magistrates' Court hearing an
application under section 56D(1) may require the Authority to
give the Court any information the Court requires regarding the
grounds on which the application is made and that despite
anything to the contrary in the Open Courts Act 2013, the
application must be heard in a closed court. The respondent is
entitled to be present at the hearing.
New section 56F provides that if the Magistrates' Court is
satisfied there are reasonable grounds for believing that the
person is in possession of or has control of records relating to
pre-1988 donor treatment procedure to which the application
relates, the Court may make a production order against the
person. The production order may require the person to produce
the records specified in the order, or copies of them, to the
Authority by a day specified in the order.
New section 56F states that if a production order is made the
Authority must serve a copy of it on the person against whom it
is made.
New section 56G provides that a production order expires on the
day that is 2 months after the making of the order unless the order
is earlier served on the person against whom the order is made.
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New section 56H provides that a person against whom a
production order is made and who has been served with the order
must not, without reasonable excuse, fail to comply with the
order. A maximum penalty of 50 penalty units applies to failure
to comply.
New section 56H provides that a person is not liable for
prosecution for an offence, or to civil action, only for producing
records when required to do so by a production order.
New section 56I provides that it is not a reasonable excuse for a
person to fail to comply with a production order on the ground of
medical professional privilege or on the ground that complying
with the order would constitute unprofessional conduct or a
breach of professional ethics.
The section provides that sections 28(2), 28(3) and 32C of the
Evidence (Miscellaneous Provisions) Act 1958 do not apply to
prevent the production of records as required by a production
order.
New section 56J applies in those circumstances in which a
request has been made under section 56(1) of the Principal Act
by a person born as a result of a pre-1998 treatment procedure,
there is insufficient information on the Central Register to
identify the donor of the gametes used in the procedure, the
Authority is satisfied that the records identifying the donor are
not among records from Prince Henry's Institute of Medical
Research in the custody of the Public Records Office and the
applicant consents to the Authority searching for the identity of
the donor under this section.
New section 56J(2) provides that in the above circumstances,
the Authority may, for the purposes of identifying the donor,
request information relating to the suspected donor or to the
donor treatment procedure from any person (including a
registered ART provider) and for the purposes of making that
request disclose to any person information contained on the
Central Register. The Authority must not request records relating
to pre-1988 donor treatment procedures under this section.
New section 56J provides that requests by the Authority under
that section must be made in accordance with any guidelines
issued under new section 100A inserted by this Bill.
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Section 56J also provides that the Authority must not request
information under that section from a child of the person whose
name is entered on the Central Register as a donor unless that
person consents to the Authority making the request or the
child has previously initiated contact with the Authority.
This protection is necessary as in some cases of the donor will
not know that their parent is a donor.
New section 56K makes it an offence for a person who
receives a request from the Authority under section 56J(2) to
disclose, whether directly or indirectly, to any other person
that the Authority has made the request unless the disclosure
is reasonably necessary for the purposes of locating the
information or records that are the subject of the request or the
disclosure is made to the person to whom requested records
relate. A maximum penalty of 50 penalty units applies. It is not
an offence if the Authority has not advised the person or the
registered ART provider that it is a criminal offence to disclose
to any other person that the Authority has made the request.
New section 56L applies if an application has been made under
section 56(1) of the Principal Act by a person born of a pre-1998
donor treatment procedure and there is insufficient information
on the Central Register to determine whether a person whose
name is entered on the Central Register is the donor of gametes
used in the procedure. In this case, the Authority may, for the
purposes of establishing a genetic link between the person whose
name is on the Central Register as a donor and the applicant,
request that the person whose name is entered on the Central
Register undergo genetic testing at a place specified by the
Authority, consent to the comparison of the results of that genetic
testing with a DNA profile or genetic test results relating to the
applicant and consent to the results of the comparison being
given to the Authority.
New section 56M sets out the circumstances in which the
Authority may request genetic test results of a relative of a
suspected donor. The section applies if an application has been
made under section 56(1) of the Principal Act by a person born
of a pre-1998 donor treatment procedure and the Authority
reasonably believes that a person whose name is entered on the
Central Register may be the donor of gametes used in the
procedure. The Authority must have first made a request under
new section 56L(2) of the person whose name is entered on the
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Central Register as a donor or have made all reasonable efforts to
locate the person whose name is entered on the Central Register
for the purposes of making a request under section 56L(2).
Section 56M provides that the Authority may, for the purposes of
establishing a genetic link between the person whose name is on
the Central Register as a donor and the applicant, request that an
adult blood relative of the person whose name is entered on the
Central Register undergo genetic testing at a place specified by
the Authority, consent to the comparison of the results of that
genetic testing with a DNA profile or genetic test results relating
to the applicant and consent to the results of the comparison
being given to the Authority.
The Authority may make a request of an adult blood relative of
the person whose name is entered on the Central Register if the
person whose name is entered on the Central Register is deceased
or is considered to be a missing person or if the Authority
considers that there are exceptional circumstances that justify
making a request to an adult blood relative in the particular case.
An example of what may constitute exceptional circumstances is
where the applicant is diagnosed with a hereditary terminal
illness and wishes to identify their donor in order to notify any
donor siblings of the potential to inherit the same illness.
If the Authority intends to make a request of an adult blood
relative of the person whose name is entered on the Central
Register on the basis that there are exceptional circumstances that
justify the request, the Authority must make all reasonable efforts
to give notice of the intended request to the person whose name
is entered on the Central Register.
If a person is given notice of an intended request on the basis that
there are exceptional circumstances, that person may, within
28 days after receiving the notice or, if the person requests
written reasons for the decision, within 28 days of receiving the
written reasons, apply to the Victorian Civil and Administrative
Tribunal for a review of the decision of the Authority to make the
intended request.
If notice of an intended request is given, the Authority may make
that request only if the person whose name in entered on the
Central Register does not apply for a review of the decision to
make the intended request within the time periods set out in new
section 56M(6), or the Victorian Civil and Administrative
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Tribunal has reviewed the decision and has confirmed the
Authority's decision.
New section 56N(1) provides that the Authority must not disclose
information (whether identifying or non-identifying) under Part 6
of the Principal Act about a person whose name is entered on the
Central Register as a donor to a person born as a result of a donor
treatment procedure or a parent or descendant of a person born as
a result of a donor treatment procedure unless satisfied that the
person whose name is entered on the Central Register and the
person born as a result of a donor treatment procedure are related.
Subsection (2) provides that the Authority must not disclose
information (whether identifying or non-identifying) under Part 6
about a person born as a result of a donor treatment procedure to
a person whose name is entered on the Central Register as a
donor unless satisfied that the person whose name is entered on
the Central Register and the person born as a result of a donor
treatment procedure are related.
Subsection (3) provides that the Authority must not disclose
information about a donor sibling under section 60A of the
Principal Act to a person born as a result of a donor treatment
procedure or a parent of that person unless satisfied that the
person whose name is entered on the Central Register as a donor
and the person born as a result of a donor treatment procedure are
related and that the donor sibling is a person born as a result of a
donor treatment procedure and is related to the person whose
name is entered on the Central Register.
Subsection (4) provides that the Authority may be satisfied that a
person whose name is entered on the Central Register and a
person born as a result of a donor treatment procedure are related
if one of the following applies—
(a)
a unique donor identifier, as defined in new
section 56N(5), recorded in the Central Register
links the person whose name is entered on the Central
Register and the person born as a result of a donor
treatment procedure;
(b)
a comparison of genetic testing results provided to the
Authority establishes that the person whose name is
entered on the Central Register and the person born as a
result of a donor treatment procedure are genetically
related;
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(c)
the Authority, having regard to all available information
and any guidelines issued under new section 100A,
reasonably believes that the person whose name is
entered on the Central Register and the person born as a
result of a donor treatment procedure are genetically
related and there is no reasonable likelihood that any
other person may be the donor of the person born as a
result of a donor treatment procedure.
Clause 16 amends section 57 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 57
provides for the disclosure of non-identifying information to an
applicant for information recorded on the Central Register.
Clause 17
amends section 58 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 58
provides for the disclosure of identifying information recorded
on the Central Register to a parent of a person born as a result of
a donor treatment procedure or a donor.
Clause 17 amends section 58 to provide that the disclosure of
information under section 58 is subject to Division 3A of Part 6
of the Principal Act where the application was made by a parent
of a person born as a result of a donor treatment procedure or
Division 3B of Part 6 where the application was made by a
donor.
Clause 18 substitutes section 59 of the Assisted Reproductive Treatment
Act 2008 with a new section. New section 59 reflects that the
Central Register will be kept by the Victorian Assisted
Reproductive Treatment Authority instead of the Registrar of
Births, Deaths and Marriages. The new section 59 provides for
the disclosure of identifying information recorded on the Central
Register about another person to an applicant who is a person
conceived as a result of a donor treatment procedure irrespective
of when the gametes used in that treatment procedure were
donated. If the applicant is a child, the disclosure is made if the
applicant's parent or guardian has consented to the making of
the application or a counsellor has provided counselling to the
applicant and advised the Authority under section 67A(3) that the
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applicant is sufficiently mature to understand the consequences
of the disclosure. The disclosure to an applicant born as a result
of a pre-1998 donor treatment procedure is subject to new
Division 3A of Part 6 of the Act, which deals with the making of
contact preferences by pre-1998 donors.
Clause 19 substitutes section 60 of the Assisted Reproductive Treatment
Act 2008 with a new section. New section 60 provides for the
provision of information to a person descended from a person
born as result of a donor treatment procedure irrespective of
when the gametes used in that treatment procedure were donated.
The disclosure relating to a person born as a result of a pre-1998
donor treatment procedure is subject to Division 3A of Part 6 of
the Act, which deals with the making of contact preferences by
pre-1998 donors. New section 60 also reflects that the Central
Register will be kept by the Victorian Assisted Reproductive
Treatment Authority instead of the Registrar of Births, Deaths
and Marriages.
Clause 20 amends section 60A of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 60A
provides for the application for information recorded on the
Central Register relating to donor siblings.
Clause 21 amends section 61 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 61 sets
out the requirements for counselling prior to the disclosure of
information recorded on the Central Register.
The clause repeals section 61(3) of the Principal Act, which
contains a definition of counsellor for the purposes of section 61.
Clause 22 substitutes section 62 of the Assisted Reproductive Treatment
Act 2008 with a new section. New section 62(1) provides that if
the Authority intends to disclose identifying information relating
to a person other than a pre-1998 donor or a person born as a
result of a donor treatment procedure, the Authority must make
all reasonable efforts to give notice of the intended disclosure to
that person.
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New section 62(2) provides if the Authority intends to disclose
information under Division 3 of Part 6 relating to a pre-1998
donor, the Authority must make all reasonable efforts to inform
the donor that an application for the donor's identifying
information has been made by a person born as a result of a
donor treatment procedure or the parent of a person born as a
result of a donor treatment procedure or a person who is
descended from a person born as a result of a donor treatment
procedure and that the donor may lodge with the Authority a
contact preference under new section 63C and that the donor may
undergo counselling before lodging a contact preference.
The new section 62(3) provides that if the Authority intends to
disclose identifying information under Division 3 of Part 6
relating to a person born as a result of a treatment procedure, the
Authority must make all reasonable efforts to inform that person
or, if the person is a child, the person's parent or guardian, that an
application for the person's identifying information has been
made by the donor whose gametes were used in the treatment
procedure, and that the person born as a result of a donor
treatment procedure or, if the person is a child, the person's
parent or guardian, may lodge with the Authority a contact
preference under new section 63I and that the person or, if the
person is a child, the person's parent or guardian may undergo
counselling by a counsellor on behalf of the Authority before a
contact preference is lodged.
Clause 23 repeals section 63 of the Assisted Reproductive Treatment
Act 2008. This clause also inserts new Divisions 3A and 3B
into Part 6 of the Act, dealing with disclosure of identifying
information about pre-1998 donors and the making of contact
preference statements by pre-1998 donors and by persons born as
a result of a donor treatment procedure.
Division 3A—Disclosure and contact preferences for
pre-1998 donors
New section 63 states that if a person applies under section 56(1)
of the Principal Act for the disclosure of identifying information
about a pre-1998 donor, the Authority may disclose the
information without giving notice under section 62(2) if the
Authority has made all reasonable efforts to locate the pre-1998
donor but has not done so within 4 months of the application
being made, or if the donor is deceased. In the situation where
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the Authority has not been able to locate a pre-1998 donor, the
Authority may only release the identifying information if the
applicant has provided an undertaking to the Secretary not to
contact the donor and an undertaking to provide the Authority
with any information the applicant subsequently receives from a
source other that the Authority from which the pre-1998 donor
may be directly or indirectly located.
It will be an offence for a person who gives an undertaking under
new section 63(2)(a) to knowingly contact the pre-1998 donor in
breach of the undertaking to the Secretary unless the contact is a
continuation of, or of a similar kind to, contact that the applicant
had with the donor before making the application. A maximum
penalty of 50 penalty units applies.
New section 63A states that if an applicant, after receiving
identifying information from the Authority about a pre-1998
donor who could not be located, comes into possession of
information from a source other than the Authority from which
the pre-1998 donor may be, directly or indirectly, located the
applicant must as soon as reasonably practicable provide that
information to the Authority.
New section 63A(2) provides that if the Authority receives such
information, the Authority must make all reasonable efforts to
inform the pre-1998 donor that their identifying information has
been supplied to an applicant, that the donor may lodge a contact
preference with the Authority and may undergo counselling by a
counsellor on behalf of the Authority before lodging a contact
preference.
New section 63B sets out the time limits for the Authority to
disclose identifying information about pre-1998 donors. If the
Authority has provided a pre-1998 donor with notice under new
section 62(2), the Authority must disclose the identifying
information about the pre-1998 donor as soon as reasonably
practicable after the donor consents to the disclosure or 4 months
after the notice is given, whichever is the earliest date. If the
Authority is not required to give notice to the pre-1998 donor
under new section 63, the Authority must disclose the pre-1998
donor's identifying information as soon as reasonably practicable
after the end of the period of 4 months after the application was
made under section 56.
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New section 63B provides the Authority with the discretion
to delay the disclosure of a pre-1998 donor's identifying
information for a further period of up to 4 months in exceptional
circumstances. This discretion applies both where the pre-1998
donor is served with a section 62 notice and where the Authority
is not required to give notice to the pre-1998 donor due to the
operation of new section 63.
New section 63C(1) provides that if an application is made for
the disclosure of the identifying information about a pre-1998
donor, the donor may lodge with the Authority either or both of
the following statements—
(a)
a written statement setting out the donor's wishes about
being contacted by the applicant for the disclosure of
the information;
(b)
a written statement setting out the donor's wishes about
the donor's child being contacted by the applicant for
the disclosure of the donor's information.
A contact preference must be in the form approved by the
Secretary and must be lodged with the Authority before the first
day on which there is contact between the donor and the
applicant to whom the contact preference relates. This means
that if a donor chooses not to lodge a contact preference prior to
the release of identifying information to the applicant, the donor
can still lodge a contact preference at a later date provided there
has been no contact between the donor and the applicant.
A contact preference lodged under new section 63C(1)(a) may
state either that the pre-1998 donor does not wish to be contacted
by the applicant or that the donor wishes any contact with the
applicant to occur only in a specified way.
A contact preference lodged under new section 63C(1)(b) may
state either that the pre-1998 donor does not wish the child to be
contacted by the applicant or that the donor wishes any contact
between the child and the applicant to occur only in a specified
way.
If a pre-1998 donor lodges a contact preference under
section 63C(1)(b), the Authority may have regard to the
child's wishes in relation to the lodgement of the contact
preference and, if the child's wishes in relation to the
lodgement are different from the pre-1998 donor's, comply
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with the donor's wishes only if the Authority considers it
reasonable in the circumstances.
New section 63C provides that the Authority must give the
applicant a copy of a contact preference lodged under
subsection (1) as soon as practicable after it is lodged with the
Authority.
Section 63C contains a requirement that the Authority keep
records of contact preferences lodged under subsection (1).
New section 63D provides for the duration of contact
preferences. A contact preference lodged under section 63C
continues in force for 5 years after the contact preference is
lodged with the Authority or 5 years after the contact preference
is extended under this section.
A contact preference lodged under section 63C(1)(b) expires on
the day on which the child who is the subject of the contact
preference turns 18 years of age.
A pre-1998 donor who lodges a contact preference under
section 63C may extend it by written notice to the Authority.
Before a contact preference expires under subsection (1), the
Authority must make all reasonable efforts to give the pre-1998
donor who lodged the contact preference written notice as to
when the contact preference will expire and that it may be
extended.
The Authority must, as soon as practicable after a contact
preference expires under subsection (1) or (2) or is extended
under subsection (3), notify the applicant to whom the contact
preference relates.
New section 63E provides that a pre-1998 donor who lodges
a contact preference under new section 63C may amend it by
written notice to the Authority.
The section provides that a pre-1998 donor must not amend a
contact preference unless there has been no contact between the
donor and applicant to whom the contact preference relates.
If a pre-1998 donor amends a contact preference the Authority
must, as soon as practicable after the contact preference is
amended, notify the applicant to whom the amended contact
preference relates that the contact preference has been amended
and of the particulars of the amendment and that the donor may
16
undergo counselling by a counsellor on behalf of the Authority.
The Authority must give the applicant a copy of the amended
contact preference.
By way of example, a person born as a result of a pre-1998
donor treatment procedure may apply under section 56(1) for
identifying information about their donor. If the Authority
provides the donor with notice of the application under
section 62, the donor may choose at that time to lodge a contact
preference specifying that they do not wish to be contacted by
the applicant. Once the applicant has signed an undertaking
under section new 63G(1), the Authority must disclose the
identifying information to the applicant 4 months after the
section 62 notice is served, or earlier if the donor consents.
If there is no contact between the applicant and the donor, the
donor may subsequently amend their contact preference to
specify that they consent to contact by email.
New section 63F allows a pre-1998 donor to withdraw by written
notice a contact preference lodged under section 63C by that
donor, but provides that having done so a donor may not lodge a
subsequent contact preference in relation to the applicant to
whom the withdrawn contact preference relates if there has been
contact between the applicant and the donor.
If a pre-1998 donor withdraws a contact preference the Authority
must as soon as practicable after the contact preference is
withdrawn, notify the applicant to whom the withdrawn contact
preference relates.
New section 63G provides that the Authority must not disclose
identifying information relating to that pre-1998 donor in
response to an application under section 56(1) unless the
applicant gives an undertaking to the Secretary to comply with
any contact preferences lodged by the donor. The undertaking
must be given even if the donor has not lodged a contact
preference at the time the undertaking is given.
An applicant who gives such an undertaking must not knowingly
contact the pre-1998 donor in contravention of the contact
preference or an amended contact preference, unless the contact
is a continuation of, or of a kind similar to, contact that the
applicant had with the donor before the applicant knew of the
contact preference or the amended contact preference.
A maximum penalty of 50 penalty units applies.
17
The applicant will not be guilty of the offence if the applicant
has not been given notice of the contact preference under
section 63C(7) or the amended contact preference under
section 63E(3)(b).
New section 63H applies in relation to an application made
under section 56(1) if the applicant is a person born as a result of
a pre-1998 donor treatment procedure who is a child at the time
the application is made.
The section provides that the Authority must not release
identifying information relating to the pre-1998 donor in
response to the application unless a counsellor has provided
counselling to the applicant and advised the Authority under
section 67A(3) that the applicant is sufficiently mature to
understand the consequences of giving an undertaking under
section 63G(1).
Division 3B—Contact preferences for persons born as a result
of a donor treatment procedure
New section 63I (1) provides that if an application is made for
the disclosure of the identifying information of a person born as a
result of a donor treatment procedure, the person, or, if the person
is a child, the person's parent or guardian may lodge with the
Authority a written statement setting out their wishes about being
contacted by the person who applied for the information.
Subsection (2) provides that if the person born of a donor
treatment procedure is a child, the Authority may have regard to
the child's wishes in relation to the lodgement of the contact
preference, and if the child's wishes are different to the wishes of
the parent or guardian, comply with the wishes of the parent or
guardian only if the Authority considers it reasonable in the
circumstances.
Subsection (3) provides that subject to subsection (4), a contact
preference under subsection (1) must be lodged with the
Authority before the first day on which there is contact between
the person born as a result of a donor treatment procedure and the
applicant to whom the contact preference relates.
Subsection (4) provides that a person born as a result of a donor
treatment procedure who was a child at the time the section 56
application was made may lodge a contact preference under
subsection (1) if any contact between the person and the
18
applicant occurred before the person turns 18 years of age or
within 6 months after the day on which that person turns 18 years
of age and the contact was permitted by a contact preference
lodged by the person's parent or guardian.
Subsection (5) provides that the Authority must notify a person
born as a result of a donor treatment procedure as soon as
practicable after the person turns 18 years that the person may
lodge a contact preference.
Subsection (6) requires the Authority to provide the applicant
with a copy of a contact preference under subsection (1) as soon
as practicable after it is lodged with the Authority.
Subsection (7) provides that the Authority must maintain records
of contact preferences lodged under section 63I.
By way of example, a donor may apply under section 56(1) for
identifying information about a donor-conceived person who is a
child. The donor-conceived person's parent may consent to the
release of identifying information about the person and choose
not to lodge a contact preference. If the applicant signs an
undertaking under section 63O(1), the Authority must disclose
the identifying information to the applicant. The donor may
initiate contact with the donor-conceived child and their
family and have ongoing contact until the child turns 18 years
of age. Once the donor-conceived person turns 18 years, the
donor-conceived person may determine that they do not want
ongoing contact with the donor and may lodge a contact
preference specifying no contact provided that they have not had
contact with the donor after they turn 18 years of age or if there
has been contact, it occurred within 6 months after the person
turned 18 and accorded with the contact preference lodged by the
parent.
New section 63J provides that a contact preference lodged under
section 63I must be in the form approved by the Secretary and
may state that the person does not wish to be contacted by the
applicant or that the person wishes any contact with the applicant
to occur only in a specified way.
The new section provides that the Authority must, before the
contact preference is lodged, offer counselling by a counsellor
on matters to be prescribed to a person born as a result of a donor
treatment procedure if the contact preference is to be lodged by
that person. If the contact preference is to be lodged by the
19
parent or guardian of a child born as a result of a treatment
procedure, the counselling must be offered to the parent or
guardian and, if the Authority is informed that the child wishes
to have counselling, to the child.
New section 63K provides for the duration of a contact
preference lodged under section 63I by a person born as a result
of a donor treatment procedure.
Subsection (1) provides that the contact preference continues in
force for 5 years after it is lodged with the Authority or after it
has been extended under subsection (2).
Subsection (2) provides that a person who lodges a contact
preference under section 63I may extend it by written notice to
the Authority.
Subsection (3) provides that before a contact preference expires
under subsection (1) the Authority must make all reasonable
efforts to give the person who lodged the contact preference
written notice as to when the contact preference will expire under
subsection (1) and that it may be extended under subsection (2).
Subsection (4) provides the Authority must, as soon as
practicable after a contact preference expires under
subsection (1), notify any applicant to whom the contact
preference relates.
New section 63L applies if a contact preference lodged under
section 63I(1) is lodged by the parent or guardian of a person
born as a result of a donor treatment procedure and is in force on
the day on which the person born of a donor treatment procedure
turns 18 years of age. Subsection (2) provides that the contact
preference expires 6 months after that day on which the person
born of a donor treatment procedure turns 18 years of age.
Subsection (3) provides that before the contact preference expires
under subsection (2) the Authority must make all reasonable
efforts to give the person born as a result of a donor treatment
procedure written notice as to when the contact preference will
expire under subsection (2). The person may withdraw the
contact preference, or withdraw the contact preference and lodge
another contact preference in relation to the applicant to whom
the withdrawn contact preference related or, if the contact
preference expires, lodge a contact preference in relation to the
applicant to whom the expired contact preference related.
20
Subsection (4) provides that the person born as a result of a donor
treatment procedure may, within 6 months after the day on which
that person turns 18 years of age, withdraw the contact
preference.
Subsection (5) provides that if a person born as a result of a
treatment procedure withdraws the contact preference under
subsection (4) the person may lodge a contact preference under
section 63I in relation to the applicant to whom the withdrawn
contact preference related.
Subsection (6) provides that the Authority must, as soon as
practicable after a contact preference expires under subsection (2)
or is withdrawn under subsection (4), notify any applicant to
whom the contact preference relates.
By way of example, a donor may apply under section 56(1) for
identifying information about a donor-conceived person who is a
child. The donor-conceived person's parents may consent to the
release of identifying information about the person and lodge a
contact preference stating that the donor is not to contact the
child. If the applicant signs an undertaking under section 63O(1),
the Authority must disclose the identifying information to the
applicant. When the donor-conceived person turns 18 years, the
donor-conceived person may withdraw the contact preference
lodged by their parent under section 63L(4) and choose not to
lodge their own contact preference.
New section 63M(1) provides that a person who lodges a contact
preference under section 63I may amend it by written notice to
the Authority.
Subsection (2) provides that a person must not amend a contact
preference unless there has been no contact between the applicant
to whom the contact preference relates and the person born as a
result of a donor treatment procedure.
Subsection (3) provides that if a person amends a contact
preference, the Authority must inform the applicant to whom the
contact preference relates that the contact preference has been
amended, the particulars of the amendment and that the applicant
may undergo counselling by a counsellor on behalf of the
Authority. The Authority is required to give the applicant a copy
of the amended contact preference.
21
New section 63N(1) provides that a person who lodges a contact
preference under section 63I may, by written notice to the
Authority, withdraw the contact preference.
Subsection (2) provides that if a person withdraws a contact
preference, the person cannot lodge a subsequent contact
preference in relation to the applicant to whom the withdrawn
contact preference relates if there has been contact between the
applicant and a person born as a result of a donor treatment
procedure.
Subsection (3) provides that if a person withdraws a contact
preference the Authority must, as soon as practicable after the
contact preference is withdrawn, notify the applicant to whom the
withdrawn contact preference relates.
New section 63O provides that the Authority must not disclose
identifying information about a person born as a result of a donor
treatment procedure in response to a section 56(1) application
unless the applicant gives an undertaking to the Secretary to
comply with any contact preferences lodged by the person or a
parent or guardian of the person. The undertaking must be given
even if the person or the parent or guardian of the person has not
lodged a contact preference at the time the undertaking is given.
An applicant who gives such an undertaking must not knowingly
contact the person born as a result of a donor treatment procedure
in contravention of the contact preference or the amended contact
preference, unless the contact is a continuation of, or of a kind
similar to, contact that the applicant had with that person before
the applicant knew of the contact preference or the amended
contact preference. A maximum penalty of 50 penalty units
applies.
The applicant will not be guilty of this offence if the applicant
has not been given notice of the contact preference under
section 63I(6) or the amended contact preference under
section 63M(3)(b).
Clause 24 inserts new sections 66A, 66B and 66C into the Assisted
Reproductive Treatment Act 2008.
New section 66A makes it an offence for a member of the
Victorian Assisted Reproductive Treatment Authority or a person
or organisation engaged by the Authority to disclose to any
person, whether directly or indirectly, information recorded on
22
the Central Register. The offence does not apply where the
disclosure occurs in the following circumstances—to a court or
Tribunal; as required in the course of disciplinary proceedings
against a doctor; as required under any Act; for the purpose of
law enforcement; or in the exercise of a power or function under
the Principal Act.
A maximum penalty of 50 penalty units applies to the offence.
New section 66B makes it an offence for a member of the
Victorian Assisted Reproductive Treatment Authority or
authorised organisation (see clause 26) to disclose to any person,
whether directly or indirectly, information obtained under
section 52B, 56A(2), 56B or 56J or under a production order
that is not eligible to be included on the Central Register.
The offence does not apply where the disclosure occurs in the
following circumstances—to a court or Tribunal; as required in
the course of disciplinary proceedings against a doctor; as
required under any Act; for the purpose of law enforcement; or in
the exercise of a power or function under the Principal Act.
A maximum penalty of 50 penalty units applies to the offence.
New section 66C makes provision for the disclosure of
information recorded on the Central Register to third parties.
If the Authority has disclosed information recorded on the
Central Register to a person, that person must not further disclose
that information either directly or indirectly to any other person.
Information disclosed by the Authority may be disclosed in the
following circumstances: where it is to a Court or Tribunal; in the
course of disciplinary proceedings against a doctor; as required
under any Act; and for the purpose of law enforcement.
The offence does not apply in relation to information disclosed
by the Authority to a person who made an application under
section 56(1) or 60A, or a doctor nominated by that person.
Neither does it apply in relation to information disclosed to a
person in a notice given under section 62, or to a disclosure to
another person by a registered ART provider in accordance with
Part 6A of the Principal Act.
The offence is not committed if the Authority has not advised the
person to whom they disclose information recorded on the
Central Register that it is a criminal offence to disclose the
information received to any other person.
23
Clause 25 amends section 67A of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 67A of
the Principal Act provides for counselling under Part 6 of the
Principal Act before the disclosure of information from the
Central Register.
This clause also inserts a new subclause (1A) into section 67A of
the Assisted Reproductive Treatment Act 2008 to provide that
counselling under Part 6 must be provided by a counsellor who
provides counselling on behalf of the Authority.
Clause 26
inserts a new section 67B into the Assisted Reproductive
Treatment Act 2008. The new section provides that the
Secretary may by written notice authorise an organisation to
assist the Victorian Assisted Reproductive Treatment Authority
in obtaining information relating to the identity of persons from
whom the Authority may request information under section 56J
or, if the disclosure of identifying information relating to a
person has been applied for under section 56(1), information
from which that person may be located. The Authority may
disclose information recorded in the Central Register to an
organisation authorised under this section to enable that
organisation to exercise a function under new section 67B.
The section provides that notice of an authorisation under this
section or notice of any revocation or suspension of an
authorisation under this section must be published in the
Government Gazette.
Clause 27
amends section 68D of the Assisted Reproductive Treatment
Act 2008 to reflect that the Central Register will be kept by the
Victorian Assisted Reproductive Treatment Authority instead of
the Registrar of Births, Deaths and Marriages. Section 68D
provides for the disclosure of information from the Central
Register to a registered ART provider.
The clause provides that the Authority must not disclose that a
person is a donor of a person born as a result of a donor treatment
procedure unless satisfied that the donor and the person born as a
result of a donor treatment procedure are related within the
meaning of new section 56N(4).
24
Clause 28 amends section 70 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Voluntary Register will be kept by
the Victorian Assisted Reproductive Treatment Authority instead
of the Registrar of Births, Deaths and Marriages.
Clause 29
amends section 71 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Voluntary Register will be kept by
the Victorian Assisted Reproductive Treatment Authority instead
of the Registrar of Births, Deaths and Marriages. Section 71 of
the Principal Act provides for information to be recorded in the
Voluntary Register.
The clause also inserts a new subsection (1)(ba) into section 71
to allow to be entered in the Voluntary Register, in relation to
each person whose name is entered in the Voluntary Register,
any photograph, toy, jewellery, or other item approved by the
Authority that the person has asked to be entered.
Clause 30
amends section 72 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Voluntary Register will be kept by
the Victorian Assisted Reproductive Treatment Authority instead
of the Registrar of Births, Deaths and Marriages. Section 72
regulates the disclosure of information from the Voluntary
Register.
Clause 31
amends section 73 of the Assisted Reproductive Treatment
Act 2008 to reflect that the Voluntary Register will be kept by
the Victorian Assisted Reproductive Treatment Authority instead
of the Registrar of Births, Deaths and Marriages. Section 73 of
the Principal Act provides for counselling before the disclosure
of information in the Voluntary Register.
This clause also amends section 73(3) of the Principal Act to
provide that in that section counsellor means a counsellor who
provides counselling on behalf of the Authority.
Clause 32
amends section 73A(2) and (3) of the Assisted Reproductive
Treatment Act 2008 to reflect that the Voluntary Register will
be kept by the Victorian Assisted Reproductive Treatment
Authority instead of the Registrar of Births, Deaths and
Marriages. Section 73A of the Principal Act makes further
provision for counselling under Part 7 of the Principal Act.
25
Clause 33
inserts new subsection (1)(ab) and (ac) into section 100(1) of
the Assisted Reproductive Treatment Act 2008. The new
paragraphs provide that it is a function of the Victorian Assisted
Reproductive Treatment Authority to keep the Central Register
and the Voluntary Register.
Clause 34
inserts new sections 100A and 100B after section 100 of the
Assisted Reproductive Treatment Act 2008.
New section 100A authorises the Secretary to issue written
guidelines to the Authority for the performance of functions
and the exercise of powers by the Authority under the Principal
Act. The Secretary must consult with the Health Services
Commissioner before issuing guidelines under section 100A
that relate to the disclosure by the Authority of identifying
information about a person born as a result of a pre-1998 donor
treatment procedure or a person who donated gametes used in a
pre-1998 donor treatment procedure.
New section 100B authorises the Secretary to issue written
directions to the Authority in relation to the matters specified.
The Authority must comply with a direction issued by the
Secretary.
Clause 35 amends section 121 of the Principal Act to provide that it is an
offence to tamper with a document required to be kept by or
under the Principal Act or the regulations unless authorised by
the Principal Act or the regulations to do so.
Clause 36 amends section 121A of the Principal Act to provide that a
person who has given original records to the Victorian Assisted
Reproductive Treatment Authority under section 52B(1)(a)
or 56B(6)(a) or in compliance with a production order is not
required to ensure that an identifying record is kept for at least
99 years after the creation of the record. This clause also extends
section 121A to apply to a legal person.
Clause 37
inserts a new Division 6 after Division 5 of Part 13 of the
Assisted Reproductive Treatment Act 2008 that contains
transitional provisions.
New section 141 provides that the Registrar, as soon as
reasonably practicable after the commencement of section 37 of
the Assisted Reproductive Treatment Amendment Act 2015,
must provide the Authority with a copy of the information
contained on the Central Register and a copy of the information
26
contained on the Voluntary Register as at the date that
information is provided. This is to enable the Authority to
prepare to take over the Registrar's functions relating to these
Registers.
The section provides that a member of the Authority or a person
employed or engaged by the Authority must not disclose to any
person whether directly or indirectly any information provided to
the Authority under section 141(1).
New section 142 provides that the Assisted Reproductive
Treatment Act 2008 as amended by Part 2, other than
section 37, of the Assisted Reproductive Treatment
Amendment Act 2015 applies to an application under
section 56(1) made before that amendment if the Registrar of
Births, Deaths and Marriages had not disclosed the requested
information to the applicant immediately before that amendment.
New section 143 provides that a pre-1998 donor is not permitted
to lodge a contact preference under the new Division 3A of Part 6
of the Assisted Reproductive Treatment Act 2008 in relation
to an applicant under section 56(1) where identifying
information has been disclosed to the applicant before the
commencement of section 23 of the Assisted Reproductive
Treatment Amendment Act 2015. The section also provides
that a person born as a result of a donor treatment procedure is
not able to lodge a contact preference under the new Division 3B
of Part 6 of the Principal Act in relation to an applicant under
section 56(1) where identifying information has been disclosed to
the applicant before the commencement of section 23 of the
Assisted Reproductive Treatment Amendment Act 2015.
New section 144 provides that the Central Register kept by the
Authority on and after the commencement of section 10 of the
Assisted Reproductive Treatment Amendment Act 2015 is
taken to be the Central Register kept by the Registrar under
section 53 immediately before that commencement.
New section 145 provides that the Voluntary Register kept by the
Authority on and after the commencement of section 28 of the
Assisted Reproductive Treatment Amendment Act 2015 is
taken to be the Voluntary Register kept by the Registrar under
section 70 immediately before that commencement.
27
New section 146 provides for Regulations to be made containing
provisions of a transitional nature arising as a result of the
enactment of the Assisted Reproductive Treatment
Amendment Act 2015. Transitional regulations may have
retrospective effect to a day on or after the Bill receives Royal
Assent.
New section 147 provides for the repeal of sections 146 and 147
on 1 March 2018.
Part 3—Births, Deaths and Marriages Registration
Act 1996 amended
Clause 38 inserts into section 4(1) of the Births, Deaths and Marriages
Registration Act 1996 the following definition—VARTA
means the Victorian Reproductive Treatment Authority
established under Part 10 of the Assisted Reproductive
Treatment Act 2008.
Clause 39 inserts new subsection (1A) into section 17B of the Births,
Deaths and Marriages Registration Act 1996 to provide that
where the Registrar of Births, Deaths and Marriages receives
information from the Victorian Assisted Reproductive Treatment
Authority disclosing that a child whose birth was registered on
or after 1 January 2010 was conceived by a donor treatment
procedure, the Registrar must mark the words "donor conceived"
against the entry about the child's birth in the Register.
Clause 40 inserts a new section 48A into the Births, Deaths and
Marriages Registration Act 1996 to provide that the Registrar
must, on request, provide the Authority with information
extracted from the Register necessary for the exercise by the
Authority of powers and functions under the Assisted
Reproductive Treatment Act 2008.
Part 4—Repeal of amending Act
Clause 41 provides for the automatic repeal of the amending Bill on
1 March 2018. The repeal of this Bill does not affect in any
way the continuing operation of the amendments made by this
Bill (see section 15(1) of the Interpretation of Legislation
Act 1984).
28