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More changes to IVF Legislation from the Gorton Review

Michael Gorton AM

The Victorian Government has introduced new amending legislation into Parliament in September 2021 to implement further recommendations of the Review of Assisted Reproductive Treatment legislation in Victoria arising from the Review conducted by Russell Kennedy Principal, Michael Gorton AM.

Some recommendations of the Gorton Review have already been implemented through legislative and regulatory changes. The Victorian Health Minister, Hon Martin Foley noted:

“The landmark report was commissioned by the Andrews Labor Government in 2018, undertaken by Michael Gorton AM, as part of a major push to make sure Victorians have better access to safer, high quality treatment – free from discrimination."

Some of the recommendations already implemented by legislative change included provisions in 2019 to remove discriminatory requirements for married women who have separated to still require the approval of their spouse to access ART using donor sperm. Other changes significantly in 2020 removed the requirement for couples to undergo police and child protection order checks which were regarded as discriminatory.

The Victorian Government has announced its intention to provide $70 million dollars over three years to enact that one of the most significant recommendations to establish public IVF services in Victoria, which will include the establishment of a public sperm and egg bank, the first of its kind in Australia.

These further amendments will include:

  • Addressing discrimination to allow existing families to have siblings relating to existing children using the same donor even if it breaches the “10 women” limit in the current legislation. The existing provisions were found to be discriminatory particularly in relation to women in same sex relationships.
  • Discrimination will also be reduced by enabling those whose partners have died to use eggs, sperm or embryos in accordance with their deceased partner’s wishes.
  • Changes will allow access to low cost treatments through the expansion and availability of those who can perform artificial insemination, and amending the barrier that requires counselling prior to artificial insemination to occur only in a registered clinic. This will allow artificial insemination to expand into rural and regional areas, and reduce some associated costs. Artificial insemination will be carried out by a doctor or by a nurse or an appropriate professional under the direction of supervision of a doctor.
  • The Bill will also expressly recognise that surrogate mothers have the same rights to manage pregnancy and the birth of their child as any other pregnant woman.
  • Whilst changes have already been made to expand the range of reasonable out of pocket expenses available to surrogate mothers, through regulatory changes in 2019, this legislation will also recognise and expand the availability of partners of surrogate mothers to be reimbursed for costs incurred as a result of the surrogacy arrangements.
  • Changes will also be made to the reporting arrangements and access to information in relation to surrogacy arrangements.

These legislative changes will commence at various dates after the passing of the legislation.

The Victorian Government has indicated it is still considering the remaining recommendations of the Gorton Review, and will be undertaking further community consultations. The amending legislation, “Assisted Reproduction Treatment Amendment Bill 2021” is currently before the Victorian Parliament for consideration.

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