Your Legal Guide to IVF in Australia
As technology regarding IVF in Australia continues to improve and demand for IVF treatment increase, especially following the COVID-19 pandemic, more and more Australians are wondering:
(a) What laws govern IVF in Australia?;
(b) What are my legal obligations when undergoing IVF treatment?; and
(c) Who are the legal parents of a child born by way of IVF?
IVF can be a physically and emotionally tolling process. To ease some of the pressures of IVF and to ensure you are aware of your rights, we have prepared a comprehensive summary of the frameworks governing IVF below.
What is IVF?
In vitro fertilisation, more commonly referred to as IVF, is the procedure which involves the conception of an embryo, outside of a woman’s body. IVF is generally utilised by couples experiencing infertility or health conditions which preclude natural conception along with single women or same sex couples.
Laws governing IVF in Australia
The legal regulations which govern IVF in Australia vary depending on which state you live in. For example, Victoria, NSW, South Australia and Western Australia have introduced specific legislation which has the purpose of governing IVF in these states. The federal government has also introduced nationwide laws which outlines IVF cloning practices which are illegal. The National Health and Medical Research Council has released clinical practice guidelines which acts as a national IVF framework.
If you have any specific questions in relation to the laws which apply to you, we invite you to contact our family law team who will be able to give you tailored advice, based on your specific circumstances.
Your rights when undergoing IVF in Australia
(i) Right to be informed
When you are making the choice to undergo IVF, you have the right to be fully informed about the process. From a practical perspective, this means that the relevant information (detailed below), is at least provided in writing and discussed with you, giving you the opportunity to ask any questions.
(ii) Valid consent
After you have been informed of all relevant information, and prior to any treatment commencing, you (along with donors and/or spouses/partners) must give valid consent, in writing. Written consent must be given prior to every subsequent procedure, it is not just a “one off” requirement.
The type of information discussed will differ, depending on whether you are undergoing IVF as a couple conceiving a child biologically related to both parties or if you are a same sex couple/ single woman relying on the donation of either eggs or sperm.
(A) Infertile couples
If you are undergoing IVF as a result of you and/or your partner being unable to conceive naturally, both you and your partner will need to give valid written consent, prior to any procedures being undertaken. You should also have a good understanding of the likelihood of becoming pregnant using processes other than IVF, specific factors which affect your (or your partners) likelihood of falling pregnant and the uncertain impacts of IVF on you, your partner or your potential child born through IVF.
(B) Same sex couples/ single individuals
IVF becomes a little more complex when you are relying on the donation of eggs or sperm for the purposes of conceiving a child. There are various regulations with respect to who can donate sperm and eggs which prevent young people, older donors and those with infectious diseases from being able to donate. Prior to you (the donor) and/or your partner giving valid written consent, you must be informed about the implications of donation including those affecting a child born through IVF, the decision-making responsibilities and rights to withdraw consent.
Parents of children born through IVF
Children born as a result of IVF procedures who are biologically related to both parents, are the legal children of their parents. This does not change in circumstances where the child was conceived using IVF.
The legal parents of a child born as a result of donated eggs or sperm, is not so clear cut. Typically, sperm and egg donors are not recognised as the legal parents of a child, so to protect themselves from the parenting and financial responsibilities and to reflect the intentions of the donor and recipients. However, a male who was a sperm donor has recently been granted special leave in the High Court of Australia, arguing to be recognised as the legal parent of children born by way of his donated sperm.
To ensure your wishes are reflected properly, you may need to legally formalise your parental agreement by way of applying to the Family Court for parenting orders. This will have the effect of protecting your role as a parent and providing some clarity for your child.
IVF is a complex and confusing matter. If you are considering IVF, are in the process of undergoing IVF or have successfully undergone IVF and need assistance, our experienced family law team is able to assist. If you require further information or wish to seek assistance in relation to your family law matters, we invite you to contact our family law team by submitting an online enquiry or calling us on 1300 749 709.