Legal Considerations for Gay men Using our Donor or Surrogacy Program
Rainbow Fertility has a responsibility for providing Assisted Reproductive Technology (ART) based on the relevant state or federal laws and guidelines as outlined below.
The donor Program encompasses all donated gametes (eggs and sperm) as well as donated embryos. There are legal implications that need to be understood for anyone receiving donated gametes or embryos. Therefore, carefully read the information presented in this section.
All individuals/couples are encouraged to seek independent legal advice before attending the donor program.
- Recipients are entitled to some information about the gamete donor. Upon request, details of the medical and family history, details of the physical characteristics of the gamete donor and the number and gender of persons conceived using gametes donated by the same gamete donor can be provided.
- In Australia, gamete donation must be altruistic. Commercial trading in human gametes and/or the use of direct or indirect inducements must not be undertaken. The reimbursement of reasonable out-of-pocket expenses associated with the procedures is acceptable.
- The woman giving birth is regarded as the mother of any child born. The recipient couple are the legal parents of the child, with parental rights and responsibilities. The donor is not the legal father of the child.
- People wishing to have assisted reproductive treatment in Victoria must undergo a criminal records check and child protection order check. For further information please visit our page Legislative Requirements – Victoria.
- In South Australia, according to the state legislation, females (single women or lesbian couples) can only access Assisted Reproductive Technology services if they are deemed medically infertile by a specialist or if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally.
- People conceived using donated gametes are entitled to know their genetic parents, should they want this information once they turn the age of 18. Therefore, donors must consent to their identifying information being held by the clinic and the Victorian/New South Wales Central Registers. The information includes all medical and family history, identifying information about the gamete donor and the number and gender of persons conceived using the gametes provided by the same gamete donor. For further information about central registers in Victoria, please refer to varta.org.au and in NSW, please refer to health.nsw.gov.au. Please note: all records are kept in our RTAC (Reproductive Technology Accreditation Committee) accredited fertility clinics and are regarded as highly confidential.
- Gamete donors are free to withdraw at any time unless the gametes have already been used; the term “used” includes the creation of an embryo by the use of a donated gamete. Embryo donors are free to withdraw from the process up until the embryo has been transferred into the uterus of the recipient. NOTE: in Victoria for removal of embryos from storage, written consent must be provided by both of the persons who produced the gametes from which the embryos are formed.
- Donors are entitled to some information about the offspring born. On request, non-identifying information about live births, gender of the child, number of the children and any abnormalities can be provided.
- The person conceived using donor gametes, and the donor of gametes, need to be protected from the consequences of having many siblings and offspring, respectively. Gamete donors are able to donate to up to 10 women in VIC, QLD and SA and 5 women in NSW (this includes the donor and any current or former partner of the donor).
Legal advice is compulsory in all surrogacy cases. The commissioning parent(s), the surrogate and her partner (if applicable) will be required to organise separate appointments to obtain independent legal advice. The commissioning parent(s) and surrogate must obtain advice from separate legal advisors.
Please consider the following:
- In Australia, surrogacy must be altruistic; commercial surrogacy is illegal.
- In South Australia, surrogacy is permitted only for the commissioning parents who are legally married or have lived as de facto husband and wife for a period of three years.
- In Victoria, traditional surrogacy is not permitted.
It is important to note that each state has different legislation in regard to surrogacy, so please refer to your own state Surrogacy Act for more information.
Current as at 01.02.2016