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 of sperm, eggs or embryos (gametes) are entitled to some information about the donor. As per Australian relevant state legislations and regulations, the recipient is entitled to know the details of the donor’s medical history, family history and genetic test results that are relevant to the future health of the person born and the recipient of the donation; details of the physical characteristics of the gamete donor; and the number, age and sex of persons already born from the gametes provided by the same gamete donor and the number of families involved.
- In Australia, the donation of reproductive tissue must be altruistic. It is an offence for someone to intentionally give or offer valuable consideration to another person for the supply of a human egg, human sperm or a human embryo. It is also an offence for a person to intentionally receive, or offer to receive, valuable consideration from another person for the supply of a human egg, human sperm or a human embryo. However, this does not include the reimbursement of reasonable, verifiable out-of-pocket expenses incurred by a person in connection with the supply of a human egg, human sperm or a human embryo.
- The woman giving birth is regarded as the mother of any child born. The recipient/recipient couple is financially and legally responsible for the child. The clinic-recruited donor has no legal rights. Please note: this may not be the case for known donors who are involved in the child’s life – please seek legal advice.
- 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’s legislation, females (single women or lesbian couples) are now able to access Assisted Reproductive Technology services if it appears they are unlikely to achieve a pregnancy, due to personal circumstances, other than by assisted reproductive treatment.
- 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 in a registered relationship; or have lived together continuously in a marriage-like relationship (irrespective of their sex or gender identity) 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.