Assisted Reproductive Treatment Amendment Regulations 2022 (Vic)
Assisted Reproductive Treatment Amendment Regulations 2022
S.R. No. 60/2022
TABLE OF PROVISIONS
Regulation Page
1Objective
2Authorising provisions
3Commencement
4Principal Regulations
5Objective amended in Principal Regulations
6Counselling prior to treatment procedure
7New regulation 7A inserted
8New regulation 8A inserted
9Counselling prior to donation
10Counselling prior to surrogacy arrangement
11New regulation 11A inserted
12Amendment to Schedule 1
13Amendment to Schedule 2
14New Schedule 2A inserted
15Amendment to Schedule 3
16Amendment to Schedule 5
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Endnotes
STATUTORY RULES 2022
S.R. No. 60/2022
Assisted Reproductive Treatment Act 2008
Assisted Reproductive Treatment Amendment Regulations 2022
The Governor in Council makes the following Regulations:
Dated: 2 August 2022
Responsible Minister:
MARY-ANNE THOMAS
Minister for HealthSAMUAL WALLACE
Clerk of the Executive Council
1Objective
The objective of these Regulations is to amend the Assisted Reproductive Treatment Regulations 2019 to prescribe the following for the purposes of the Assisted Reproductive Treatment Act 2008—
(a)further matters for counselling;
(b)requirements for persons providing counselling other than on behalf of a registered ART provider;
(c)costs that may be reimbursed to the surrogate mother's partner where the costs have been incurred as a direct consequence of the surrogacy arrangement;
(d)forms of notice of separation.
2Authorising provisions
These Regulations are made under sections 124 and 125 of the Assisted Reproductive Treatment Act 2008.
3Commencement
These Regulations come into operation on 15 August 2022.
4Principal Regulations
In these Regulations, the Assisted Reproductive Treatment Regulations 2019[1] are called the Principal Regulations.
5Objective amended in Principal Regulations
In regulation 1 of the Principal Regulations—
(a)in paragraph (a), after "consent" insert "and notice of separation";
(b)in paragraph (c), after "surrogate mothers" insert "and their partners".
6Counselling prior to treatment procedure
In regulation 7 of the Principal Regulations—
(a)for "section 13" substitute "section 13(1) and (2)";
(b)for paragraph (f) substitute—
"(f)if relevant, issues relating to the use of donated gametes or embryos in the treatment procedure, including the following—
(i)the effect of section 29 of the Act on using donor gametes;
(ii)the withdrawal or lapsing of a donor's consent;
(iii)consent requirements for an extension of storage or for the removal of an embryo from storage;";
(c)in paragraph (g), for "families." substitute "families;";
(d)after paragraph (g) insert—
"(h)if section 20A of the Act applies—
(i)the consequences of separation on consent to the treatment procedure; and
(ii)the requirement for each party to give a written notice of separation with the relevant registered ART provider or doctor.".
7New regulation 7A inserted
After regulation 7 of the Principal Regulations insert—
"7A Requirements for persons providing counselling other than on behalf of a registered ART provider
For the purposes of sections 13(2)(b), 18(2)(b) and 48(b)(ii) of the Act, the prescribed requirement is full membership, or eligibility for full membership, of the Australian and New Zealand Infertility Counsellors Association.".
8New regulation 8A inserted
After regulation 8 of the Principal Regulations insert—
"8A Notice of separation
For the purposes of section 20A(3) of the Act, the written notice of separation must be in the form of Schedule 2A.".
9Counselling prior to donation
In regulation 9 of the Principal Regulations—
(a)for "any." substitute "any;";
(b)after paragraph (c) insert—
"(d)the implications for donors of—
(i)the effect of section 29 of the Act on using donor gametes; and
(ii)the provisions in the Act relating to—
(A)the withdrawal or lapsing of a donor's consent; and
(B)consent requirements for an extension of storage or for the removal of an embryo from storage.".
10Counselling prior to surrogacy arrangement
In regulation 10 of the Principal Regulations—
(a)in paragraphs (a) and (h), for "commissioning" (wherever occurring) substitute "intended";
(b)in paragraph (b), for "a commissioning" substitute "an intended";
(c)in paragraph (k), for "pregnancy." substitute "pregnancy;";
(d)after paragraph (k) insert—
"(l)if relevant, the implications of the provisions in the Act for parties to the surrogacy arrangement relating to—
(i)the effect of section 29 of the Act on using donor gametes; and
(ii)the withdrawal or lapsing of a donor's consent; and
(iii)consent requirements for an extension of storage or for the removal of an embryo from storage.".
11New regulation 11A inserted
After regulation 11 of the Principal Regulations insert—
"11A Prescribed costs actually incurred that may be reimbursed to surrogate mother's partner
(1)For the purposes of section 44(2A) of the Act, the following costs are prescribed—
(a)any reasonable counselling expenses associated with the surrogacy arrangement incurred by the surrogate mother's partner;
(b)any reasonable legal costs associated with the surrogacy arrangement incurred by the surrogate mother's partner, including costs for obtaining advice for the purposes of section 43(c) of the Act;
(c)any reasonable out-of-pocket costs directly associated with the surrogacy arrangement incurred by the surrogate mother's partner relating to travel, accommodation and child care costs;
(d)the cost of reimbursing the surrogate mother's partner for earnings actually lost as a direct result of taking unpaid leave—
(i)to care for the surrogate mother on medical grounds as a result of the surrogacy arrangement and in accordance with a carer's medical certificate provided by a doctor; or
(ii)if the surrogate mother is the primary caregiver for a child, to care for that child while the surrogate mother is unable to as a result of the surrogacy arrangement.
(2)Subregulation (1)(d) does not apply to earnings lost that are recoverable under insurance or any other scheme.".
12Amendment to Schedule 1
In Schedule 1 to the Principal Regulations, for all words and expressions beginning "You or your partner" and ending "if you have separated." substitute—
"Section 20A of the Act provides that if gametes produced by the partner of a woman are to be used in a treatment procedure carried out on the woman, the consent of the woman and her partner to the treatment procedure is taken to be withdrawn on their separation. If you and your partner separate in these circumstances, as soon as practicable after separation you are each required to give written notice of the separation in the form prescribed in Schedule 2A, to either—
(a)the registered ART provider or doctor to whom the original consent was provided; or
(b)the registered ART provider or doctor with whom the sperm, oocyte or embryo to which the consent relates is kept or stored.
2A.If you and your partner separate in circumstances other than those outlined in note 2 above, you or your partner are asked to please notify the registered ART provider or doctor carrying out the treatment procedure that you have separated. However, any withdrawal of consent must be provided to the ART provider or doctor separately and in accordance with note 3 below.".
13Amendment to Schedule 2
In Schedule 2 to the Principal Regulations, for all words and expressions beginning "Consent may be withdrawn" and ending "to which the consent relates is kept or stored." substitute—
"Consent may only be withdrawn—
(a)in the case of donor gametes, at any time before the earliest of the following occurs—
(i)when the gametes are used in a treatment procedure; or
(ii)if the gametes are used earlier to form an embryo, when the gametes are used to form the embryo; or
(b)in the case of consent given by a person who produced the gametes used to create the embryo, at any time before the embryo is used in a treatment procedure.
Note:
See section 20(1A) of the Act.
The withdrawal of consent must be in writing and be given as soon as practicable to either—
(a)the registered ART provider or doctor to whom consent was given; or
(b)the registered ART provider or doctor with whom the sperm, oocyte or embryo to which the consent relates is kept or stored.
Note:
See section 20(2) and (3) of the Act.".
14New Schedule 2A inserted
After Schedule 2 to the Principal Regulations insert—
"Schedule 2A—Notice of separation
Regulation 8A
I, [name of person]
of [*address OR see attached]
give notice that I have separated from my former partner
[name of former partner]
of [address: if current address is unknown, include former address]
on [date of separation].
Signed:
Name: [print name]
Date:
Notes:
1. Consent to a treatment procedure given by a woman and her partner under section 10(1) of the Act is taken to be withdrawn on their separation if the gametes were produced by the partner of the woman who is to undergo the treatment procedure. As soon as practicable after their separation, the woman and her former partner must each give written notice of the separation or cause the written notice to be given—
(a) to the registered ART provider or doctor to whom consent was given; or
(b) to the registered ART provider or doctor with whom the sperm, oocyte or embryo to which the consent relates is kept or stored.
2. Section 22 of the Act provides that a designated officer of a registered ART provider or a doctor carrying out artificial insemination other than on behalf of a registered ART provider must—
(a) obtain and keep the original of each notice of separation given to them; and
(b) ensure that a certified copy of each notice of separation is given to the person who gave the notice of separation and to their former partner.
3. An address of each party is required in order for the registered ART provider or doctor receiving the notice of separation to confirm a person's identity. If a person does not wish to disclose their current address on a notice of separation due to a copy being provided to their former partner, they may provide their current address in a separate document. The separate document should be signed by the person, reference the notice of separation and include the name of the person, the name of their former partner and the date that the person signed the notice of separation.
4. If you provide the relevant ART provider or doctor with a notice of separation, you are not required to also provide a written withdrawal of consent under section 20 of the Act.
5. Section 38 of the Act makes it an offence to knowingly or recklessly give false or misleading information or omit to give material information that is required to be given under the Act or to be included in a register, record or notice under the Act.
*Delete if inapplicable.".
15Amendment to Schedule 3
(1)For clause 8(2)(i)(i) of Schedule 3 to the Principal Regulations substitute—
"(i)each responsible person in relation to the embryo has consented to a longer storage period in accordance with section 33(2)(b)(ii) of the Act; or".
(2)In clause 9 of Schedule 3 to the Principal Regulations—
(a)for subclause (1)(a) substitute—
"(a)the unique donor identifier, the unique patient identifier or, if neither of those are applicable, the name of the person providing consent;";
(b)for subclause (1)(e) substitute—
"(e)in the case of an embryo, whether each responsible person in relation to the embryo has consented to a longer storage period in accordance with section 33(2)(b)(ii) of the Act and, if so, the period specified;";
(c)for subclause (2)(a) substitute—
"(a)the responsible person providing consent, including, if relevant, their unique donor identifier or unique patient identifier;".
(3)After clause 12(a) of Schedule 3 to the Principal Regulations insert—
"(ab)the date on which the donor received counselling in accordance with section 18 of the Act and the name of the counsellor who provided the counselling;".
16Amendment to Schedule 5
(1)For clause 1(a) of Schedule 5 to the Principal Regulations substitute—
"(a)the unique patient identifier of the woman who was inseminated and, if applicable, the unique patient identifier of the woman's partner;".
(2)For clause 3(c) of Schedule 5 to the Principal Regulations substitute—
"(c)the places of birth (suburb or town and country) of the woman and her partner;".
(3)For clause 4(a) of Schedule 5 to the Principal Regulations substitute—
"(a)the unique patient identifier of the woman who was inseminated and, if applicable, the unique patient identifier of the woman's partner;".
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Endnotes
[1] Reg. 4: S.R. No. 115/2019 as amended by S.R. No. 64/2020.
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