Untitled document
Assisted Reproductive Treatment Amendment Act 2013
No. 18 of 2013
table of provisions
Section Page
1Purpose
2Commencement
3Principal Act
4Section 31 substituted
31Storing gametes
31APanel may approve longer or further storage period
31BTime for removal of gametes from storage
5Prohibition on storing embryos except in particular
circumstances6Storing embryos for later transfer
7New section 33A inserted
33APatient Review Panel may approve longer or further storage of embryos
8New section 34A inserted
34ATime for removal of embryos from storage
9Section 83 substituted
83Constitution of Panel
10Section 84 repealed
11Functions of the Panel
12Chairperson and deputy chairperson
13Section 87 substituted
87Acting chairperson
87AOther members
14New Division 4 of Part 13 inserted
Division 4—Transitional provisions—Assisted
Reproductive Treatment Amendment Act 2013136Definitions
137Validation of storage of certain gametes past expiry
138Validation of storage of certain embryos past expiry
139Continuation of the Patient Review Panel
15New section 139 inserted
16Repeal of amending Act
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Endnotes
Assisted Reproductive Treatment Amendment Act 2013
No. 18 of 2013
[Assented to 23 April 2013]
The Parliament of Victoria enacts:
1Purpose
The purpose of this Act is to amend the Assisted Reproductive Treatment Act 2008—
(a)to permit the Patient Review Panel, in exceptional circumstances, to extend storage periods for gametes and embryos without the written approval of the person who produced the gametes or a person who produced gametes from which the embryo was formed; and
(b)to permit the Patient Review Panel, in exceptional circumstances, to extend storage periods for gametes and embryos if the storage period has expired; and
(c)to provide for a 20-year storage period for gametes obtained from a child or from an adult certified as at risk of premature infertility; and
(d)to provide that gametes and embryos kept in storage on commencement of this Act are lawfully stored despite expiry of the storage period; and
(e)to allow time for removal of gametes and embryos from storage after the storage period expires; and
(f)to alter the constitution of the Patient Review Panel and make other amendments to improve its operation.
2Commencement
(1)Sections 1 to 8 and 14 come into operation on the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision of this Act referred to in subsection (2) does not come into operation before 1 December 2013 it comes into operation on that day.
3Principal Act
In this Act, the Assisted Reproductive Treatment Act 2008 is called the Principal Act.
4Section 31 substituted
For section 31 of the Principal Act substitute—
31Storing gametes"
(1)A person must not cause or permit gametes to remain in storage except as permitted by section 31B—
(a)if the person knows that the person who produced the gametes has asked for those gametes to be removed; or
(b)in any other case, after the end of the latest of the following periods—
(i)10 years; or
(ii)if the gametes have been obtained under section 26(2) from a child, 20 years; or
(iii)if the gametes have been produced by a person in respect of whom a certification has been made under subsection (2), 20 years; or
(iv)if the Patient Review Panel has given written approval under section 31A for a longer or further storage period, the approved period.
Penalty:240 penalty units or 2 years imprisonment or both.
(2)A doctor may certify that a person is, at the time of producing the gametes, at reasonable risk of becoming prematurely infertile because of a medical procedure or condition.
31APanel may approve longer or further storage period
(1)If the person who produced the gametes has given written approval for a specified longer storage period, the Patient Review Panel may approve the longer storage period if it considers there are reasonable grounds to do so in the particular case.
(2)If the person who produced the gametes is unable to give written approval, or the person's written approval cannot be obtained, the Patient Review Panel may approve the longer storage period if it considers there are exceptional circumstances for doing so in the particular case.
(3)If an application is made for approval under subsection (1) or (2) after the period for storage of gametes referred to in section 31(1)(b) has expired, the Patient Review Panel may approve a further storage period if it considers there are exceptional circumstances in the particular case for failing to seek approval before the expiry of the period.
(4)An approval under this section may be subject to conditions.
Note
In deciding to approve a longer or further storage period, the Patient Review Panel must have regard to the guiding principles in section 5—see section 91(2).
31BTime for removal of gametes from storage
(1)A person may cause or permit gametes to remain in storage for up to 3 months after—
(a)the person becomes aware that the person who produced the gametes has asked for those gametes to be removed; or
(b)the expiry of the relevant period referred to in section 31(1)(b); or
(c)in case of a pending application, the relevant day unless the Tribunal approves the longer storage period on the relevant day; or
(d)if the Patient Review Panel refuses to approve a further storage period under section 31A(3), the relevant day unless the Tribunal approves the further storage period on the relevant day.
(2)In case of a pending application, a person may cause or permit gametes to remain in storage until the earlier of the following—
(a)the Patient Review Panel approves the longer storage period; or
(b)if the Patient Review Panel refuses or has refused to approve a longer storage period, the relevant day.
(3)A person must not use gametes kept in storage under subsection (1) or (2), unless the use by the person consists only of—
(a)storage of the gametes; or
(b)removal of the gametes from storage.
Penalty:240 penalty units or 2 years imprisonment or both.
(4)For the purposes of this section—
pending application means either of the following that, on the expiry of the relevant period referred to in section 31(1)(b), had been made but not yet decided—
(a)an application to the Patient Review Panel for approval of a longer storage period; or
(b)an application to the Tribunal for review of the Patient Review Panel's decision not to approve a longer storage period;
relevant day means the day—
(a)that is 28 days after the Patient Review Panel refuses to approve the longer or further storage period; or
(b)if an application is made to the Tribunal for review of the Patient Review Panel's decision, the Tribunal decides the application.".
5Prohibition on storing embryos except in particular circumstances
In section 32(1) of the Principal Act, after "storage" insert "except as permitted by section 34A".
6Storing embryos for later transfer
(1)In section 33(2) of the Principal Act, after "storage" insert "except as permitted by section 34A".
(2)For section 33(2)(b)(iii) of the Principal Act substitute—
"(iii)if the Patient Review Panel gives approval under section 33A for a longer or further period of storage, the day that is the end of the period approved by the Panel.".
(3)Section 33(3) and (4) of the Principal Act are repealed.
7New section 33A inserted
After section 33 of the Principal Act insert—
33APatient Review Panel may approve longer or further storage of embryos"
(1)If the persons who produced the gametes from which the embryo has been formed have given written approval for a specified longer storage period, the Patient Review Panel may approve the longer storage period if it considers there are reasonable grounds to do so in the particular case.
(2)If a person who produced gametes from which the embryo has been formed is unable to give written approval, or the person's written approval is unable to be obtained, the Patient Review Panel may approve a longer storage period if it considers there are exceptional circumstances for doing so in the particular case.
(3)If an application is made for approval under subsection (1) or (2) after the period for storage of the embryo referred to in section 33(2)(b) has expired, the Patient Review Panel may approve a further storage period if it considers there are exceptional circumstances in the particular case for failing to seek approval before the expiry of the period.
(4)An approval under this section may be subject to conditions.
Note
In deciding to approve a longer or further storage period, the Patient Review Panel must have regard to the guiding principles in section 5—see section 91(2).".
8New section 34A inserted
After section 34 of the Principal Act insert—
34ATime for removal of embryos from storage"
(1)A registered ART provider may cause or permit an embryo to remain in storage for up to 3 months after—
(a)the persons who produced the gametes from which the embryo was formed give written consent to its removal; or
(b)the expiry of the relevant period referred to in section 33(2); or
(c)in case of a pending application, the relevant day unless the Tribunal approves the longer storage period on the relevant day; or
(d)if the Patient Review Panel refuses to approve a further storage period under section 33A(3), the relevant day unless the Tribunal approves the further storage period on the relevant day; or
(e)in case of a direction under section 34(1)(c), the relevant day unless the Tribunal decides on the relevant day that the embryo should not be removed.
(2)In case of a pending application or a direction under section 34(1)(c), a registered ART provider may cause or permit an embryo to remain in storage until the earlier of the following—
(a)in case of a pending application, the Patient Review Panel approves the longer storage period; or
(b)if the Patient Review Panel refuses or has refused to approve a longer storage period, or has directed that an embryo be removed from storage, the relevant day.
(3)A person must not use an embryo kept in storage under subsection (1) or (2) unless the use by the person consists only of—
(a)storage of the embryo; or
(b)removal of the embryo from storage.
Penalty:240 penalty units or 2 years imprisonment or both.
(4)For the purposes of this section—
pending application means either of the following that, on the expiry of the relevant period referred to in section 33(2), had been made but not yet decided—
(a)an application to the Patient Review Panel for approval of a longer storage period; or
(b)an application to the Tribunal for review of the Patient Review Panel's decision not to approve a longer storage period;
relevant day means the day—
(a)that is 28 days after the Patient Review Panel refuses to approve the longer or further storage period, or directs that an embryo be removed from storage; or
(b)if an application is made to the Tribunal for review of the Patient Review Panel's decision, the Tribunal decides the application.".
9Section 83 substituted
For section 83 of the Principal Act substitute—
83Constitution of Panel"
The Patient Review Panel consists of—
(a)a chairperson appointed by the Governor in Council; and
(b)up to 3 deputy chairpersons appointed by the Governor in Council; and
(c)as many other members, appointed by the Governor in Council, as to enable the proper functioning of the Panel.".
10Section 84 repealed
Section 84 of the Principal Act is repealed.
11Functions of the Panel
At the end of section 85 of the Principal Act insert—
"(2)The Patient Review Panel may exercise its functions under subsection (1)(a) to (f) as constituted by—
(a)a Division of the Patient Review Panel; or
(b)if exercising a function under subsection (1)(f), the chairperson or a single member determined by the chairperson.
(3)A Division of the Patient Review Panel is constituted by the chairperson and the following, determined by the chairperson—
(a)a deputy chairperson; and
(b)3 other members, at least one of whom must have expertise in child protection matters.".
12Chairperson and deputy chairperson
(1)In the heading to section 86 of the Principal Act, for "deputy chairperson" substitute "deputy chairpersons".
(2)In section 86(1) of the Principal Act, for "deputy chairperson" substitute "deputy chairpersons".
(3)In section 86(3) of the Principal Act, for "deputy" substitute "a deputy".
13Section 87 substituted
For section 87 of the Principal Act substitute—
87Acting chairperson"
(1)The Minister may appoint a deputy chairperson to act as chairperson if the chairperson is absent or otherwise unable to perform the duties and functions of the office.
(2)An acting chairperson holds office for the period that the chairperson is absent or otherwise unable to perform the duties and functions of the office.
(3)The Minister may at any time terminate the appointment of an acting chairperson.
(4)While the appointment of an acting chairperson remains in force, the acting chairperson has and may exercise all the powers and perform all the duties and functions of the chairperson.
87AOther members
(1)A member of the Patient Review Panel holds office for the period, not more than 3 years, specified in the person's instrument of appointment.
(2)A person appointed as a member of the Patient Review Panel may resign that office by written notice given to the Minister.
(3)The Governor in Council may, at any time, remove a member from office.".
14New Division 4 of Part 13 inserted
At the end of Division 3 of Part 13 of the Principal Act insert—
"Division 4—Transitional provisions—Assisted Reproductive Treatment Amendment Act 2013
136Definitions
In this Division—
2013 Act means the Assisted Reproductive Treatment Amendment Act 2013;
commencement day means the day on which section 14 of the 2013 Act comes into operation.
137Validation of storage of certain gametes past expiry
(1)This section applies if immediately before the commencement day—
(a)a person had caused or permitted gametes to remain in storage; and
(b)the gametes had been in storage for more than 10 years without approval under this Act or a corresponding previous enactment for a longer storage period.
(2)Section 31 as substituted by the 2013 Act does not apply to prohibit the continued storage of the gametes for the period ending 18 months after the commencement day.
(3)The person is not liable for an offence against section 31(1), as in force immediately before the commencement day, only for the reason that the person caused or permitted the gametes to remain in storage for more than 10 years without the approval of the Patient Review Panel.
138Validation of storage of certain embryos past expiry
(1)This section applies if immediately before the commencement day—
(a)a registered ART provider caused or permitted an embryo to remain in storage; and
(b)the embryo had been in storage for more than—
(i)5 years; or
(ii)if the persons who produced the gametes from which the embryo was formed had consented to the embryo remaining in storage for an additional period not exceeding 5 years, that period—
without approval under this Act or a corresponding previous enactment for a longer storage period.
(2)Section 33 as amended by the 2013 Act does not apply to prohibit the continued storage of the embryo for the period ending 18 months after the commencement day.
(3)The registered ART provider is not liable for an offence against section 33(2), as in force immediately before the commencement day, only for the reason that the registered ART provider permitted or caused the embryo to remain in storage for more than a period referred to in subsection (1)(b)(i) or (ii) without the approval of the Patient Review Panel.".
15New section 139 inserted
After section 138 of the Principal Act insert—
139Continuation of the Patient Review Panel"
The Patient Review Panel continues to be the same body despite its change in constitution.".
16Repeal of amending Act
This Act is repealed on 1 December 2014.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 12 December 2012
Legislative Council: 7 March 2013
The long title for the Bill for this Act was "A Bill for an Act to amend the Assisted Reproductive Treatment Act 2008 and for other purposes."
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