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Assisted Reproductive Treatment
Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill.
The purpose of the Bill is to amend the Assisted Reproductive
Treatment Act 2008 to--
provide that gametes and embryos which are kept in
storage at the commencement of the Bill are lawfully
stored despite the expiry of the statutory storage period;
and
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 where the storage period
has expired; and
increase the statutory storage period for gametes from
an initial 10 years to 20 years where the gametes have
been obtained from a child or from a person who has
been certified as at reasonable risk of premature
infertility because of a medical condition or procedure;
and
allow time for removal of gametes and embryos from
storage after expiry of the storage period; and
alter the constitution of the Patient Review Panel and
make other amendments to improve its operation.
571055 1 BILL LA INTRODUCTION 12/12/2012
Clause 2 is the commencement provision.
Sections 1 to 8 and 14 will come into operation on the day on
which the Bill receives Royal Assent. The remaining provisions
will come into effect on a day or days to be proclaimed, or on
1 December 2013 if not proclaimed before that date.
Clause 3 provides that for the purposes of the Bill, the Principal Act is the
Assisted Reproductive Treatment Act 2008.
Clause 4 substitutes a new section 31 into the Principal Act and inserts
sections 31A and 31B into the Principal Act.
Section 31 establishes how long gametes are to remain in storage.
The effect of this amendment will be to extend the statutory
storage period from 10 to 20 years for gametes produced by
children and persons who are certified by a doctor as being at
reasonable risk of becoming prematurely infertile because of a
medical procedure or condition.
Subsection (1) provides that a person must not cause or permit
gametes to remain in storage if the person knows that the person
who produced the gametes has asked for the gametes to be
removed from storage.
If the person who produced the gametes has not asked for their
gametes to be removed from storage--
the gametes must not be stored for any longer than
10 years; or
if the gametes have been obtained from a child pursuant
to section 26(2) of the Principal Act because a doctor
has certified that there is a reasonable risk of the child
becoming infertile before becoming an adult and the
gametes are obtained from the child to be stored for
their future benefit, the gametes must not be stored for
any longer than 20 years; or
if, under subsection (2), a doctor has certified that the
person, at the time of producing the gametes, was at
reasonable risk of becoming prematurely infertile
because of a medical procedure or condition, the
gametes must not be stored for any longer than 20 years;
or
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if the Patient Review Panel has given written approval
under section 31A for a longer or further storage period,
the gametes must not be stored for any longer than the
approved period.
Contravention of subsection (1) carries a penalty of 240 penalty
units or 2 years imprisonment or both.
Subsection (2) provides that a doctor may certify that a person is
at reasonable risk of becoming prematurely infertile at the time of
producing the gametes because of a medical procedure or
condition.
Section 31A permits the Patient Review Panel to approve longer
or further gamete storage periods. The effect of this amendment
will be to empower the Patient Review Panel to approve the
extended storage of gametes in exceptional circumstances as
described below.
Subsection (1) provides that 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 that there are reasonable grounds to do so.
Subsection (2) provides that if the person who produced the
gametes is unable to give written approval, or their written
approval cannot be obtained, the Patient Review Panel may
approve a longer storage period if it considers that there are
exceptional circumstances for doing so. For example,
exceptional circumstances may arise where the person
experiences temporary incapacity from an accident or illness
and is unable to give written approval for their gametes to be
stored for a longer period.
Under subsection (3), the Patient Review Panel may approve a
further gamete storage period even when the application is made
after the expiry of the statutory storage period. In order to be
able to approve a further storage period, the Panel must consider
that there are exceptional circumstances for the failure to seek
approval within the statutory storage period. Exceptional
circumstances may arise, for example, where the person who
produced the gametes did not receive notification from the person
responsible for storing their gametes about the impending expiry
of the statutory storage period and they intend to retain their
gametes for fertility preservation.
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Subsection (4) provides that the Patient Review Panel may place
conditions on the approval of longer and further storage periods
under section 31A.
Section 31B deals with the timeframe for removing gametes from
storage after the expiry of the storage period. The effect of this
amendment will be to allow for gametes to be stored until such
time as storage extension approval or review processes are
resolved, and after expiry of the storage period, will then enable a
person who is responsible for storing gametes to carry out the
lawful removal and disposal of gametes within 3 months.
Clause 5 inserts the words "except as permitted by section 34A" into
section 32(1) of the Principal Act. This amendment is required
as a result of the insertion of section 34A into the Principal Act.
Clause 6 amends section 33 of the Principal Act.
Subclause (1) inserts the words "except as permitted by
section 34A" into section 33(2) of the Principal Act.
This amendment is required as a result of the insertion of
section 34A into the Principal Act.
Subclause (2) substitutes a new section 33(2)(b)(iii) into the
Principal Act to reflect the insertion of new section 33A.
Subclause (3) repeals sections 33(3) and (4) of the Principal
Act, which are no longer required as a result of the insertion of
section 33A into the Principal Act.
Clause 7 inserts section 33A into the Principal Act.
Section 33A permits the Patient Review Panel to approve longer
or further embryo storage periods. The effect of this amendment
will be to empower the Patient Review Panel to approve the
extended storage of embryos in exceptional circumstances as
described below.
Subsection (1) provides that 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 that there are reasonable grounds to do so.
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Subsection (2) provides that if one of the persons who produced
the gametes from which the embryo has been formed is unable
to give written approval, or their written approval cannot be
obtained, the Patient Review Panel may approve a longer storage
period if it considers that there are exceptional circumstances for
doing so. For example, the embryos in storage were formed
using donor sperm and the donor's written approval to continued
storage cannot be obtained prior to the expiry of the permitted
statutory period because the donor cannot be found or contacted
by the ART provider.
Under subsection (3), the Patient Review Panel may approve a
further embryo storage period even when the application is made
after the expiry of the statutory storage period. In order to be
able to approve a further storage period, the Panel must consider
that there are exceptional circumstances for the failure to seek
approval within the statutory storage period. Exceptional
circumstances may arise, for example, where the persons for
whom the embryo is stored did not receive notification from their
ART provider about the impending expiry of the statutory storage
period and they intend to retain their remaining embryos for their
own use or donation to another couple.
Subsection (4) provides that the Patient Review Panel may place
conditions on the approval of longer and further storage periods
under section 33A.
Clause 8 inserts section 34A into the Principal Act.
Section 34A deals with the timeframe for removing embryos
from storage after the expiry of the storage period. The effect of
this amendment will be to allow for embryos to be stored until
such time as storage extension approval or review processes are
resolved, and after expiry of the storage period, will then enable a
registered ART provider who is responsible for storing embryos
to carry out the lawful removal and disposal of embryos within
3 months.
Clause 9 substitutes a new section 83 into the Principal Act.
Section 83 deals with the constitution of the Patient Review
Panel. The effect of this amendment will be to alter the
constitution of the Patient Review Panel in order to allow the
Panel to operate more flexibly and efficiently.
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Under its new formulation, the Patient Review Panel is to consist
of--
a chairperson appointed by the Governor in Council;
and
up to 3 deputy chairpersons appointed by the Governor
in Council; and
as many other members as are required to enable the
proper functioning of the Patient Review Panel. These
other members are also appointed by the Governor in
Council.
Clause 10 repeals section 84 of the Principal Act. This provision is being
repealed as a result of amendments to section 83 of the Principal
Act which alter the constitution of the Patient Review Panel.
Clause 11 inserts subsections (2) and (3) into section 85 of the Principal
Act.
The effect of these amendments will be to allow the Patient
Review Panel to operate more flexibly and efficiently.
For example, these amendments will allow the Patient Review
Panel to be constituted by a single member in order to determine
time-sensitive extension of storage period applications as
expeditiously as possible.
Subsection (2)(a) provides that a Division of the Patient Review
Panel may exercise the Panel's functions under subsection (1)(a)
to (f).
Subsection (2)(b) provides that the chairperson, or a single
member of the Patient Review Panel as determined by the
chairperson, may exercise the Patient Review Panel's functions
under subsection (1)(f) in relation to applications for extended
gamete or embryo storage periods or the removal of embryos
from storage.
Subsection (3) provides that a Division of the Patient Review
Panel is constituted by the chairperson and, as determined by the
chairperson, a deputy chairperson and 3 other members, at least
one of whom must have expertise in child protection matters.
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Clause 12 amends section 86 of the Principal Act to alter references to
"deputy chairperson" to "deputy chairpersons" and "deputy" to
"a deputy". These amendments are required as a result of
amendments to section 83 of the Principal Act, which will allow
for the appointment of up to 3 deputy chairpersons.
Clause 13 substitutes a new section 87 into the Principal Act and inserts
section 87A into the Principal Act.
Section 87 makes provision for the appointment of an acting
chairperson. The amendment will provide a mechanism for the
Patient Review Panel to operate efficiently when the chairperson
is temporarily absent or unavailable.
Subsection (1) provides that the Minister may appoint a deputy
chairperson to act as chairperson of the Patient Review Panel if
the chairperson is absent or otherwise unable to perform his or
her duties and functions.
Subsection (2) provides that an acting chairperson holds office
for the duration of the chairperson's absence or for the period that
the chairperson is unable to perform his or her duties and
functions.
Subsection (3) provides that the Minister may terminate the
appointment of an acting chairperson at any time.
Subsection (4) provides that for the duration of his or her
appointment, an acting chairperson may exercise all of the
powers and perform all of the duties and functions of the
chairperson.
Section 87A sets out how members of the Patient Review Panel
may be appointed and for what duration, how they may resign
and how they may be removed from office.
Clause 14 inserts Division 4 of Part 13 into the Principal Act.
Division 4 deals with transitional and validation provisions for
the Bill.
Section 136 sets out the relevant definitions for Division 4.
Section 137 deals with gametes which, prior to the
commencement of the Bill, have been kept in storage beyond the
statutory storage period and without further approval under the
Principal Act or previous enactments.
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Subsection (2) deems these gametes to be lawfully stored for a
period of 18 months after the commencement of the Bill.
Subsection (3) provides that the person storing these gametes is
not liable for an offence under section 31(1) for having stored
these gametes beyond the statutory storage period and without
the further approval of the Patient Review Panel.
Section 138 deals with embryos which, prior to the
commencement of the Bill, have been kept in storage beyond the
statutory storage period and without further approval under the
Principal Act or previous enactments.
Subsection (2) deems these embryos to be lawfully stored for a
period of 18 months after the commencement of the Bill.
Subsection (3) provides that the registered ART provider storing
these embryos is not liable for an offence under section 33(2) for
having stored these embryos beyond the statutory storage period
and without the further approval of the Patient Review Panel.
Clause 15 inserts new section 139 into the Principal Act. Section 139
provides that the Patient Review Panel continues to be the same
body despite the change to its constitution effected by clause 9.
Clause 16 provides for the automatic repeal of the Bill on 1 December
2014, one year after the default commencement day.
The repeal of the Bill does not affect in any way the continuing
operation of the amendments made by the Bill (see section 15(1)
of the Interpretation of Legislation Act 1984).
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