By Geoff Bloom, Partner, Meghan Carruthers, Special Counsel and Astrid Lalor, Graduate

On 10 September 2024, the Queensland Parliament passed the Assisted Reproductive Technology Act 2024 (QLD) (Act), seeking to create a cohesive regulatory approach for assisted reproductive technology (ART) services in Queensland. The Act follows ART legislation introduced in the Australian Capital Territory in March 2024. By integrating existing instruments and legislative frameworks into a unified structure, this legislative reform illustrates a shift away from the historically fragmented regulation of ART services in Queensland, previously guided by various standards and instruments such as the Reproductive Technology Accreditation Committee (RTAC) Code and National Health and Medical Research Council (NHMRC) guidelines, without centralised regulatory oversight.

The Act seeks to build upon findings from the Queensland parliament’s Legal Affairs and Safety Committee (LAS Committee) 2022 inquiry into matters relating to donor conception information and ART procedures. The key recommendation from the inquiry was that a donor-conceived person’s right to know their genetic origin should outweigh a donor’s right to privacy. The stated overarching policy objective of the new ART legislation is to ensure the best interests of people who are born as a result of ART are protected, while also enhancing protection of those who undergo ART procedures.

The Act will come into force in stages, to allow ART providers, Queensland Health and the Registry of Births, Deaths and Marriages time to take steps to implement the legislation.   Queensland Health recently issued official guidance on the provisions which have already commenced.[1]

Key components of the Act

Licensing reform and improved service standards

A central component of the Act is the establishment of a state-wide licensing framework that requires all ART providers to obtain a license from the Queensland Health Department. Introducing licensing requirements aims to bolster regulatory oversight and increase safety and compliance of all ART services provided across Queensland.

Donor conception information register

Reflecting recommendations from the LAS Committee 2022 inquiry calling for greater transparency in information sharing and recognition of the rights of donor-conceived persons, the Act  creates a central donor conception information register (Register) in the Registry of Births, Deaths and Marriages. The register enhances information sharing to provide all donor-conceived people with the legislative right to access information about their identity, donor parents and medical information when they turn 16. Notably, the register would operate retrospectively, and require ART providers to submit all relevant donor information to the Register.   Requiring ART providers to provide the Registry with identifying information about donors who previously donated based on anonymity is a significant measure, which has not been implemented in other jurisdictions.   Donors can also obtain non-identifying information about their donor-conceived offspring.

Family limits and definitions

The Act caps at 10 the number of “donor-related” Australian families that can be formed from the gametes or embryos of a single donor.  The introduction of family limits marks a shift from previous NHMRC Guidelines that required clinics to take all reasonable steps to minimise the number of families created through donated gamete treatment programs, but without setting specific limits. “Donor-related Australian families” are defined as:

• Families that include a person born as a result of an ART procedure carried out in Australia using a gamete obtained from the same donor or using an embryo created from a gamete obtained from the same donor; and
• The family of the donor if the donor has a child who was born in Australia but was not donor conceived.

The new definition of family reflects the Queensland Health Ombudsman recommendation for a more inclusive and non-discriminatory recognition of family structures, such as same-sex couples, ensuring all families have equal access to ART services.

Restrictions on sex selection and gamete providers

The Act prohibits the use of gametes or embryos for the purpose of producing or attempting to produce a child of a particular sex, except in circumstances where it is necessary in order to reduce the risk of transmitting a genetic abnormality or genetic disease. The prohibition reflects policy reasons set out in the NHRMC Guidelines, that sex selection for non-medical reasons is not ethical and reinforces gender stereotyping and discriminatory attitudes. Contravention of this requirement attracts a maximum penalty of 240 penalty units or two years imprisonment.

The Act also makes it an offence for an ART provider to knowingly use the gamete of a close family member to create an embryo. A “close family member” is defined as a parent, child, sibling (including half-sibling), grandparent or grandchild. ART providers are also prohibited from providing an ART procedure to a child or obtaining a gamete from a child for use in an ART procedure. The only exception to this requirement is where a medical practitioner has certified there is a reasonable risk that the child will become infertile before they become an adult, and the provider obtains the gamete for the purpose of storing it for the child’s future benefit. Non-compliance with either the close family member or children gamete provider prohibition provisions is subject to a maximum penalty of 400 penalty units or two years imprisonment.

Transitional provisions

The Act provides numerous transitional provisions to accommodate the shift to a new legislative regime, such as allowing ART providers with current RTAC accreditation to operate for three months following commencement before requiring a licence and ensuring previously allocated gametes and embryos can still be used in accordance with old regulations during the transitional period. Further, the Act clarifies that a person does not commit an offence under the Act for any act or omission that occurred before commencement.

Obtaining license under new regime

The Act prescribes a three-month transitional arrangement to apply for a licence under the new regime. Subsequently, it will become an offence to provide ART services in Queensland without a licence.

Donated gametes and embryos allocated prior to commencement

The Act ensures that where a donated gamete has been already allocated to a person or couple for use in an ART procedure before commencement, the person or couple may still use the donated gamete. Further, any person or couple who conceived a child using donated gametes as a result of an ART procedure before commencement may use any remaining donated gametes allocated to them from the same donor in order to complete their intended family. The transitional arrangements apply regardless of whether the use of the donated gamete or embryo breaches the family limit or the statutory time limit for using donor gametes or embryos.

Where an embryo is created but not yet used prior to commencement, and use would otherwise contravene the family limit or time limit for use, the chief executive may authorise the use of the embryo. The chief executive must be satisfied that use of the embryo is a reasonable use having regard to the period since the gametes used to create the embryo was obtained and number of existing family related to the donor of the gamete.

Time limits for donated gametes and embryos

Section 27 of the Act stipulates that an ART provider must not, without the written approval of the chief executive, use a donate gamete or donated embryo in an ART procedure if a gamete used in the procedure was obtained more than 15 years prior to the procedure. The chief executive must approve any donated gametes or donated embryos being used if the gametes were obtained more than 15 years before the Act commences. The chief executive will give due consideration to whether there are reasonable grounds for storing beyond 15 years.

Information given to the Register

Where ART providers are permitted under the Act to use gametes or embryos that were donated prior to commencement in ART procedures carried out after commencement, section 151 of the Act stipulates the ART provider must provide all relevant information to the Registrar about the parents of the donor-conceived person and the donor-conceived person themselves. This includes any relevant information about the donor that the ART provider recorded and kept at the time the donated gamete was obtained or the embryo became a donated embryo.

[1] https://www.health.qld.gov.au/__data/assets/pdf_file/0023/1360832/assisted-reproductive-technology-guidance.pdf