Division 3In this Division:(a) consent by a gamete provider means the gamete provider’s consent given under section 17 in relation to a gamete as modified or revoked in accordance with that section, and(b) a requirement that any matter be consistent with a gamete provider’s consent is, if gametes from more than one gamete provider are involved, a requirement that the matter be consistent with each gamete provider’s consent.
17 Giving, modifying and revoking consent
(1) A gamete provider may give an ART provider that obtains, or proposes to obtain, a gamete from the gamete provider a written notice setting out the gamete provider’s wishes in relation to the gamete (the gamete provider’s consent).(2) A gamete provider’s consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider.(3) A gamete provider may modify or revoke his or her consent by giving written notice of the modification or revocation of consent to the ART provider:(a) that obtained the gamete from the gamete provider, or(b) that is in possession of the gamete or embryo to which the modification or revocation of consent relates.(4) A consent may be modified or revoked at any time up until:(a) in the case of a donated gamete—the gamete is placed in the body of a woman or an embryo is created using the gamete, or(b) in the case of a gamete other than a donated gamete—the gamete is placed in the body of a woman or an embryo created using the gamete is implanted in the body of a woman.(5) Modification or revocation of consent takes effect in relation to an ART provider as soon as the ART provider is given written notice in accordance with this section.(6) As soon as practicable after being given written notice in accordance with subsection (3) (whether by a gamete provider or by another ART provider) an ART provider must give written notice of the modification or revocation of consent to any other ART provider to whom the first ART provider has supplied the gamete or any embryo created using the gamete.
18 Use of gametes to create embryo outside a woman’s body
An ART provider must not use a gamete to create an embryo outside the body of a woman except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
Note. Section 9 of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 provides that a person commits an offence if the person intentionally develops a human embryo outside the body of a woman for a period of more than 14 days, excluding any period when development is suspended.
19 Use of gametes or embryos in ART treatment
An ART provider must not provide ART treatment to a woman using a gamete except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent in relation to:(a) the ART treatment or classes of ART treatment for which the gamete may be used, and(b) the woman or classes of women who may receive ART treatment using the gamete.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
20 Use of gametes or embryos for research
An ART provider must not use a gamete or an embryo for research except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
Note. See also the Research Involving Human Embryos Act 2002 of the Commonwealth which regulates research in relation to embryos.
21 Supply of gametes or embryos to another person
An ART provider must not supply a gamete or an embryo to another person (including another ART provider) except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
22 Export of gametes or embryos from NSW
An ART provider must not export, or cause to be exported, a gamete or an embryo from this State except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.Maximum penalty: 400 penalty units in the case of a corporation or 200 penalty units in any other case.
23 Use of gametes or embryos after death of gamete provider
An ART provider must not provide ART treatment to a woman using a gamete if the ART provider knows or believes on reasonable grounds that the gamete provider is deceased, unless:(a) the gamete provider has consented to the use of the gamete after his or her death, and(b) the woman receiving the ART treatment has been notified of the death or suspected death of the gamete provider and the date of death (if known), and(c) the woman receiving the ART treatment has given written consent to the provision of the ART treatment using the gamete despite the death or suspected death of the gamete provider.Maximum penalty: 400 penalty units in the case of a corporation or 200 penalty units in any other case.
Note. The Human Tissue Act 1983 regulates the removal of tissue (including gametes) from a deceased person.
24 Use of gametes or embryos provided more than 5 years ago
(1) An ART provider must not provide ART treatment using a gamete obtained from a gamete provider more than 5 years before the provision of the ART treatment, unless the ART provider has taken reasonable steps to establish whether the gamete provider is alive.Maximum penalty: 400 penalty units in the case of a corporation or 200 penalty units in any other case.
(2) Despite subsection (1) an ART provider is not required to take reasonable steps to establish whether the gamete provider is alive if:(a) the ART provider (or another ART provider that supplied the gamete used in the ART treatment) has been contacted by the gamete provider less than 5 years before the provision of the ART treatment, or(b) the ART provider knows or believes on reasonable grounds that the gamete provider is deceased.(3) For the purpose of subsection (1), reasonable steps include:(a) obtaining from the Registrar of Births, Deaths and Marriages a certificate under section 49 of the Births, Deaths and Marriages Registration Act 1995 as to whether the death of the gamete provider has been recorded in the Register kept under that Act, and(b) completing such other inquiries as may be prescribed by the regulations for the purpose of establishing whether the gamete provider is alive.(4) The Registrar of Births, Deaths and Marriages must not reject an application made under section 47 of the Births, Deaths and Marriages Registration Act 1995 for the purposes of this section if the application is made in an appropriate form and is accompanied by the fee (if any) prescribed under that Act.
25 Storage of gametes or embryos
(1) An ART provider must not store a gamete or an embryo except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
(2) If a gamete provider’s consent authorises storage of a gamete or an embryo but does not specify a period for which the gamete or embryo may be stored, the gamete provider’s consent is, for the purpose of this section, taken not to authorise storage of the gamete or embryo.(3) An ART provider must not store a gamete or an embryo for any longer than the shortest of the following periods:(a) the period (if any) of proposed storage of which the ART provider has given written notice to the gamete provider (whether before or after the gamete was obtained),(b) the period authorised by the gamete provider’s consent or, if there is more than one gamete provider, the shorter of the periods authorised by the gamete providers’ consents,(c) in the case of a donated gamete or an embryo created using a donated gamete, the period of 10 years from the date the gamete was obtained from the donor plus any additional period that may be authorised by the Director-General under section 26.Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case.
26 Donated gametes or embryos—time limit on use
(1) An ART provider must not provide ART treatment using a donated gamete if the gamete was obtained from the donor more than 10 years before the provision of the ART treatment unless the Director-General has given written authorisation for the provision of the ART treatment.Maximum penalty: 400 penalty units in the case of a corporation or 200 penalty units in any other case.
(2) The Director-General must not give an authorisation under subsection (1) unless the Director-General is satisfied that there are reasonable grounds for doing so having regard to any relevant guidelines issued by the Director-General from time to time.
27 Donated gametes or embryos—maximum number of families
(1) An ART provider must not provide ART treatment using a donated gamete if the treatment is likely to result in offspring of the donor being born, whether or not as a result of ART treatment, to more than 5 women (or such lesser number as may be specified in the donor’s consent), including the donor and any current or former spouse of the donor.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
(2) It is a defence to a prosecution under this section if an ART provider establishes that the ART provider exercised due diligence to prevent the contravention.(3) Due diligence is not established if the ART provider failed to take any of the following steps to prevent the contravention:(a) searching records held by the ART provider,(b) making reasonable inquiries of the donor,(c) requesting information from any other ART provider that the first ART provider has reason to believe obtained or has been supplied with a gamete of the donor or an embryo created using a gamete of the donor.(4) An ART provider must provide the following information in relation to a donor if requested to do so by a registered ART provider for the purposes of complying with this section:(a) information in relation to the number of women who have given birth to offspring as a result of ART treatment, provided by the ART provider, using a gamete of the donor,(b) the details of any other ART providers that have been supplied with a gamete of the donor, or an embryo created using a gamete of the donor,(c) any other matter that is prescribed by the regulations.Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case.
28 Use of gametes to create embryo with close family member
(1) An ART provider must not use a gamete to create an embryo (whether inside or outside the body of a woman) if the ART provider knows that the gamete provider is a close family member of the other person whose gamete is to be used to create the embryo.Maximum penalty: 1,000 penalty units in the case of a corporation or 400 penalty units or imprisonment for 2 years, or both, in any other case.
(2) In this section:close family member means a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth.
29 Provision of ART treatment to a child
(1) An ART provider must not:(a) provide ART treatment to a child, or(b) obtain a gamete from a child for use in ART treatment or for research in connection with ART treatment.Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.
(2) An ART provider does not contravene this section if:(a) a registered medical practitioner has certified that there is a reasonable risk of the child becoming infertile before becoming an adult, and(b) the ART provider obtains a gamete from the child for the purpose of storing the gamete for the child’s future benefit.(3) Despite section 25, a gamete obtained from a child, by an ART provider under subsection (2), must be stored by the ART provider until such time as the child becomes an adult and is able to provide his or her consent in relation to the gamete.Note. Nothing in this section affects any other legal obligation a registered medical practitioner may have in relation to the medical treatment of a child.