Informed consent by the person or people whose sperm, eggs and or embryos are to be stored, used and or later disposed of, is important.
The legal requirements for consent set out in the Health Law Central ‘Consent‘ section apply to decisions regarding such sperm, eggs and embryos too. Clinics in all states and territories must make sure that sufficient information is provided to people, and that they are able to make free and informed decisions about their gametes and embryos. Some states also have specific laws concerning consent requirements regarding the storage, use and or disposal of embryos and/or gametes.
In Victoria, the Assisted Reproductive Treatment Act 2008 (Vic) makes it an offence for a clinic to continue to store gametes if the gamete provider has asked for their removal from storage. Gametes may be stored for a maximum of 10 years.
In relation to embryos, the Assisted Reproductive Treatment Act 2008 (Vic) provides that embryos may not be stored unless the person who will store the embryos is a registered ART provider, the embryos are intended for use in a treatment procedure, and the persons who have produced the gametes from which the embryo was formed have consented, in writing, to the embryos storage for the purpose of its later transfer. Penalties of up to 240 penalty units (approximately AU$41000) or 2 years in prison may be imposed if these conditions are not met. Embryos may be stored for a maximum period of five (5) years, but, this period may be extended for another 5 years if the people’s whose gametes were used to create the embryo consent (this is managed by the clinic). After that extension of time requires the approval of the Patient Review Panel.
New South Wales
In New South Wales, 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. Contravention of this provision may be subject to a maximum penalty of 800 penalty units (approximately $136000) in the case of a corporation, or 400 penalty units (approximately $68000) in any other case.
The law distinguishes between gametes/embryos for personal use, and donated gametes.
Donated gametes collected after 2010 may be stored for a maximum period of 15 years. Similarly, donated embryos created after 2010 may be stored for a maximum period of 15 years.
NHMRC Guidelines apply. However, it is a condition of registration that donated gametes not be stored for longer than 15 years, unless the Minister grants an extension.
In Western Australia gametes may be stored for a maximum period of 15 years, but consent must be renewed every 5 years.
Embryos may be stored for a maximum period of 10 years. This period may be extended with the approval of the Reproductive Technology Council.
In Western Australia, the Human Reproductive Technology Act 1991 (WA) provides that when a couple disagree about the use or continued storage of a ‘human egg undergoing fertilisation or a human embryo’, storage should be continued unless the storage fees are not paid, the time limit for storage of the egg or embryo has expired or a court order requires alternative arrangements to be made.
In all states, generally people must also be notified when the time limit for storage is nearing an end so that necessary consents or instructions may be obtained.