Importing and Exporting Embryos and Gametes

The coronavirus pandemic and travel restrictions has caused significant delays and challenges for intended parents pursuing cross-border surrogacy and IVF treatment. You should be cautious about accepting advice about importing and exporting gametes and embryos from anyone who might be receiving a commission from an overseas agency or clinic. You should be careful about engaging in any process that is not through the proper channels or based on specific legal advice about your particular situation. COVID has had a particular impact on surrogacy arrangements in Australia and overseas.

If you are considering surrogacy and fertility treatment options in Australia and overseas, you need to consider where the embryo creation will take place and whether that will have an impact on your plans. There are restrictions on importing and exporting gametes and embryos both in Australia and in other countries and it’s a good idea to do some research before creating embryos.

Many Australian clinics will refuse to facilitate the import or export of gametes if it involved commercially-obtained donor gametes, or is to involve commercial surrogacy. There are legal restrictions and ethical issues for importing and exporting gametes, particularly if they involve donors and commercial transactions.

There are particular restrictions on transporting donor gametes and embryos. It is generally easier to transport gametes and embryos created from the intended parents than it is to transport embryos created with donors. There are also restrictions on transporting embryos if the donor was paid rather than altruistic. Donors must consent to having their information recorded, so that any child born from their donation can access that information when they are older.

In Victoria, the Victorian Assisted Reproductive Treatment Authority must approve the import and export of donor gametes. If you are using your own gametes, VARTA does not need to be involved in the import/export process.

There are separate requirements for surrogacy arrangements and where the embryo transfer must take place. In several states,  the embryo transfer must take place in the state where the intended parents live. This is true for intended parents in Victoria. This is because the Parentage Order can only be granted if the treatment procedure (ie. the IVF treatment) occurred within Victoria. This is also true in the ACT and Western Australia.

In several states, it is illegal to transport embryos interstate or outside of the country without the explicit consent of the donor. If you have created embryos with the help of a donor, you will need their consent to transport the embryos. This may be difficult if the donor was recruited through a clinic or from an overseas sperm or egg bank. It may also be difficult to transport Australian donor gametes and embryos if the intention is to use them for a commercial surrogacy arrangement.

If you are pursuing surrogacy overseas, you should consider whether it is better, easier or cheaper to create embryos in your destination country, or within Australia. If you are creating embryos in your destination country, you should consider whether you will want to bring the unused embryos to Australia in the future.

Things to consider when creating embryos that you may seek to transport later:

  1. Whether you are creating embryos with the help of a donor and what restrictions apply in your state and the destination country for transporting donor gametes;
  2. Whether the treatment you are seeking must occur within your home state. For example, several states require that the embryo transfers in surrogacy arrangements must occur within that state in order to qualify for a Parentage Order when baby is born.
  3. Whether you are eligible for the Medicare rebate if you create embryos in Australia and whether that makes it more affordable than creating them in your destination country.

If you have questions about creating embryos in Australia, or transporting embryos outside of the state or country you should ask your fertility clinic, and get legal advice if necessary.

Many Australian intended parents connect with an egg or sperm donor within Australia, and you can read more about egg donation within Australia.

If you are creating embryos you might like to consider your own views, and that of any donors, as to what happens to those embryos should someone die.

You can find information about surrogacy  in the free Surrogacy Handbook, and by listening to the Surrogacy Podcast. You can also read more about Donor Agreements.

You can also book in for a consult with me below, and check out the legal services I provide.

Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two dads in 2018.

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

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