Victorian law reform of IVF, donor and surrogacy laws are set to be reformed, with the introduction of the Assisted Reproductive Treatment Amendment Bill 2021 in Parliament on 10 September 2021. The Victorian law reforms are part of a staged response to the review of the current Assisted Reproductive Treatment Act 2008 which was conducted by Michael Gorton AM in 2018-2019.

You can read more about the current Victoria’s surrogacy laws.

I’ve summarised the more interesting parts of the Victorian law reforms below. You can also read the full Bill.

If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.

The Independent Review of Assisted Reproductive Treatment in Victoria (also referred to as the Gorton Review) was released in July 2019. The review made 80 recommendations about surrogacy, assisted reproductive treatments and donor conception. Not all those recommendations are addressed in the 2021 Bill. Minister Foley stated, in his Second Reading speech, ‘that this Bill will implement 10 recommendations identified for priority implementation’ and that the Government is taking a staged approach to implementing the recommendations.

For surrogacy arrangements, the law reforms include the following changes:

  • The language of commissioning parents will be replaced with  intended parents in line with community expectation and the language used in other state legislation.
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  • In BIG news, the reimbursement of surrogate’s partner’s out of pocket expenses is included in the Bill. This is better than other legislation across Australia, which generally ignores the surrogate’s partner’s lost income and other expenses. Other expenses that can be covered are outlined in the Assisted Reproductive Treatment Regulations which were updated in late 2019 – you can read more about that here.
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  • The surrogate’s right to autonomy is explicitly stated in the Bill, specifically, the surrogate mother has the same rights as any other pregnant woman has to make decisions or take actions in relation to the management of the pregnancy and the birth of the child.’  This is in line with other legislation including the new Surrogacy Act in South Australia.

Recommendations not included in the the current proposed Victorian law reforms, somewhat disappointingly (but hopefully will be in the future):

  • That the prohibition on advertising for a surrogate or intended parents be lifted. This was Recommendation 73 of the Gorton Review. It is currently illegal to publish anything that indicates a need for a surrogate or that you would be willing to enter into or facilitate a surrogacy arrangement. The framing of this law makes it very difficult for surrogates and intended parents to find each other without risk of breaking the law.
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  • That traditional surrogacy arrangements be elevated to the same status as gestational surrogacy arrangements, including that parties be able to access IVF treatment with Patient Review Panel approval. It would be a very simple amendment to the current legislation to allow this to happen.
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  • That a requirement be introduced for all surrogacy agreements to be in writing. Victoria is one of the only states not to require a written surrogacy agreement between the parties.

While it is great to see some recommendations implemented, it is disappointing that the prohibition on advertising for a surrogate, and on traditional surrogacy arrangements accessing IVF, will remain for the foreseeable future. You can contact Minister Foley, or your local member of Parliament, to voice your views about the Bill.

Another of the recommendations in the Gorton Review was for the definition of counsellor for surrogacy arrangements to be broadened. It was once a requirement for a counsellor to be employed by a fertility clinic. This made it difficult for traditional surrogacy arrangements to meet the requirements for a parentage order, because we don’t access the services of a fertility clinic. The legislation was changed in 2019 to allow the definition to be broadened, but the definition was still not prescribed in the Regulations. Recent developments are the that the Regulations are being drafted and will allow a counsellor who is registered with the Australian and New Zealand Infertility Counsellors Association (ANZICA). I take some pride in this amendment as it was my own traditional surrogacy arrangement that raised the issue with the government!

The main amendments in the Bill relate to access to IVF treatment, consent, donor conception and the use of donor gametes. A summary:

  • The language in the Act will be amended to be more inclusive and gender-neutral. ‘Men and women’ will be replaced with ‘individuals’ and ‘genetic parents’ will be replaced with ‘donors’ where appropriate.
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  • The removal of the requirement for a woman’s partner to consent to her undergoing fertility treatment.
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  • People accessing ART will be able to use a counsellor either employed by the clinic, or a counsellor nominated by them who meets the requirements as a qualified counsellor.
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  • Donors will no longer be able to withdraw consent to the use of their gametes, once the gametes have been used to create an embryo. Current laws allow donors to withdraw consent right up until the moment before the embryo is transferred to a person’s uterus.
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  • The limitation on donated gametes being used to assist ’10 women’ will be amended to limit donor gametes being used to produce more than ’10 families.’ The distinction is particularly important for lesbian couples who hope to use the same sperm donor for both of them to conceive.
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  • Some ART services will be available outside the big city IVF clinics, with nurses and GPs able to perform treatments if it is under the supervision and direction of a doctor at an IVF clinic.
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  • The language around posthumous use of gametes (ie. using eggs or sperm after the death of the gamete provider) in a surrogacy arrangement will be changed to be gender-neutral. Currently the law only allows a man to pursue surrogacy with his deceased wife’s gametes. The change will allow anyone to pursue surrogacy (if they meet the criteria) with the gametes of their deceased partner.
What’s next?
The Bill has had its Second Reading speech and will now proceed to debate. All going well, the changes will be implemented in the coming months. You can follow the Bill at the Victorian Parliament website.
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Sarah is a surrogacy lawyer in Melbourne and has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.
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You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast. You can also book in for a consult with me below.

Sarah can assist with Surrogacy Parentage Order applications for Victorian surrogacy arrangements. Sarah offers an affordable DIY Parentage Order package to transfer parentage from the birth parents to the intended parents.

Sarah can assist with surrogacy arrangements across all states, including Victoria and cross-border arrangements. You can contact me here. All consults are conducted over Zoom and email. You can 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 her 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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