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VLRC: Talking turkey basters

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Cite as: (2005) 79(7) LIJ, p. 91

The Victorian Law Reform Commission has formulated its first set of interim recommendations for its ART and Adoption reference.

The Victorian Law Reform Commission (VLRC) has released its first assisted reproduction technology (ART) position paper for public comment.

The interim recommendations are contained in the Access position paper – the first in a series of three papers compiled by the VLRC. The other two will cover parentage and adoption, and surrogacy.

A central component of the recommendations in the Access paper is the introduction of legislated guiding principles that will set the basis for further changes to the law and provide clinics and patients with greater certainty when making decisions.

The suggested principles are:

  • the health and wellbeing of children born as a result of the use of ART must be given priority in decisions concerning the use of such technologies;
  • at no time should the use of reproductive technologies be for the purpose of exploiting (in trade or otherwise) either the reproductive capabilities of men and women or the resulting children;
  • all children born as a result of the use of donated gametes have a right to information about their genetic parents;
  • the health and wellbeing of people undergoing ART procedures must be protected at all times; and
  • people seeking to undergo assisted reproductive procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion.

The first principle is particularly important as it was specifically mentioned in the VLRC’s terms of reference for this project and was the major concern in public submissions and consultations.

To add further weight to the principle, the VLRC has proposed a process for dealing with cases where there is a risk of harm to children. The VLRC recommends there be a presumption against treatment of anyone who has been convicted of a serious sexual or violent offence and/or has had a child protection order made against them. Other concerns about the wellbeing of a prospective child should be referred to a clinical ethics committee and a child development expert. All cases would be reviewable by an independent panel.

No discrimination

The other dominant concern in public submissions was the need to remove discrimination from the law. The Law Institute of Victoria, Australian Lawyers for Human Rights, the Equal Opportunity Commission of Victoria and Victoria Legal Aid provided just a few of the submissions that supported removing discrimination from legislation.

The VLRC has also reached the view that marital status is not a relevant factor in assessing whether a child will be at risk of harm or neglect.

In keeping with the principle of non-discrimination, the VLRC has recommended that directed donations of gametes be stopped.

One Victorian clinic currently allows people to have their say on what type of person they want their gametes to go to, that is, to direct their donations. So a man may donate sperm but ask that it does not go to a lesbian couple. The VLRC believes that donors who want this level of control should find a couple they approve of and donate gametes as a known donor.

Posthumous use

One of the most challenging areas of debate for the VLRC was that of posthumous use of gametes (sperm and ova).

The current Infertility Treatment Act allows people to use an embryo that was formed with the gametes of someone who subsequently dies. It bans the use of the gametes of someone who is dead, but in an anomaly that seems to have been an inadvertent result of changes to bring the Act in line with commonwealth legislation, it may allow a dead person’s gametes to be used to form an embryo to implant into a woman.

After much debate, the commissioners formed interim recommendations that ban the use of embryos or gametes without the express consent of the person providing the gametes. The requirement for express consent should also apply to the removal of gametes from a person who is dead or dying.

People entering treatment programs and gamete donors will be asked to agree or disagree in writing to the use of their gametes after death when they begin their dealings with clinics.


Many of the submissions received were from lesbian women concerned about the perceived illegality of insemination at home.

The VLRC has recommended that self-insemination not be considered a crime, but it has also recommended that women who have sperm screened by a clinic must be inseminated at the clinic.

Submissions to the position papers are due roughly one month after they are released. Once all the submissions are received, the VLRC will begin preparing its final report and recommendations.

At this stage, the VLRC plans to give the final report to the Attorney-General by the end of this year. Once received, the Attorney-General has 14 parliamentary sitting days to table it.

If you are interested in receiving the position papers, please email the VLRC on or ph 8619 8619.

Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information, ph 8619 8619 or visit the website


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