Consent and counselling before fertility treatment in Victoria

Sequence

The order the Act sets for the person being treated

1. Counselling

   Before a woman consents to assisted reproductive treatment, she and her partner, if any, must have had counselling from a counsellor working on behalf of a registered ART provider (s 13(1)); before artificial insemination, that counselling may also come from a person who meets the prescribed requirements (s 13(2)).

2. The prescribed matters

   That counselling includes the matters the Regulations prescribe, which regulation 7 lists for section 13(1) and (2); they are set out below.

3. Consent in the prescribed form

   Section 10(1) lists the conditions on which a woman may undergo a treatment procedure. The first is that she and her partner, if any, have consented in the prescribed form to a procedure of that kind.

4. The right to change one’s mind

   A person who gives consent under section 10(1) can withdraw it at any point before the procedure or action it covers is carried out (s 20(1)).

The Act names the partner in both the counselling and the consent, each time with the words “if any”. Section 5 also says people seeking treatment must not be discriminated against because of their marital or relationship status, among other grounds.

Counselling matters

What the counselling must cover

Regulation 7 of the Assisted Reproductive Treatment Regulations 2019 prescribes the matters for the counselling under section 13(1) and (2) of the Act. Its paragraphs (a) to (h) are below in this guide’s words; the Regulations have the exact wording.

• (a) the options open to the woman, and to her partner if she has one
• (b) the outcomes a treatment procedure may have
• (c) any issue or concern the woman, or her partner if she has one, raises about the procedure
• (d) where relevant, telling any children born as a result of a procedure about their donor origins and their rights to information
• (e) where relevant, the Central Register and the information that must be kept in it
• (f) where relevant, issues about using donated gametes or embryos in the procedure, including these:
  • (i) how section 29 of the Act affects the use of donor gametes
  • (ii) a donor’s consent being withdrawn or lapsing
  • (iii) the consent needed to extend storage, or to remove an embryo from storage
• (g) where relevant, issues about genetic siblings who share a genetic parent but are raised in different families
• (h) where section 20A of the Act applies, which covers separation (below):
  • (i) what separation means for consent to the procedure
  • (ii) that each party must give the relevant registered ART provider or doctor a written notice of separation.

Counsellors

Who may give the counselling

Section 13(1) requires a counsellor working on behalf of a registered ART provider. Where the Act allows counselling from someone other than a provider’s counsellor (sections 13(2)(b), 18(2)(b), 36(3)(d), 48(b)(ii) and 67A(b)), regulation 7A requires that person to be a full member of the Australian and New Zealand Infertility Counsellors Association, or eligible for full membership. Section 13(1) is not among them.

Consent

What the consent must say, and who receives it

Section 11 says what a consent under section 10(1) must do, and who it goes to. Under section 11(1), the consent:

• must state that the woman, and her partner if she has one, have agreed to undergo the kind of treatment procedure the consent names
• must not have been withdrawn, and must not have lapsed, when the procedure takes place.

Under section 11(2), the person giving the consent must give it, or have it given, to one of these:

• the designated officer of whichever registered ART provider is to carry out the procedure
• where someone other than a registered ART provider will carry out the procedure, the doctor in charge of the woman’s treatment.

Withdrawal

Withdrawing consent, and separation

Step 4 above gives the right to withdraw. Section 20 also sets how it is done: the withdrawal must be in writing (s 20(2)). Under section 20(3), the person withdrawing must give it, or have it given, as soon as practicable to one of these:

• the registered ART provider or doctor who received the consent
• the registered ART provider or doctor keeping or storing the sperm, egg or embryo the consent relates to
• as the Regulations provide.

Section 20A covers separation. It applies when all three of these are true:

• a woman and her partner have each consented under section 10(1) to a treatment procedure
• gametes produced by her partner are to be used in the procedure carried out on her
• the two of them separate before the procedure is carried out.

Each of their consents is then taken to be withdrawn when they separate (s 20A(2)). Paragraph (h) of the counselling matters above covers this case.

Donors

Donors’ consent, in brief

Donors have their own consent and counselling rules in sections 16 to 19 of the Act: their gametes may be used only in a treatment procedure of the kind they consented to (s 16(1)). Counselling linked to the donor conception registers is explained on the department’s donor conception register services page.

Refusal

When a provider refuses treatment

The Act also covers what happens when treatment is refused. Where a registered ART provider or a doctor declines to treat a woman, reasonably believing that a child who may be born would be at risk of abuse or neglect, the Act lets a person apply to the Patient Review Panel for a review; that is one of several grounds in section 15(1). Having considered an application, the panel may find “no barrier” to the person having treatment procedures, either generally or of a specified kind (s 15(2)).

Clause 4 sets out the panel’s work, and clause 1 places these sections in the Act as a whole.