Section 148
Section 148 of the ART Act allows ART providers to request approval to use an embryo created with donated sperm or eggs, or a donated embryo, if the embryo was created before 19 September 2024, even if using that embryo would not be permitted because:
- it would be outside of the family limit
- it would be outside of the time limit
- not all required information about the donated sperm or eggs is available
- the consent of the donor isn’t in writing or doesn’t meet the Act requirements because consent was given before the Act started.
We do not have the authority to make a decision approving use if the donor has withdrawn consent to use their sperm or eggs.
Providers only need to make an application if use of the embryo would not be allowed under the Act. If use would be allowed, treatment can progress without the need for an application. Providers can contact ART@health.qld.gov.au to check if approval is needed.
How a decision is made
The introduction of the regulatory scheme is not a barrier to patients undergoing ART treatment commenced or anticipated before the scheme started. When embryos were created before the Act came into effect, we consider whether allowing the use of the embryos would still support the welfare and long-term interests of the person who may be born.
Guided by the core principles, we also take individual circumstances into account, including:
- When was the embryo created? This section only applies if the embryo was created before 19 September 2024
- Would use of the embryo be prevented by another part of the Act?
- At the time the embryo was created, was it intended to be used in an ART procedure?
- Has the donor changed or withdrawn their consent since the sperm, eggs, or embryos were donated?
Refusal of an application
An application to use an embryo created with donated sperm or eggs, or a donated embryo, if the embryo was created before 19 September 2024, may be refused where the use is not considered reasonable.The provider can request review of that decision within 20 business days.
Scenario: Using an embryo created before 19 September 2024
Background
Soraya had a medical condition when she was younger and had fertility preservation treatment. In 2015, Soraya’s eggs were used to create an embryo, using sperm donated in March 2010. The embryo was created with the intention that she would use ART in the future to have a child.
Soraya is now ready to start a family and wants to use the embryo in storage.
Using the embryo now would exceed the time limit for use of the donated sperm (15 years). Because the embryo was created before the Act commenced, there is no need for the ART provider to make an application to use the donated sperm outside of the time limit. Instead, the provider can apply for approval to use the embryo under section 148.
Why this may be considered reasonable
- The embryo was created with donated sperm before 19 September 2024.
- When the embryo was created, Soraya planned to use the embryo in an ART procedure. It was not created to avoid the Act.
- Soraya now intends to use the embryo in an ART procedure for herself.
- The sperm donor has not withdrawn their consent for using the donated sperm.
How to apply
Only ART providers can apply for approval. Contact ART@health.qld.gov.au for the required forms and guidance materials.