A legal guide to IVF and gender selection in Australia
With more couples and individuals turning to in-vitro fertilisation (IVF) or other assisted reproductive technologies (ART) to have a baby, gender selection or sex selection is an ongoing topic of debate in Australia.
According to a report by the University of NSW, there were 88,929 initiated IVF cycles in Australia in 2019. That is a 6.2% increase on 2018 rates and 57% more than the 56,489 cycles performed in 2010.
Gender selection through IVF is no longer legal in Australia except in certain medical cases. In this blog we discuss gender selection in Australia, why it is banned, and the legislation and guidelines governing IVF and gender selection in NSW and Australia.
Understanding IVF and gender selection
You can’t definitively test the gender of an egg or sperm, so gender selection is only possible with embryos from an IVF procedure.
What is gender selection?
In relation to ART procedures, including IVF, gender selection means selecting and transferring an embryo because of its genetic sex.
Is gender selection legal in Australia?
Generally, gender selection is not legal in Australia. You cannot choose the gender when having a baby via IVF except for certain medical reasons.
In NSW and the rest of Australia, gender selection may be possible in cases where it is in the child’s best interests to be born a specific sex. The National Health and Medical Research Council (NHRMC) guidelines says gender selection using pre-implantation genetic screening PSG and pre-implantation genetic diagnosis PSD may be ethically acceptable if it will avoid the risk of transmitting a serious genetic condition, disease, or abnormality.
For example, if couples carry genes for health conditions that only affect males, such as muscular dystrophy and haemophilia, they may legally investigate the possibility of selecting a female child through IVF.
Why is gender selection banned in Australia?
Gender selection is generally banned in NSW and other parts of Australia on ethical grounds. There are concerns about possibly creating gender imbalance by distorting the natural sex ratio and reinforcing sexist and discriminatory stereotypes.
Between 1999 and 2004 it was possible to use scientifically administered sex selection techniques in NSW. Laws were changed after the NHMRC strongly advised against gender selection.
What is the Assisted Reproductive Treatment Act 2007 NSW?
The Assisted Reproductive Treatment Act 2007 NSW (ART Act) guides many of the ethical and social aspects of ART. The Human Tissue Act (HTA) is the other piece of legislation in NSW that covers ART.
Unlike most other medical practice areas, there is no national regulation of ART procedures in Australia. State and territory governments regulate the clinical practice of ART, including IVF.
The NSW ART Act and Regulation aims to prevent the commercialisation of human reproduction and protect the interests of children born via ART treatment, people providing a gamete (sperm or ova) for use in ART treatment, and women undergoing ART treatment.
When can you choose the gender of your baby with IVF in Australia?
In Australia, you may be able to choose the gender of your baby with IVF for some medical reasons.
Sex selection for medical purposes
You can legally investigate the possibility of being able to choose the gender of your baby when undergoing IVF in Australia for some medical purposes such as avoiding genetic illnesses associated with a particular gender.
Sex selection for non-medical purposes
It isn’t possible to choose the gender of your baby for non-medical reasons through IVF in Australia. Preferencing a particular gender or balancing a family is not an acceptable reason for gender selection.
Despite both the United Nations and the World Health Organisation also opposing sex selection for non-medical reasons, gender selection with IVF is possible in some other countries. Some Australian individuals and couples are seeking gender selection treatment in these countries.
The role of a lawyer in reproductive health disputes
Health and medical lawyers have a role in advising and representing people in reproductive health disputes.
In NSW, lawyers can help clients to make complaints about the conduct or performance of doctors and nurses as well as institutions such as an IVF clinic or hospital. The Health Care Complaints Commission (HCCC) will only act if there is evidence of a pattern or practice of substandard behaviour on the part of a health facility or health care provider.
Lawyers can also help clients take legal action for medical negligence by a health professional or health facility during IVF treatment.
Looking for a lawyer specialising in IVF and reproductive health?
Catherine Henry Lawyers specialise in reproductive health matters, including IVF, abortion, birth plans, and posthumous conception.
With more than 30 years of experience in health law, we understand the health system and the issues patients face. Our lawyers take the time to listen and support clients through what can be a very difficult and traumatic time.
The firm has handled cases on behalf of women who received poor service at an IVF clinic or suffered because of negligent mistakes made in IVF treatment, as well as issues with the storage of gametes and eggs.
Both Catherine Henry and the firm have been recommended as top medical negligence providers in the prestigious Doyle’s Guide lists for seven years running.
If you need legal support with an IVF or reproductive matter, contact the expert and caring team at Catherine Henry Lawyers. Call 1800 874 949 or complete the contact form below.
