Storing gametes and embryos

Gametes, embryos and eggs undergoing fertilisation can only be stored where there is an effective consent in place.

Storage consent must be provided by donors and recipients of any donated material. The storage (including time limits) must occur in accordance with the consent. Storage consent may be varied or withdrawn at any time.

Storage consent must specify the maximum period of storage and provide instructions on what is to be done with the material if the person who gave the consent is unable by reason of incapacity or otherwise to vary the terms of the consent or withdraw it.

Storage consent must also include consent to allow the embryo to succumb at the end of the storage period.

Licensed fertility (storage) providers must maintain records to reflect the expiry date for storage approval.

Providers must have a system in place to identify gametes, embryos or eggs undergoing fertilisation that are nearing the end of their approved storage period.

Requests for embryo storage approval extensions must be made before the expiry of the current approval.

The licensee must take reasonable steps to notify the person/s for whom the embryo is being stored at least three months before the expiry date.

Storage standards required in the Human Reproductive Technology Act 1991 (external site) for a licensed storage provider:

• Reproductive Technology Accreditation Committe (RTAC) (external site) standards for practice, personnel and premises;
• National Association of Testing Authorities (NATA) (external site) standards for laboratories.
• Medical practitioner must be employed for donor screening.

Storage licenses are issued for a 3-year period. 

Licensed storage providers must have a protocol, which aligns with the RTAC and NATA standards, and this must be provided to the Reproductive Technology Council (external site) for approval.

The protocol must address the process for managing embryo extensions. Changes to the protocol must be documented in the licensed fertility provider’s annual report and this must be provided to the Reproductive Technology Council who will determine if the change is approved.

Storage providers must provide data to the Department of Health Reproductive Technology Treatment Registers as per the Data Submission Specification.

There is no legislated requirement on the length of time gametes (sperm or eggs) can be stored, however duration of storage must be included and be documented throughout the consent process. Posthumous use of gametes is prohibited.

The maximum time that an embryo may be stored is ten years. Approval from the Reproductive Technology Council (external site) is required, prior to expiration, to extend embryo storage beyond 10 years.

Where embryos have been donated but not allocated the responsibility for storage extension rests with the donor. Once the embryos have been allocated the responsibility for storage extension rests with the recipient.

Before the end of an approved storage period persons for whom an embryo has been created have the following options:

• use the embryo through an in vitro fertilisation process;
• request a storage extension prior to the end of the approved storage period;
• donate the embryo to a known or unknown recipient;
• donate the embryo for research purposes; or
• allow the embryo to succumb.

Application forms

Application for extension of storage of embryos for use in an artificial fertilisation procedure (external site)

Application for extension of storage of embryos donated for research (external site)

Where a licensee has made reasonable attempts to contact:

• persons for whom an embryo has been developed; or
• donors of sperm eggs or embryos in storage; or
• providers of sperm or eggs in storage

prior to the expiration of a storage period, and these attempts have been unsuccessful, the fertility provider is permitted to allow the embryo to succumb.

There may be a need to move gametes or embryos into or out of Western Australia. This may be because people have relocated, have accessed donor material from interstate/overseas, have accessed assisted reproductive technology interstate, have a surrogacy arrangement with a surrogate in a different jurisdiction or for some other reason.

The Human Reproductive Technology Directions 2021 (external site) sets out the criteria that regulates the movement of gametes/embryos in Western Australia.

Export

Exporting gametes or embryos for a use prohibited in Western Australia (WA) is not permitted including commercial surrogacy or breaching the five-family limit.

Where it is confirmed that the use will not breach WA law, approval is not required to export a person or couple/s own gametes or embryos.

Approval from the Reproductive Technology Council (external site) is required to export donated gametes, embryos or eggs undergoing fertilisation for use in an artificial fertilisation procedure. 

Applicants must provide an undertaking to provide information for the Department of Health Reproductive Technology Treatment Registers about the outcome of the donation and provision of information on the recipient of the donated material.

Import

Imported gametes, embryos or eggs undergoing fertilisation can be received by a licensed fertility provider for:

• use in an artificial fertilisation procedure;
• use in a research project approved by the Reproductive Technology Council (external site); or
• used under an National health and Medical research Council (NHMRC) license (excess ART embryos only).

No specific approval is required for a person/couple to bring their own gametes or embryos into Western Australia (WA).

Where donated material is involved, the fertility provider must be able to meet the requirements of WA law. This includes:

• Counselling: must be to an equivalent standard and by a professional with qualifications equivalent to what is required in WA;
• Screening, quarantine and infection control;
• Consent;
• Family limits;
• Access to information via the Reproductive Technology Treatment Registers.

Donated material can only be imported if the donor or a broker has not received valuable consideration. Evidence must be provided to demonstrate that the donation has been made altruistically and only reasonable expenses have been reimbursed.

The Licensee receiving the imported gametes or embryos must do their due diligence to confirm WA legal requirements have been met. It is the licensee who is responsible for accepting the donor material and the penalties for non-compliance can be severe.

The Reproductive Technology Accreditation Committee Technical Bulletin Number 3 (external site) recommends that clinics obtain written legal advice on the origin of the donated material, compliance with State and Federal legislation and the clinic's intended use of the material.

If requirements of WA law cannot be met in relation to the five-family limit or the information for the registers, approval from the Reproductive Technology Council (external site) is required. The Council have discretion to waive these two provisions on compassionate grounds where evidence of exceptional circumstances can be provided. There is no provision for approving an application to import where the other provisions cannot be met. Applicants must be able to demonstrate compliance with the other requirements as part of any import application.

Embryos

The Human Reproductive Technology Directions 2021 (external site) vests control of an embryo in the surviving partner. This means a woman may be able to use an embryo that had been created before the death of the sperm provider.

This can create issues where the relationship had broken down or if the partner who died had explicitly advised that they did not want an embryos used in the event of their death. 

Gametes

In Western Australia (WA) there are laws relating to the posthumous collection of gametes, but the posthumous use of gametes is currently prohibited.

The Human Tissue and Transplant Act 1982 (external site) may permit the posthumous collection of gametes for transplantation or for a therapeutic, medical or scientific purpose where:

• the deceased person had consented to or expressed a wish for the collection; or
• there is no evidence to suggest that the deceased person had an objection to the collection and the senior next of kin consents to the collection.

The Human Reproductive Technology Directions 2021 (external site) prohibits licensed fertility providers from using gametes in an artificial fertilisation procedure after the death of the gamete provider.

Therefore, it may be possible for senior next of kin to consent to the posthumous collection of gametes in some circumstances, however the gametes cannot be used in Western Australia.

Assisted reproductive technology legislation is being reviewed and the WA Government supports further consideration and research related to the posthumous use of gametes or embryos as part of this process.