This is a concept website · Enquire about this domain

eggdonation.com.au

Row 01 of 05Payment

Egg donation and payment: what the law allows

Giving or receiving valuable consideration for an egg is an offence in Australia, though a donor’s reasonable expenses can be paid. Section 21 of the Commonwealth’s Prohibition of Human Cloning for Reproduction Act 2002 makes it an offence to give or offer, or to receive or offer to receive, valuable consideration for the supply of a human egg, while a donor’s reasonable expenses can be paid without breaking it.

  1. NSWs 21
  2. VICs 21
  3. QLDs 21
  4. WAs 21, WA s 53Q
  5. SAs 21
  6. TASs 21
  7. ACTs 21
  8. NTs 21

Section 21 is in a Commonwealth Act; the Act defines a State to include the ACT and the Northern Territory. Western Australia adds an offence of its own.

General information, not legal or medical advice. The place to check is the Act itself, on the Federal Register of Legislation.

Section 21

The two offences

Section 21 has two halves, one for each side of a payment.

“A person commits an offence if the person intentionally gives or offers valuable consideration to another person for the supply of a human egg, human sperm or a human embryo.”

Section 21(1), Prohibition of Human Cloning for Reproduction Act 2002

“A person commits an offence if the person intentionally receives, or offers to receive, valuable consideration from another person for the supply of a human egg, human sperm or a human embryo.”

Section 21(2), Prohibition of Human Cloning for Reproduction Act 2002

The penalty the Act sets for each is imprisonment for 15 years. The offer counts as much as the payment: an offer to give, or an offer to receive, is enough on the Act’s own words.

Defined terms

Valuable consideration and reasonable expenses

Everything turns on two terms that section 21(3) defines.

Valuable consideration

Money is only part of it. Section 21(3) says valuable consideration includes “any inducement, discount or priority” in providing a service to the person who supplies the egg.

It does not include paying the reasonable expenses that person incurs in connection with the supply.

Reasonable expenses

For the supply of a human egg or human sperm, the Act says reasonable expenses “includes, but is not limited to, expenses relating to the collection, storage or transport of the egg or sperm”.

“Not limited to” matters: the Act names examples, not a closed list.

NHMRC guidelines

What the national guidelines add

The NHMRC’s ethical guidelines on assisted reproductive technology are guidelines for clinics, not an Act.

Section 5.4, in Part B, states the position plainly. The guidelines describe gamete donation in Australia as something that must be altruistic, with commercial trading in gametes and the use of direct or indirect inducements prohibited by legislation. They give the reason as concern about the potential exploitation of donors, egg donors in particular.

Within that, the guidelines say it is reasonable to reimburse verifiable out-of-pocket expenses directly linked to the donation. Medical and counselling costs, before and after the donation, are one item on the guidelines’ own list; the full list is in paragraph 5.4.1 of the NHMRC guidelines. A footnote adds that a donor who uses paid leave while donating cannot be reimbursed for lost earnings, and that loss of earnings can be shown with payslips verifying unpaid leave.

A fixed sum for everyone. On its page about the Commonwealth and state laws, the NHMRC says reasonable expenses will vary from one person to the next, and that paying every donor a set amount, without regard to their own circumstances, may amount to valuable consideration if it exceeds the expenses that donor actually incurred.

The same page says clinics and individuals must not use gametes obtained by giving the donor valuable consideration, that a person considering donating must not receive it, and that individuals and clinics may risk breaching the Act if they give or receive it.

State laws

Where a state adds its own rule

The Commonwealth Act says it is not intended to exclude the operation of a state law that can operate concurrently with it. Two states in this site’s sources write the idea into their own law.

Western Australia

Section 53Q of the Human Reproductive Technology Act 1991 makes it a crime to give or offer valuable consideration “for the supply of a human egg, human sperm or a human embryo”, and a crime to receive or offer to receive it. Its definition of valuable consideration uses the same words: any inducement, discount or priority, but not reasonable expenses. The penalty is “a fine of 600 penalty units or imprisonment for 10 years or both”, or on summary conviction “A fine of 120 penalty units or imprisonment for 2 years or both”.

New South Wales

The first object listed in the Assisted Reproductive Technology Act 2007 is “to prevent the commercialisation of human reproduction”. NSW Health’s answers on donation say it is an offence to give a donor money or other inducements for the donation, other than reasonable expenses.

For the other states and territories, this site’s sources hold no separate offence of their own, which is not the same as there being none. Section 21 is a Commonwealth offence, and the Act defines a State to include the ACT and the Northern Territory.

This site

Scope of this site

This site explains the law on payment and links to where that law is published. It does not ask anyone to donate, and it offers nothing in return for donating.

Payment is only one row of the sheet. The donor limits, which count women in New South Wales and Victoria and families in Queensland and Western Australia, are in Donor limits by state, and what a donor is told and agrees to before donating is in Consent and counselling for egg donors. All five rows sit side by side on the comparison sheet.