Human Cloning for Reproduction and Other Prohibited Practices Act 2003
An Act to adopt in Tasmania a uniform Australian approach to the prohibition of human cloning for reproduction and certain other practices associated with reproductive technology and for other purposes
[Royal Assent 25 September 2003]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
[Section 1 Amended by No. 48 of 2007, s. 5, Applied:13 Dec 2007] This Act may be cited as the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 .
The provisions of this Act commence on a day or days to be proclaimed.
(1) The object of this Act is to adopt in Tasmania a uniform Australian approach to the prohibition of human cloning and certain other practices associated with reproductive technology.(2) [Section 3 Subsection (2) amended by No. 48 of 2007, s. 6, Applied:13 Dec 2007] For that purpose, this Act creates a number of offences that mirror offences found in the Prohibition of Human Cloning for Reproduction Act 2002 of the Commonwealth.
(1) In this Act, unless the contrary intention appears –animal does not include a human;chimeric embryo means –[Section 4 Subsection (1) amended by No. 48 of 2007, s. 7, Applied:13 Dec 2007](a) a human embryo into which a cell, or any component part of a cell, of an animal has been introduced; or(b) a thing declared by the regulations to be a chimeric embryo;[Section 4 Subsection (1) amended by No. 48 of 2007, s. 7, Applied:13 Dec 2007] human embryo means a discrete entity that has arisen from either –and has not yet reached 8 weeks of development since the first mitotic division;(a) the first mitotic division when fertilisation of a human oocyte by a human sperm is complete; or(b) any other process that initiates organised development of a biological entity with a human nuclear genome or altered human nuclear genome that has the potential to develop up to, or beyond, the stage at which the primitive streak appears –human embryo clone means a human embryo that is a genetic copy of another living or dead human, but does not include a human embryo created by the fertilisation of a human egg by human sperm;human sperm includes human spermatids;hybrid embryo means –(a) an embryo created by the fertilisation of a human egg by animal sperm; or(b) an embryo created by the fertilisation of an animal egg by human sperm; or(c) a human egg into which the nucleus of an animal cell has been introduced; or(d) an animal egg into which the nucleus of a human cell has been introduced; or(e) a thing declared by the regulations to be a hybrid embryo;[Section 4 Subsection (1) amended by No. 48 of 2007, s. 7, Applied:13 Dec 2007] licence means a licence issued under section 21 of the Research Involving Human Embryos Act 2002 of the Commonwealth;precursor cell means a cell that has the potential to develop into a human egg or human sperm;woman means a female human.(2) For the purposes of establishing that a human embryo clone is a genetic copy of another living or dead human –(a) it is sufficient to establish that the set of genes in the nuclei of the cells of the living or dead human has been copied; and(b) it is not necessary to establish that the copy is an identical genetic copy.(3) For the purposes of the definition of "human embryo" in subsection (1) , in working out the length of the period of development of a human embryo, any period when the development of the embryo is suspended is to be disregarded.(4) For the purposes of the definition of "human embryo clone" in subsection (1) , a human embryo that results from the technological process known as embryo splitting is taken not to be created by a process of fertilisation of a human egg by human sperm.(5) [Section 4 Subsection (5) inserted by No. 48 of 2007, s. 7, Applied:13 Dec 2007] A reference in this Act to an embryo (including a human embryo) is a reference to a living embryo.(6) [Section 4 Subsection (6) inserted by No. 48 of 2007, s. 7, Applied:13 Dec 2007] A reference in this Act to a human egg is a reference to a human oocyte.(7) [Section 4 Subsection (7) inserted by No. 48 of 2007, s. 7, Applied:13 Dec 2007] A reference in this Act to a human embryo does not include a reference to –(a) a hybrid embryo; or(b) a human embryonic stem cell line.
PART 2 - Prohibited practices
Division 1 - Practices that are completely prohibited[Section 5 Repealed by No. 48 of 2007, s. 9, Applied:13 Dec 2007] . . . . . . . .
6. Offence – placing a human embryo clone in a human body or the body of an animal
A person commits an offence if the person intentionally places a human embryo clone in the body of a human or the body of an animal.Penalty: Imprisonment for a term not exceeding 15 years.
7. Offence – importing and exporting human embryo clone
(1) A person commits an offence if the person intentionally imports a human embryo clone into Tasmania.Penalty: Imprisonment for a term not exceeding 15 years.(2) A person commits an offence if the person intentionally exports a human embryo clone from Tasmania.Penalty: Imprisonment for a term not exceeding 15 years.
8. No defence that human embryo clone could not survive
[Section 8 Amended by No. 48 of 2007, s. 10, Applied:13 Dec 2007] It is not a defence to an offence under section 6 or 7 that the human embryo clone did not survive or could not have survived.[Section 9 Repealed by No. 48 of 2007, s. 12, Applied:13 Dec 2007] . . . . . . . .
10. Offence – creating a human embryo for a purpose other than achieving pregnancy in a woman
(1) [Section 10 Subsection (1) amended by No. 48 of 2007, s. 13, Applied:13 Dec 2007] A person commits an offence if the person intentionally creates a human embryo by a process of the fertilisation of a human egg by a human sperm outside the body of a woman, unless the person's intention in creating the embryo is to attempt to achieve pregnancy in a particular woman.Penalty: [Section 10 Subsection (1) amended by No. 48 of 2007, s. 13, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.(2) A defendant does not bear an evidential burden in relation to any matter in subsection (1) .
11. Offence – creating or developing a human embryo by fertilisation that contains genetic material provided by more than 2 persons
[Section 11 Substituted by No. 48 of 2007, s. 14, Applied:13 Dec 2007] A person commits an offence if –(a) the person intentionally creates or develops a human embryo by a process of the fertilisation of a human egg by a human sperm outside the body of a woman; and(b) the human embryo contains genetic material provided by more than 2 persons.Penalty: Imprisonment for a term not exceeding 15 years.
12. Offence – developing a human embryo outside the body of a woman for more than 14 days
A person commits an offence if the person intentionally develops a human embryo outside the body of a woman for a period of more than 14 days, excluding any period when development is suspended.[Section 13 Repealed by No. 48 of 2007, s. 16, Applied:13 Dec 2007] . . . . . . . .Penalty: [Section 12 Amended by No. 48 of 2007, s. 15, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.
14. Offence – heritable alterations to genome
(1) A person commits an offence if –(a) the person alters the genome of a human cell in such a way that the alteration is heritable by descendants of the human whose cell was altered; and(b) in altering the genome, the person intended the alteration to be heritable by descendants of the human whose cell was altered.Penalty: [Section 14 Subsection (1) amended by No. 48 of 2007, s. 17, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.(2) In this section –human cell includes a human embryonal cell, a human fetal cell, human sperm or a human egg.
15. Offence – collecting a viable human embryo from the body of a woman
A person commits an offence if the person removes a human embryo from the body of a woman, intending to collect a viable human embryo.Penalty: [Section 15 Amended by No. 48 of 2007, s. 18, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.
16. Offence – creating a chimeric embryo
[Section 16 Substituted by No. 48 of 2007, s. 19, Applied:13 Dec 2007] A person commits an offence if the person intentionally creates a chimeric embryo.Penalty: Imprisonment for a term not exceeding 15 years.
16A. Offence – developing a hybrid embryo
[Section 16A Inserted by No. 48 of 2007, s. 19, Applied:13 Dec 2007] A person commits an offence if the person intentionally develops a hybrid embryo for a period of more than 14 days, excluding any period when development is suspended.Penalty: Imprisonment for a term not exceeding 15 years.
17. Offence – placing of an embryo
(1) A person commits an offence if the person intentionally places a human embryo in an animal.Penalty: [Section 17 Subsection (1) amended by No. 48 of 2007, s. 20, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.(2) A person commits an offence if the person intentionally places a human embryo in the body of a human, other than in a woman's reproductive tract.Penalty: [Section 17 Subsection (2) amended by No. 48 of 2007, s. 20, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.(3) A person commits an offence if the person intentionally places an animal embryo in the body of a human for any period of gestation.Penalty: [Section 17 Subsection (3) amended by No. 48 of 2007, s. 20, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.
18. Offence – importing, exporting or placing a prohibited embryo
[Section 18 Substituted by No. 48 of 2007, s. 21, Applied:13 Dec 2007][Section 19 Repealed by No. 48 of 2007, s. 21, Applied:13 Dec 2007] . . . . . . . .(1) A person commits an offence if the person intentionally imports an embryo into Tasmania knowing that, or reckless as to whether, the embryo is a prohibited embryo.Penalty: Imprisonment for a term not exceeding 15 years.(2) A person commits an offence if the person intentionally exports an embryo from Tasmania knowing that, or reckless as to whether, the embryo is a prohibited embryo.Penalty: Imprisonment for a term not exceeding 15 years.(3) A person commits an offence if the person intentionally places an embryo in the body of a woman knowing that, or reckless as to whether, the embryo is a prohibited embryo.Penalty: Imprisonment for a term not exceeding 15 years.(4) In this section –prohibited embryo means –(a) a human embryo created by a process other than the fertilisation of a human egg by human sperm; or(b) a human embryo created outside the body of a woman, unless the intention of the person who created the embryo was to attempt to achieve pregnancy in a particular woman; or(c) a human embryo that contains genetic material provided by more than 2 persons; or(d) a human embryo that has been developing outside the body of a woman for a period of more than 14 days, excluding any period when development is suspended; or(e) a human embryo created using precursor cells taken from a human embryo or a human fetus; or(f) a human embryo that contains a human cell (within the meaning of section 14 ) whose genome has been altered in such a way that the alteration is heritable by human descendants of the human whose cell was altered; or(g) a human embryo that was removed from the body of a woman by a person intending to collect a viable human embryo; or(h) a chimeric embryo or a hybrid embryo.
20. Offence – commercial trading in human eggs, human sperm or human embryos
(1) 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.Penalty: [Section 20 Subsection (1) amended by No. 48 of 2007, s. 22, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.(2) 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.Penalty: [Section 20 Subsection (2) amended by No. 48 of 2007, s. 22, Applied:13 Dec 2007] Imprisonment for a term not exceeding 15 years.(3) In this section –reasonable expenses, in relation to –(a) the supply of a human egg or human sperm, includes, but is not limited to, expenses relating to the collection, storage or transport of the egg or sperm; and(b) the supply of a human embryo –(i) [Section 20 Subsection (3) amended by No. 48 of 2007, s. 22, Applied:13 Dec 2007] does not include any expenses incurred by a person before the time when the embryo became an excess ART embryo, within the meaning of the Prohibition of Human Cloning for Reproduction Act 2002 of the Commonwealth; and(ii) includes, but is not limited to, expenses relating to the storage or transport of the embryo;valuable consideration, in relation to the supply of a human egg, human sperm or a human embryo by a person, includes any inducement, discount or priority in the provision of a service to the person, but does not include the payment of reasonable expenses incurred by the person in connection with the supply.
Division 2 - Practices that are prohibited unless authorised by a licence
20A. Offence – creating a human embryo other than by fertilisation, or developing such an embryo
[Section 20A of Part 2 Inserted by No. 48 of 2007, s. 23, Applied:13 Dec 2007] A person commits an offence if –(a) the person intentionally creates a human embryo by a process other than the fertilisation of a human egg by a human sperm, or develops a human embryo so created; and(b) the creation or development of the human embryo by the person is not authorised by a licence.Penalty: Imprisonment for a term not exceeding 10 years.
20B. Offence – creating or developing a human embryo containing genetic material provided by more than 2 persons
[Section 20B of Part 2 Inserted by No. 48 of 2007, s. 23, Applied:13 Dec 2007] A person commits an offence if –(a) the person intentionally creates or develops a human embryo by a process other than the fertilisation of a human egg by a human sperm; and(b) the human embryo contains genetic material provided by more than 2 persons; and(c) the creation or development of the human embryo by the person is not authorised by a licence.Penalty: Imprisonment for a term not exceeding 10 years.
20C. Offence – using precursor cells from a human embryo or a human fetus to create a human embryo, or developing such an embryo
[Section 20C of Part 2 Inserted by No. 48 of 2007, s. 23, Applied:13 Dec 2007] A person commits an offence if –(a) the person uses precursor cells taken from a human embryo or a human fetus, intending to create a human embryo, or intentionally develops an embryo so created; and(b) the person engages in activities mentioned in paragraph (a) without being authorised by a licence, and the person knows or is reckless as to that fact.Penalty: Imprisonment for a term not exceeding 10 years.
20D. Offence – creating a hybrid embryo
[Section 20D of Part 2 Inserted by No. 48 of 2007, s. 23, Applied:13 Dec 2007](1) A person commits an offence if the person intentionally creates a hybrid embryo.(2) A person commits an offence if the person intentionally develops a hybrid embryo.(3) A person does not commit an offence against subsection (1) or (2) if the creation or development of the hybrid embryo by the person is authorised by a licence.Penalty: Imprisonment for a term not exceeding 10 years.
PART 3 - Miscellaneous
(1) The Governor may make regulations for the purposes of this Act.(2) The regulations may be made so as to apply differently according to such factors as are specified in the regulations.(3) The regulations may authorise any matter to be from time to time determined, applied or regulated by a person specified in the regulations.
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 2 years from the date of Royal Assent to this Act.(3) In undertaking the review, the Minister is to give the public a reasonable opportunity to make submissions on the matters specified in subsection (1) .(4) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years.(5) The Minister may undertake the review of this Act at the same time as the review required by section 25 of the Prohibition of Human Cloning Act 2002 of the Commonwealth, in which case the report on the outcome of the review of this Act is to be tabled in each House of Parliament as soon as practicable after the Minister has completed the review.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –The amendment effected by this section has been incorporated into the authorised version of the Gene Technology Act 2001 .(a) the administration of this Act is assigned to the Minister for Health and Human Services; and(b) the department responsible to the Minister for Health and Human Services in relation to the administration of this Act is the Department of Health and Human Services.