(c) a reference to the fertilisation of a human egg outside of the body of a woman does not include the fertilisation of a human egg inside of the body of a person of another gender who has a female reproductive tract …

2.2.32 the offence of placing an embryo in a human, other than in a woman’s 2.2.32 the offence of placing an embryo in a human, other than in a woman’s reproductive tract (s 17(2)), would not be affected by the recent changes to law. An embryo placed in the reproductive tract of a person with a female reproductive system whose registered gender is other than female would continue to be characterised as being placed ‘other than in a woman’s reproductive tract.’ An embryo placed in the reproductive tract of a person whose registered gender was female but who did not have a female reproductive system would not be viable. In contrast, the offence of removing a human embryo from the body of a woman could be 2.2.33 affected by the recent changes. In circumstances where an embryo developed in the body of a person with a female reproductive system whose registered gender is other than female, the embryo could be removed without making out the offence in s 15. Section 28D(3)(a) of the BDM Act provides that any reference to pregnancy of a female 2.2.34 or a woman includes a reference to pregnancy of a person of another gender. Arguably, this could extend to provisions relating to human embryos within the body of a woman. However, the Institute considers that it is preferable to amend s 15 of the Human Cloning Act to replace ‘from the body of a woman’ with ‘from the body of a human’. This language is consistent with the language currently used in s 17(2) of the Human Cloning Act.

######### Surrogacy

2.2.35 Surrogacy Act 2012 (Tas) (‘Surrogacy Act’) provides for surrogacy arrangements to 2.2.35 Surrogacy Act 2012 (Tas) (‘Surrogacy Act’) provides for surrogacy arrangements to be made for a ‘birth mother’ to seek to become pregnant and give birth to a child, and for that child to be treated as the child of another person or persons (the ‘intended parent’ or ‘intended parents’) (s 5). There is no legitimate risk that a person whose registered gender is male could be a ‘birth 2.2.36 mother’ for the purposes of the Surrogacy Act. A valid surrogacy arrangement cannot be made after the birth mother becomes pregnant (s 5(5)(a)), so a person whose registered gender is other than female who has fallen pregnant could not subsequently enter into a surrogacy arrangement. A person whose registered gender is male or other than female could arguably be acting inconsistently with a gender declaration that the person intends to live as a male if the person enters into a surrogacy arrangement that commits him to ‘seeking to become pregnant’. From a policy perspective, the intent of the Surrogacy Act is to provide parents who are 2.2.37 unable to conceive or carry a child to term with the opportunity to become parents. Allowing any consenting adults capable of becoming pregnant to enter into surrogacy arrangements, regardless of their registered gender, would be consistent with this policy objective. For the purposes of a surrogacy arrangement, ‘intended parents’ may include a single man 2.2.38 or ‘eligible woman’, a man and a woman, two men, or two ‘eligible women’ (s 7(1)). ‘Eligible woman’ includes a woman who:

- (a) is unable, on medical grounds, to conceive a child; or