The national regulator beats up the IVF clinics

The only national regulator of IVF clinics across the nation (in several States, IVF clinics have the misfortune to have both State and national regulators), the National Health and Medical Research Council, has written to IVF clinics suggesting that fixed fees to egg donors might in some way be improper, and noting that this is an issue that will be checked come audit time.

The threat is a serious one- because the penalty for payment to an egg donor under the nation's Human Cloning legislation is up to 15 years jail. A possible outcome is the NHMRC trying to remove the licences of the IVF clinics concerned.

But it would appear that the view expressed by the NHMRC is misconceived. Why? Because it has to be established that the amount that a donor has been paid is not "reasonable expenses". What is reasonable will depend, of course, on each case, but provided the amount is low enough it appears to me at least that it could also be reasonable.

A good comparison might be the amount that a person claims for interstate travel. Unlike the NHMRC, the regulator of our taxes, the Australian Tax Office, has published guidelines on the amount considered reasonable and therefore claimable in accommodation and food for each of our major capital cities. The amount varies from city to city and as to the income of the taxpayer concerned, in certain ranges of income. But- and this is the point- here are the amounts that would clearly be reasonable- even though each taxpayer's circumstances are different.

Imagine if a donor were to stay in accommodation in one of the capital cities in order to donate. How could it possibly be argued that if the donor were paid an amount for that accommodation, and the accommodation was for an amount within the ATO range (admittedly for another purpose), that that amount is not reasonable?

And what if there were a series of donors whose expenses were essentially the same? Should they not receive the same amount, in a standardised manner- or is the NHMRC simply being unreasonable and suggesting that each and every time a donor donates there must be an assessment of each and every expense of the donor?

Part of the difficulty is that the NHMRC has not published any guidance as to what constitutes "reasonable expenses", and nor has there been any prosecution, so there is no guidance from a court as to what reasonable expenses might or might not be. Instead the NHMRC has decided to throw its weight at clinics and seek to threaten them with their licenses. And what might be the outcome of this behaviour- clinics will be less inclined to pay donors for fear of crossing the regulator, and intended parents will therefore be more inclined to go overseas out of necessity- where donors are typically anonymous, might be paid, and the child will never know who the donor is. Nuts!

And the only case where the issue of payment under the Human Cloning Act came up? It was of all places in the High Court. Two doctors were arguing about damages arising from frozen sperm that was non-compliant with , you guessed it, the Human Cloning Act. The doctor who bought the IVF practice had to get new supplies of sperm, and did this from a US sperm ban called Xytex. This is what Justice Hayne said:

"As already noted, however, the Court of Appeal concluded that the appellant had mitigated her loss by buying replacement sperm from Xytex. In respect of "the loss of each straw of replacement sperm actually sourced from Xytex" before the date of assessment of damages, Tobias AJA concluded that the chief component of the appellant's "loss" would be "the sum (if any) representing that part of the overall cost of acquisition of that straw not recouped from a patient". And in respect of "the residue of the 'lost' 1996 straws over and above those in fact replaced by Xytex sperm up to the date of trial", Tobias AJA concluded that "the appropriate course would have been to assume that [the appellant] would continue to source straws of donor sperm from Xytex at a cost consistent with that which had prevailed since August 2005, and that she would continue to recoup from patients the same proportion of that cost as she had done in the past". On this footing, Tobias AJA concluded that the appellant's damages in respect of straws not "replaced" would be "the aggregate of the discounted present value of the un-recouped balances (if any) of that cost as at the date of their assessment" (emphasis added)."

You can bet that the doctor paid a fixed fee to Xytex and the Xytex donors for each donation and did not negotiate and assess an individual amount each time.

The doctor also charged a "buffer" between what she paid for the sperm and what she charged patients. Justice Keane stated:

"The appellant, in providing ART services for a fee, cannot sensibly be said to be engaging in commercial trading in sperm for a profit."

Surely if the payments being made to Xytex were improper, they would have been commented upon, and disapproved by members of the High Court. Quite simply, there were no such comments.

If it's good enough to pay sperm donors a fixed amount, and the legal basis is under the very same section of legislation dealing with egg donors, why is it not good enough to be paying egg donors a fixed  amount, provided that amount is reasonable?

The triumph of the Sex Discrimination Act- making it easier to access IVF for LGBTI people

At the beginning of this month, exemptions under the Sex Discrimination Act to allow the States to discriminate against LGBTI people ended. The impact of these changes, which have been barely mentioned, is profound.

What is the Sex Discrimination Act?

The Sex Discrimination Act 1984 is Commonwealth or federal legislation. It prohibits discrimination in a range of activities, including the provision of services, to people with certain attributes, including single women, and LGBTI people. There are exceptions, including religious exceptions.

Being Commonwealth legislation it reigns supreme. Under our constitution (and for that matter the ACT self-governing act) if there is a conflict between a piece of Commonwealth legislation and State or Territory legislation, the Commonwealth legislation prevails to the extent of the inconsistency.

Adding LGBTI people came later, and was not part of the original purpose of the Act. To allow the States time to adjust to the changes, the Commonwealth allowed some exemptions, essentially so that the States could get their houses in order and compliant with the Sex Discrimination Act.

The Commonwealth was criticised by about 100 other nations in Geneva last November at the UN for in essence being tardy on this point and allowing these exemptions to remain. The Commonwealth told the UN that it would remove the exemptions by the end of July 2016 (as also called for by then Human Rights Commissioner Tim Wilson ) and it has done so.

The demonstrated power of the Sex Discrimination Act

in the past, some States legislated to prohibit the provision of IVF to single women. It seems that only married women were good enough, in the eyes of their Parliaments to become parents. Well that fell foul of the Sex Discrimination Act, which prohibited discrimination on the basis of marital status. In two separate cases, the law was made plain- if a State law says that a doctor cannot provide treatment but the Sex Discrimination Act says that not to provide treatment is discriminatory- then the latter prevails.

The first case was that of Mrs Pearce. She was divorced and wanted to have IVF. She lived in South Australia. Her doctors refused to provide treatment- because she was not married, which would have been a breach of South Australian law. Mrs Pearce took the matter to the South Australia Supreme Court, which found that the Sex Discrimination Act prevailed, and she could have treatment.

Result: Sex Discrimination Act 1, State legislation: 0. 

The second case involved a well known Melbourne fertility doctor, Dr McBain, who was unable to treat a patient because she was single. Victorian law said only married women could access IVF. Dr McBain took the Victorian government to the Federal Court, which found that the Sex Discrimination Act prevailed, and the patient could have treatment.


Result: Sex Discrimination Act 2, State legislation: 0.

What does this mean for IVF?

Quite simply, any State laws that prohibit the provision of IVF on the basis of the patients relationships status or the patient being LGBTI are now rendered nugatory, due to being  inconsistent with the Sex Discrimination Act.

In South Australia, the Health Department recognised the problem and wrote to all the IVF clinics there and advised them of the change, telling them to get legal advice on a case by case basis. It is anticipated that later this year due to a process started by the Weatherill government, and in which I have input, laws will be passed in South Australia to remove discrimination in the ability of who can be a parent. But in the meantime, doctors now have an obligation to comply with the Sex Discrimination Act and provide treatment to those who were excluded before.

If in any doubt what a revolution this is, this is what s.9 of the Assisted Reproductive Treatment Act 1988 (SA) says about fertility doctors' licensing:

"(c)         a condition preventing the provision of assisted reproductive treatment except in the following circumstances:

                  (i)         if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (ii)         if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (iii)         if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;
                  (iv)         if—
                        (A)         the donor of the relevant human semen has died; and
                        (B)         before the donor died—
        •         the donor's semen was collected; or
        •         a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor's semen; or
        •         an embryo had been created as a consequence of such assisted reproductive treatment; and
                        (C)         before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and
                        (D)         if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and
                        (E)         the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis."

In Queensland, the Anti-Discrimination Act allows discrimination in assisted reproductive treatment services on the basis of relationship status and sexuality- in other words the very mischief seemingly ended by the removal of this discrimination. The Queensland Health Department has not written to IVF clinics advising about the change.

Other States

Despite being called upon by then Human Rights Commissioner Tim Wilson last year for all the States and Territories to review their anti-discrimination laws to remove discrimination against LGBTI people, it seems none have.

What does this mean for discriminatory surrogacy laws?

That bit is unclear. While the doctor might be able to provide IVF, if the intended parent is discriminated against because of being single (ACT and SA), single male (WA), a gay couple (WA), or a same sex couple (SA) in the ability to obtain through the court a surrogacy order, then we run into trouble. While there is clearly discrimination, if it is not in breach of the Sex Discrimination Act, then a doctor might be compelled to provide treatment, but be told by the regulator that IVF cannot be provided in surrogacy (such as WA).

The sooner the ACT, WA and SA get rid of their discriminatory laws concerning surrogacy, the better. Intended parents should not now be trapped between these two laws.

Presentation to Rainbow Fertility seminar

A couple ofweeks ago, I presented to a continuing professional development seminar for GP's- about Rainbow Fertility.

Rainbow Fertility is a new chain of  clinics specifically tailored to assist the fertility needs of LGBTI patients. I told the 50+ GP's in Brisbane that the needs of LGBTI people were the same as straight people- they wanted to be respected when they went to the doctor, not belittled, and they wanted to have children like everyone else.

I then talked about some of the specific needs of LGBTI people in seeking to become parents. These included:

• generally adoption was not available.
• lesbian couples often sought to have a known sperm donor. My view is DON'T. However, if they wish to proceed with a known donor, then to lessen risks (but not remove them) then they ought to attend a fertility counsellor with their donor- and get a report from the counsellor setting out their intentions, and then have a written, properly drafted sperm donor contract, when hopefully both sides have had independent legal advice.
• Gay couples as a matter of course will need to pursue surrogacy- and then run into the twin problems of sourcing an egg donor and a surrogate- when there are bans on advertising (at least for surrogates) and there is a legal minefield about how to become parents.
• I talked about about how my husband Mitchell and I walked down the street holding hands. I said that we often were glared at by others who were disapproving of us holding hands- often by straight couples, also holding hands at the time. This statement was met by gasps from the audience, apparently shocked at how we were glared at. I also said that every couple of weeks we get homophobic abuse hurled at us by others- again for either just walking down the street, or for that matter again holding hands. Again, the audience gasped. I said that this kind of experience was often felt by LGBTI people- before they come in the door of their doctor's.

Presentation to City Fertility Centre, Melbourne

A couple of weeks ago,I had the privilege to present to City Fertility Centre, Melbourne, about fertility law issues, including egg and sperm donation and surrogacy.

The setting was especially apt. Earlier in the day I had appeared in the County Court of Victoria, and had obtained a substitute parentage order for my clients, who were the intended parents under a surrogacy arrangement. My clients had gone to India in 2012- after changes had been set out by the Indian government, and paid many thousands of dollars having their embryos frozen- but at a time when the doctor knew or ought reasonably to have known that nothing could be done with those embryos other than freezing them.

When my clients first approached me, I was of the opinion in all likelihood there was probably little that they could do about their frozen embryos (unfortunately I was right), and that they should start again- this time with a domestic surrogacy arrangement. They did so- and in the process became the first surrogacy arrangement through to completion by City Fertility Centre in Melbourne.

That arrangement had a few minor bumps ont he way, but overall went through very smoothly.

So following that court appearance, it was over to City Fertility Centre to present, for what I was told was for an hour. Well, that was the plan. Instead, I was asked so many questions by an incredibly enthusiastic audience, that I stopped speaking- exhausted- 2 1/4 hours later! I talked about the usual suspects- surrogacy, and egg and sperm donation, and the laws and practices concerning each. I gave practical examples about how when others thought that my clients would not be able to become parents, I was able to guide them through the legal maze and enable them to become parents.

A wholly satisfying day!

Presentation to City Fertility Centre conference

Last Saturday I presented in Brisbane to the national City Fertility Centre conference. City Fertility Centre is an IVF clinic with branches in Queensland, NSW, Victoria and South Australia.

I presented about surrogacy- but one of the things I love about going to conferences like this are the things I learn. It's always good to come away with more than you came with.

One of things that struck me about the conference was the enthusiasm. There were about 140 in attendance- and they included IVF doctors, fertility counsellors, nurses and administrators- and one lawyer! All seemed enthusiastic to learn.

Another thing that struck me about the conference, which reflected the IVF experience, is the level of jargon. When I commenced my presentation I mentioned just two of the words that I had heard for the first time just a few minutes before. I thought that I had a pretty large vocabulary- but i had NEVER heard these words before, nor many others.

I chose two words at random, because I thought that I wanted to know what they meant- and I figured that if either of them were put on the Scrabble board, I would be a winner! FACT: morphokinetic is not in the Scrabble dictionary, but trophectaderm is! The former is the process in which a cell changes, moving from an embryo to a 5 day old embryo called a blastocyst. Trophectaderm, as the name implies is the "skin" of the cell.

But the most amazing thing about the conference? When I told those present about how the Queensland government was seeking to remove discrimination int he adoption laws, so that same sex couples, singles and those undergoing IVF can undertake adoption, I was met with both appLAuse and CHEERS! Wonderful!

Queensland to change its Adoption Act

Shannon Fentiman cuts the rainbow cake to celebrate the announcement! Photo: ABC

With my husband Mitchell and my old clients Lea(l) and Julie

Last Saturday I took part in an announcement by the Queensland Government- that it would seek to amend the Adoption Act so that same sex couples, singles and those undergoing IVF would now be eligible to adopt. Communities Minister Shannon Fentiman said that the Government had undertaken a review of the Adoption Act in which a majority of the 350 submissions called for the removal of discrimination. She said that the Government would be seeking to put the Bill before the House later in August, with the intention of having the amendments passed by the end of the year.

The Bill would also repeal the offence of those seeking to find who their natural parents are.

I had been critical of the Bligh government's Adoption Act, because it discriminated, and continues to discriminate.

I told the media that Australia had signed up to the International Convention on the Rights of the Child- which said that the best interests of the child were paramount. If we were serious about that, then we would assess each prospective adoptive parent on that test. After all, you don't have to be in family law for very long to work out that sexuality is not the most important issue in raising a child- it is the quality of parenting provided by a child's parents. Our courts unfortunately are full of cases where one or both of a child's parents provide less than adequate care.

Old clients of mine, Julie and Lea, also spoke to the media. They had become guardians of their daughter, but had been unable to adopt because of their sexuality. Now hopefully if the changes are made, they will be able to adopt- which will be a much better outcome for their daughter, giving her stability and certainty.

If the changes in Queensland are made (hopefully with LNP support, or at least the LNP allows its members a conscience vote), then this means that Queensland will be in line with NSW, ACT, Tasmania, WA and now Victoria, and soon to be SA. Only the NT will be behind the times.

7 vital questions that need to be asked in any surrogacy journey

Recently I had the pleasure of seeing Karen Synesiou present at the Australian Surrogacy Conference in Brisbane. Karen is the founder of one of the world's oldest and largest surrogacy agencies, Center for Surrogate Parenting or CSP, based in Los Angeles. She has a direct, incisive manner. When I heard her present, I thought she nailed the issues.

The key to her presentation was setting out 7 points. I will set them out below with my commentary.

1. Have I asked the right questions to the right people?

What is implicit in this question is the second part- to be able to identify, first, that you are speaking with the right people, and that you are then asking them the right questions.

The simple fact of the matter is that there are sharks in the water when it comes to surrogacy- those who have dubious ethics, and give inaccurate advice, and whose aim is to make as much money as possible. It can be very hard for intended parents to distinguish who is genuine and who is not, and who is ethical and who is not.

One might think that the internet helps, but often it hinders. The internet allows anyone to post information, and set themselves up as experts in the field. If you are not careful, you  could be spending far too much money, and at worst commit a criminal offence and do not end up becoming a parent. The journey could involved unnecessary heartache and delay- which with careful planning could have been avoided.

In undertaking surrogacy, which is after all a legal process, as opposed to IVF, which is a medical process, there are a number of people who need to be spoken to:

• the IVF doctor. Is surrogacy necessary? For heterosexual couples, single women or lesbian couples, is egg donation viable? If egg donation is viable, there is no point going that step further and going through the most complicated process of all.
• the fertility counsellor. However the surrogacy journey might go, it is essential in my view to talk to someone who knows about the impact of the surrogacy journey on the intended parents and on the child. Too many intended parents focus on the process that results in the birth and transfer of parentage of the child, and not on the long term impact on them, on their child and on others, such as the surrogate. Getting to the birth and hand over of the child is not the end of the process, but merely the beginning.
• the local lawyer. Too often Australian intended parents consider that they have to undertake international surrogacy- when often they can do local surrogacy for a fraction of the cost, and do so without the legal complications that come from going overseas. Even if the decision is made to go overseas (which might mean that criminal offences are committed- which can occur in 5 of Australia's 8 jurisdictions) - it is important to know about citizenship, and what rights the surrogate and the child has. Does the lawyer know what they are doing? Most lawyers, including most family lawyers, know little about surrogacy, let alone international surrogacy. Can the Australian lawyer suggest a lawyer overseas? How is parentage recognised by the law in Australia? Does the IVF doctor, the surrogacy agency or egg donor agency have a good reputation?
• the egg donor agency. If going overseas, then very often an egg donor agency needs to be used. There are legal issues in Australia , and issues for the child. Will the child ever be able to find out who donated her eggs to enable him (or her) to exist? If not, why not? Is the egg donor agency reputable, long lasting and ethical?
• the surrogacy agency. If going overseas, then with rare exception a surrogacy agency will be used. Their role varies from country to country. Again, what is their role, and how do they help? Is the surrogacy agency reputable, long lasting and ethical? Do not assume that the agency will be around forever. In most countries agencies are NOT regulated. It is very much a case of buyer beware.Obvious questions to ask are: does the surrogate obtain independent legal advice before signing up? Is she screened psychologically? What are the criteria for the agency's screening of a surrogate? Does she have control over her own body? Will we get to meet her? Can we have an ongoing relationship with her, for the sake of the child? How will I know if I have met a good surrogate? How will the surrogacy agency manage the process? How much are the agency's fees and what do they include? What is the agency's view on the right of women and the rights of children?
• the lawyer in the foreign country. This person will often be first suggested by the agency. What type of work does this lawyer do? Does the lawyer overseas know the Australian lawyer? Can they work as a team? What is the process of undertaking surrogacy overseas? How does parentage become recognised overseas? Does the IVF doctor, the surrogacy agency or the egg donor have a good reputation?
• if there is multiple citizenship- getting advice before starting from lawyers experienced in each of those countries about the likely impact for you and the child about what you propose to do. it is not unusual for Australian children to have 3 or 5 citizenships. This should all be checked out at the beginning. I often work with other international lawyers so that this issue can be properly address- at the beginning. If citizenship of the child is recognised in Australia, and the child goes with you back to, say, Italy (you also hold Italian citizenship), what might happen?
• migration agent in Australia. Have you brought citizenship applications for children born through surrogacy before? What is your record? Why is using a migration agent advisable? Have you worked with the Australian lawyer/ overseas lawyer/ surrogacy agency before- and what is their reputation? How long does a citizenship application take? Should the application be made here or overseas?

2. Have I identified my true motivation for wanting to do this?

Be honest with yourself. Do you want to be parents? if you are simply wanting to be a parent to please someone else- for example to keep your marriage together, or to satisfy members of extended family- think again. 

3. What are the laws regarding surrogacy?

As I said, and I am thankful to Ukrainian surrogacy lawyer Dana Magdassi for this statement- IVF is a medical process; surrogacy is a legal process. It is essential that you get advice from a lawyer in Australia who knows what they're doing, and someone in the foreign country who knows what they're doing- and preferably they know each other and have worked with each other before.

Do not make the mistake of getting advice from the foreign lawyer only. If you are spending tens of thousands of dollars, and all your emotional energy, and taking between 18 months and four years of your life to make a baby, you owe it to yourselves, and going to a minimum of two jurisdictions, and especially to your child to get legal advice at both ends.

4. Can I control the risk factors in this situation?

When undertaking an international surrogacy journey, risk abounds- legal, medical and relationship. What are those risks, and can you control them?

5. Can we do something just as good with less risk involved?

What a brilliant question! As I said, surrogacy might not be needed- it might be egg donation. If surrogacy is needed, it might be able to be done locally- and not internationally. If done internationally, is the country/agency/clinic chosen the right one- or there is somewhere else that is less risky?

6. What is the fallout if the risk becomes reality?

Sure the lawyers (and others) have warned me if it goes wrong, but what happens if it does? An example is a surrogate who lives overseas who might be coming to Australia to give birth. What if, for medical or other reasons she can't? If she has to give birth over there, what does that mean? Will the child be trapped? Who will be recognised as parents?

7. Can you put it in writing?

When asking a lawyer- get their advice put in writing. The reason is obvious!