Monday, February 22, 2016

WA regulator's submission to the surrogacy inquiry

Probably to my great surprise, the WA regulator, the Reproductive Technology Council, called for surrogacy agencies to be regulated, and for there to be consistent national laws, while insisting otherwise that everything is fine in WA otherwise.

Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs
The Western Australian Reproductive Technology Council (Council) has a central role in the regulation of reproductive technology (Human Reproductive Technology Act 1991) and surrogacy (Surrogacy Act 2008) in Western Australia (WA). Council has a broad range of expertise and interests from its own membership, and welcomes the opportunity to comment on the regulatory and ethical aspects of domestic and international surrogacy. Council submits commentary in relation to the following aspects of the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry:
1. The role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements.
3. Issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.
1. The role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements.
Domestic surrogacy arrangements
Australian jurisdictions take different approaches to the regulation of surrogacy, however the overarching principles are protecting the welfare of children born from surrogacy arrangements and the prohibition of surrogacy for reward (financial or material).
The Report on the Review of the Surrogacy Act 2008 (WA) (Department of Health, 2014) highlighted the different requirements across Australian jurisdictions for:
“eligibility, age restrictions, background checks, types of surrogacies that are permissible, approval processes, extraterritorial provisions prohibiting commercial surrogacy, advertising restrictions, residency requirements, and requirements for transfer of parentage.”
Department of Health, 2014, p. 17.
This lack of uniform legislation causes confusion for those seeking surrogacy arrangements, service providers, and regulators. In addition, where the arranged parent(s) (commissioning / intended parent(s)) and the birth mother (surrogate) reside in different jurisdictions, or when circumstances change (such as moving to another state or an unplanned birth in another state) this may further complicate arrangements.
In 2009 the Standing Committee of Attorneys-General (SCAG) outlined proposals to harmonise regulation of surrogacy across Australia. Draft model provisions were developed based on 15 principles for surrogacy laws, which were optional and focused mainly on transfer of parentage. A nationally consistent framework for the
Reproductive Technology Council Submission 10/02/2016 Page 1
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regulation of domestic surrogacy arrangements would provide greater clarity for people seeking surrogacy arrangements and practitioners alike.
Council note the findings of the New South Wales Attorney General’s review of the Surrogacy Act 2010 (NSW) in that State are yet to be published. This information may provide greater insight into these complex issues and contribute to a nationally consistent framework for the regulation of domestic surrogacy arrangements. Similarly, the National Health and Medical Research Council ‘Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2007)’ is under review. The information gathered in this consultation will also shed light on a range of issues that are relevant to the regulation of surrogacy.
Facilitation of Surrogacy Arrangements
The Surrogacy Act 2008 (WA) prohibits-
making a surrogacy arrangement that is for reward;
publishing an inducement or willingness to make a surrogacy arrangement
that is for reward;
knowingly providing a service to facilitate a surrogacy arrangement that is for
reward (unless it is a health service provided to the birth mother after she has
become pregnant);
a person receiving, or seeking to receive, reward for introducing or agreeing
to introduce a party to a surrogacy arrangement (whether or not it is intended that the surrogacy arrangement be one that is for reward).
In WA, there are no restrictions on a person advertising for altruistic surrogacy. Importantly, a licensed fertility clinic may arrange for a woman who has approached the clinic offering to be a birth mother to be introduced to prospective parent/s (Surrogacy Directions 2009 - 9).
While restrictions relate to publishing a willingness to make a surrogacy arrangement for reward, they do not necessarily prevent facilitation of surrogacy arrangements by intermediaries. For example, there are a number of internet sites that may either directly or indirectly facilitate such surrogacy arrangements for WA / Australian residents.
Council calls for greater accountability for intermediaries who provide advice to, or provide a means of contact between, parties who are looking to enter a surrogacy arrangement. Notably, in the United Kingdom (UK) the Hon Justice McFarlane commented on the not-for-profit organisation ‘COTS’ (Childlessness Overcome Through Surrogacy):
“Given the importance of the issues involved when the life of a child is created in this manner, it is questionable whether the role of facilitating surrogacy arrangements should be left to groups of well-meaning amateurs.”
Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [29].
In a number of surrogacy arrangements facilitated by COTS, the commissioning couples were domiciled overseas, and COTS failed to consider the basic requirements for a parental order. Consequently the Hon Justice McFarlane questioned if some form of agency inspection or authorisation should be required.
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Surrogacy is a significant life event for everyone involved; therefore the regulation of such ‘intermediaries’ is highly desirable. Alternatively, there may be a role for government in the establishment of agencies by which, similar to adoption, professional support and integrated services could be provided. This would also ameliorate the risks of pecuniary interests, where purported not-for-profit intermediaries may have links to related legal practices, consulting services, or overseas fertility clinics.
Extraterritorial Issues
New South Wales, the Australian Capital Territory and Queensland all have extraterritorial reach in relation to prohibition of commercial surrogacy. It is notable that there have been no prosecutions. Arguably, it is not in the best interests of the child to prosecute the parents (after the fact). Western Australia does not have specific exterritorial provisions in the Surrogacy Act 2008 (WA), but prosecution under section 12 of the Criminal Code 1913 (WA) may be possible where any part of a commercial surrogacy arrangement is undertaken in WA.
3. Issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.
The general ethical and legal frameworks in place across Australia reflect concerns for the welfare and safety of the birth mother and her family, the arranged parents, and any child that might be born from a surrogacy arrangement.
The general criteria for consent include: competency; disclosure of material risk; optional and voluntary participation; understanding the nature, risks and benefits; and participation without coercion. This should require, as a minimum, psychological assessment, on-going counselling and independent legal advice.
There should be no incentives that might unduly influence a person to enter a surrogacy arrangement, which would undermine the principles of voluntary consent. With respect to forms of payment, Council note terminology recommended by the Nuffield Council:
Payment: a generic term covering all kinds of transactions involving money, and goods with monetary value, whether those transactions are understood as recompense, reward or purchases;
Recompense: payment to a person in recognition of losses they have incurred, material or otherwise. This may take the form of reimbursement of direct financial expenses incurred in donating bodily material (such as train fares and lost earning) or compensation for non-financial losses (such as inconvenience, discomfort and time);
Reward: material advantage gained by a person as a result of donating bodily material that goes beyond compensation the person for the losses they incurred in donating. If reward is calculated as a wage or equivalent it becomes remunerations;
Purchase: payment in direct exchange for a ‘thing’ (e.g. a certain amount for a kidney, or per egg).”
Nuffield Council on Bioethics (2011) p 70.
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The Surrogacy Act 2008 (WA) allows for payment of reasonable expenses associated with: (a) the pregnancy or the birth; and / or (b) any assessment or expert advice in connection with the arrangement. This includes reasonable expenses associated with achieving, or attempting to achieve, the pregnancy. Section 6(3) of the Act further provides as follows-
(3) An expense is a reasonable expense for the purposes of subsection (1)(a) to the extent only that it is —
  1. (a)  a reasonable medical expense that is not recoverable under any health insurance or other scheme; or
  2. (b)  the value of earnings foregone because of leave taken —
    1. (i)  for a period of not more than 2 months during which the birth occurs or was expected to occur; or
    2. (ii)  at any other time for medical reasons arising during the pregnancy;
  3. (c)  a reasonable expense of psychological counselling; or
  4. (d)  a premium payable for health, disability or life insurance that —
    1. (i)  would not have been taken out if the surrogacy arrangement had not been entered into; and
    2. (ii)  provides cover for a period during which an expense referred to in another paragraph of this subsection is incurred or might be, or have been expected to be, incurred.
Thus reimbursement of direct financial expenses is permitted and should be entirely transparent.
In the face of a growing global commercial surrogacy market, ‘controlled’ payments for domestic surrogacy arrangements have been proposed to decrease the demand for international commercial surrogacy by increasing the supply of surrogates in Australia. However, it is incongruous for discussions about forms of payment for surrogacy to take place in isolation from other forms of donation including embryos, gametes, tissue and solid organs. The insidious effects of compensation on altruism should not be underestimated:
"Payment for cells, tissues and organs is likely to take unfair advantage of the poorest and most vulnerable groups, undermines altruistic donation, and leads to profiteering and human trafficking.”
World Health Organisation, 2010, p 5.
The same can be said of commercial surrogacy in high and low resource countries, with the global surrogacy market estimated to be worth $US 6 billion a year (Deonandan, 2015).
Low resource countries with little or no regulations, low costs, and a ready supply of surrogates for hire and human eggs to purchase, have fuelled the growth in international surrogacy. At the same time there has also been increasing concern about the exploitation of surrogates, and the risks to their health, with reports of the death of two egg donors and a surrogate in India, the liberal use of elective
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caesarean section for convenience (with all the inherent risks for the surrogate and baby), multiple embryo transfer and embryo transfer into multiple surrogates (to increase success rates), and human trafficking. High profile cases involving Australian citizens caused public outrage. In one case a baby with Down’s syndrome was left with the surrogate in Thailand; in another, one twin was left behind because the parents allegedly could not afford two children (the whereabouts of the latter child is unknown).
There are also implications for the destination country’s health system. The ‘health conveyor belt’ shifts qualified personnel from public to private clinics and away from those who need it most. There are growing concerns about the exploitation of arranged parents and surrogates by unscrupulous agents and fertility clinics (Federal Bureau of Investigation, 2013; 2015; Lewin, 2014).
Council note that tolerance of destination countries to overseas commercial surrogacy is waning. In November 2014, Cambodian authorities advised the Australian Government that the act of commercial surrogacy, or commissioning commercial surrogacy, was illegal in Cambodia. Thailand, India, Nepal, and Tabasco in Mexico, have recently prohibited foreign surrogacy arrangements.
Only a few countries allow commercial surrogacy (eg. some parts of the United States of America (USA)), Ukraine, Georgia and Russia). However, there are calls for reform in Russia (Faber-Tetrault, 2014):
“We are calling to put the commercial component of this phenomenon under strict control. As soon as the services of surrogate mothers became available in Europe, criminal groups immediately appeared there and started recruiting women from Hungary, Moldova and the UK.”
In the USA, surrogacy laws are inconsistent and residents often travel interstate to a ‘surrogacy friendly’ jurisdiction. In states where commercial surrogacy is permitted, for example California, costs start at US$70,000 but can exceed $100,000. It is to be noted that for many USA citizens commercial surrogacy is beyond their reach.
Council note that reference has been made to the ‘California model’ of commercial surrogacy. While California is considered the most surrogacy friendly state it has also been named the capital of reproductive litigation, partly due to the global surrogacy market. Recent amendments to California law were as a consequence of a scandalous baby selling ring. Theresa Erickson, a well-known California lawyer, Hilary Neiman, the operator of an adoption/surrogacy agency, and Carla Chambers, a surrogacy facilitator, were prosecuted in relation to the sale of unborn babies to prospective parents (Federal Bureau of Investigation, 2013).
The vulnerability of commercial surrogates is illustrated in two current litigation cases in the USA, concerning the selective reduction of triplets. The commissioning parents in each case have demanded the surrogate mother terminate one of three fetuses, citing fears of later medical complications. Failing to comply with this request puts both surrogate mothers at risk of not being paid and incurring medical costs. Notably, a US surrogacy lawyer reported that in 82 out of 118 surrogacy disputes, the intended parents changed their mind (Nicolau, Purkeypile, & Merritt et al. 2015).
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Most surrogates in the USA are required to sign confidentiality agreements; therefore very little is known about their demographics or long term health and welfare. They are often presented as mainly middle class, educated, and not motivated by money. Council draws attention to reports that surrogacy agencies target vulnerable groups, such as students (who seek to pay educational fees) and particularly military wives (Parker, 2013). The latter allegedly represent about 15 to 20% of gestational surrogates in the US, despite comprising less than 1% of the population (Howard, 2015). The main attraction is financial, as they tend to be from low income brackets and a surrogate can receive US$30,000 - $50,000.
Council strongly believe that the culture of altruism must be protected.
Altruistic-focused interventions, which remove barriers and support those who are inclined to altruistic surrogacy, should be developed. Consideration should be given to Medicare funding for altruistic surrogacy arrangements in Australia.
The willingness of people to become surrogates should be appropriately channelled through professionally trained intermediaries.
A national ‘Surrogacy Register’ should be considered as a means of allowing people to indicate their willingness to be a surrogate, with appropriate support and counselling.
Consideration should be given to the proper regulation of intermediaries and not-for- profit organisations that provide advice in and facilitate surrogacy.
Public awareness of altruistic surrogacy as a viable and acceptable means of family formation, and the options available within Australia, should be promoted.
Consideration should be given to the establishment government agencies, similar to adoption, where professional support and integrated services could be provided.
Greater collaboration and convergence in regulatory policy development at national and international levels is required. Global regulatory and policy networks (similar to health observatories) should be established and proactive in addressing emerging reproductive issues.
Criminal Code Act Compilation Act, 1913, (WA).
Deonandan, R. (2015) Recent trends in reproductive tourism and international surrogacy: ethical considerations and challenges for policy. Risk Management and Healthcare Policy. 8: 111-119.
Department of Health. (2014) Review of the Surrogacy Act 2008. Report to the Western Australian Parliament.
Faber-Tetrault, G. (2014) Russian lawmaker proposes ban on commercial surrogacy. The Moscow Times, 24 April, viewed 9 January, 2016. commercial-surrogate-motherhood/498901.html

1 comment:

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