Tuesday, May 30, 2017

Access to IVF in Australia



 On Friday I presented at the first LGBTI Legal and Regulatory Conference run by Television Education Network about access and regulation of IVF across Australia. Here is my paper:


TELEVISION EDUCATION NETWORK




FIRST ANNUAL LGBTI LEGAL & REGULATORY CONFERENCE MELBOURNE FRIDAY 26 MAY 2017






ACCESS TO IVF, REPRODUCTIVE TREATMENT AND STORED GENETIC MATERIALS




By Stephen Page[1]


1.     INTRODUCTION

Welcome to the crazy world of family formation.  Here you will discover the Australian Federation in all its diversity and legal minefields for those who want to become parents.

In essence, anyone who has to rely upon assisted reproductive treatment[2], which includes in vitro fertilisation, has to run a gauntlet of regulation, which typically varies State by State.

2.     OVERVIEW OF THE LAW

There are a myriad of laws, which regulate:
·         IVF;
·         Egg, sperm and embryo donation;
·         Surrogacy.

3.     COMMONWEALTH REGULATION OF ASSISTED REPRODUCTIVE TREATMENT IN AUSTRALIA

In broad compass, the regulation of Australia’s IVF industry is both by government and by the industry itself.  Some of the regulation is undertaken by the States and some in turn is taken by the Commonwealth, in part because the money used to pay for IVF in many respects come from the Commonwealth taxpayer.  The Commonwealth regulation is contained principally in five statutes, statutory instruments or publications:

·         Prohibition of Human Cloning for Reproduction Act 2002 (Cth);
·         Research Involving Human Embryos Act 2002 (Cth);
·         Health Insurance Act 1973 (Cth);
·         Health Insurance (General Medical Services Table) Regulation 2016 (Cth);
·         National Health and Medical Research Council;
·         Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2017).

The first two pieces of legislation, which I shall call the Human Cloning Act and the Research Act have been replicated by each of the States and the ACT, but not the Northern Territory.

The Human Cloning Act sets out what might be expected, which includes that it is an offence to place a human embryo clone in the human body or the body of an animal amongst many other offences. 

It also contains a significant offence, which has a day-to-day impact on the practice of ART in Australia and this is contained in section 21 as to paying for the supply of a human egg, human sperm or a human embryo.  I will cover this section below.

Section 24 of the Human Cloning Act makes plain that the Commonwealth version of this Act is to operate in tandem with State and Territory versions:

“This Act is not intended to exclude the operation of any law of a State, to the extent that the law of the State is capable of operating concurrently with this Act.”

Under section 8, “State” includes the Australian Capital Territory and the Northern Territory.

Therefore, any consideration of offences which might be committed under the Human Cloning legislation have to consider both the Commonwealth version of the legislation and the State version. 

The Research Act in effect compels anyone wanting to operate an IVF clinic to obtain a licence.  It does so in three ways:

·         Under section 10B, if a person undertakes research or training involving the fertilisation of a human egg by a human sperm up to, but not including, the first mitotic division, outside the body of a woman for the purposes of research or training and ART and the person is not authorised by licence to undertake the research or training, then there is a penalty of imprisonment for 5 years;

·         A person commits an offence under section 11 if a person intentionally uses, outside the body of a woman, a human embryo that is not an excess ART embryo and the use is not for a purpose relating to the assisted reproductive technology treatment of a woman carried out by an accredited ART centre, and the person knows or is reckless as to that fact; for which the penalty is imprisonment for 5 years.  Under section 12(1):

“A person commits an offence if the person intentionally engages in conduct, knowing that the conduct contravenes the condition of a licence that applies to the person, or reckless as to whether the conduct contravenes a condition of such a licence.  Penalty: imprisonment for 5 years”

·         Section 9 provides:

“(1) In this Part:
        excess ART embryo” means a human embryo that:
(a)   was created, by assisted reproductive technology, for use in the assisted reproductive technology treatment of a woman; and
(b)   is excess to the needs of:
(i)        the woman for whom it was created; and
(ii)      her spouse (if any) at the time the embryo was created.

(2)   For the purposes of paragraph (b) of the definition of “excess ART embryo”, a human embryo is excess to the needs of the persons mentioned in that paragraph for the particular time, if:
(a)   each such person is given written authority for the use of the embryo for a purpose other than a purpose relating to the assisted reproductive technology treatment of the woman concerned, and the authority is in force at that time; or
(b)   each such person is determined in writing that the embryo is excess to their needs, and the determination is in force at that time.”

·         Section 10 relevantly provides:

“(1)     A person commits an offence if the person intentionally uses an excess ART embryo, unless:
(a)   the use by the person is authorised by a licence; or
(b)   the use by the person is an exempt use within the meaning of subsection (2). Penalty: imprisonment for 5 years.

(2)        A use of an excess ART embryo by a person is an exempt use for the purposes of subsection (1) if:
(a)     the use consists only of:
(i)                 storage of the excess ART embryo; or
(ii)               removal of the excess ART embryo from storage; or
(iii)             transport of the excess ART embryo; or
(b)     the use consists only of observation of the excess ART embryo; or
(c)      the use consists only of allowing the excess ART embryo to succumb; or
(d)     the use is carried out by an accredited ART centre, and:
(i)                 the excess ART embryo is not suitable to be placed in the body of a woman for whom it was created where the suitability of the embryo is determined only on the basis of its biological fitness for implantation; and
(ii)               the use forms part of diagnostic investigations conducted in connection with the assisted reproductive technology treatment of the woman for whom the excess ART embryo was created; or
(e)      the use is carried out by an accredited ART centre and is for the purposes of achieving pregnancy in a woman other than the woman for whom the excess ART embryo was created; or
(f)       the use is of a kind prescribed by the Regulations for the purposes of this paragraph.”

The effect of the Research Act therefore is that to operate an IVF clinic in Australia, in which there is likely to be an excess of embryos, some of which may be available for donation, the clinic needs to be licensed.  In order to do so, the clinic needs to be licensed by the National Health and Medical Research Council Licensing Committee: section 13, which has a particular makeup, primarily drawn from the industry: regulation 2.3 of the Research Involving Human Embryos Regulation 2003 (Cth).

As part of the conditions of compliance with licenses, clinics must comply with the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, published by the National Health and Medical Research Council: regulations 2.1 and 2.4 of the Research Involving Human Embryos Regulation 2003 (Cth).  To add to confusion, the Guidelines that are now expected to be complied with are those issued in April 2017 by the NHMRC, whereas the Guidelines referred to in the regulations are the earlier version from 2007. 

In order to ensure that IVF clinics operate in accordance with the guidelines and therefore in accordance with their licences, the scheme of regulation is that the National Health and Medical Research Council in conjunction with the Fertility Society of Australia, has created the Reproductive Technology Accreditation Committee (RTAC).  RTAC delivers rulings as to what clinics can and cannot do and is also responsible for carrying out audits of clinics on a regular basis to ensure that they are in compliance with their licensing requirements.  These audits are stringent. 

As part of the licensing requirements, clinics are required to report data to an industry-wide database (ANZARD).  It has been reported in the last couple of years, that the quality of our IVF clinics in Australia and New Zealand is outstanding – as the rate of twinning, i.e. one embryo being implanted (in accordance with the usual standard) but the embryo dividing and therefore identical twins being conceived (transforming the pregnancy from a low risk one to a high risk one, and increasing vastly the risk of the children being born prematurely and therefore behind their peers during at least primary school) is the world’s lowest at 6%.  By comparison, the rate of twinning through US IVF clinics is almost double that at 11%, indicating that the stringent quality control measures through the audit process work.

4.     MEDICARE

There are Medicare subsidies for many ART services.  These subsidies are contained in the Health Insurance (General Medical Services Table) Regulation 2016. It may be that by the time I have completed this paper that the 2017 Regulation has issued.  Incidentally, you will never find this regulation on Austlii but only at www.legislation.gov.au.  It changes each year.  Item 2.37.7 provides:

            “Items relating to assisted reproductive services not to apply in certain pregnancy-related circumstances.

            Items 13200 to 13221 do not apply to a service provided in relation to a patient’s pregnancy, or intended pregnancy, that is, at the time of the service, the subject of an agreement, or arrangement, under which the patient makes provision for transfer to another person of the guardianship of, or custodial rights to, a child born as a result of the pregnancy.”

5.     ACCESS TO FERTILITY SERVICES

On the face of the Medicare regulations, it would appear that doctors can provide treatment and therefore obtain a subsidy from a taxpayer.  This is not the end of the story by any means.  The doctor has to be satisfied that there is infertility.  The long accepted traditional definition of infertility is the inability to conceive a child after a couple have engaged in heterosexual intercourse repeatedly over a period of a year.  Infertility reportedly affects one in six Australians and it has been said by the Fertility Society of Australia to be the third biggest health risk in the country after heart disease and cancer. 

Clearly, people who are not medically infertile may need access to ART services.  If they are deemed by their doctors not to be medically infertile, they will not receive the Medicare subsidy.  This burden will fall particularly upon single women and those in lesbian relationships. 

For gay men the situation is even more complicated.  Not only may they not be considered to be medically infertile (assuming that they are not medically infertile) and therefore not on the face of it may not be entitled to the subsidy, if a doctor forms the view that they are medically infertile (for the obvious reason that they cannot conceive and give birth to a child) it seems obvious that a gay couple will sooner or later need the help of a surrogate.  If they overcome the first burden and by sheer good luck obtain the assistance of a doctor who forms the view that they are medically infertile, they may be able to obtain that assistance, but what then of surrogacy? 

Opinions vary between doctors and lawyers about the effect of item 2.37.7.  Some lawyers are of the view that a surrogacy arrangement is only in existence at the time of the service, when in accordance with State law (as is required in most places) there is a written, signed agreement.  Other legal views are that if the intended parents have selected a surrogate who is ready, willing and able to proceed with surrogacy (even if there is not yet a surrogacy agreement in place) then item 2.37.7 applies.  Another view is that if the clinic or doctor in question is suspicious that there is to be a surrogacy arrangement in place (which would clearly be the case for any gay couple) then the rebate would not apply.

It is interesting to see how this would play out, particularly in light of section 22 of the Sex Discrimination Act 1984 (Cth) which provides:

“(1)     It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding:

(a)   by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)   in the terms or conditions in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person;

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2)        This section binds the Crown in right of a State.”

From 1 August 2016 the previous exemptions that applied under State legislation, allowing discrimination against LGBTI people in ART services were ended – with the exception of Western Australia.  Regulation 5 of the Sex Discrimination Regulations 1984 (Cth) provides:

“(1)     For the purposes of subsection 40(2B) of the Act, the following laws be prescribed:

(a)   the Human Reproductive Technology Act 1991 (WA);
(b)   the Surrogacy Act 2008 (WA).

Note: Subsection 40(2B) provides for an exemption, in relation to anything else done by a person in direct compliance with a prescribed law, from Divisions 1 and 2 of Part II (Prohibition of Discrimination) of the Act, as applying by reference to:

(a)   section 5A (sexual orientation); or
(b)   section 5B (gender identity); or
(c)    section 5C (intersex status).

(2)        This Regulation is repealed at the start of 1 August 2017.”

6.     WHO: LIKELY CHANGE TO DEFINITION OF INFERTILITY

Last year the World Health Organization was reported in various media as saying that it would update the definition of infertility so that the definition was no longer discriminatory against LGBTIQ people or single people.  This was likely to take place by the beginning of this year – but hasn’t happened yet.  My understanding of the discussions was that the likely definition would be along the lines that anyone who needed ART to be able to reproduce was therefore someone who was infertile.  If this definition is adopted by the WHO, then it will have an immediate impact on access to fertility services in Australia particularly to single men and women and gay and lesbian couples.  Let’s wait and see as to what develops  It is likely that there will be some change, as the information I received from a number of sources is that there is a strong move within the United Nations to ensure that the UN properly upholds LGBTIQ rights and is within itself non-discriminatory. 

7.     STATE HUMAN CLONING AND RESEARCH ACTS

Each of the States and the Australian Capital Territory have their own mirror provisions of the Human Cloning Act and the Research Act.  Of most significance for clients undertaking ART, the provisions of section 21 of the Commonwealth Human Cloning Act have been replicated in State and ACT legislation.  Section 21 provides:

“(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: imprisonment for 15 years.

(2)        A person commits an offence if the person intentionally receives, or offers to receive, valuable consideration for another person for the supply of a human egg, human sperm or a human embryo.  Penalty: improvement for 15 years.

(3)        In this section:

            reasonable expenses”

(a)   In relation to the supply of a human egg or human sperm – includes, but is not limited, expenses relating to the collection, storage or transport of the egg or sperm; and

(b)   In relation to the supply of a human embryo:
(i)                 Does not include any expenses incurred by a person before the time when the embryo became an excess ART embryo; 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.”

The equivalent State provisions are:
State/Territory
Human Cloning Act
Qld
Section 17 – Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003
NSW
Section 16 – Human Cloning for Reproduction and other Prohibited Practices Act 2003
ACT
Section 19 – Human Cloning and Embryo Research Act 2004
Victoria
Section 17- Prohibition of Human Cloning for Reproduction and other Prohibited Practices Act 2003
Tasmania
Section 20 - Human Cloning for Reproduction and other Prohibited Practices Act 2003
South Australia
Section 16 – Prohibition of Human Cloning for Reproduction Act 2003
Western Australia
Section 53Q – Human Reproduction Technology Act 1991

The trick with the State legislation to be aware is that there are long arm provisions of the criminal law which extend out the State jurisdiction in these States:

·         Queensland;
·         NSW;
·         ACT;
·         South Australia;
·         WA.

For example, see section 12 of the Criminal Code 1913 (WA).

Therefore, if someone is considering entering into an egg donor agreement overseas which on its face would be in breach of the Commonwealth or State legislation here, although the Commonwealth legislation does not have a long arm provision, the equivalent State legislation might do and the parties might, if they are not careful, be inadvertently committing an offence punishable by up to 15 years imprisonment.

8.     THE PHRASE “REASONABLE EXPENSES”

As seen in the Human Cloning Act, this phrase has not been the subject of direct judicial ruling.  It has been interpreted by those in the industry as merely being out of pocket expenses. 

In a ruling described as RTAC Technical Bulletin No.3 (2011), RTAC said:

            “The Senate inquiry reported that some units were confused about the RTAC Code of Practice and NHMRC guidelines relating to the maximum number of offspring for a donor and ‘reasonable expenses’.

            Where State legislation does not apply, the following are advised:

·               reasonable expenses be based on the principles on the Surrogacy Act 2010 of NSW, which applying to sperm donation would cover:

·         reasonable medical, travel or accommodation costs associated with offering to be a donor or associated with donation;

·         receiving any legal advice associated with donation.

A cost is reasonable only if the cost is actually incurred and the amount of the cost can be verified by receipts or other documentation.  For the convenience of donors and units, it is suggested that units may decide to waive requiring receipts for individual items below $50.”

RTAC is not a court of law, but nevertheless it has legitimately in my view formed the view that the phrase reasonable expenses is essentially the same as that of reasonable costs under the Surrogacy Act 2010 (NSW) and similar legislation, such as the Surrogacy Act 2010 (Qld).

9.     IMPACT OF RE HALVARD

In Re Halvard[3] the intended parents, who lived in the United States sought to register a US surrogacy order in Australia.  The matter came before Forrest J under regulation 23(6) of the Family Law Regulations 1994, the Court may register the order.  It was therefore a matter of discretion for the Court to register the order.

The solicitor for the intended parents submitted that the gestational carrier agreement in question was a commercial surrogacy arrangement within the meaning of both the Queensland and New South Wales Surrogacy Acts.  It was therefore submitted that in the best interests of the child, the court should nevertheless register the order, despite the public policy of both the States of Queensland and New South Wales against commercial surrogacy.  Forrest J stated:

32.     In his written submissions for the applicants when addressing discretionary considerations, the applicants’ solicitor refers to public policy considerations surrounding surrogacy arrangements. He refers to the fact that the Australian States of New South Wales and Queensland as well as the Australian Capital Territory have expressly criminalised the entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those States or in the ACT and he points out that as the applicants are not ordinarily resident in one of those places the prohibition does not apply to them. It appears thereby, that the solicitor’s submission is that, consequently, the discretion should not be exercised against the registration of the Tennessee Court’s Order.

33.       With all due respect, I do not quite understand the submission, as I do not understand the surrogacy agreement that the applicants entered into to have been a commercial one. The Queensland Surrogacy Act 2010 defines a commercial surrogacy arrangement as one in which a person receives a payment, reward or other material benefit or advantage other than the reimbursement of the birth mother’s reasonable surrogacy costs. The New South Wales’ legislation defines commercial surrogacy in very similar terms, also permitting payment to the birth mother for reimbursement of her reasonable surrogacy costs.

34.       The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided.

35.       Whilst an overseas child order that came into existence as a consequence of a commercial surrogacy agreement might have difficulty attracting a favourable exercise of the discretion to register it in this Court for public policy reasons, I do not consider that applies in this matter.”

It is likely that the effect of Re Halvard will for some time redefine what is commercial surrogacy (at least in Queensland and New South Wales) because of the definition of what are reasonable costs and therefore is likely to have a flow-on effect to what are reasonable expenses under the Human Cloning legislation. 

It is likely that the view that reasonable expenses are only out of pocket expenses of the donor is incorrect. 

10.            NHMRC ETHICAL GUIDELINES

The 2017 Guidelines took effect on 20 April 2017.  They apply to the practice of all IVF clinics in Australia save that where there are specific State law on point, clinicians must comply with the State law in preference to the Guidelines.  The guiding principles of the Guidelines state:

(1)   ART activities must be conducted in a way that shows respect to all involved.

(2)   The interests and wellbeing of the person who may be born as a result of an ART activity must be an important consideration in all decisions about the activity.

(3)   ART activities must be undertaken in a manner that minimises harm and maximises the benefit to each individual couple involved in the ART activity, any persons who may be born as a result of the activity, and any other child within the family unit who may be affected by that birth.

(4)   Decision-making in the clinical practice of ART must recognise and take into account the biological connections and social relationships that exist or may be formed as a result of the ART activity.

(5)   Decision-making in the clinical practice of ART must recognise and respect the autonomy of all relevant parties, promoting and supporting the notion of valid consent is a fundamental condition of the use of ART.

(6)   Decision-making in the clinical practice of ART must recognise that social relationships in a social context may affect an individual’s or a couple’s decision-making and be sensitive to cultural and spiritual differences.

(7)   Processes and policies for determining an individual’s or a couple’s eligibility to access ART services must be just, equitable, transparent and respectful of human dignity and the natural human rights of all persons, including the right to not be unlawfully or unreasonably discriminated against.

(8)   The provision of ART must be underpinned by policies that support effective and efficient practices that minimises innovations not supported by evidence of successful clinical outcomes.

(9)   The provision of ART must be transparent and open to scrutiny, while ensuring the protection of the privacy of all individuals or couples involved in ART and persons born, to the degree that is protected by law.

The Ethical Guidelines set out the status of the human embryo[4]:

“There are different views held in the Australian community about the status attributed to a human embryo.  To different individuals the same embryo can be seen as a living human entity and the earliest stage of development, a potential life, or a group of cells.  Some argue that the value and significance of an embryo is best determined by the individual couple for whom it was created, based on their individual or collective set of values, preferences and beliefs.

Nevertheless, under Commonwealth legislation, the human embryo is given a special status.  The research involving the Human Embryo Act 2002 and the Prohibition of Human Cloning for Reproduction Act 2002 regulate the creation and use of human embryos outside of the human body, providing sanctions for those who misuse embryos.  The Act, and these Ethical Guidelines, recognise that the creation and use of a human embryo requires serious consideration.”

In dealing with guiding principle 3.6, the Guidelines state:[5]

“It is important to recognise that social relationships in a social context may enable, shape, or constrain an individual’s or a couple’s autonomy (i.e. autonomy is relational).  Attitudes towards some of the more controversial practices and aspects of ART differ considerably, and are shaped by an individual’s own particular set of values, preferences, and beliefs, or those of their family and/or community.

Whilst it is important that the clinical team recognise the role that social factors play in decision-making, assumptions should not be made based on the personal circumstances, cultural background or spiritual beliefs of an individual or a couple seeking ART.”


In dealing with guiding principle 3.7 dealing with discrimination, the Guidelines provide:[6]

“In determining an individual’s or a couple’s eligibility to access ART services, there must be no unlawful or unreasonable discrimination, for example, on the basis of:

·         race, religion, sex, sexual orientation, relationship status, gender identity or intersex status, social status, disability or age;

·         the reason(s) for seeking assisted conception;

·         refusal to participate in research.

The right of an individual or a couple to accept or reject specific procedures or treatment should be respected.  However, where the choice of an individual or a couple is in conflict with current clinical evidence and practice, it is likely to have an adverse effect on the person who would be born, or who has demonstrable adverse social impacts (e.g. the transfer of multiple embryos at the one time), then it is appropriate that these factors are taken into account in decision-making regarding the procedure.  There are circumstances where it is reasonable for a clinician to delay treatment or decline to treat an individual or couple. 

Conscientious Objection
A member of staff or a student who expresses a conscientious objection to the treatment of an individual patient or to an ART procedure is not obliged to be involved in that treatment or procedure, so long as the objection does not contravene relevant anti-discriminatory laws and does not compromise the clinical care of the patient (e.g. the patient is referred to someone without a conscientious objection and is willing to accept their care).  The clinic must allow a member of staff or a student who expresses a lawful conscientious objection to withdraw from involvement and ensure that the member of staff or student is not disadvantaged because of their lawful conscientious objection.”

There is a requirement for information, counselling and informed consent.

In particular, at Guideline 5.12.1:

“A gamete donor can withdraw or vary consent for donation at any time before the treatment cycle of the recipient commences, or at any time before the creation of an embryo, whichever is sooner.”

It is clear, provided that the clinics have prepared the paperwork in accordance with the Guidelines, that once the gamete embryos have been created from gametes that “the recipient has the responsibility for decision-making about the use, storage and discard of the gametes or resulting embryos, subject to any directions or limitations expressed in the consent of the donor”: Guideline 5.11.1.

Where there are donated embryos, then the paperwork of the clinic should be clear that the recipients of donor embryos are responsible for them, subject to any directions or limitations expressed in the consent of the donor(s) or imposed by law: Guideline 6.2.1.

However, under Guideline 6.4.1:

“The embryo donor(s) can withdraw or vary consent for donation (or reallocation) at any time before the treatment cycle of the recipient commences.”

It is likely that there will be a difference of opinion amongst IVF clinics as to when the treatment cycle commences.

There are now specific requirements as to fertility preservation and surrogacy.

The Guidelines are clear that commercial surrogacy “where the surrogate receives financial compensation above and beyond expenses associated with the surrogacy procedure and pregnancy”[7] is ethically unacceptable because it raises concerns about the commodification and exploitation of the surrogate, the commissioning parent(s) and any person born as a result of the surrogacy arrangement.”[8]

Here is an illustration where what is contained in legislation, such as section 7 of the Surrogacy Act 2010 (NSW) ends up with a different outcome than what is interpreted essentially by doctors within the NHMRC – which then issues guidelines which are mandatory licensing conditions of doctors. 

Whilst it may be possible to persuade doctors that the particular surrogacy arrangement is in compliance with the law and is therefore not commercial, doctors will be concerned that they do not breach the licensing requirements.  This is made plain in Guideline 8.9.1:

“Clinics must not facilitate ART treatment under a surrogacy arrangement if there are concerns about whether the arrangement is ethical and/or legal.  This includes the arrangement for reimbursement of verifiable out-of-pocket expenses.

Arrangements for any reimbursement of verifiable out-of-pocket expenses should be between the commissioning parent(s) and the surrogate and each party should be encouraged to seek legal advice before reimbursements are given or received to ensure compliance with relevant state or territory legislation. 

It is reasonable for the commissioning parent(s) to reimburse the surrogate’s verifiable out-of-pocket expenses directly associated with the procedure or pregnancy, which may include:

·         medical and counselling costs, before, during, and after the pregnancy or birth;
·         travel and accommodation costs within Australia;
·         loss of earnings;[9]
·         insurance;
·         childcare costs were needed to allow for attendance at appointments and procedures related to the surrogacy arrangement;
·         legal advice.

Note: there may be state or territory legislation that regulates what out-of-pocket expenses can and cannot be reimbursed under a surrogacy arrangement.”

The Ethical Guidelines still prohibit sex selection except when it is for medical purposes.

The Ethical Guidelines still allow for the collection and use of gametes from persons who are deceased or dying and/or the posthumous use of stored gametes or embryos – but only for the availability of the spouse or partner and subject to the law in each State.

It is possible to collect gametes from children in appropriate circumstances and, provided that the Guidelines are met, to use them post death for the benefit of their partner.

The Ethical Guidelines in effect allow a donor to donate to up to 10 families, i.e. nine others other than their own.[10]  The Guidelines require each clinic to keep a register of all donations permanently.  In New South Wales and Victoria a central register is kept as well. 

11.            HUMAN TISSUE ACT/TRANSPLANTATION AND ANATOMY ACT

Every State and Territory has legislated about the use of human tissue.  It is an offence to sell or to buy tissue.  Tissue is taken to include eggs, sperm and embryos.  Having consistent legislation about the offence, there may be exceptions in each State for certain purposes.  Advertising ranges from being prohibited, such as in Western Australia or Victoria, to needing ministerial consent for IVF clinics – such as in Queensland, to there being no limitation on advertising for egg donors, sperm donors or embryo donors, such as in New South Wales.

Confusingly, the States have not developed the same name for the legislation which is either called the Human Tissue Act or the Human Transplantation and Anatomy Act – except in Western Australia where they call it the Human Tissue and Transplant Act.  The sections dealing with the offence of buying tissue is contained as follows:

State/Territory
Human Tissue Act/Transplantation and Anatomy Act
Qld
Section 42 – Transplantation and Anatomy Act 1979
NSW
Section 32 – Human Tissue Act 1983
ACT
Section 44 – Transplantation and Anatomy Act 1978
Victoria
Sections 38-39 – Human Tissue Act 1982
Tasmania
Section 27 – Human Tissue Act 1985
South Australia
Section 35 – Transplantation and Anatomy Act 1983
Western Australia
Section 29 – Human Tissue and Transplant Act 1982
Northern Territory
Sections 22E, 22F – Transplantation and Anatomy Act

Long arm provisions exist (extending the jurisdiction of the laws potentially interstate or overseas) in Queensland, New South Wales, ACT, South Australia, Western Australia and the Northern Territory.

12.            STATE REGULATION OF IVF

Four jurisdictions don’t have specific regulation of IVF, instead relying on the Ethical Guidelines:

·         Queensland;
·         ACT;
·         Tasmania;
·         Northern Territory.

Four States have specific ART Acts:

·         New South Wales: Assisted Reproductive Technology Act 2007;
·         Victoria: Assisted Reproductive Treatment Act 2008;
·         South Australia: Assisted Reproductive Treatment Act 1988;
·         Western Australia: Human Reproductive Technology Act 1991.

New South Wales

The Assisted Reproductive Technology Act 2007 (NSW) is comprehensive legislation covering the requirements to be practised by IVF clinics in NSW. 

·         ART providers must be registered: s.6;
·         Counselling is to be available: s.12;
·         The use of gametes and ART treatment and research is codified both as to consent, supply and expert: ss.16 to 29;

NSW has a central register, that applies to both donor and surrogacy cases.  The central register is run by the NSW Health Department.  When seeking ART treatment, it is an offence to tell fibs to the IVF clinic.  Section 62 provides:

            “A person must not, without reasonable excuse, make a representation that is false or misleading in a material particular in an application or notice under this Act or in response to a request for information that is required to be obtained under Part 2.

            Maximum penalty: 200 penalty units in the case of a corporation or 100 penalty units in any other case.”

Part 2 includes:

·         s.17 – giving, modifying and revoking consent;
·         s.18 – use of gametes to create an embryo outside a woman’s body;
·         s.19 – use of gametes or embryos in ART treatment;
·         s.21 – supply of gametes or embryos to another person;
·         s.22 – export of gametes or embryos from NSW;
·         s.23 – use of gametes or embryos after death of gamete provider.

NSW is extremely restrictive on the ability to access donors.  This is because the maximum number of donated gametes or embryos is calculated on the maximum number of families allowed to be created by the donor, which is a worldwide maximum of 5: s.27.  This number can in fact shrink to 3, not 5, because:

·         the donor’s own family is considered one of those five;

·         when a lesbian couple want to conceive, typically IVF clinics consider each of them to be a separate family.  This is done from a practical viewpoint that if the women later separate and they want to have more children from the same donor so that the children that they have born have genetic siblings.

Therefore the use of imported sperm from the US or Denmark or the use of imported eggs from the US can be problematic in NSW.  It simply may not be viable financially for the sperm bank or egg bank overseas to recruit a donor to be available for three donations in NSW. 

Victoria

A senior Queensland fertility doctor some years ago described the state of regulation of the IVF industry in Victoria and Western Australia as “Stalinist States”.  While that is a clear exaggeration, the point he makes is clear, namely that in Victoria and Western Australia there is an extremely high level of regulation.  The principal means in Victoria of doing this is under the Assisted Reproductive Treatment Act 2008 (Vic) and the Assisted Reproductive Treatment Regulations 2009 (Vic).

The level of regulation in Victoria is such that that could be a paper in itself. 

There is full regulation of the IVF industry under the Act including as to consent, counselling and surrogacy, but I just wanted to focus on some key features:

(1)          In Victoria, alone of all the States, there is a presumption against treatment, which comes about if there is a negative criminal record check and a negative criminal child protection order check: s.14.

(2)          Victoria alone therefore requires a criminal record check and a child protection order check.

(3)          There are two State regulators of IVF in Victoria.  One is the Patient Review Panel (PRP) and the other is the Victorian Assisted Reproductive Treatment Authority (VARTA). 

(4)          If a patient is refused treatment, the initial decision is to be taken to the Patient Review Panel, from which there is a right of review by the Victorian Civil and Administration Tribunal.  This presumption against treatment is, as far as I am aware, unique in the world.  Victorians consider that their approach is world leading because it protects children.  Those in other States and overseas are highly critical of the approach in Victoria on this point because, consistent with the approach taken by the United Nations since 1968 and it is seen by US Supreme Court decisions, each of us are considered to have a right to reproduce and if children are born to paedophiles, then they are able to be protected by the relevant State Department.  Having seen the effect in Newton and Truong, as compared to the outcome for Baby Pipah (which I will discuss below), I think that the arguments are more nuanced. 

(5)          The number of families able to be created from a donor is the same as from any NHMRC State, i.e. 10 families: s.29.

(6)          Moving donated gametes and embryos into and out of Victoria requires the approval of VARTA: s.36.

(7)          Surrogacy arrangements require the approval of the PRP: s.39.  Although the legislation appears to require only one counsellor; for the purposes of that approval, the PRP requires two counsellors – one from the clinic and an independent counsellor – and a report from each to be provided to the PRP.

(8)          There are stringent requirements for the use of a person’s gametes or an embryo created from the person’s gametes after the person’s death: s.46.

(9)          Victoria has retrospectively thrown off the anonymity of donations before 2004, so that donor conceived adults can find out where they came from.  This is a world first and came about through lobbying of one donor conceived woman in particular who was unable to find out where she came from.

To its credit, VARTA has been a strong advocate of information for intended parents and patients and has been active in publishing information to assist intended parents.

A central register is maintained by the Registrar of Births, Deaths and Marriages. 

Unsuitable parents?

Mark Newton is an Australian/American dual citizen.  His then partner Peter Truong is an Australian citizen of Vietnamese origin.  They lived between the US and Kewarra Beach, north of Cairns.  Their home was at Kewarra Beach.  They told the world that they had gone to Russia for surrogacy.  They subsequently obtained custody and adoption orders in the United States.  They had an open door policy at home.  They lived in a cul-de-sac.  Their neighbours, including medical practitioners and a psychologist could walk in and out of their house at all hours of the day and night – and did.

Newton and Truong went to the media and put themselves up as the poster boys as gay couples who were parents through surrogacy.

It was all a lie.  A man in Christchurch went to put his computer in for repairs.  The computer technician noticed that there was child porn.  Essentially, Newton and Truong bought a baby in Russia and then forged documents to maintain that the baby was Mr Newton’s genetic child.  They did so for the purpose of sexually abusing the child from shortly after birth, photographing and filming that from secret cameras throughout their home and broadcasting that to a ring of global paedophiles.  Men were arrested in Australia, New Zealand, several states in the United States and several countries in Europe when the ring was busted.  One of the men was a lawyer in Florida.  Newton and Truong are still serving terms of imprisonment in a US jails and are likely to be there for the rest of their lives.  Their son was last reported to be in the care of extended family in the United States. 

Although Australian authorities requested that the son be delivered up to Australian authority (as he was an Australian citizen and therefore be cared for by extended family in Australia) that request was refused by US authorities.

You will recall well that in Farnell and Chanbua [2016] FCWA17, Baby Gammy remained in the care of the surrogate Ms Chanbua in Thailand and Baby Pipah remained in the care of Mr and Mrs Farnell in Bunbury, despite a finding that Mr Farnell was a convicted sex offender.  With constant monitoring, world media coverage and repeated actions by the WA state authority, the Court found that the risk to Pipah of ongoing sexual abuse in the care of Mr Farnell was low.

In JS and LS v. Patient Review Panel (Health and Privacy) [2011] VCAT 856, JS and LS sought to choose the gender of their child.  Some years ago their baby died as a result of complications in childbirth.  The circumstances of the child’s birth and death, and the loss of the child, continued to be extremely traumatic and distressed for them.  Both were diagnosed as suffering from post-traumatic stress disorder following the death of the child.  They had other children, but none of the same sex as the child who died.  They wanted to have a child of the same sex as the one who died, but they do not want to have any more children of the same sex as their existing children.  The Tribunal held:[11]

“79.  Sex election is not necessary to avoid the risk of transmission of a serious genetic disorder to the child to be born.  It is not designed to produce a child who can provide the only means of saving or prolonging the life of a close family member.  The applicant’s case does not fit into the types of cases where permission to use ART to create a saviour child has been contemplated by the NHMRC guidelines or the VLRC report.  The evidence does not support a conclusion that permitting sex election in the hope JS and LS can have a child of the desired sex could produce a child who can provide something no other can, and which is necessary to save or prolonged the life of a family member.  Despite the strongly held beliefs of JS and LS, the evidence does not go so far as to support their belief a child of the desired sex would assist their recovery from post-traumatic stress disorder, or assist their psychological health or wellbeing.  Even if it did, in our view, it would fall well short of the gravity of a condition of a third party which would justify giving permission for an ART procedure to create a saviour child.

80.    As sad and cruel as the loss of their child was for JS and LS, and as strong as their desire is to have a child of the same sex, we do not consider it is in the interest and welfare of a child to be born, that permission should be given to permit the use of an embryo which has been so selected for the purpose of producing or attempting to produce a child of the desired sex.

81.    In our view, the evidence was concerned predominantly with the welfare and interests of the parents, JS and LS.  Although JS and LS said in allowing them to sex elect would be in the best interests of the child to be born because a child of the desired sex would be wanted, loved and well cared for, would benefit their emotional wellbeing, allow them to move on, and so make them happy and better parents for all their children, we consider these are, in truth, arguments about the welfare and interests of the parents, not of a child to be born.  They are all concerned as to the beneficial impact on them of having a child of the desired sex.  Similarly, their arguments about the beneficial effects on their other children from having an opposite sex sibling are about their existing children, not about a child to be born.

82.    In our view, arguments based on completion of family, replacement of a child, or family balance do not advance the welfare or interests of a child born to fulfil that end.  As Professor Thomson and Associate Professor Tonti Filippini said, it is ethically undesirable, and contrary to the welfare of the child, to make acceptance of a child conditional on its sex…

84.    At times, JS and LS appeared to say they wanted a child of the same sex as the child who died to replace that child.  At other times, they said that child could never be replaced, but they wanted to be put back in the position they, and their other children, would have been in had the child not died, namely having a family comprising children of both sexes.  We do not consider ‘replacement’ of a child who dies, or restoring the family to the position it would have been in had the child not died by permitting sex election of a child to be born, gives paramountcy to the interest or welfare of a child to be born.  It is again, when analysed, an argument which requires a child to be born to have a particular characteristic which serves the purpose or purposes of the parents.

85.    In our view, arguments based on the benefits to the psychological or emotional wellbeing of the parents are again, at best, arguments which require the child to have the characteristic of the desired sex for the benefit of the parents.  In any event, we are not satisfied, having regard to the evidence of the mental health experts, that the birth of a child of the desired sex would necessarily be of benefit to the psychological or emotional wellbeing of the parents.  As JS and LS acknowledge, having a child of the desired sex would not cure, or treat, their chronic post traumatic stress disorder.  All the mental health experts agreed they would benefit from appropriate treatment, namely cognitive behavioural therapy, something they have been resistant to until recently.  So far, little benefit has been obtained from the sessions…it is not clear whether they intend to continue treatment…

87.    In addition, we must consider the need to protect, at all times, the health and wellbeing of JS, as the person who, if approval were granted, would be the one undergoing treatment.  In so doing we have to take into account JS’s strongly held belief that having a child of the desired sex would assist her psychological state and her emotional wellbeing and the evidence of the mental health experts about the risk to JS’s psychological state, and emotional wellbeing, of any further pregnancy.  If there is a conflict between the welfare and interests of a child to be born and the health and wellbeing of the person undergoing an ART procedure, then, given the paramountcy of the welfare and interests of the child to be born under s.5(a), the conflict must be resolved in favour of the child’s welfare and interests.  Finally, in considering the health and wellbeing of the person undergoing a treatment procedure, we consider it relevant to take into account the prospects of success and any attendant risks.  We accept the data extracted by Associate Professor Tonti Filippini from the annual report of the Victorian Assisted Reproductive Treatment Authority showing the number of PGD related procedures performed by Melbourne and Monash IVF in the 2009-2010 year to which we referred earlier.  That demonstrates the likelihood of a successful is low, far lower than the outcomes viewed by JS on the Monash IVF website and which relate to outcomes for ART generally.  There is also a small risk that a PDG result could wrongly predict the sex of the embryo.  JS and LS both said that in such circumstances, they would terminate the pregnancy if it turned out the foetus was not of the desired sex.  The effect of this would be that, after a procedure with low prospects for success, an otherwise successful pregnancy would be terminated because of the sex of the foetus.”

Not surprisingly in those circumstances the Tribunal dismissed the application.

ABY, ABZ v. Patient Review Panel (Health and Privacy) [2011] VCAT 1382

ABY and ABZ wanted to use ART in order to have a child.  They made an application which showed that ABY had a criminal record.  He had in the previous year been convicted of three counts of sexual penetration of a 16/17 year old female who was under his care.  He was sentenced to three years imprisonment in respect of each count, which was ordered to be served concurrently.  Two years of the three year total was suspended for two years.  The offences committed by him were sexual offences which therefore gave rise to a presumption against treatment.  They then applied to the Patient Review Panel which declined the application.  The Patient Review Panel found:

“ABY’s offence is extremely serious.  The victim was a teenage girl who was within his care.  She was attending the particular school because of personal difficulties.  ABY’s name is now on the sexual offenders register.  ABY pleaded guilty.  He told the panel at the first hearing that he had done that on legal advice in order to receive a lesser sentence.  He also told the PRP that he received explicit SMS messages from the victim whilst on his honeymoon with ABZ.  The hearing was adjourned for ABY to produce documents relating to the charges.  He produced numerous documents which include the judge’s sentencing remarks.  Also included in the documents was the text of SMS messages between ABY and the victim which include pornographic photographs.

All the members of the PRP read the voluminous documents.  It is not necessary to recite the details of the SMS messages save to say that they are numerous and obscene and included explicit photographs of ABY and the victim’s genitalia.  This was in the context that the victim was a young person in ABY’s care and these exchanges commenced when ABY was on his honeymoon with ABZ.  Psychological reports seen by the PRP member’s record that the victim had cognitive, learning and behavioural difficulties.  ABY was aware of this.”

The Tribunal stated:

“This is an extremely difficult case.  It is made so partly by the fact that ABZ presented as a very nice young woman anxious to have a family.  ABY, on the other hand, presented at both hearings as immature and still lacking in any significant insight into his behaviour.  This is consistent with the Trial Judge’s comparatively recent sentencing remarks.  As we have said, it is hard to accept the reasons ABY gave for pleading guilty.  In any event, ABY admitted the content of the SMS’s and photographs.  They can only be described as disgusting, particularly as the exchanges were between ABY and a vulnerable young person with whom he was in a relationship of trust and confidence.  The fact that the exchanges commenced when ABY was on his honeymoon with ABZ is an additional cause for concern even if, they were, as ABY said, instigated by the victim.”

The Tribunal came to the following conclusions based on expert evidence:[12]

“(1)  ABY is not a paedophile or hebephile.  The victim of these offences was a sexually mature minor and there is no information suggesting any deviant sexual preference and, in particular, ABY has no sexual arousal to children.

(2)     ABY has been able to reflect upon his wrongdoing with reasonable insight. He is much more insightful now than he had been when he was assessed…he understands that his behaviour was wrong and knows how to avoid it in the future.

(3)     ABY’s risk of reoffending generally is low.

(4)     It is extremely unlikely that ABY would have difficulty discerning the boundaries between parent and child such that he would not have the skills or moral understanding to prevent inappropriate sexualised behaviour with a child. 

(5)     There is no cogent evidence to suggest that ABY posed a risk of sexually offending against a biological child.

(6)     ABY would benefit from offence specific treatment from a practitioner with expertise in dealing with sex offending issues.”

Furthermore, the majority found that if the inquiry were limited to whether his sexual offending created a risk of harm to a child who would be born as a result of the treatment procedure, the conclusion was that there would be no barrier to treatment.  They would also impose a condition on him undergoing treatment.

However, there was a broader test which was his propensity to discharge parental responsibility. 

The “deficits” highlighted by the Panel include:

·         His capacity to exercise sound judgment at all and, in particular, in respect of a child who may be conceived as a result of a treatment procedure;

·         His capacity to abstain adequately from abuse of alcohol and drugs;

·         His capacity to place a child’s interest before his own;

·         His capacity to provide moral guidance to a child or function in a satisfactory way as a role model;

·         His capacity to provide limit, setting or suitable discipline for a child.

In essence, the respondent was asking the Tribunal to draw an adverse inference about his potential parenting capacity based on the Tribunal’s assessment of him as a witness and what the expert evidence says about his maturity, judgment and insight into his offending.  The Tribunal was not prepared to draw that inference for two reasons.  The first related to the inherent difficulty in assessing potential parental capacity and the second is that the evidence did not support such an inference.

The Tribunal found as to what parenting assessments can and cannot do.

Parenting assessments can:

·         Describe characteristics and patterns of a parent’s functioning in adult and child rearing roles;

·         Explain possible reasons for abnormal or problematic behaviour, and the potential for change;

·         Identify person-based and environmental conditions likely to positively or negatively influence the behaviour;

·         Describes children’s functioning, needs and risks in relation to the parent’s skills and deficits;

·         Provide directions for intervention.

Parenting assessments cannot:

·         Compare an individual’s parenting fitness to universal parenting standards;
·         Draw conclusions about parenting adequacy based on indirect measures;
·         Predict parenting capacity for mental health diagnoses;
·         Rule out effects of situational influences (e.g. time limitations, demand characteristics, current stressors, cultural issues) on the assessment process;
·         Predict future behaviour with certainty;
·         Answer questions not articulated by the referral source.

In the context of the case, the assessment of what parenting assessments cannot do was considered by the Tribunal to not be particularly relevant.

The majority ordered that it was a condition of ABZ undergoing treatment that ABY complete 12 counselling sessions with a nominated health professional.  Such counselling to be completed before ABZ has access to treatment.  Compliance with this condition is to be demonstrated by the health professional providing a statement to the Tribunal and the Panel stating that ABY has satisfactorily engaged in twelve counselling sessions of sex offenders’ specific treatment.

The dissenting member Harper found that there were six bases upon which ABY (and therefore ABZ) should not receive treatment:

(a)          The circumstances of ABY’s offending and the gravity, particularly the breach of trust;

(b)          ABY’s defensiveness and minimisation of his offending behaviour;

(c)          Inconsistencies and contradictions in ABY’s evidence, especially regarding his admission of guilt;

(d)         Lack of victim empathy and remorse;

(e)          ABY’s limited insight into his conduct;

(f)           ABY’s failure, to date, to participate in a treatment programme;

(g)          The recency of his offending along with the continuing pattern of contradictions, minimisation and evasiveness with respect to his conduct.

As to the last one, Member Harper stated:[13]

“In giving evidence at the hearing, the inconsistencies and contradictions in ABY’s evidence, along with his evasiveness and lack of candour under cross-examination, left the impression that he still had something to hide, and that he could not therefore be trusted…”

275    Linked to ABY’s continuing evasiveness and a lack of candour is the recency/currency of his offending and sentence.  It is only 3½ years of the commission of, and his arrest for, serious sexual offences; 2½ years since his sentencing, as a serious sexual offender, to a 3 year term of imprisonment with 2 years suspended; a suspended sentence not due to expire until early 2012; and his name being on the Sex Offenders Register for a period of 15 years, until 2024.”

Member Harper was of the view that the risk factors outweighed the mitigating factors.

Subsequently in 2013, ABY and ABZ returned to VCAT[14].  Following the initial decision by VCAT, the Panel appealed the matter to the Victorian Court of Appeal[15] where the Court found that the Tribunal was in error in applying the limited test, but a broader test was required.  It did not mean that the Panel was required in every case to examine the overall parental capacity of the applicant and/or their partner (if any).  The test will require the Panel to be satisfied that granting treatment will be in the best interests of any child to be born as a result of the treatment.  The decision will be based on all the evidence that comes before it, including any evidence of any potential adverse to the wellbeing or best interests of the child that is not directly related to the initial obstruction to treatment.  A consideration of what constitutes the best interests of a child could include the physical, sexual, emotional and developmental wellbeing of a child.  This therefore requires considering that the best interests of the child would first involve recognising, on the evidence before the decision-maker, any potential identifiable and established risk factors as supported by research and expertise in the field.  Secondly, it must be decided that these factors present a real risk of harm when applied to all the circumstances in an individual case, and therefore a barrier to treatment arises, or that they do not and therefore no barrier exists.[16]  The Court of Appeal concluded that the broad parental capacity test considered by the Tribunal was incorrect and remitted the matter to the Tribunal.

In the second Tribunal decision, the Secretary of the Department of Justice submitted that the potential identifiable and established risk factors were:

(1)   The offences for which ABY was sentenced;

(2)   The fact that ABY denies the commission of those offences;

(3)   The conduct of ABY before and after the offences, including the sending of explicit text messages to the victim;

(4)   ABY’s attitude towards an insight into his own conduct and the impact that attitude could have on his parenting of any child born to him and ABZ;

(5)   ABY’s status as a registrable sex offender and the impact this will have on his ability to participate in child-related activities with any child born to him and ABZ;

(6)   ABY’s history of drug and alcohol abuse.

Taking into account the further expert evidence, the second Tribunal concluded that there was no barrier to treatment having considered the potential risk factors together with mitigating and protective factors and that therefore there was no real risk of harm to a child to be born to ABY and ABZ that should constitute a barrier to treatment.

Subsequently, in CPA v. Patient Review Panel [Human Rights] [2016] VCAT 1555, VCAT set aside the decision of the Patient Review Panel and found there was no barrier to a man who had a particular interest in girls’ feet but who had been subject to sex offender counselling and treatment and there was therefore no barrier to treatment. 

In TRV v. Department of Health and Human Services [Human Rights][17], TRV and her partner TPW had had orders made removing four children from TRV’s custody or guardianship.  There were no orders made in respect to TPW. 

VCAT found that there was a presumption against treatment.

Issues that were identified were:

·         Physical discipline;
·         Parentifying children;
·         Emotional and verbal abuse;
·         Retaliatory behaviour;
·         Physical and medical neglect.

An expert identified the following risk factors:

·         A history of substantiated concerns is a significant risk factor;
·         Capacity to accept partial responsibility for past acts of damage and a willingness to change;
·         TRV’s state of mind in relation to her family of origin;
·         Ability to reflect upon, understand and have empathy for a child’s behaviour;
·         TRV’s capacity to engage with and benefit from support services;
·         Inter-parent relationship;
·         Unresolved grief and loss.

PQ v Patient Review Panel [Health and Privacy][18] 

PQ was a single woman who held two degrees and lived at home with her parents.  She was 43.  She appeared to be quite robust and intelligent.  She previously lived next door prior to suffer mental health issues which layered the heart of the dispute.  Originally, PQ denied that she had any past history in relation to mental health, but then admitted an episode which led to inpatient treatment.  She then made further statements which may well have been misleading in relation to the nature of her psychiatric treatment. 

Her admission had been as a result of PQ having some delusions, particularly relating to persecution and a family accusing her of being a paedophile.  She was then an inpatient for one month and then discharged to Broadmeadows CCT.  The diagnosis was paranoid schizophrenia but this diagnosis was the subject of considerable challenge.  The conclusion of that doctor was that PQ had responded to treatment and recovered and that, if she were compliant with the antipsychotics prescribed, her prognosis would be reasonable, although there would be a significant risk of relapse if she became pregnant and during postpartum.  This was particularly so if she was non-compliant with the treatment. 

PQ had experienced body dysmorphic disorder and underwent plastic surgery on a number of occasions dating back to the 1980s including operations to her nose, chin and breasts.  She was now at the point where she wasn’t concerned with the appearance of her body and was happy with it.  The Tribunal did not see that the body dysmorphic disorder was an ongoing problem and did not see it as posing any risk of abuse or neglect of a child.  She attended upon a psychiatrist who found that everything about her was normal and particularly there was no evidence of delusional beliefs.  Her insight was good and she showed appropriate judgment.  Her cognitive skills were normal.  She was without psychotic symptomatology.  The Tribunal noted that PQ was living in a home.  Her mother was in good health and had support from her siblings.  She was aware of the necessity of taking medication and would continue to do so.  She was aware of the risk of a relapse and stated that she would monitor the situation.  In this regard, PQ had alerted her parents and siblings to this possible risk so that they could give assistance. 

Professor Paul considered the perspective of any child.  He looked at many issues, including the risk of subsequent mental health problems of the child in its own right.  He pointed to the possible absence of optimal and relationship growth, PQ’s negative emotional symptoms and her reservations in relation to close emotional relationships and the likelihood of a relapse.  The condition has been a longstanding one and there was a likelihood of a relapse increased by reason of the range of additional stressors which are likely to be involved.  The Professor considered physical harm to a child would be unlikely, but could not rule it out.  He considered the risk of emotional harm to be greater.

Another Professor, an expert in perinatal psychiatry raised various concerns.  She considered there had to be a significant risk of relapse if PQ ceased taking medication and a risk of relapse being the postpartum period.  She also spoke of difficulties that might be encountered in relation to the required parental support.

The Tribunal found that there would be no barrier to PQ undergoing the treatment but that there be conditions whereunder counselling treatment by Professor Doherty and by any other practitioner that he thought appropriate that should be imposed.  Two issues that the Tribunal took into account were:

·         PQ impressed with her evidence and the manner in which she gave it.  She was believed to be sincere in the desire to have a child.  She had insight into her mental health condition and as to the necessity of complying with the medication regime, even if this be of a low dosage.  The Tribunal had no reason to doubt that she would also comply with any conditions running to assessments, counselling or treatment.  She has followed with the requirements of her doctors and the ability to cope with the demands of study and part-time work.  She was living with her parents and was in regular contact with her siblings.

·         She has a strong supporting family network.  The Tribunal was particularly impressed with the evidence of both mother and sister, each of whom would be vigilant in relation to noting any signs for a relapse should one occur.  There was also present immediately available family assistance in relation to childminding, general and financial support and the like. 

South Australia

The Assisted Reproductive Treatment Act 1988 (SA) and the Assisted Reproductive Treatment Regulations 2010 (SA) require IVF clinics in South Australia to be registered: ss.5, 6 and regulation 6.  I will deal with the conditions of registration under discrimination issues.

South Australia provides for a donor conception register: s.15 – but it has never been set up.

Western Australia

Western Australia, like Victoria, has a comprehensive system of regulation of its IVF industry.  It has a State regulator, the Reproductive Technology Council.  The key legislation in Western Australia is the Human Reproductive Technology Act 1991 (WA), Human Reproductive Technology (Licenses and Registers) Regulations 1993 and the directions under the Human Reproductive Technology Act 1991 contained in the Western Australian Government Gazette dated 30 November 2004.  The directions set out the conditions of practice which includes:

·         The issue of consent;

·         The provision of information by IVF clinics;

·         Assistance with decision-making and counselling;

·         Transfer and storage of gametes and embryos;

·         Reproductive Technology Council approval is required for the import of any human reproductive material;

·         That the export of embryos cannot be undertaken for prohibited uses;

·         That where there are any donated gametes, embryos or eggs, Reproductive Technology Council approval is required;

·         A maximum period of storage of gametes;

·         Minimum age for donation;

·         That, like New South Wales, there is a limit of five recipient families, although under guideline 8.2 this can be exceeded with the approval of the Reproductive Technology Council in exceptional circumstances;

·         The donated sperm eggs, eggs undergoing fertilisation or embryos are not used in artificial fertilisation procedure unless RTAC guidelines in relation to screening and quarantine have been complied with;

·         Posthumous use of gametes is prohibited.

While WA has clinic registers, in accordance with the Ethical Guidelines, it also has a voluntary central register for donor cases.

13.            DISCRIMINATION

There is no discrimination, subject to the Medicare issues I described earlier in the provision of ART services, including surrogacy, in Queensland, New South Wales and Victoria.

Queensland

Section 45A of the Anti-Discrimination Act 1991 (Qld) allows discrimination in the provision of assisted reproductive technology services on the basis of relationship status or sexuality.  Many years ago, discrimination against lesbians was the official approach.[19]  However, current practice of ART in Queensland is non-discriminatory.  I am not aware of any complaints recently of clinics discriminating against intended parents or patients on the basis of sexuality or relationship status.  Indeed, one of the national clinics, City Fertility Clinic, has opened a section called Rainbow Fertility which specialises in helping LGBTI people become parents.

In any event, section 45A has been overridden by the removal of the exemptions under the Sex Discrimination Act and is therefore for all intents and purposes redundant.  I have written to the State Government, seeking that the section be repealed.  We shall see.

Australian Capital Territory

There is no discrimination in terms of ART services.  When it comes to surrogacy, there are some restrictions, although it is not based on sexuality. There is a requirement that the surrogate has a de facto partner or husband and that the substitute parents are a couple.  One cannot be a single surrogate for an ACT surrogacy arrangement and nor can one be a single substitute parent.[20]

Tasmania

In Tasmania there is no discrimination as to the provision of ART.  Nor is there any discrimination based on relationship status or sexuality with surrogacy.  However, at the time of entering into the surrogacy arrangement, each party must be resident in Tasmania[21] and at the time of the hearing each intended parent is resident in Tasmania[22].  Although these matters can be dispensed with if the Court is of the view it is in the best interests of the child,[23] given the delay between entry into the surrogacy arrangement and the making of the order which commonly is in the range of 18 months to 4 years, that is a big chance for everyone to take that the Court will give dispensation.

South Australia

Following the proclamation of the Statutes Amendment (Surrogacy Eligibility) Act on 21 March 2017, both the Assisted Reproductive Treatment Act 1988 (SA) and the Family Relationships Act 1975 (SA) have been amended, the effect of which is as follows:

1.      Doctors in South Australia are no longer prevented from providing treatment on the basis of sexuality and deemed medical infertility and now can provide treatment to lesbian couples where there is not a medical infertility issue and gay couples through surrogacy.  The conditions for a licence for registration under section 9 of the Assisted Reproductive Treatment Act include, subject to conscientious objection “a condition prohibiting the person from refusing to provide assisted reproductive treatment to another on the basis only of the other’s sexual orientation or gender identity, marital status, or religious beliefs” and under section 9(1)(c)(i), rather than having to rely on medical infertility before, now it is social or medical infertility:

“If it appears to be unlikely that, in the person’s circumstances, the person will become pregnant other than by an assisted reproductive treatment.”

2.      Because the eligibility for surrogacy has now been widened, therefore the ability to provide surrogacy services under the Assisted Reproductive Treatment Act by clinics has been widened.

3.      There is the ability of a registered objector to object to the provision of assisted reproductive treatment based on a religious objection “on the basis of the other’s sexual orientation or gender identity”.  If a person has such an objection, they must notify the Health Minister and then be placed on a public register: s.8 Assisted Reproductive Treatment Act 1998.  In reality, this won’t happen because when the South Australian Parliament enacted this provision, it is clear that it really did not understand its own laws.  When we are looking at the role of registered objectors and giving them a positive obligation to refer onto someone else (s.9(1A)) Assisted Reproductive Treatment Act 1998, one might think a registered objector was a doctor in practice.  The problem with that thinking is that the only people who hold licenses in the first place are the four IVF clinics, namely Repromed, Flinders, Fertility SA and City Fertility.[24]  Therefore, it is unlikely that there will ever be a registered objector as a clinic is unlikely to be able to take a religious objection and even if it were, it would be disastrous for business.  It is questionable whether that provision in any case would survive a challenge given the provisions of the Sex Discrimination Act. 

4.      Surrogacy has been extended to LGBTI couples[25] but does not extend to single intended parents.  Therefore, if a patient does not fall within s.9(1)(c)(i), treatment may still be refused.

5.      When the Weatherill government sought to bring South Australian laws into line on the issue of discrimination against LGBTIQ couples, the South Australian Law Reform Institute recommended the removal of discrimination against LGBTIQ couples and single intended parents.[26]  The Bill as originally introduced by the South Australian government proposed the removal of that discrimination.  The Bill was then split in the House of Assembly.  On reaching the Legislative Council, following the intervention of the Families First member, the resultant split Bill was amended so that surrogacy was not available to single people and the registered objector provision was inserted. 

6.      For those who are single in South Australia, they are likely to seek, with difficulty, to access surrogacy interstate or overseas.  Amendments to the Family Relationships Act in 2015 appear to mean on their face that anyone from South Australia seeking to undergo surrogacy overseas needs to obtain the approval of the State Attorney General, who in turn needs to, in consideration of whether or not to grant approval, consider the impact of the State Framework for Altruistic Surrogacy and the relevant Family Relationships Regulations.  In a Kafkaesque approach, neither the State Framework for Altruistic Surrogacy nor the relevant regulation currently exist.

Whether the restrictions to prevent single intended parents from undertaking surrogacy in South Australia (which means that doctors cannot provide treatment) would survive a challenge under the Sex Discrimination Act, I don’t know but I will leave that to another day. 

Western Australia

The Human Reproductive Technology Act 1991 (WA) appears on its face not to discriminate and yet regulation 5 of the Sex Discrimination Regulations 1984 (Cth) contain a specific exemption for the Human Reproductive Technology Act 1991 (WA) and the Surrogacy Act 2008 (WA) which is to continue until 31 July 2017.[27]

The reason for the exemption under the Human Reproductive Technology Act 1991 (WA) is because the Reproductive Technology Council is given its powers under that Act – and its power include the surrogacy approval process under the Surrogacy Act 2008 (WA) – the latter of which discriminates.  Any surrogacy arrangement in Western Australia needs to be approved by the Reproductive Technology Council: sections 16, 17 and 18 Surrogacy Act 2008 (WA).

In Western Australia, heterosexual couples, lesbian couples and single women are able to access surrogacy, but single men and gay couples are not: section 19 Surrogacy Act 2008 (WA).

The reality about the process of surrogacy in Western Australia is that the approval process is very slow, cumbersome and painful with the result that very few surrogacy arrangements actually occur in Western Australia.  Instead many go overseas for surrogacy as an alternative.

Northern Territory

The Northern Territory has no laws concerning ART or surrogacy so one might be fooled into thinking that there were no discrimination issues in the Northern Territory.  This is not so.

The only ART services that are provided in the Northern Territory are provided by Repromed, a South Australian clinic, in an agreement with the Northern Territory Government that they supply services based on their licence conditions, i.e. South Australia licence conditions.  Following the changes to the Assisted Reproductive Treatment Act 1998 (SA), Repromed doctors in the Northern Territory are therefore able to assist their patients with infertility issues – except as to surrogacy.

Repromed has taken the view for many years that it will not assist with surrogacy matters in the Northern Territory because there are no laws in the Northern Territory to allow surrogacy to occur there.

This indirectly disproportionately affects gay men.  People who wish to be parents and live in the Northern Territory either move interstate to undertake surrogacy or, more commonly, undertake surrogacy overseas. 

14.            GOING OVERSEAS FOR EGG DONATION

There has been a widely perceived shortage of egg donors, although this is gradually changing.  Australians have travelled far and wide to become parents through egg donation including to:

·         Canada;
·         United States;
·         Argentina;
·         Spain;
·         Greece;
·         Cyprus;
·         Ukraine;
·         Russia;
·         South Africa,

and in the past, associated with surrogacy there:

·         Nepal;
·         India;
·         Cambodia;
·         Mexico.

In 2016 I was advised by the director of a fertility clinic in Cape Town that it was attending to seeing three to five Australian couples at the clinic for egg donation per business day. 

Those who go overseas for egg donation potentially put themselves at risk for breaching the long arm criminal laws associated with Human Cloning legislation.  In many countries overseas the practice, contrary to the Australian practice, is that the identity of the egg or sperm donor will never be known by the child.  I have received anecdotal reports that some overseas egg donation was fraudulent in that the donor was someone entirely different to that picked out by the intended parents and that inadequate records were kept in any event – so if the law changed in that country to open up the records, still nothing would be found or if it were found it would be incorrect. 

15.            GOING OVERSEAS FOR SURROGACY

The latest statistics I have seen indicate that there were 40 babies born per year Australia wide by domestic surrogacy and 250 born overseas by surrogacy and obtained Australian citizenship.[28]  It is likely that the figure of 250 is too low and that a more probable figure is 280 or thereabouts as a guesstimate because:

·         A number of heterosexual couples falsely tell the Australian Government that they have given birth overseas, when in fact they have undertaken surrogacy;[29]

·         Visa holders in Australia who have children overseas through surrogacy will not have their children included in the citizenships statistics.

If that figure of 280 is correct, then for every one child born in Australia, seven are born overseas – which indicates a severe shortage of surrogates in Australia. 

I am sure Paul Boers will touch upon it, but the only places in Australia where an offence will not be committed overseas for the surrogacy process (as oppose to egg donation) by undertaking surrogacy overseas are:

·         Victoria;
·         Tasmania;
·         Northern Territory.

The places that have clear extraterritorial laws banning entry into commercial surrogacy arrangements overseas are:

·         Queensland;
·         New South Wales;
·         ACT.

The two places where extreme care must be taken to avoid breaching the law in going overseas for surrogacy are:

·         South Australia;
·         Western Australia.

The decision in Re Halvard [2016] FamCA 1051 has redefined what is “reasonable” under New South Wales and Queensland Surrogacy Acts and likely under the Parentage Act 2004 (ACT).  This means that those who live in those jurisdictions if they take care overseas may not be committing entry into commercial surrogacy arrangements and therefore offences, whereas before that ruling, the general view was that they would well have been.

16.            REFORM?

There is no reform moves on the table at this stage as to ART generally. 

The National Health and Medical Research Council in its latest Ethical Guidelines flagged possible reform as to pre-genetic diagnosis to determine the gender of a child other than for medical purposes – but not now.  This is despite various news reports indicating good numbers of Australians going to the United States in particular for this and that the choice of child is approximately 7-1 in favour of girls. 

Last year the House of Representatives’ surrogacy inquiry recommended tightening up on Australians going overseas for surrogacy and that there be national no-discriminatory surrogacy laws[30] and in 2013 the Family Law Council recommended that there be a Commonwealth Status of Children Act[31].  The Government has not yet responded in any substantive way to either of these reports.  I expect that the States will not take any action to amend their surrogacy legislation without leadership from the Commonwealth – which is currently lacking.

Stephen Page
Harrington Family Lawyers
16 May 2017



[1] Stephen Page is a partner of Harrington Family Lawyers Brisbane.  He was admitted in 1987 and has been an accredited family law specialist since 1996 and was admitted in 1997.  He has an international fertility law practice and is an international representative on the Assisted Reproductive Technologies Committee of the American Bar Association, a Fellow of both the International Academy of Family Lawyers and the American Academy of Assisted Reproductive Technology Attorneys (AAARTA), and a member of the Fertility Society of Australia, amongst others. He has presented and written internationally concerning fertility law.
[2] Sometimes called assisted reproductive technology or artificial reproductive technology, just to confuse us some more.
[3] [2016] FamCA 1051, at [32] – [35]
[4] At p.21
[5] At p.25
[6] At p.26
[7] Which is therefore inconsistent, at least in Queensland and New South Wales with the decision in Re Halvard (above).
[8] At p.65.
[9] Footnote 12 from the Guidelines: “Surrogates who access paid leave during the pregnancy and birth cannot be reimbursed for loss of earnings.  Loss of earnings can be demonstrated by the surrogate providing payslips verifying that unpaid leave was taken.”  Again, this may not be consistent with legislation.
[10] The Guidelines mention “reasonable” which has been interpreted by the industry, consistent with Victorian practice, as ten.
[11] At [79] – [82], [85] – [88]
[12] At [114]
[13] [273] and [275]
[14] ABY and ABZ v. Secretary of the Department of Health & Anor [Human Rights] [2013] VCAT625
[15] Patient Review Panel v. ABY and ABZ [2012] VSCA264
[16] At [117]
[17] [2015] VCAT1188
[18] [2012] VCAT 291
[19] QFG and GK v. JM [1997] QSC206
[20] Section 26(1)(b), (3)(a), (3)(b), (3)(e) Parentage Act 2004 (ACT)
[21] Section 16(2)(g) Surrogacy Act 2012 (Tas)
[22] Section 16(2)(j)(ii)
[23] Section 16(3) Surrogacy Act 2012 (Tas)
[24] Regulation 6 Assisted Reproductive Treatment Regulations 2010 (SA)
[25] Section 10A(1) – definition of a “qualifying relationship”: Family Relationships Act 1975 (SA)
[26] I made representations to that effect in the lead-up to that report.
[27] See pages 8 and 9 of this paper.
[28] Source: Sam Everingham compilation including Freedom of Information request of the Department of Immigration, approximately March 2016
[29] I have had two such cases in the last nine months
[30] I gave both testimony and written submissions to the inquiry and the earlier surrogacy round table held by the same Committee.
[31] I made submissions to that inquiry.

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