Monday, May 6, 2019

Surrogacy and post-humous use of gametes

On Saturday I presented to Australia's embryologists about surrogacy and post-humous use of gametes at their Scientists in Reproductive Technologies conference on the Gold Coast. Here is my paper:


SCIENTISTS IN REPRODUCTIVE TECHNOLOGY

MID YEAR MEETING

GOLD COAST – 4 MAY 2019

SURROGACY AND POSTHUMOUS USE OVERVIEW

By Stephen Page







SCIENTISTS IN REPRODUCTIVE TECHNOLOGY

MID YEAR MEETING

SURROGACY AND POSTHUMOUS USE OVERVIEW

Gold Coast – 4 May 2019


by Stephen Page[1]


It is a joy to be presenting to you again today. 

I have been asked to talk about two large topics, surrogacy and posthumous use, somehow compressed into 25 minutes.

Given the extremely short time I have, I will give an overview.

Surrogacy

At the time of writing, there have been no substantial changes in surrogacy laws in Australia for some years.

Australia’s surrogacy laws have been primarily shaped by two developments:

·         The Baby M surrogacy case in about 1986 in New Jersey, which resulted in various States legislating about surrogacy.

·         The difficult surrogacy journey for then Senator Stephen Conroy and his wife Paula Benson who lived in Victoria but underwent surrogacy in New South Wales as Victorian law in effect did not allow them to undertake surrogacy there.  Although the ACT then had specific laws about surrogacy, their case prompted reviews in all the States.

The current prime Acts that deal with surrogacy are (clockwise round the country):

·         Surrogacy Act 2010 (Qld);
·         Surrogacy Act 2010 (NSW);
·         Parentage Act 2004 (ACT);
·         Assisted Reproductive Treatment Act 2008 (Vic) and Status of Children Act 1974 (Vic);
·         Surrogacy Act 2012 (Tas);
·         Assisted Reproductive Treatment Act 1988 (SA) and Family Relationships Act 1975 (SA);
·         Surrogacy Act 2008 (WA).

There have been a series of cases that directly or indirectly have impacted considerably on surrogacy.  The most significant of those cases in my view is a donor case.

There have also been surrogacy or ART reviews undertaken. 

Commonwealth

In 2013 the Attorney-General under the Gillard government, Nicola Roxon, made a referral to a statutory body, the Family Law Council to report back about how federal legislation defines who is a parent, and how that relates to State surrogacy legislation.

The Council recommended in December 2013 that there should be a further inquiry about surrogacy but that there should be a federal Status of Children Act, so that there is a consistent definition across federal legislation (which isn’t there at the moment) about who is a parent. 

Nothing has happened with the recommendations of that review since it was given to the then Attorney-General Brandis in 2013.

In 2015 and 2016 there was an informal, then a formal inquiry by the relevant House of Representatives Committee about surrogacy.  That committee recommended in essence that there should be consistent national non-discriminatory laws allowing for altruistic surrogacy and that there should be urgent approaches through COAG so that there was cooperation between the Commonwealth and the States about that.  It recommended urgent action.  

In late 2018 the federal government formally responded, saying it would work with the States.

Nothing has happened.

Queensland

There has been no review of the Surrogacy Act 2010 (Qld) since its enactment. 

New South Wales

Between 2015 and 2018 the Justice Department underwent a review of the Surrogacy Act 2010 (NSW).  The review acknowledged that there were considerable difficulties in prosecuting those who underwent commercial surrogacy overseas, but called for Commonwealth leadership. 

ACT

There has been no recent review of the Parentage Act 2004 (ACT). 

Victoria

There is currently an ART review underway in Victoria.  An interim report has been released.

There are 17 recommendations from the interim review:

Recommendation
Background/rationale
Recommendation 1 - It is recommended that the Act be amended to include protections for individuals who report, or intend to report, breaches, or possible breaches, of the Act, or non-compliance with the conditions of registration of a provider, to the relevant regulator. It should be an offence for any person to refuse to employ, or dismiss another person, to refuse to treat another person or to subject another person to any detriment because the other person makes such a report to the relevant regulator.
The Review has heard from a number of stakeholders (including patients and staff of clinics) that they have been unwilling to report breaches or possible breaches of the Act for fear of adverse repercussions for their employment, future treatment or reputation within the industry. This recommendation will promote patient safety and improve quality of services. These changes should not create any duplication or overlap with health complaints bodies such as the Health Complaints Commissioner.
Recommendation 2 - It is recommended that legislation be amended to facilitate the sharing of information between relevant regulators and other bodies for the purpose of identifying and responding to concerns about safety and quality in assisted reproductive treatment. This will include sharing of quality and safety information between VARTA, the Patient Review Panel, AHPRA, the Health Complaints Commissioner, Safer Care Victoria, the Department of Health and Human Services and the Minister for Health.
In particular, the Patient Review Panel should be empowered to report instances of potential breaches of the Act to relevant regulators for investigation.
The Review has heard some evidence that information about incidents or issues arising from assisted reproductive treatment is fragmented, and that without specific legislative mandate this information cannot be shared between relevant regulators.
Recommendation 3 - It is recommended that s.8 of the Act be amended such that artificial insemination may be carried out by (i) a doctor; or (ii) by a person acting under the direct or indirect supervision and direction of a doctor who is carrying out artificial insemination on behalf of a registered provider.
Prior to the current legislation, artificial insemination was able to be carried out by a person under the direction of a medical practitioner. The Act subsequently tightened restrictions such that only doctors could perform these relatively simple procedures (in contrast, other more complex ART procedures can still be carried out under the supervision of a doctor in a registered clinic). The tight regulation has resulted in increased costs and the closure of at least one rural clinic which was no longer sustainable
Recommendation 4 - It is recommended that the Act be amended to remove any discrimination against married women who wish to access assisted reproductive treatment following separation. The Act should ensure that where a married couple have separated, the consent of a person who would otherwise meet the definition of a partner is not required to undertake treatment, provided that their gametes are not used without specific consent.

The government should undertake further consultation on the most appropriate way to implement this objective, and any implications for related legislation.
A recent Federal Court decision found that s. 10(1)(a) of the Act was invalid in the circumstances of a woman who was estranged from her husband and as a consequence she was not required to obtain her estranged husband’s consent to undergo a treatment procedure under the Act. The Federal Court found that the requirement under s. 10(1)(a) of the Act that the woman must obtain the consent of her estranged husband operated to discriminate against her on the basis of marital or relationship status under the Commonwealth Sex Discrimination Act. The reason that s. 10(1)(a) is discriminatory is that it currently requires a person who is separated from their spouse to wait 12 months to apply for a dissolution of the marriage in order to access treatment without their estranged spouse’s consent. This contrasts to a person who separates from a de facto partner, as they do not have any such waiting period. (Recommendation 6, below, deals with the use of gametes and embryos following the separation of a couple).

Recommendation 5 – It is recommended that the definition of ‘donor’ in the Act be amended, as well as other defined terms which include the word ‘donor’, to make it clear that, regardless of gender, sexuality, gender identity or marital or relationship status, where a person provides gametes for use by their partner in a treatment process, that person is not considered a donor for the purposes of the Act.

The current drafting of the definition of donor does not exclude the provision of gametes by a person for use by their partner in a treatment process from that definition. In practice, clinics do not generally interpret the provisions relating to a ‘donor’ to apply to a person who provides gametes for use by their partner.
The interpretation of the donor provisions in respect of LGBTIQ+ couples is, however, inconsistent and has been interpreted to apply to the practice of egg sharing by women in same-sex relationships.
Stakeholders have indicated that clarity on the matter would be useful.

Recommendation 6 – It is recommended that a new provision be included in the Act to create a presumption that where a person has provided gametes for use by their partner in a treatment procedure, consent is withdrawn in respect of the use of those gametes, or any embryos formed from such gametes, following the separation of the couple.

There is currently no provision in the Act, nor consideration prior to treatment, which addresses the status or use of gametes provided, or embryos created, following the separation of a couple.
It is proposed to amend the Act to create a presumption that the consent of a person who has provided gametes for use by their partner in a treatment procedure is withdrawn following the separation of the couple.
This provision is intended to provide clarity for the clinics regarding the status of gametes and embryos in storage once they are made aware of the separation of a couple. It is not intended that the clinic will need to make enquiries as to the ongoing relationship status of people receiving treatment. The provision will address a gap, where currently the law is silent.

Recommendation 7 – It is recommended that s. 46 of the Act, which relates to posthumous use of gametes and embryos, be amended to provide that where written consent was provided by the deceased person, and appropriate counselling has been undertaken, the Patient Review Panel may approve the use of the deceased person’s gametes, or embryos created from a deceased person’s gametes:

·      in a treatment procedure carried out on the deceased person’s partner, or
·      by the deceased person’s partner in commissioning a surrogacy arrangement (regardless of the gender of the person or their partner).

Additionally, the requirement for written consent might be reconsidered, and the Patient Review Panel may be permitted to approve posthumous use where it is satisfied that the use is not inconsistent with the deceased person’s expressed wishes.
Section 46 of the Act, which allows for the posthumous use of gametes or embryos in specific circumstances, has been identified as potentially discriminatory. Stakeholders have indicated in particular that the current drafting unreasonably restricts the posthumous use of gametes, in accordance with the deceased partner’s wishes, by women or by people who had been in same-sex relationships.

The Review has heard no rationale for the limitations imposed by s. 46 of the Act that restrict posthumous use of gametes in surrogacy arrangements to a woman’s male partner. Accordingly, it is proposed that the provision be amended and simplified to remove these discriminatory elements.

Further, it would be appropriate to reconsider the need for written consent in cases involving the posthumous use of gametes. The Patient Review Panel should be authorised to approve posthumous use of a deceased person’s gametes, or embryos created from such gametes, where it is satisfied that the use is not inconsistent with the deceased person’s expressed wishes.

Recommendation 8 – Consistent with the objectives of the Victorian Equal Opportunity Act 2010 and similar Commonwealth legislation, and recognising the diversity of our people and relationships, it is recommended that the ‘Guiding principles’ of the Act be amended to use non-discriminatory language, including in relation to gender, where appropriate. It is also recommended that the anti-discrimination principle in s. 5(e) be expanded to recognise people who are currently excluded.

The current language in the ‘Guiding principles’ of the Act is outdated and does not reflect current standards and law related to anti-discrimination and equal opportunity. The ‘Guiding principles’ also do not protect the diversity of people and relationships identified in this Report.

Recommendation 9 – It is recommended that the Act be amended to remove any language that is potentially discriminatory against, or not inclusive of, particular individuals or groups on the basis of their sexual orientation, marital or relationship status, gender identity or sex characteristics. This will include (but should not be limited to):

·         replacing discriminatory terms and using more inclusive language in the Act.

·         amending s. 40(1)(a) of the Act so that the Patient Review Panel may approve a surrogacy arrangement if satisfied that there is a medical or social need for the surrogacy arrangement, to remove the requirement for same-sex couples to demonstrate that they are unlikely to become pregnant.

There are examples of the Act being discriminatory towards, or not inclusive of, LGBTIQ+ people.
The Act also states that the Patient Review Panel can only approve a surrogacy if a doctor has determined that the intended parents cannot become pregnant. This results in the requirement that two men in a same-sex relationship must have a doctor certify that they cannot become pregnant.
Recommendation 10 – It is recommended that s. 29 of the Act be amended to ensure that the limit on the use of donated gametes applies to ‘families’ rather than ‘women’.

The current restriction on donating gametes to more than 10 women discriminates against women in same-sex relationships. The restriction can have the effect of preventing women in same-sex relationships having biologically related children by accessing the same donor’s gametes. By amending the provision to replace the word ‘woman’ with ‘families’ the Act will remove this barrier and recognise women in same sex relationships as a family.
Further consideration will be given to the appropriate limit on the number of families able to use gametes from the same donor.

Recommendation 11 – VARTA and the Patient Review Panel should work together with the LGBTIQ+ community to develop embedded, regular inclusive practice and cultural competency training for ART industry members and staff.
VARTA should amend the conditions of registration to require clinics to ensure that all staff involved in patient contact be required to undertake training in LGBTIQ+ inclusive practice.

Inclusive practice and cultural competency are integral parts of removing barriers to access for LGBTIQ+ Victorians.
Rainbow Families Victoria indicated in their submission that the most significant, immediate change ART services could make would be education and training of clinics, and all the staff within them, in LGBTIQ+ inclusive practice
Recommendation 12 – It is recommended that the Act be amended to allow for gamete donors to modify or revoke consent only up until the time the gamete is used, either for insemination or to create an embryo.

The proposal aims to bring Victoria into line with interstate practice where withdrawal of consent by a donor is only permitted until the gametes have been used to create an embryo. The amendment will bring greater certainty for intended parents who wish to make independent decisions about the use of embryos created with donor gametes.

Recommendation 13 – It is recommended that the Act be amended to remove requirements for donors to consent to the extension of storage or disposal of embryos formed from donated gametes.

Consistent with the amendment proposed above that consent may be modified or revoked by the donor until the donated gamete has been used, the Act should remove the requirements for a donor to consent to the extension of storage or the disposal of any embryos created from donated gametes. The Review considers that decisions relating to the use, storage or disposal of embryos formed from donated gametes are best made by the recipients of the donation.

Recommendation 14 – It is recommended that the Assisted Reproductive Treatment Regulations be amended to allow for the payment or reimbursement of reasonable costs that are incurred by a surrogate where the costs would not have been incurred but for the surrogacy arrangement. It is intended that this should better reflect the actual costs incurred by surrogates as a result of taking on that role. Costs that may be covered should include, but not be limited to:
·      medical costs for the birth mother (including costs incurred prior to conception, during pregnancy and after delivery) or a child born as a result of a surrogacy arrangement where these are not payable by Medicare or private health insurance
·      a premium payable for health, disability or life insurance that would not otherwise have been obtained
·      counselling expenses
·      reasonable legal costs for the birth mother and their partner (if any)
·      lost earnings because of leave taken— for a period of not more than 2 months during which a birth has happened or was expected to happen; or (ii) for any other period during which the surrogate was unable to work on medical grounds as a result of the surrogacy
·      other out of pocket expenses including travel, accommodation and childcare.

The nature of costs agreed by the parties to a surrogacy arrangement should be disclosed to the Patient Review Panel as part of the application for approval of the surrogacy arrangement.

The category of surrogacy expenses currently eligible for reimbursement in Victoria is overly restrictive and inconsistent with the NHMRC Guidelines. It is recommended that Victoria’s legislation be brought into line with other jurisdictions, to allow for the payment or reimbursement of reasonable costs that are incurred by a surrogate. It is envisaged that the nature of costs agreed by the parties to a surrogacy arrangement would be disclosed to the Patient Review Panel as part of the application for approval of the surrogacy arrangement. Costs listed on the application could subsequently be amended if gaps were subsequently identified by the parties. The Review will continue to consider issues around the enforceability of surrogacy arrangements to better protect surrogate mothers in respect of costs incurred; and the possible role of a third party intermediary in processing payments between surrogates and intended parents.

Recommendation 15 – It is recommended that section 44 of the Act be amended to make it an offence for all parties to enter into, or offer to enter into, a commercial surrogacy arrangement. A surrogate must not receive any material benefit or advantage as a result of the surrogacy arrangement and the intending parents must not provide or offer to provide material benefit or advantage in exchange for the surrogacy arrangement.

The current drafting of the Act makes it an offence for a surrogate mother to receive payment but not for commissioning parents to offer such payment. To remedy this oversight, the Review recommends that section 44 of the Act be amendment to make it an offence for intended parents, as well as a surrogate, to enter into or offer to enter into a commercial arrangement

Recommendation 16 – It is recommended that references to “commissioning parents” in the Act be replaced with the term “intended parents”.

It would be appropriate for references to ‘commissioning parents’ to be replaced with ‘intended parents’ throughout the Act. The proposal aims to use more sensitive language preferred by parties to a surrogacy arrangement and is consistent with terminology used in a number of other Australian jurisdictions

Recommendation 17 – It is recommended that the Status of Children Act be amended to remove the now redundant reference in section 23(3). A new provision should allow for parties to a surrogacy arrangement to receive counselling from a counsellor providing services on behalf of a registered ART provider or an independent counsellor who meets specified qualification criteria and has relevant experience and skills.

Section 23(3) of the Status of Children Act provides that relevant parties to a surrogacy arrangement must receive counselling from a counsellor within the meaning of section 61(3) of the Assisted Reproductive Treatment Act 2008.
This is an incorrect cross-reference as section 61(3) of the Act has been repealed.
It is proposed that section 23(3) be amended to require that counselling be provided by a counsellor providing services on behalf of a registered ART provider or an independent counsellor who meets specified qualification criteria and has relevant experience and skills.


Tasmania

There has been no review of the Surrogacy Act 2012 since its enactment. 

South Australia

South Australia has had three recent reviews.  The South Australian Law Reform Institute (SALRI) underwent a review at the request of the previous Labor Government as to discrimination against LGBTI people.  As part of its review, it recommended that the Assisted Reproductive Treatment Act 1988 (SA) and the Family Relationships Act 1975 (SA) be amended to remove the discrimination against same-sex couples and singles from undertaking surrogacy. 

The then Labor Government put a bill before Parliament to remove discrimination against same-sex couples in all South Australian laws.  Halfway through the process, the bill was split so that the prime bill dealt with all discrimination aside from ART and surrogacy and a new bill was then put before Parliament to deal with those two subjects alone.  It appears that a member of Families First in the Upper House was agreeable to the removal of discrimination against same-sex couples in surrogacy, but was opposed to single people undertaking surrogacy.

The Bill as enacted allows a licensee to object to treat on the basis of sexual orientations or gender identity, marital status and religious beliefs provided that they refer on.  Surrogacy is now open to same-sex couples, but is still not open to singles. 

A review of ART was undertaken by Professor Sonia Allen.  The subsequent bill before Parliament did not proceed further.

The then Weatherill Government commissioned SALRI to undertake a review of surrogacy law.  Following the election, the incoming Marshall Government continued that review.  SALRI issued 69 recommendations in its report.

SALRI recommended that the law not criminalise those undertaking surrogacy overseas.

Both the Victorian and South Australia reviews seek Commonwealth leadership to ensure children are protected when born overseas via surrogacy as a result of the decision in Bernieres and Dhopal [2017] FamCAFC 180.

The South Australia review recommended giving power as to surrogacy cases to the Family Court.  The South Australia courts apparently do not want the jurisdiction.  By contrast, the Australian Law Reform Commission’s report into family law recommended abolishing the Family Court of Australia and giving power back to the States.

Currently there is a draft bill by Attorney-General Vickie Chapman before Parliament.  I have made submissions to the various SALRI reviews and to the Attorney about the draft.  I was expecting the bill to be debated in February or March, but that has not yet happened. 

How the bill will change things

The first thing about the proposed bill is that instead of surrogacy being referred to within the Family Relationships Act 1975 (SA), it will have its own legislation as occurs in Queensland and New South Wales, Tasmania and Western Australia.  Clause 6(1) provides:

            “The best interests of any child born, or to be born, as a result of a lawful surrogacy agreement is to be a primary consideration in respect of the administration and operation of this Act.”

Clause 7 provides:

“(1)     The following principles (the surrogacy principles) apply in relation to the lawful practice of surrogacy in South Australia:

(a)         The human rights of all parties to a lawful surrogacy agreement, including any child born as a result of the agreement, must be respected;

(b)         The surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement.

(2)        The Minister, the Court, and each person or body engaged in the administration of this Act must exercise their powers and perform their functions so as to give effect to the surrogacy principles.

(3)        However, the surrogacy principles do not displace, and cannot be used to justify the displacement of, section 6.”

Lawful surrogacy agreements will be extended to single extended parents. 

Clause 8(3) sets out the requirements for a lawful surrogacy agreement:

“(3)     (a)        The surrogate mother must be 25 years of age or older at the time the lawful surrogacy agreement is entered [this is consistent with interstate legislation and greatly increases the age which is currently 18];

(b)        The surrogate mother must not have impaired decision-making capacity in respect of the decision to enter a lawful surrogacy agreement;

(c)        The surrogate mother must be an Australian citizen or a permanent resident of Australia;

(d)        The surrogate mother must not be pregnant at the time the lawful surrogacy agreement is entered;

(e)        The surrogate mother must not be a prohibited person within the meaning of the Child Safety (Prohibited Persons) Act 2016 at the time the lawful surrogacy agreement is entered;

(f)         The surrogate mother must –

(i)                 be assessed by and approved as a surrogate mother by a counselling service –

(i)                 that is accredited for the purposes of this paragraph in accordance with the regulations; and

(ii)              in accordance with any relevant guidelines published by the National Health and Medical Research Council; and

(iii)            in accordance with any other requirement that may be prescribed by the regulations for the purposes of this paragraph; and

(ii)              be issued with a counselling certificate in the prescribed form by the accredited counselling service;

(g)        The surrogate mother must comply with any other requirements set out in the regulations.

(4)        Subject to this Act, each of the following provisions must be satisfied by or in respect of, the intended parents under a lawful surrogacy agreement:

(a)               Each intended parent must be 25 years of age or older at the time the lawful surrogacy agreement is entered;

(b)               An intended parent must not have impaired decision-making capacity in respect of the decision to enter a lawful surrogacy agreement;

(c)                Each intended parent must be an Australian citizen or a permanent resident of Australia;

(d)               At least 1 intended parent must be domiciled in South Australia at the time the lawful surrogacy agreement is entered;

(e)                An intended parent must not be a prohibited person within the meaning of the Child Safety (Prohibited Persons) Act 2016 at the time the lawful surrogacy agreement is entered;

(f)                 At least 1 of the following circumstances must exhibit in relation to the intended parents:

(i)                 At least 1 of the intended parents is a female person who is unlikely to become pregnant, or to be able to carry a pregnancy or give birth (whether because of infertility, other medical reasons, risk to an unborn child or for any other reason); or

(ii)              There is a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to an intended parent; or

(iii)            There is a risk that becoming pregnant or giving birth to a child would result in physical harm to an intended parent (being harm of a kind, or of a severity, unlikely to be suffered by women who become pregnant or give birth generally);

(iv)             It appears to be unlikely in all of the circumstances of the intended parent or parents that an intended parent would become pregnant, or be able to carry a pregnancy or give birth (whether because of gender identity, sexuality or any other reason);

(g)               Each intended parent must –

(i)         receive counselling that complies with subsection (6) in relation to the lawful surrogacy agreement from an accredited counselling service; and

(ii)        be issued with a counselling certificate in the prescribed form by the accredited counselling service;

(h)               The intended parents must comply with any other requirements set out in the regulations;


(5)       (b)        The lawful surrogacy agreement must be signed by each party to the lawful surrogacy agreement (and each signature must be the subject of a lawyer’s certificate);

            (c)        The lawful surrogacy agreement must contain provisions setting out how pregnancy is to be achieved by the surrogate mother (being a manner that complies with section 10);

            (d)        The lawful surrogacy agreement must contain provisions setting out the arrangements (if any) for the payment of reasonable surrogacy costs;

            (e)        The lawful surrogacy agreement must contain provisions identifying the human reproductive material of 1 or both of the intended parents that is to be used in achieving a pregnancy;

            (f)         The lawful surrogacy agreement must contain provisions setting out the Court’s orders under Part 5 that the intended parents will be likely to seek following the birth of a child under the lawful surrogacy agreement (however, nothing in this paragraph prevents the intended parents from seeking orders that differ from those set out in the agreement);

            (g)        The lawful surrogacy agreement must comply with any other requirements set out in the regulations.

(6)       For the purposes of this section, the counselling that is provided to a surrogate other or an intended parent must be consistent with any relevant guidelines published by –

(i)                 the Australian and New Zealand Infertility Counsellors Association; and
(ii)        the National Health and Medical Research Council.

(7)       Without limiting this section, a lawful surrogacy agreement may contain such other lawful provisions as the parties to the lawful surrogacy agreement think fit.”

The surrogacy costs that may be paid under clause 9 are:

(a)      such reasonable costs as may be incurred, or likely to be incurred, in respect of the lawful surrogacy agreement, being:

(i)                 costs relating to the pregnancy (including any attempt to become pregnant) that is the subject of the lawful surrogacy agreement;

(ii)              costs relating to the birth or a child born as a result of the lawful surrogacy agreement;

(iii)            costs relating to the postnatal care of a child born as a result of the lawful surrogacy agreement;

(iv)             medical, counselling or legal services provided in relation to the lawful surrogacy agreement;

(v)               reasonable out of pocket expenses incurred by the surrogate mother in relation to the lawful surrogacy agreement;

(vi)             any other costs, or costs of a kind, prescribed by the regulations for the purposes of this paragraph; or

(b)        any other payment of a kind relating to the lawful surrogacy agreement of a kind prescribed by the regulations.”

In case there is any doubt, clause 9(3) says:

“Nothing in this section authorises regulations to be made that allow for commercial surrogacy (however described).”

The form of pregnancy is clear under clause 10:

(1)      For the purposes of this Act, a pregnancy under a lawful surrogacy agreement must be achieved by assisted reproductive treatment provided in accordance with the Assisted Reproductive Treatment Act 1988.

(2)        For the purposes of this Act, a pregnancy under a lawful surrogacy agreement must be achieved utilising human reproductive material obtained from at least 1 of the intended parents.”

In other words, the current ban on ART occurring outside South Australia for a South Australian surrogacy arrangement remains and a pregnancy under surrogacy will not be able to be achieved unless there is a genetic link to one or both parents.

Generally, surrogacy arrangements will not be enforceable.

Significantly, clause 13 takes up the provisions of the Queensland and Tasmanian legislation in saying:

            “A surrogate mother has the same right to manage her pregnancy and birth as any other pregnant woman”.

The intended parents are to ensure counselling is available to the surrogate mother during pregnancy and after birth, failure to comply will result in a potential fine of up to $5,000.

A person who enters a surrogacy agreement other than in accordance with the proposed Act is guilty of an offence punishable by up to 12 months imprisonment.  Furthermore, it will be an offence for a person who for valuable consideration (other than for a lawful surrogacy agreement):

(a)               negotiates, or obtains the benefit of, a surrogacy agreement on behalf of another; or

(b)              offers to negotiate, arrange or obtain the benefit of a surrogacy agreement on behalf of another; or

(c)               arranges, or offers to arrange, introductions between people seeking to enter a surrogacy agreement – punishable by up to 12 months’ imprisonment.

Similarly to induce someone to enter into a surrogacy agreement either for valuable consideration or by threat of harm, or by dishonesty or undue influence, would commit an offence punishable by between 2 and 5 years’ imprisonment.

The Act makes provision for the Youth Court, much as now, to make an order in favour of the intended parents.

Western Australia

Following pressure from about 100 other countries evidenced at the Human Rights Committee of the United Nations in Geneva, Australia committed to removing exemptions under its Sex Discrimination Act 1984 (Cth) that allowed the States to have laws that discriminated against same-sex couples in ART and surrogacy.

Those exemptions were removed from all States (except Western Australia) on 1 August 2016.  For some reason, Western Australia was given another year until 1 August 2017.

In May 2017, I wrote to the new WA Health Minister and Deputy Premier Cook and said to him that Western Australia had to amend its laws to be compliant or risk embarrassment and a court case overturning its laws.

Subsequently, the Western Australian Government engaged Professor Sonia Allen to undertake a review as to surrogacy/ART. 

Late last year, the Government put before Parliament a bill to deal with the discrimination point only.  At the time of preparing this paper, the Bill has been referred to a Committee of the Upper House.

In the meantime, there has been the release of Professor Allen’s review.  Professor Allen recommends:

·         That the Reproductive Technology Council be abolished along with its committees and that the command and control regulatory system implemented in WA in 1991 is no longer effective or required.

                        “There is a need to adopt a regulatory structure that better responds to risk while removing duplication, redundancy, and unnecessary regulatory burden on those who comply.”

·         That the ART data collection should be aligned with ANZARD.  The reproductive technology register was reported to “not be fit for purpose”.  There should instead be one central donor conception register established and maintained at the Office of Births, Deaths and Marriages.

·         Time limits for storage of gametes or embryos is best decided upon by that personal couple in consultation with their clinician, as per the requirements of the NHMRC Ethical Guidelines.  They should not be stored after a person’s death other than when there is evidence they have consented to the posthumous use of such gametes/embryos by the surviving spouse.

I will deal with posthumous use of gametes separately below[2]; but in summary at pages 22 to 23.

Introduction (Chapter 1)

1.         That regular review of the HRT Act and associated regulations, directions, guidelines or other conditions of registration should be had.

The Western Australian Regulatory System (Chapters 2-3)

1.         The ‘command and control’ regulatory system implemented in Western Australia in 1991, while having served a significant purpose in the early years of ART, is no longer effective or required. There is a need to adopt a regulatory structure that better responds to risk while removing duplication, redundancy, and unnecessary regulatory burden on those who comply.

2.         A co-regulatory system that involves active participation in the regulatory system by both Government and clinics, cooperation and responsive regulation, would be more suitable to the governance of ART than the current ‘command and control’ system.

3.         The Minister for Health/DG of the DoH should retain responsibility for the Government’s role in the regulation of ART, with powers to issue conditions on the registration of clinics, regulations, directions, and guidelines when required.

4.         Enforcement and disciplinary mechanisms should continue to be included in the legislation but should only be exercised when lower level compliance mechanisms have failed or where behaviour has been or is suspected to be particularly egregious. The power of enforcement/disciplinary measures should fall to the Minister/DG of the DoH.

5.         The effectiveness of the Reproductive Technology Council (RTC) and its committees in relation to the early governance of ART should be recognised. However, the continuation of the functions conferred on the RTC as a regulator and enforcer are no longer suitable.

6.         The RTC should be abolished and a new advisory body established. The committees of the RTC should also be abolished.

7.         Provision should be made, and information clearly communicated regarding rights of review or appeal of decisions made by government departments regarding matters governed by the HRT Act and associated legislation.

Managing Information: Data Collection and Reporting (Chapter 4)

1.         The RT Register faces significant issues of concern caused by:

·                outdated legislation and directions

·                interpretations given to legislation which have restricted the ability to follow up on or link certain data

·                constraints on practice

·                lack of adequate resourcing, and at times, operational conflict between units within the Department of Health.

It is not currently in a state that the data within it can be relied on with confidence.

2.         The issues faced by the RT Register again illustrate that the current regulatory system is not achieving its aims or objectives. This, in turn, has resulted in a lack of faith in the RT Register and data reporting requirements.

3.         The Data and Information Unit has undertaken work to address issues with the RT Register, but, such work is in its early stages and much of what is proposed is aspirational. Significantly more work and financial commitment over time would be required to create a register that is fit for purpose. In the meantime, the current state of the RT Register raises significant issues of concern that require immediate action.

4.         The recommended revision of the HRT Act and Directions, including repeal of provisions that are no longer relevant or effective, provides the opportunity to also address policy and processes that have proved not to be working in relation to data collection and reporting.

5.         While there was an argued benefit in maintaining data specific to Western Australia at the DoH and being able to link that data to other Western Australian registries for the purposes of monitoring the outcomes of ART, reporting, public policy, and for research purposes, the current system is unique to Western Australia.

6.         There was no robust argument put to the Review as to why the ART data collection could not, or should not, be aligned with the data reported to Australian & New Zealand Assisted Reproduction Database (ANZARD). ANZARD provides a uniform data reporting system for all clinics practising within Australia and New Zealand. It has a robust and operational data verification process that utilises modern online technologies. ANZARD confirmed that data points specific to Western Australia could be added to their database and thus could also be verified via that collection.

7.         To protect privacy, it is possible for the data to be supplied to ANZARD in de-identified form (e.g. cycle code, recipient code, donor code, birth outcome code), and the final verified data could then be returned to the clinics and/or the DoH to be linked with the identifying information of recipients, gamete providers, and offspring as required.

8.         Aligning the data collection and reporting process with ANZARD requirements would reduce the burden on those being regulated who currently are exposed to two separate reporting regimes, operating in different manners, with slightly different data points and with different reporting periods. On the latter point, it was not clear why a quarterly reporting period had been imposed in relation to the RT Register, nor why such a period needed to remain. Reporting via financial year was also not found to be suitable, as births are recorded by the calendar year.

9.         There are significant and unnecessary cost and time burdens placed on clinics in relation to reporting. Freeing up the clinics from duplicative and burdensome processes and streamlining data collection and reporting with ANZARD requirements would enable professionals to focus on maintaining good clinical and laboratory practices and data management. Cost and time savings could then also be directed to supporting things (directly or indirectly) such as the recommended Donor Conception Register and provision of information to those seeking treatment, donating gametes or embryos, and people born as a result of ART and donor-conception.

10.       There was no provided justification for adding further data points (Category D) to the RT Register. Such data points are not reported anywhere else in the country and would create an added reporting burden on WA clinics, as well as additional expense to clinics and the DoH.

Managing Information: Access to Information about Donation, Genetic Parentage, and Donor Conception (Chapter 5)

1.         Donor-conceived people seek information about their donors and siblings for many varied reasons including, but not limited to, understanding their biological heritage, a sense of self and identity, to obtain or share medical information, fear and risks of forming consanguineous relationships, concern for each other’s well-being, and a desire for openness, honesty and equality.

2.         While there is legislative provision for access to information by donor-conceived people in Western Australia, this does not apply to all people. The HRT Act provides that donor-conceived people born after 2004 have a right to access identifying information about their donor at age 16.

3.         Several jurisdictions around the world provide via legislation or the common law the right for donor-conceived people to access identifying information about their donor. Some such jurisdictions have moved to allow access to information by all donor-conceived people regardless of when the donation took place, and regardless of whether there was a promise of anonymity made to the donor.

4.         At the time of writing, there was not a stand-alone donor-conception register held at the DoH. Rather data is held on the RT Register, which is a database that holds a variety of data collected from licensed clinics in Western Australia. The data custodians of the RT Register have reported that they are not confident, given the current state of data on the RT Register, that they could provide information to donor-conceived people without risk of error. The RT Register was reported to ‘not be fit for purpose’.

5.         A Voluntary Register was established in 2002 in Western Australia to enable donor-conceived people born prior to 2004 to access identifying information about their donor and siblings if the donor/siblings also place their name on the register. The register has no legislative framework and has developed over time based on a number of iterative and undocumented changes. Its current operation is based on ‘policy’ and processes that have been determined by RTU staff and the DoH. Processes, limitations, restrictions, and operational issues at times hinder access to information and have led to the distress of those seeking information.

6.         Requirements for mandatory counselling imposed by the Voluntary Register are not meeting the needs of donor-conceived people. At present such counselling may only be provided by the RTC approved counsellors (which involves a limited list of fertility counsellors, two of whom sit on the RTC); people are required to pay for such counselling themselves, and release of matched information will not be provided until all parties have undertaken such counselling. This creates unnecessary barriers for donors and donor-conceived people to exchange information.

Managing Information: The Future Operation of the Donor Conception Register (Chapter 6)

1.         One central donor-conception register should be established and maintained at the office of Births, Deaths, and Marriages (BDM), which is responsible already for the collection and management of data relevant to the birth of people in Western Australia.

2.         To complement the information service that BDM provides, and to enable search and find functions and intermediary and support services, an independent agent with the necessary expertise, should be contracted to provide such services. The provider of such services should have ‘trusted agency’ status and be enabled to operate in an effective manner in terms of conducting search and find and family-linking services including but not limited to being able to access necessary records via BDM, the clinics, and otherwise as required. (Such services could also, in the interim, take over the Voluntary Register).

3.         Intermediary services should be optional except in cases that involve the retrospective release of identifying information. In that case the intermediary service should be involved in initial contact with the donor to advise of an inquiry, explaining the contact veto system, and supporting any further requests to liaise between the parties.

4.         Support services (such as counselling) for donor-conceived people, recipients, or donors, and their families, in relation to seeking information about genetic heritage and biological relations should be optional. All mandatory requirements for counselling should be repealed.

5.         The option or requirement to engage with support or intermediary services should be free for donor-conceived people, recipients, donors, and their families. In practical terms, this means that such services will need to be subsidised by the Government and/or fees levied upon clinics as determined by the Government.

6.         Access to identifying information about donors by donor-conceived people should be available regardless of when a donor-conceived person was born, subject to a contact veto system for those conceived with donated gametes or embryos prior to 2004.

7.         Donors should be actively notified of all live births, sex of the child(ren) born, and the year of birth, in relation to their donation by clinics.

8.         Donor-conceived people should be notified of any other donor-siblings, including the donor’s own children, regarding the number of siblings, sex, and year of birth, upon request to the Donor Conception Register and/or a clinic.

9.         Access to identifying information about donor-conceived people should only be available to donors and siblings of the donor-conceived person if the donor-conceived person (or recipient parents if the donor-conceived person is under 16) has registered their consent to the release of identifying information on the central register. However, outreach to donors and donor-conceived people by the intermediary and support services should be available in special circumstances for example, if there is a serious heritable illness or matter about which the donor/donor-conceived person should be notified.

10.       Voluntary registration should be permitted on the central donor conception register to people for whom records may have been destroyed but are aware of their donor-code, and as a result of DNA testing identifying biological relatedness and subject to the testing being recognised as a legally valid test in establishing relatedness (e.g. from a National Australian Testing Authority (NATA) accredited facility) and any other requirements of BDM to ensure the integrity of the data held on the register.

11.       An addendum to a donor-conceived person’s birth-certificate should be placed on the register at BDM notifying the person that there is more information held about them on the register – being that they are donor-conceived. This addendum should be available to the donor-conceived person when they request their birth certificate after the age 16 or when they are of sufficient maturity, aligning with the legal age of access to information about donors in Western Australia and enabling them to decide if they wish to seek further information.

12.       Recipient parents should be supported prior to receiving treatment, during pregnancy, and after the birth of a child(ren) with provision of information, education and clinics, and fertility counsellors about the importance of disclosure to children about their donor-conceived status, how to have discussions with children about such status, and the law providing the child with rights of access to information about their donor.

13.       Donors should be provided information and counselled at the time of donation about the laws in Western Australia and disclosure to children about their donor-conceived status. They should also be informed of a child’s right to access identifying information about their donor.

ART Issues: Storage of Gametes and Embryos (Chapter 7)

1.            Current provisions regarding time limits for storage of embryos and gametes intended for personal use, and associated required periods of consent, in Western Australia are unsatisfactory and inconsistent with practices across Australia. Arbitrary time limits for storage imposed upon patients in relation to their gametes/embryos intended for their personal use are not evidence-based, and do not respect patient autonomy to consent to a period of storage that meets their personal needs and circumstances.

2.         Time limits for storage of gametes or embryos for a person/couple’s personal use would best be decided upon by that person/couple in consultation with their clinician, as per the requirements of the NHMRC Ethical Guidelines. They should not be stored after a person’s death other than where there is evidence they have consented to the posthumous use of such gametes/embryos by their surviving spouse.

3.         A distinction should be made for donated gametes/embryos, due to the implications for donor-conceived people. As such, and consistent with the states of New South Wales and South Australia, donated gametes/embryos should not be stored for more than 15 years after the date of donation, unless granted authority to extend that period by the Minister for Health. Preferably, a maximum cut-off-age should also be agreed upon (for example, a storage period that does not go beyond the donor’s 50th birthday or a lesser time if stipulated by the donor), and not for a period beyond the donor’s death.

4.         Section 26(2) of the HRT Act, provides for the maintenance of storage where a couple for whom an egg in the process of fertilisation or an embryo disagree about its continued storage. Further clarification regarding this matter is needed. The HRT Act and HRT Directions should be consistent with the NHMRC Ethical Guidelines by drafting take place at the time embryos are being stored about the clinic’s policy in relation to disputes, any pre-agreement by the parties, and discussion regarding what the law provides and requires.

5.         The HRT Act should also be consistent with the NHMRC Ethical Guidelines that a decision to suspend the agreed time should be reviewed every five years, and that any subsequent discard without the consent of both parties should be in accordance with the HRT Act and the agreement made at the time of storage.

6.         If a person is physically incapacitated, provided they still have the cognitive capacity, they will still be able to direct what happens to their stored gametes or embryos.

7.         If a person suffers incapacity that results in lack of cognitive function or inability to make decisions or give consent, but such incapacity is impermanent (the person is expected to recover), then any storage limit should be suspended until the person recovers.

8.         If the cognitive incapacity of a person that results in them losing decision-making capacity is assessed by a medical practitioner as permanent (such as they are in a persistent vegetative state from which they will not recover) or is due to brain death, then the person’s wishes as expressed prior to this state should be taken into account in relation to the storage of their gametes or embryos. This should include consideration of if there was any explicit consent in writing as to what should happen to any gametes or embryos the person has stored for their personal use, which should have been discussed at the time of storage, or other evidence as to what the person would have wanted in relation to continued storage and the possibility of posthumous use by their surviving spouse.

9.         Section 26(1)(b) provides that in relation to rights to the control of, or power to deal with or dispose of, any human egg undergoing fertilisation or human embryo that is outside of the body of a woman… in the event of one member of a couple in whom the rights are vested, those rights vest solely in the survivor. What happens after death would then be directed by the law on the posthumous use of gametes/embryos.

10.       Gametes or embryos stored for a person’s personal use with their spouse should not be stored (or used) beyond a person’s death if they have objected to such storage (or their use).

11.       Subsequent spouses of the partner, or the relatives of a deceased person, should not have a ‘right’ conferred upon them to make decisions about the continued storage of gametes or embryos. The right vests solely in the person’s surviving spouse as per s 26(1), and then will be subject to provisions relevant to the posthumous use of gametes/embryos.

12.       If both members of a couple die (for example in a car accident), the clinic must allow any stored gametes/embryos to succumb, following approval by the Minister/DG of the DoH.

ART Issues: Posthumous Use of Gametes (Chapter 8)

1.         The posthumous collection, storage and/or use of gametes and embryos collected either before or after a person’s death is a sensitive and complex issue. Over many years laws and guidelines have been developed across Australia that permit such collection, storage and/or use subject to the deceased and the surviving spouse/partner having met certain requirements.

2.         The current provisions in the Human Tissue and Transplant Act 1982 (WA) permit the posthumous retrieval of gametes and have been held by the Court to provide valid criteria under which such retrieval may occur.

3.         The posthumous retrieval of gametes should continue to be permitted in Western Australia pursuant to current provisions in the Human Tissue and Transplant Act 1982 (WA) (HTT Act), and added provision being made in the HRT Act. However, as per the HTT Act the posthumous collection, storage and/or use of gametes should not occur when the deceased person, in their lifetime, objected to such collection, storage or use.

4.         The current HRT Direction that effectively prohibits the posthumous use of gametes and embryos in Western Australia is inconsistent with:

·               the law that allows their collection

·               the recent Western Australian Supreme Court decision recognising the surviving spouse’s/partner’s right to possession of such gametes and right to direct the transfer of such gametes to a jurisdictions where they may be used

·               state and territory laws and guidelines across Australia.

            It also creates unnecessary distress and cost burdens on the surviving spouse (for example, via requiring court action) and does not ultimately prevent the posthumous use of gametes (or embryos).

5.         Posthumous use of gametes and embryos collected before or after a person’s death should be permitted subject to meeting requirements that:

·               the deceased person left clearly expressed oral or written directions consenting to such use following their death or there is some evidence that the dying or deceased person would have supported the posthumous use of their gametes by the surviving partner

·               the deceased was an adult at the time of their death

·               the request to do so has come from the surviving spouse or partner of the deceased person, and not from any other relative

·               the gametes or embryos are intended for use by the surviving spouse or partner for the purposes of bearing a child(ren) who will be cared for by the spouse/partner

·               sufficient time has passed so that grief and related emotions do not interfere with decision-making

·               the surviving prospective parent (the spouse or partner) has undergone appropriate counselling

·               the surviving prospective parent (the spouse or partner) has been provided with sufficient information to facilitate an accurate understanding of the potential social, psychological and health implications of the proposed activity for the person who may be born as a result.

6.         Provision should be made in such circumstances for the deceased to be listed on the birth certificate as the parent of any child that is born as a result.

ART Issues: PGD, PGS, Saviour Siblings, and ‘Add-on’ Treatments (Chapter 9)

1.         The acceptability of PGD screening may depend upon the type of disease or illness, and the reasoning behind such screening.

2.         The HRT Act allows access to IVF, and use of PGD, when a couple or a woman whose child would otherwise be likely to be affected by a genetic abnormality or a disease, and PGD is permitted, subject to RTC approval. A person or couple would not be able to access ART in circumstances in which they are in fact able to conceive a child but wish to access IVF to have a child whose tissue would match that of a parent, sibling or another relative.

3.         The NHMRC Ethical Guidelines provide further guidance concerning when PGD would be acceptable, and what is required, including an express prohibition on the use of PGD for the prevention of conditions that are not ‘seriously harmful’ to the person to be born.

4.         Examination of the past five year’s Annual Reports of the RTC and consultation found that the RTC rarely, if ever, rejects such applications. The requirement for RTC approval and related processes were outdated, bureaucratic, and hindered patient ability to engage with techniques that could assist them in achieving the birth of a child, causing stress for people seeking treatment.

5.         It is unsatisfactory to require RTC approval for PGD when the patients have already undertaken significant steps to determine its use, and the RTC approval process adds little if anything to the process. It is also unreasonable in the circumstances to limit patients to creating only three embryos without RTC approval. Such requirements should be repealed.

6.         PGD for sex-selection to avoid sex-linked disease or disorder is accepted in Western Australia pursuant to the access provisions of the HRT Act. PGD for sex selection for social reasons (for example, ‘family balancing’) is not possible in Western Australia. The respective positions on PGD screening for sex-linked disease or disorder and PGD screening for social reasons should be maintained.

7.         Regarding the use of PGD for the purpose of tissue matching, it would be consistent with the practice of other states and territories to support amendment of the HRT Act in line with the NHMRC Ethical Guidelines which set parameters for when the use of PGD for such tissue matching would be appropriate. Like other states, an independent ethics committee should be utilised and is best suited to make such assessments.

8.         The use of PGS (PGT-A) has been questioned internationally with recent studies finding it does not result in any difference to live birth outcomes. It remains yet to be determined whether benefits in reduced miscarriage and/or embryo transfer outweigh the costs for the patient, higher workload for the IVF laboratory, and the potential effect on the children born.

9.         The above raises a further issue regarding ensuring patients are not offered ‘add-ons’ to their ART procedures that do not have a sound evidence base but add significant cost onto their treatments. Clinics and health practitioners need to be aware of their obligations under Australian Consumer Law in relation to false and misleading conduct and advertising, as well as their obligations in relation to informed consent, including not providing unnecessary treatments to patients that have no therapeutic value.

ART Issues: Research Involving Human Embryos (Chapter 10)

1.         The Commonwealth provides legislation and oversight of research involving human embryos and prohibited practices, including a national NHMRC licensing scheme.

2.         New South Wales, Queensland, South Australia, Tasmania, Victoria and the Australian Capital Territory have enacted consistent legislation with the Commonwealth legislation and regulation governing research involving human embryos and prohibited practices.

3.         Western Australia no longer has consistent legislation with that of the Commonwealth. As a result embryo research cannot be licensed in Western Australia. This includes research that was previously permitted. Consequently, research required to be licensed by the NHMRC Licensing Committee is not being undertaken in Western Australia.

4.         It would be in keeping with Western Australia’s COAG commitments to have uniform legislation in this area.

ART Issues: Emerging Technologies and Practices (Chapter 11)

1.         Research involving human embryos that promises to cure diseases, or to assist women to bear children free of heritable disease continues to progress. While the HRT Act has not permitted such research in Western Australia, new applications and technologies continue to evolve in other jurisdictions. Most recently, this has included research involving mitochondrial donation, and research involving gene editing using CRISPR-Cas9.

2.         The Commonwealth Senate Community Affairs References Committee has recommended that further public consultation and scientific advice is needed in relation to mitochondrial donation, at a national level, led by the NHMRC. Western Australia should engage with that process via COAG when it proceeds, as well as exploring its own stance on such issues further via the recommended advisory body.

3.         Similarly, in relation to human genome editing, much wider consultation and scientific advice are needed than was possible in this Review. Western Australia should engage with wider national and international discourse on such research, as well as examining state-based understanding and attitudes further.

4.         It is important to not only address the issues that have been raised in this review but to adopt a regulatory approach that remains flexible and responsive into the future.

ART Issues: Other Matters (Chapter 12)

1.         There were a number of matters presented to the review that require further consideration, clarification, direction, and/or guidance from the Minister, DG, and/or the DoH regarding:

·               age limits regarding access to treatment
·               the ability for clinics to refuse treatment in certain circumstances
·               egg sharing by same-sex female couples
·               the creation of embryos surplus to a patient’s needs.

Surrogacy Reform in Western Australia


Professor Allen said about surrogacy:

“1.       While the Review received submissions calling for a complete ban on all forms of surrogacy, it was not within the Terms of Reference to consider prohibiting all forms of surrogacy in Western Australia.  Rather, the Terms of Reference required consideration of the continued prohibition of commercial surrogacy.

2.         Prohibitions on commercial surrogacy reflect the public policy position that commercial surrogacy should be discouraged or deterred on the basis that it commodifies the child and the surrogate mother and risks the exploitation of poor families for the benefit of rich ones.

3.         The majority of submissions received supported a continuation of laws that permit altruistic surrogacy and prohibit commercial surrogacy.  Such submissions were consistent with the legal acceptance of altruistic surrogacy arrangements that enable family formation where the intended parent(s) suffered significant medical issues or otherwise may not be able to have children. 

4.         While it is recognised that altruistic arrangements are not without risks, the recognition of domestic altruistic surrogacy arrangements provides legal certainty in relation to when such arrangements may occur and ensures the right of people born as a result, to access identifying information about their birth mother and any gamete donors.  A parentage order can only be made if the court is satisfied that it is in the best interests of the child.

5.         The reimbursement for cost provisions for altruistic surrogacy are comparable with NSW and Queensland.  Clearer information needs to be provided to people concerning what may be reimbursed.

6.         While the Review was presented with a number of cases in which people have engaged in commercial surrogacy arrangements abroad, this was frequently reported to have been a consequence of the law and associated practices preventing their access to altruistic arrangements in Western Australia.

7.         Arguments in favour of introducing commercial surrogacy often focus on increasing the number of women available for surrogacy but fail to recognise issues concerning the commodification of women’s reproductive capacity and/or children; the risk of exploitation; and/or the violation of human rights norms and standards that may exist in such arrangement.

8.         Several participants in the Review who had entered into altruistic arrangements objected to the introduction of commercial surrogacy in Western Australia (and beyond) stating they perceived it would change the nature of the special relationship between the intended parents and the surrogate mother, and impact negatively upon any child(ren) born as a result.

9.         Concerns were also expressed about increasing the cost of surrogacy in Western Australia by the introduction of commercial surrogacy, rather than addressing accessibility to altruistic arrangements. 

10.       It was submitted that placing caps on the professional fees associated with altruistic surrogacy, such as those of lawyers, counsellors, and clinical treatment may assist with increasing the accessibility of altruistic arrangements.

11.       Removing prohibitions on commercial surrogacy would not be in the best interests of children.”

The recommendations by Professor Allen were:

“1.       That the current public policy position that altruistic surrogacy is permitted subject to meeting certain criteria required by the law and the commercial surrogacy is prohibited, should be maintained.

2.         The reimbursement for costs provisions for altruistic surrogacy are comparable with NSW and Queensland and as such do not require amendment.  However, clearer information needs to be provided to people concerning what may be reimbursed in altruistic surrogacy arrangements.”

Professor Allen went on to say:

“1.       Western Australian law does not impose restrictions on advertising for a surrogacy arrangement by prospective arranged parents or a prospective birth mother, provided this is not for a commercial surrogacy arrangement as consistent with the law permitting altruistic arrangements.

2.         Public awareness that such advertising is permitted was found to be limited.

3.         The challenges were found to exist when intended parent(s) and/or women who are willing to act as altruistic surrogates considered advertising themselves either publicly or on online forums in relation to privacy, contact with unknown parties, and personal safety.

4.         Clinics in Western Australia are able to accept expressions of interest from women who are willing to volunteer to be an altruistic surrogate mother.

5.         Clinics in Western Australia should also be able to advertise for altruistic surrogates.  This would be consistent with their ability to advertise for altruistic donors or gametes and embryos; by increasing the number of known women who are willing to volunteer to be an altruistic surrogate mother; and raise community awareness of Western Australian surrogacy laws.

6.         Clinics should not be able to charge a fee to either intending parent(s) or women who are willing to volunteer to act as an altruistic surrogate mother either in relation to such advertising or for subsequently introducing the parties.”

As to whether there should be any brokerage offences, Professor Allen stated:

“1.       The current Western Australian law prohibits the introduction of parties to a surrogacy arrangement for valuable consideration.

2.         The current Western Australian law prohibits providing a service knowing it is to facilitate a surrogacy arrangement that is for reward (except if the service is a health service provided to the birth mother after he has become pregnant).

3.         The Western Australian law is consistent with laws in NSW, Queensland, Tasmania, and arguably South Australia (although subject to interpretation) that prohibit commercial brokerage or introductory services and make it an offence for a person to receive a payment, reward, valuable consideration or other material benefit or advantage in relation to another person agreeing to enter into or entering into a surrogacy arrangement.

4.         The Review found it would not be suitable to allow the establishment of ‘agencies’, ‘agents’ or any other kind of ‘brokerage’ or introductory service between intended parents and surrogates and involve the payment of a reward or valuable consideration.  The reason for this is to prevent assisted reproduction clinics or other organisations profiting from assisting to arrange altruistic surrogacy arrangements, and thus transforming an altruistic arrangement into a commercial surrogacy arrangement.

5.         The law, regulations, and/or directions should be clear that such prohibitions do not extend to the provision of lawful services in relation to surrogacy arrangements nor prevent free and voluntary support groups from operating and enabling people to get in touch with each other.”

Professor Allen also recommended that there be greater publicity about surrogacy arrangements.

Professor Allen recommended that it be illegal in Western Australia to undergo commercial surrogacy overseas as well as other measures to see why people in Western Australia go overseas rather than undertake surrogacy in Western Australia.

Given the 22 hour filibuster by Liberal member Nick Goiran in the Upper House on all things surrogacy, let’s see if there is any change in Western Australia anytime soon.

Northern Territory

The Northern Territory is alone in having no laws about surrogacy.  Elsewhere in Australia, altruistic surrogacy is regulated, resulting in the ability to transfer parentage from the surrogate and her partner to the intended parent/s.  The Northern territory has no laws.

In reality, this means that surrogacy in the Northern Territory is very difficult.  Repromed, which is the only IVF clinic in the Northern Territory, has made plain that it will not undertake surrogacy as a policy measure, because there is no ability to transfer parentage as there are no laws in place.

Even if it wanted to, Repromed would be prohibited from undertaking commercial surrogacy in the Northern Territory because it would be a breach of the NHMRC Ethical Guidelines. 

The result is that if there is any surrogacy occurring in the Northern Territory, it would have to be traditional surrogacy in which there is no ability to transfer parentage.

People in the Northern Territory who want to have children might go interstate but typically go overseas – which seems a perverse outcome when the public policy elsewhere is to try and prevent intended parents from doing exactly that. 

Court cases

There have been a series of cases in the Family Court concerning surrogacy.  I am afraid to say that I have been involved with many of these.  I will start, however, with a decision of the Childrens Court of Queensland.  Under section 22 of the Surrogacy Act 2010 (Qld) there is a requirement that the surrogacy arrangement is entered into “before the child was conceived”.

The legislation is silent as to what conception means.  The Surrogacy Act 2010 (NSW) is copied on the Queensland Act although slightly different on this point.  The New South Wales Act makes plain that the initial counselling must occur before the surrogacy arrangement is signed and that the surrogacy arrangement is signed before conception, i.e. it is a pre-conception surrogacy arrangement.  That legislation does not define conception either although it makes some reference to pregnancy.

The first case in the world to decide when a child is conceived was LWV v. LMH [2012] QChC 26, a decision of Judge Clare SC of the Childrens Court of Queensland.  I acted for the surrogate and made submissions about conception, which were accepted by her Honour. 

The immediate problem identified in that case (which I have been concerned about for some time) was that embryos had been created before the surrogacy arrangement was signed.  If conception were the act for fertilisation and cell division, then the making of a parentage order in that case could never have occurred.  If conception however were the act of pregnancy, then there was compliance with the Act.

Her Honour found on several grounds that conception was the act of pregnancy.[3]

Bernieres and Dhopal [2017] FamCAFC 180

Mr and Mrs Bernieres lived in Victoria.  This is significant.  They did not live in:

·         Queensland;
·         New South Wales;
·         ACT,
where if they had lived there, what they did would have been illegal; or
·         South Australia;
·         Western Australia,
where what they did might have been illegal.

Mr and Mrs Bernieres in living in Victoria acted entirely lawfully.

They went to India for surrogacy.  The child was conceived with the sperm of Mr Bernieres and egg from a donor.  The child obtained Australian citizenship in India and then flew to Melbourne with them. 

Mr and Mrs Bernieres applied to the court for three orders:

1.      That they have equal shared parental responsibility for the child.  This was immediately granted.

2.      That the child live with them.  This was immediately granted.

3.      That they be declared to be the parents.  This was refused.

In essence, Justice Berman in 2015 found that because Mr and Mrs Bernieres had not complied with Victorian law, i.e. because they were unable to comply in obtaining a substitute parentage order through the Supreme Court or County Courts of Victoria, therefore they were not recognised as the parents.

Not surprisingly, they did not like that outcome and appealed.

In 2017 that appeal was unsuccessful.

The effect of the appeal decision means:

·         There are hundreds or thousands of children in Australia today who do not have a legal relationship with their parents because their parents underwent surrogacy overseas.

·         Therefore unless extreme care was taken in the preparation of any will by the parents in favour of the child, the child may not inherit.

The only conclusion that can be drawn from that Family Court decision is either that:

1.      The child has no lawful parents (which cannot be right as a matter of public policy); or

2.      That the parents of the child are the surrogate and her husband, people who:

·         contracted not to be the parents;
·         are not recognised in their home jurisdiction of India as the parents;
·         have no genetic relationship to the child;
·         have never parented the child;
·         never intended to parent the child.

There appears from the judgment to be no discussion about article 8 of the International Convention on the Rights of the Child, namely that a child has a right to an identity.  English case authority says that that right of identify includes the right to a legal identity. Whilst the Convention is not part of Australia’s domestic law, the Convention is to be taken into account in dealing with parenting matters under the Family Law Act by specific reference under section 60B of that Act. 

The registration cases

There have been six cases before the Family Court when there has been an attempt, successful or otherwise, to register an overseas child order.  Given the impact of Bernieres and Dhopal, registration would dramatically change the legal relationship between parent and child.  If an overseas order declared that someone was a parent or transferred parentage to them, and that order was registered with the Family Court of Australia, then that person would be a parent for all purposes under Australian law.

In the first case of Carlton and Bissett [2013], Justice Ryan declined to register the South African order, because the order was made in a country that was not listed in the schedule set out under the Family Law Regulations.

The first successful registration case was Re Halvard [2016] FamCA 1051.  The lawyers who acted in that matter cannot be named.

Justice Forrest, in the Family Court of Brisbane, registered a US surrogacy order and tellingly said that the surrogacy arrangement was not a commercial surrogacy arrangement as the solicitor for the applicants had said under both the Queensland and New South Wales Surrogacy Acts, but was an altruistic one, albeit somewhat generous.

The second case was Re Grosvenor [2017] in which his Honour registered a US surrogacy order, even though it was commercial surrogacy, in part because the intended parents lived in the United States and had complied with the law of the United States and there was a legitimate expectation on the part of the child as to Australia’s compliance with the International Convention on the Rights of the Child.[4]

In the third case, Sigley and Sigley [2018], Justice Forrest took a similar approach to the one that he took in Re Grosvenor and registered a US surrogacy order even though it was commercial surrogacy in accordance with Victorian legislation because the parties lived in the United States, complied with the law there and because of the legitimate expectations on the part of the children (again referring in effect to the International Convention on the Rights of the Child).[5]

The fourth case was Rose [2018], a decision of Justice Carew in Brisbane. Her Honour declined to register the US surrogacy order because to do so in the exercise of her discretion would give curial approval to what appeared to be a surrogacy arrangement.  Her Honour could not be satisfied that the surrogacy contract was a surrogacy arrangement under Queensland legislation but she could not be satisfied it wasn’t, either.  This is what I would call the duck test, i.e. if it looks like a duck, smells like a duck and quacks like a duck, it must be a duck.[6]

The fifth case was Allan and Peters [2018].  A further decision by Justice Carew in which her Honour rejected the registration application on similar grounds to her previous decision in Rose[7].

Piccolo and Piccolo [2016]

This was a surrogacy case, but one with a difference.  Mr and Mrs Piccolo lived in Western Australia.  They underwent surrogacy in Canada.  The first thing that must be noted there is that it is likely (although unstated in the judgement) that they had committed an offence under the Surrogacy Act 2008 (WA) in undertaking surrogacy in Canada.

Be that as it may, they created a number of embryos in Canada comprising Mr Piccolo’s sperm and egg from a donor.  A surrogacy arrangement proceeded and a child was born. 

Mr and Mrs Piccolo later split up.  They argued about arrangements for their child.  Furthermore, Mr Piccolo had re-partnered, with Mrs Piccolo’s cousin.  He wished to become a father again and wanted to use the embryos to either enable his partner to become partner or a surrogacy in Canada to proceed.

The court found that it had jurisdiction based on injunctions arising out of the marital relationship.  Significantly, the case was decided in favour of Mr Piccolo based on Canadian law, including the consent forms executed by the parties with the Canadian clinic by which in effect Mr Piccolo was the only donor.

Parsons and Masson [2018] FamCAFC 115

In 2013 everyone in the IVF industry gasped.  This is because there was a decision in Victoria, called Groth and Banks [2013] FamCA 430 which overturned the long held notion that the only parent of a child born through a known sperm donor when the birth mother was single was that birth mother. 

The court in Groth and Banks held that under the Family Law Act there was general recognition of two parents.  Ordinarily they were the biological progenitors.  However, each case depended on its own facts.  An anonymous donor was not a parent as they did not intend to have any relationship with the child.  Someone who is biologically a parent and wanted to have a relationship with a child was therefore a parent.  Therefore, Mr Groth against the opposition of Ms Banks was declared to be a parent. 

In Parsons and Masson, Mr Masson who was a gay man wanted to co-parent with the first Ms Parsons.  He provided sperm.  There was an at-home insemination.  A child was conceived and born.  Ms Parsons subsequently formed a relationship with another woman, married her and for the sake of the pseudonyms in the case, she is also called Ms Parsons.

A dispute arose about whether the child could travel to New Zealand. 

The trial judge found that Mr Masson was a parent, notwithstanding the Status of Children Act 1996 (NSW) that said that the only parent was in effect the first Ms Parsons.  This was because following the line of authority from Groth and Banks:

·         He had intended to parent the child;
·         Mr Masson was the biological father;
·         He had parented the child.

Both the Ms Parsons appealed that decision successfully to the Full Court of the Family Court.  That court held last year that Mr Masson was not a parent under the Family Law Act and that the earlier decision by the trial judge was, along with the decisions following Groth and Banks, “constitutional heresy”. 

It was made quite plain that unless the Family Law Act said on its face that someone was a parent, then the appropriate scheme as to who was a parent under Australian family law was State and Territory status of children legislation. 

Justice Thackray made plain that:

·         Biology did not make someone a parent;
·         Intention to parent did not make someone a parent;
·         “Parenting” a child did not make someone a parent.

Mr Masson appealed to the High Court.  That appeal was heard just before Easter.  Judgment has been reserved.

Whether that impacts on those who go overseas for surrogacy remains unclear.

However, if one goes back to the case of Mr and Mrs Bernieres:

·         Both Mr and Mrs Bernieres intended to be parents;
·         Mr Bernieres is the biological father;
·         Mr and Mrs Bernieres have parented the child.

If that line of reasoning is followed, one would expect that Bernieres and Dhopal would be decided differently.

We wait and see.

Posthumous use

Unfortunately, there is no consistent State law about in what circumstances there can be posthumous use of gametes. 

Each State has legislation according to a scheme which is confusingly called either Human Tissue Act, such as Human Tissue Act 1983 (NSW) or Transplantation and Anatomy Act, such as Transplantation and Anatomy Act 1979 (Qld) although in Western Australia it is called the Human Tissue and Transplant Act 1982 (WA).  As a recent Queensland decision made plain, the view that an application to the Supreme Court to retrieve sperm from a dying or dead man for his partner might be misconceived and that the appropriate course may in fact be under the relevant legislation, in Queensland the Transplantation and Anatomy Act 1979 (Qld).  I will deal with recent case law after covering each of the States and Territories.

Each State and Territory is subject to the National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology and Clinical Practice and Research (2017), although these guidelines are subject to Federal and State law.  Australia is then broken down into two types of jurisdiction:

NHMRC only States
NHMRC plus ART Act
Queensland
New South Wales
ACT
Victoria
Tasmania
South Australia
Northern Territory
Western Australia

For posthumous use, there are three prime issues that ordinarily crop up:

1.      Retrieval;
2.      Storage;
3.      Use.

For the sake of convenience, I will start with the NHMRC Guidelines.  The 2017 Guidelines are considerably wider than the 2007 Guidelines as to posthumous use.  The heading in the 2017 Guidelines is now called “The collection and use of gametes from persons who are deceased or dying and/or the posthumous use of stored gametes or embryos”.

·            the deceased person left clearly expressed directions consenting to such use following their death (see paragraph 4.6.4)
·            the request to do so has come from the spouse or partner of the deceased person, and not from any other relative
·            the gametes are intended for use by the surviving spouse or partner
·            the conditions of paragraph 8.23 are satisfied.

The Guidelines then state:

8.20   Obtain valid consent

8.20.1  Clinics may facilitate the collection of gametes from a person who is dying if the person has the capacity to provide valid consent (see paragraph 4.5) and consents to the storage of gametes and their use for reproductive purposes after their death (see paragraphs 4.6.3 – 4.6.5).

8.21     Obtain valid consent from a spouse or partner

The acceptability of a spouse or partner making decisions regarding the collection of gametes warrants serious ethical consideration because of the enduring consequences of these decisions on any person who would be born and the potential for the spouse or partner to have a conflict of interest (i.e. a grieving spouse or partner may be focussed on their own desire to have a child, rather than the broader implications for the person who would be born, or the wishes of the person who is deceased or dying). For these reasons, court authority is required before a clinician may facilitate the collection of gametes from a person who is deceased or is dying and lacks the capacity to provide valid consent.

8.21.1  With appropriate legal authority, clinics may facilitate the collection of gametes from a deceased person or a person who is dying and lacks the capacity to provide valid consent if: the request to do so has come from the spouse or partner of the deceased or dying person, and not from any other relative the gametes are intended for use by the surviving spouse or partner for the purposes of reproduction there is some evidence that the dying or deceased person would have supported the posthumous use of their gametes by the surviving partner, or at the very least, there is no evidence that the deceased or dying person had previously expressed that they do not wish for this to occur the surviving spouse or partner provides valid consent for the collection and storage of the gametes (see paragraphs 4.5 and 4.6.3 – 4.6.5) the proposed collection and storage has been approved by an appropriate court authority.

8.22     Posthumous use of stored gametes or embryos

In accordance with paragraph 4.1.3, before gametes are collected or embryos are created, clinics must ensure that all responsible parties are provided with sufficient information to facilitate an understanding of the options they will have regarding the use, storage and discard of the gametes or embryos, including the potential for posthumous use (see paragraph 4.6.4). Therefore, following the introduction of these Ethical Guidelines [2017], consent to store gametes and embryos should include the relevant individual’s clearly articulated position on the posthumous use of their stored gametes or embryos. However, for gametes and embryos stored prior to the introduction of these Ethical Guidelines [2017], the relevant individual’s position on the posthumous use of their stored gametes or embryos may be unknown or undocumented.

8.22        Respect the wishes of the person for whom the gametes or embryos were stored

Regardless of the relevant individual’s position on the posthumous use of their stored gametes or embryos, there may be a legal impediment to such use in some states or territories and a court order may first be required.

8.22.1  Where permitted by law, clinics may facilitate the posthumous use of stored gametes or embryos to achieve pregnancy, if: the deceased person left clearly expressed directions consenting to such use following their death (see paragraph 4.6.4)

·           the request to do so has come from the spouse or partner of the deceased person, and not from any other relative
·           the gametes are intended for use by the surviving spouse or partner
·           the conditions of paragraph 8.23 are satisfied.

8.22.2  Where the deceased person has left clearly expressed directions that object to the posthumous use of their stored gametes or embryos, clinics must respect this objection and not facilitate the posthumous use of the stored gametes or embryos to achieve pregnancy.

8.22.3  Where the deceased person has not left clearly expressed directions regarding the posthumous use of their stored gametes or embryos, where permitted by law, clinics may facilitate the posthumous use of stored gametes or embryos to achieve pregnancy, if: the request to do so has come from the spouse or partner of the deceased or dying person, and not from any other relative the gametes are intended for use by the surviving spouse or partner for the purposes of reproduction there is some evidence that the dying or deceased person would have supported the posthumous use of their gametes by the surviving partner, or at the very least, there is no evidence that the deceased or dying person had previously expressed that they do not wish this to occur

·           the surviving spouse or partner provides valid consent (see paragraph 4.5)
·           the conditions of paragraph 8.23 are satisfied.

8.23Allow sufficient time before attempting conception and/or pregnancy

8.23.1  Given the enduring consequences of the decision, clinics should not attempt conception or a pregnancy using stored gametes or embryos unless: sufficient time has passed so that grief and related emotions do not interfere with decision‑making
·           in addition to the requirements outlined in paragraph 4.1, the surviving prospective parent (the spouse or partner) is provided with sufficient information to facilitate an accurate understanding of the potential social, psychological and health implications of the proposed activity for the person who may be born
·           the surviving prospective parent (the spouse or partner) has undergone appropriate counselling (see paragraph 4.3)
·           an independent body has reviewed the circumstances and supports the proposed use.

8.24     Posthumous use of gametes or gonadal tissue collected from a child or young person for the purpose of fertility preservation

8.24.1  Gametes or gonadal tissue collected from a child or young person for the purpose of fertility preservation (see paragraphs 8.4 – 8.6) can only be used posthumously if the person for whom they were stored reached adulthood before their death and the conditions of paragraphs 8.22 – 8.23 are satisfied.”

I draw your attention to these statements:

            “Regardless of the relevant individual’s position on the posthumous use of their stored gametes or embryos, there may be a legal impediment to such use in some states or territories and a court order may first be required.”

Clause 8.22.1 envisages that there has already been a collection of stored gametes and is talking about storage and use.  Significantly “the gametes are intended for use by the surviving spouse or partner”.  In the 2007 version of the Guidelines, it was the use of sperm.  The 2017 Guidelines are broader.  They make plain that they are not gender biased.  They also do not specify the method of use. 

·         Therefore frozen eggs of a woman could be used by her same-sex partner to become pregnant.

·         Embryos created by a couple using their eggs and sperm could be used to enable the surviving wife to become pregnant or could be used in her surrogacy journey to enable her to become a parent.

I just give these two examples, to show that depending on the fertility needs of the person involved, the Guidelines may not impede the ability of that person to become a parent.

Local law

New South Wales

Unless there is specific consent (which under the New South Wales legislation would have to be written consent in a particular format by the deceased) there cannot be treatment.  Section 23 of the Assisted Reproductive Technology Act 2007 (NSW) provides:
“An ART provider must not provide ART treatment to a woman using a gamete if the ART provider knows or believes on reasonable grounds that the gamete provider is deceased, unless:
(a)        the gamete provider has consented to the use of the gamete after his or her death, and
(b)        the woman receiving the ART treatment has been notified of the death or suspected death of the gamete provider and the date of death (if known), and
(c)        the woman receiving the ART treatment has given written consent to the provision of the ART treatment using the gamete despite the death or suspected death of the gamete provider.
Maximum penalty: 400 penalty units in the case of a corporation or 200 penalty units in any other case.
Note : The Human Tissue Act 1983 regulates the removal of tissue (including gametes) from a deceased person.”
Victoria

Section 46 of the Assisted Reproductive Treatment Act 2008 (Vic) is more restricted than the NHMRC Guidelines, and more restrictive than New South Wales.  If there is a female same-sex couple and one of them has frozen eggs, but then dies, and the other is only able to achieve pregnancy through surrogacy, there cannot be the use of those gametes.  Section 46 provides:

“A registered ART provider may use a person's gametes, or an embryo created from the person's gametes, in a treatment procedure after the person's death only if—
(a)   the treatment procedure     is carried out—
(i)                 on the deceased person's partner; or
(ii)  in the case of a deceased woman, by the woman's male partner commissioning a surrogacy arrangement in accordance with Part 4; and
(b)   the deceased person provided written consent for the deceased person's gametes or an embryo created from the deceased person's gametes to be used in a treatment procedure of that kind; and
(c)   the Patient Review Panel has approved the use of the gametes or embryo; and
(d)   the person who is to undergo the treatment procedure has received counselling under section 48.
The Patient Review Panel under section 47 must have regard to the possible impact on the child to be born as a result of the treatment procedure and have regard to any research on outcomes for children conceived after the death of one of the child’s parents.  There is a requirement before treatment procedure occurs that the woman must undergo counselling by a counsellor providing services on behalf of a registered ART provider in relation to prescribed matters: section 48.  The prescribed matters are set out in regulation 11 of the Assisted Reproductive Treatment Regulations 2009 (Vic), namely dealing with:

(a)           the grieving process;
(b)          the possible impact on the child to be born as a result of the treatment procedure.

A recent decision of VCAT illustrates the problems in the Victorian legislation.  In XVT v. Patient Review Panel (Human Rights) [2018] VCAT 1902, the applicant was unable to use her late husband’s sperm to create an embryo for her use.  The critical problem was that he did not consent to the use of sperm post death.  In their form for treatment:

·         The parties consented to the survivor using the remainder of the frozen embryos, including consenting to the surviving partner nominating the fate of the embryos should they decide not to use them by donating them for research if a project were available.  They did not consent to a survivor donating frozen embryos for use in the ART procedure for another couple, or disposing of the frozen embryos.

·         They consented in the death of both of them for the remaining frozen embryos to be donated for use in research, but not to be donated for use in ART procedure for another couple or disposed of.

·         In the event of divorce, separation or upon either or both of them becoming physically or mentally incapable, they wished any frozen embryos to be disposed of.

·         There was no provision in the consent forms to express wishes, or provide consent, for the posthumous use of any frozen gametes.

It would appear that the reason for that was because the then Infertility Treatment Act 1995 did not make it lawful for posthumous use to occur.

As set out in the judgment:

            “There was no written consent from the applicant’s husband for the posthumous use of his gametes.  There was no written indication of his wishes.  It is these circumstances which raise the question as to whether the absence of a written consent to the posthumous use of the applicant’s husband’s gametes by the applicant, is a bar to treatment under the ART Act.”

            Although the IT Act did not permit the posthumous use of the gametes, section 46 of the ART Act does, provided the requirements of sections 46 are met.  The applicant’s evidence is that she and her husband were unaware the law had changed, and whenever advised they could, as a result, consent to posthumous use of his gametes.  She is sure that he would have provided his consent, had he been asked.”

VCAT then went on to say:

            “There are two consents that are at issue here.  The first is consent to the posthumous use of sperm, the second to its use in a treatment procedure of the kind contemplated by the applicant.  The applicant here wishes to use her late husband’s sperm in a treatment procedure, to create an embryo for her use.  That is, for implantation in the hope of achieving pregnancy and the birth of a child who is genetically the child of herself and her late husband.

            On its face the words of section 46(b) are clear and unambiguous.  If there is no written consent to the posthumous use of gametes, a registered ART provider may not use them in any treatment procedure.  The written consent to the posthumous use of gametes must not be to their use generally, but must be to the use in a treatment procedure of the kind contemplated.  If that is so, even if the requirements of subsection (a), (c) and (d) have been met.  That is if the gametes are to be used to create an embryo to be used in a treatment procedure carried out on their partner, that the Panel is to prove the use of the gametes and the applicant has received counselling under section 48.

            In this case, the applicant’s husband did not provide written consent to the posthumous use of his sperm.  It follows, that there being no consent at all to posthumous use of the sperm, there was no consent to posthumous use of the sperm for a treatment procedure of the type contemplated by the applicant, namely the creation of an embryo using his sperm, and for the purposes of implantation in her. It follows from that that a registered ART provider cannot use his sperm in any treatment procedure…

            There is no discretion in the ART Act to permit posthumous use of gametes without the written consent of the deceased person.  Absent written consent to the use of his gametes by the applicant’s husband, after his death, for a treatment procedure of the sort sought by the applicant, namely the creation of an embryo formed of his gametes, as we have already noted, a registered ART provider is not permitted to carry out a treatment procedure using those gametes.”

The ART interim report has said in recommendation 7 that:

            “Section 46 of the Act, which relates to posthumous use of gametes and embryos, be admitted to provide that where written consent was provided by the deceased person, and appropriate counselling has been undertaken, the Patient Review Panel may approve the use of the deceased person’s gametes, or embryos created from a deceased person’s gametes:

·         in a treatment procedure carried out on the deceased persons’ partner, or
·         by the deceased person’s partner in commissioning a surrogacy arrangement (regardless of the gender of the person or their partner).

Additionally, the requirement for written consent might be reconsidered, and the Patient Review Panel may be permitted to approve posthumous use where it is satisfied that the use is not inconsistent with the deceased person’s expressed wishes.”

If this recommendation is followed through with enactment, it would bring Victorian legislation in line with the NHMRC Guidelines.

South Australia

The conditions of registration under section 9 of the Assisted Reproductive Treatment Act 1998 (SA) include these:

“(c)      A condition preventing the provision of assisted reproductive treatment except in the following circumstances…

            (iv)       If –

                        (A)       the donor of the relevant human semen has died; and
                        (B)       before the donor died –

·         the donor’s semen was collected; or

·         a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor’s semen; or

·         an embryo had been created as a consequence of such assisted reproductive treatment;

                        (C)       before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after the donor’s death and the provision of this proposed assisted reproductive treatment; and

                        (D)       if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires) – the directions have, as far as is reasonably practicable, been complied with; and

                        (E)       the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis.”

As the section makes plain:

·         it had to be a heterosexual couple who were living together (they may or may not be married) on a genuine domestic basis;

·         there had to be consent to posthumous use of the sperm.

There is no ability in South Australia to use eggs posthumously or to use sperm posthumously except when specific consent has been given.

An illustration of the problems in South Australia is that while retrieval may have been able to occur without specific written consent, use may not have been able to occur as seen, for example in Re H, AE(No.2) [2012] SASC 177, which ultimately resulted in treatment occurring in the ACT. 

Western Australia

There is no specific restriction on posthumous use under the Human Reproductive Technology Act 1991 (WA).  However, the directions issued by the Commissioner of Health in 2004 make plain that posthumous use is not possible in Western Australia, at least as to gametes.  The Directions are silent as to the use of embryos posthumously.  Clause 9.8 of the Directions says:

“8.9     No posthumous use of gametes

            Any person to whom a licence applies must not knowingly use or authorise the use of gametes in an artificial fertilisation procedure after the death of the gamete provider.”

Professor Allen in her review says:

“1.       The posthumous collection, storage and/or use of gametes and embryos collected either before or after a person’s death is a sensitive and complex issue.  Over many years laws and guidelines have been developed across Australia that permits such collection, storage and/or use subject to the deceased and the surviving spouse/partner having met certain requirements.

2.         The current provisions in the Human Tissue and Transplant Act 1982 (WA) permit the posthumous retrieval of gametes and have been held by the court to provide valid criteria under which such retrieval may occur.

3.         The posthumous retrieval of gametes should continue to be permitted in Western Australia pursuant to current provisions in the Human Tissue and Transplant Act 1982 (WA) (HTT Act), an added provision being made in the HRT Act.  However, as per the HTT Act the posthumous collection, storage and/or use of gametes should not occur when the deceased person, in their lifetime, objected to such collection, storage or use.

4.         The current HRT direction that effectively prohibits the posthumous use of gametes and embryos in Western Australia is inconsistent with:

·         the law that allows their collection;

·         the recent Western Australian Supreme Court decision recognising the surviving spouse’s/partner’s right to possession of such gametes and right to direct the transfer of such gametes to a jurisdictions where they may be used;

·         state and territory laws and guidelines across Australia.

It also creates unnecessary distress and cost burdens on the surviving spouse (for example, via requiring court action) and does not ultimately prevent the posthumous use of gametes (or embryos).

5.         Posthumous use of gametes and embryos collected before or after a person’s death should be permitted subject to meeting requirements that:

·         the deceased person left clearly expressed oral or written directions consenting to such use following the direction or there is some evidence that the dying or deceased person would have supported the posthumous use of their gametes by the surviving partner;

·         the deceased was an adult at the time of their death;

·         the request to do so has come from the surviving spouse or partner of the deceased person, and not from any other relative;

·         the gametes or embryos are intended for use by the surviving spouse or partner for the purposes of bearing a child(ren) who will be cared for by the spouse/partner;

·         sufficient time has passed so that grief and related emotions do not interfere with decision-making;

·         the surviving prospective parent (the spouse or partner) has undergone appropriate counselling;

·         the surviving prospective parent (the spouse or partner) has been provided with sufficient information to facilitate an accurate understanding of the potential social, psychological and health implications of the proposed activity for the person who may be born as a result.

6.         Provisions should be made in such circumstances for the deceased to be listed on the birth certificate as the parent of any child that is born as a result.”

Case law

I am going to list some significant cases:

Re Cresswell [2018] QSC 147

Ms Ayla Cresswell and the deceased, Joshua Davies, had enjoyed a relationship for approximately 3 years when Mr Davies without any apparent warning signs or any obvious trigger, took his own life.  The question before the court, having already been made a retrieval order, was whether Ms Cresswell had a right to possession of Mr Davies’ sperm removed some 48 hours after his death.

Justice Brown allowed Ms Cresswell to use the sperm, subject to the compliance by doctors with the NHMRC Guidelines, which she said was a matter for the doctors to obtain appropriate legal advice.  Her Honour noted that instead of going to the Supreme Court to obtain an order (which her Honour thought was not validly obtained), the appropriate course for the retrieval of the sperm was in accordance with the provisions of the Transplantation and Anatomy Act 1979 (Qld). 

Her Honour reviewed case law as to whether the retrieval of sperm was a medical, scientific or therapeutic purpose, coming to the conclusion that it was. 

Relevant case law

Re Gray [2000] QSC 390 at [22]

“The removal must be for transplantation to the body of a living person or for some “therapeutic…or…other medical or scientific purpose”.  The applicant’s purpose is not one of these so the Act does not apply.”

AB v. Attorney-General [2005] VSC 180

“Transfer of the embryo into the body of a woman is a medical procedure and if it needed to be decided, removal of sperm was for medical purposes.”

Y v. Austin Health [2005] VSC 427 at [39]

“The obtaining of sperm would be for medical purposes”.

Jocelyn Edwards; Re The Estate of the Late Mark Edwards [2011] NSWSC 478 at [32]

“I am satisfied that removal of sperm could be regarded as “for medical purposes” where the proposed use is in assisted reproductive treatment.  The ART Act defines “ART treatment” as “being any medical treatment or procedure that procures or attempt to procure pregnancy…”  Section 4(1) ART Act.  I am fortified in this by the fact that Habersberger J reached the same conclusion in relation to a similar Victorian legislative provision in Y v. Austin Health [2005] VSC 427; (2005) 13 VR 363 at [39].”

Re Floyd [2011] QSC 218 per Atkinson J where her Honour accepted Re Edward and Y v. Austin Health

“Re Section 22 of the Human Tissue and Transplant Act (1982) (WA); ex parte C [2013] WASC 3 at [16]

“The power of the authorised officer to remove sperm for the purposes of storage for later assistance for another person to become pregnant falls within medical purposes.”

GLS v. Russell-Weisz [2018] WASC 79 at [53]

“Neither of the expressions ‘therapeutic purposes’ or ‘medical purposes’ are defined for the purposes of the HTT Act [Human Tissue and Transplant Act 1982 (WA)].  In the absence of any such definition, each expression would appear broad enough to include the use of sperm in IVF procedures.”

Re Cresswell [2018] QSC 142 at [76] – 77]

“76.     The phrase “other therapeutic purposes or…other medical or scientific purposes” is a broad phrase.  Sperm and ova have not been excluded from part 3 of the TAA (Transplantation and Anatomy Act 1979 (Qld)) with respect to removal of tissue from a deceased person.  Thus the application of the TAA to the removal of sperm and the subsequent use under part 3 of the TAA was a matter which must have been contemplated by the legislature.

  77.     I agree with Martin CJ in GLS v. Russell-Weisz that the terms “therapeutic purposes” or “medical purposes” are broad enough to encompass the removal of sperm for the purpose of reproductive treatment through IVF, which is supported by the views expressed in Re Estate of Edwards and Y v. Austin Health.  It is clear that ‘therapeutic purposes’ or ‘medical purposes’ do not refer to the deceased and can apply to use in respect of a third party.  As stated above I consider that the phrase extend beyond medical treatment.  Assisted reproductive treatment is a medical procedure which interferes with the normal operation of a physiological function.  In the circumstances, I consider that the removal of the sperm was for a “medical purpose”.”

Her Honour noted that in Queensland unlike the ART Act States there is no legislation in Queensland dealing with the use of removed sperm in circumstances where the donor was deceased.  Her Honour concluded at [163] that the situation in Queensland was:

(a)               The removal of sperm from a deceased person for use in assisted reproductive treatment is for a “medical purpose” under section 22 of the Transplantation and Anatomy Act;

(b)              That Act provides for a statutory regime for the removal of sperm which does not require parties to come before the Court for authorisation to permit the removal of the sperm, but requires the authorisation of the designated officer and in some cases, the Coroner to be obtained;

(c)               There does not appear to be any common law principle which empowers the Court to order removal of a deceased’s sperm, as the sperm remains a part of the human body and is not recognised as “property”.  However, if the provisions of the Act were satisfied such that removal was to occur, there is a possibility based on ex parte M and S v Minister for Health (WA) that, given the sperm to be removed is capable of being recognised as property, it may be property such that a court may have jurisdiction to make a preservation of property order;

(d)              Sperm removed from the deceased is capable of constituting property, where work and skill is exercised in relation to the removal, separation and preservation of the sperm.  While Doodeward referred to the body part acquiring different attributes as a result of the exercise of work or skill, in Doodeward, the body in question was only preserved (albeit that it acquired pecuniary value).  The state of the preserved sperm has been found to be sufficient for it to be capable of being property.

(e)               While there is some support for the notion that sperm or tissue separated from the human body is a thing which is property capable of ownership, without the exercise of any such work or skill, those cases are limited to where the separation occurred while the donor was living and the donor consented to the removal of the sperm.

(f)                The sperm of a deceased, not removed while they are living, is not capable of being property and does not form part of the assets of his estate upon death;

(g)              Prima face, the person entitled to possession of any sperm removed and preserved will be the person who has exercised the work and skill to extract and preserve the sperm or the principal for whom they act.

What was telling about this very well researched judgment was the elephant in the room, namely in the warring IVF doctors case Clark and Macourt [2013] HCA 56, where the High Court had no difficulty whatsoever in accepting that sperm was part of the stock of an IVF clinic that was being sold.

It seems that 2018 was the year of litigation for posthumous use.  There were a series of cases, aside from Re Cresswell decided in a number of jurisdictions.  I will just focus on just one other case, GLS v. Russell-Weisz [2018] WASC 79. 

GLS v. Russell-Weisz [2018]

GLS was the de facto partner of a man called in the judgement Gary who suffered an unexpected cardiac arrest.  Shortly after his death, GLS arranged for sperm to be extracted from his body in order that it might be used at some time in the future to enable her to conceive a baby.  Permission was granted for the extraction of the sperm pursuant to section 22 of the Human Tissue and Transplant Act 1982 (WA), and the sperm was stored pursuant to the Human Reproductive Technology Act 1991 (WA) since it was extracted.

The case is an illustration of what can go wrong when approaching a clinic. I have had several cases from Western Australia of frozen sperm where the intended mother has contacted me, there has been a long letter of advice and as a result there has been the ability to export the sperm from Western Australia to Queensland where treatment has been successful.

In GLS, however, the solicitors for GLS sought advice from the Reproductive Technology Council requesting permission to export donor sperm to the ACT, while asserting that the sperm was not from a donor.  Both the clinic and the RTC both took the view for some reason that Gary was a donor and again for some reason that the sperm could not be exported from Western Australia.  As Chief Justice Martin noted:

            “Clause 8.9 of those directions prohibits any holder of the licence granted under the HRT Act from knowingly using or authorising the use of gametes (which includes sperm and eggs) in an artificial fertilisation procedure after the death of the gamete provider.  Because of this provision, the plaintiff is currently unable to use the sperm extracted from Gary’s body in order to conceive a baby in Western Australia. However there is no equivalent prohibition upon the posthumous use of gametes in the Australian Capital Territory, and a clinic in that jurisdiction is prepared to use the sperm extracted from Gary in IVF procedures conducted in the ACT in an endeavour to impregnate the plaintiff.

            However, the Directions to which I have referred provide that the holder of a licence issued under the HRT Act must not permit or facilitate the export from the State of gametes for use in an artificial fertilisation procedure without the prior approval of the Reproductive Technology Council of Western Australia created pursuant to provisions of the HRT Act ‘where donation of human reproduction material has been involved’.”

Not surprisingly, the RTC in light of its view, took the view it needed to consent to export but refused to grant approval for the export of the sperm.  The case contrasts markedly with matters in which I have been involved where RTC approval was not sought and export was able to occur.

The Chief Justice concluded that the plaintiff did have the right to direct the clinic storing the sperm extracted from Gary’s body to transfer that sperm from Western Australia to the ACT and that on the proper construction of the directions, they do not require the approval of the RTC before the sperm may be exported.

His Honour stated at [54]:

            “It was submitted on behalf of the defendants that pt III of the HTT Act was only concerned with the authorisation of the removal of tissue from a deceased person, and did not regulate or constrain the use to which removed tissue could be put.  That submission is not correct.  Section 22(3) provides that the authority of a designated officer to authorise the removal of tissue from the body of a deceased person is restricted by the expressed terms of the wishes or consent of the deceased person, or by the consent of the senior available next of kin, as the case may be, ‘both as to the tissue which may be removed and as to the purpose or use of the tissue’.  Further, section 24(1) provides that the authority conferred upon a medical practitioner by the grant of authority pursuant to pt III is subject to the limitation or restrictions imposed upon the authority of a designated officer under section 22(3).

            So, in this case, sperm was removed from Gary’s body under the authority of Dr Platell, a ‘designated officer’ for the purposes of pt III, because he was satisfied that the plaintiff, who he considered to be the senior available next of kin, consented to removal of sperm from Gary’s body for a therapeutic or medical purpose being for later use in an IVF procedure undertaken to enable the plaintiff to conceive a child.  It follows that Dr Platell’s authority, and the authority of the medical practitioner who removed the sperm from Gary’s body, were each restricted by the purpose for which the plaintiff gave her consent – namely, the purpose of, in due course, using the sperm extracted for IVF procedures undertaken for the purpose of enabling the plaintiff to conceive a child.  Pursuant to the provisions of the HTT Act to which I have referred, that is the only purpose to which the sperm can be used.”  [Emphasis added]

In discussing what was donation, his Honour said at [58]:

            “Before leaving the HTT Act I should note that the words ‘donation’ is only used four times in that Act – each time in a heading, rather than in the text of an operative provision.  The headings in which the word is used are nonetheless part of the HTT Act.  It is clear from the context in which the word appears on each occasion it is used that it is not being used and is more now a legal sense, of the transfer of property from one person to another without consideration.  That is because the principles to which I will refer below establish that, generally speaking, a person has no proprietary right over their own body or any part of their body which could be transferred to another, irrespective of consideration.  Nor could the removal of tissue from a deceased person with the consent of the senior available next of kin for use in transplantation, or for therapeutic, scientific or medical purposes, be described as a ‘donation’ in the narrow legal sense to which I have referred, because there would ordinarily be no transfer of property from either the deceased or the senior available next of kind to anybody else.  Rather, it is clear that in the contexts in which it is used in the HTT Act, the word ‘donation’ corresponds to its use in common parlance, where people who agree to their blood being removed for transfusion into others are commonly described as ‘blood donors’, and people who consent to their organs being removed for transplantation into others (either before or after their death) are commonly described as ‘organ donors’.”

His Honour then went on to talk about the directions at [73] to [75]:

“73.     Section 26 of the HRT Act deals with various aspects of the fertilisation process and includes the following provision:

            “[W] here from any human gametes, a human egg undergoing fertilisation on a human embryo is developed, whether or not with the effect of consent, the individual rights of a human gamete provider or person to whom the human gametes were provided and of the licensee cease at the moment fertilisation begins and the rights thereafter vest jointly in the couple on whose behalf that egg or embryo was developed, or vest in the woman on whose behalf that egg or embryo was developed.

74.       So, at the moment fertilisation begins, rights vest in the person or persons specified in that provision.

75.       It should be noted that the HRT Act does not prohibit the posthumous use of human gametes, or the export of human gametes from the State.  The only reference to such matters in the HRT Act is in section 18(1)(f), which provides that the Code of Practice may make provision for such matters. Because no Code of Practice has been promulgated, it follows that the RTC has never promulgated subsidiary legislation of general application with respect to such matters. However, the CEO has used the power to issue directions with respect to matters for which provisions could be made in the Code to issue the Directions imposing obligations upon licenceholders, which include provisions relating to such matters, as will be seen.  It will also be seen that the Directions were issued by the CEO on the advice of the RTC.”

His Honour said at [81]:

            “It is clear from the HRT Act as a whole that the word ‘donor’ and ‘donation’ are consistently used throughout the Act in a manner which corresponds to the common parlance to which I have referred and, in particular, to describe a circumstance in which gametes have been provided to a licence holder together with the authority to determine the manner in which those gametes will be used and, in particular, the gametes with which they will be matched to produce a fertilised egg.  That point can be made good from a consideration of each occasion upon which the words ‘donation’ or ‘donor’ are used in the Act…”

His Honour went on to say that the plaintiff had the right to cause sperm to be transferred to another clinic in the ACT.  He said at [134]:

            “Although it is not necessary to determine precisely what rights the plaintiff enjoys with respect to the stored samples of Gary’s sperm, those rights at least include the right to direct the clinic currently storing the samples to transfer them to another clinic in the Australian Capital Territory.  Those rights derive from the plaintiff’s status as senior available next of kin within the meaning of section 22 of the HTT Act, the constraints upon the use to which the samples can be put by the operation of that section, and the fact that the plaintiff caused the samples to be extracted, and has paid, and continues to pay, the costs associated with this storage.”

At [137] his Honour stated:

            “In the HRT Act the words ‘donor’ and ‘donation’ should be construed as applying to a circumstance in which gametes are provided to a licence holder on terms which authorises the licence holder to determine the use which will be made if those gametes are general, and to determine the gametes with which they will be matched for the purpose of a fertilisation procedure in particular.  Accordingly, unless there is some indication to the contrary to be obtained from the Directions, those words, when used in the Directions should be given that same meaning.”

His Honour said at [146]:

            “At the time the HRT Act was passed, and at the time the directions were published, there was, and remains, considerable uncertainty with respect to the ambit and operation of proprietary rights in relation to human tissue.  There is nothing other than the legal meaning of the word ‘donation’ which would suggest that an evaluation of proprietary rights should determine whether and when ‘donation’ occurs in the context of the HRT Act and the Directions.  But the context in which the word and its variance are used in the HRT Act and the Directions strongly suggests that such a construction was not intended…and the further reason that the HRT Act and the Directions are both intended to regulate the conduct and activities of licence holders who will be clinicians, not lawyers.  It seems clear that in each of the HTT Act and the HRT Act the word ‘donate’ and its variance are being used in sentences which correspond to common parlance, rather than legal terminology.”

His Honour considered at [150] that both versions of the NHMRC Guidelines “…were published well after the passage of the Act and the promulgation of the Directions, they are irrelevant to the proper construction of terms used in those documents.”

His Honour took the view at [196] that the word ‘donation’ and its variance should be construed in the same way in the Directions as in the HRT Act, but not be construed in the same way as the word and its variance are used in the HTT Act as ‘donation’ is only used in the HTT Act on four occasions – each time in a heading.  On each of those occasions, the word is used in a very different context to the repeated use of that expression in the HRT Act, and the prolific use of the expression in the Directions.

His Honour rejected the view that Gary was a donor: at [200]:

            “So, as I have repeatedly observed, it is impossible, by any stretch of language, to see how the death of a gamete provider can have a consequence to the circumstance which did not involve donation becomes a circumstance involving donation.  Nor, in the absence of any reference to posthumous extraction of gametes in either the HRT Act or the Directions, or any evidence that such matters were within the contemplation of either the Parliament or the CEO at the time the Act was passed or the Directions promulgated, is there any reason to suppose that cl 6.5 and cl 6.6 were directed to, or intended to apply to, the circumstances of this case.  To the contrary, it might reasonably be inferred that in cases of posthumous extraction, any protection of the interests of the deceased are to be found in the HTT Act and, in particular, section 22 of that Act.  In this case, there was compliance with section 22 of the HTT Act, and the course proposed by the plaintiff is entirely consistent with the provisions of that section.”


Stephen Page
Page Provan
stephen@pageprovan.com.au
30 April 2019


[1] Stephen Page is a partner of Page Provan, family and fertility lawyers, Brisbane.  Stephen was admitted in 1987 and has been an accredited family law specialist since 1996.  He is a Fellow of the International Academy of Family Lawyers, including being a member of its LGBT and Surrogacy/Parentage Project Committees.  He is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys.  He is an international representative on the ART Committee of the American Bar Association.  Stephen’s first surrogacy case was in 1988. 
[4] I acted in that matter.
[5] I acted in that matter.
[6] I acted in that matter.
[7] I acted in that matter.

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