NHMRC review

The National Health and Medical Research Council is undertaking preliminary research about its  Ethical Guidelines, which are the basic licensing requirements of the nation's IVF clinics. The Guidelines impact greatly on egg donation and surrogacy. I apologise for the layout, largely caused by a template that the NHMRC required to be used. Here are my submissions:

30 April 2014

Project Officer – ART guidelines

Health & Research Ethics

Research Translation Group

National Health and Medical Research Council

By email:        ethics@nhmrc.gov.au

Dear Sir/Madam

I am a solicitor in private practice who undertakes surrogacy work in all States and Territories and have had clients from fifteen countries overseas.  I have undertaken surrogacy work on a domestic basis in Queensland, New South Wales and Victoria.  I am familiar with the formal requirements of surrogacy/ART law in all states and territories.

In 2012 I obtained a world first precedent defining “conception”, a decision of the Queensland Children’s Court [which defined conception as being the act of pregnancy, not fertilisation].  In addition to my membership of the Fertility Society of Australia, I am one of three Australian members of the International Surrogacy Forum, I chair the Surrogacy Australia Legal Committee, and I am one of 2 international representatives of the American Bar Association’s Assisted Reproductive Technology Committee.

The opinions set out in my submissions are mine and mine alone and not of those of any organisation of which I am a member or in which I hold office.

I am able to provide further assistance to the committee as requested.  My submissions are set out and the answers to the template are attached. 

Please find attached:

1.      The template answers

2.      My curriculum vitae

3.      My submissions to the Family Law Council dated 3 June 2013 and 28 June 2013

4.      A copy of the ASRM ruling

5.      A copy of a media report concerning Megan Jane Hooper.

Yours faithfully                                                         

Stephen Page                                                            

Harrington Family Lawyers                         

    

Section 6.5

Q20. In view of developments in other countries allowing women to receive compensation above medical and travelling expenses for donating eggs, should it be permissible for Australian women to also be compensated for the reproductive effort and risks associated with donating their eggs?  (See also Section 13 Surrogacy)

It is without question that Australian women ought to be compensated for the reproductive effort and risks associated with donating their eggs. It is currently an offence under both Commonwealth and State legislation allows for state legislation to stand and compliment the Commonwealth legislation.  The effect of this, due to various state criminal laws means that in some jurisdictions that potential criminality of those offences extends to undertaking egg donor contracts overseas. I have had clients or spoken to intended parents who have undertaken egg donor contracts in Argentina, south Africa, Spain, Greece, Ukraine, and the usual three places that Australians have tended to go overseas for surrogacy: India, Thailand and the United States. In 2007 in its ethical ruling, the American Society for Reproductive Medicine rec9ognised that with the amount of pain, suffering and time taken by egg donors they should be compensated accordingly.  The council would be well aware of that ruling.  Currently egg donors in the United States are typically paid between US$5,000 and US$10,000.  The committee would be well aware of the Hefa ruling so far as egg donors in the United Kingdom are concerned. There is no certainty as to what are “reasonable costs incurred” and regulations under both Commonwealth and State Legislation are sorely needed to clarify this. The delays in obtaining eggs from an egg donor are acute.  In the past, with the rise of Australian websites clients have reported to me that they can make contact with a donor in about 6 – 8 weeks.  This has not been consistent.  Clients of mine have approached 40 potential egg donors and been rejected by all, except an egg donor in Western Australia who wanted to be paid $5000 so that she could undertake surrogacy overseas.  My clients declined that offer which would on the face of it appear to be a criminal act under Commonwealth Law and in that of the two jurisdictions concerned. It seems extraordinary that Australians are having to travel to other parts of the world principally because donors in Australia are not available as I described above, Australians have been to numerous countries overseas.  In my view if egg donation were to occur in Australia subject to the rigid requirements of the guidelines, and any relevant legislation, then the interests of the donors in any children would be able to be adequately protected. In my view the paper by the Ethics Committee of the American Society for Reproductive Medicine “financial compensation of oocyte donors” (2007) is compelling.  I have attached a copy of the paper for the assistance of the committee for those who are not familiar with it.

Q21. Should more guidance be given about the reimbursement of legitimate expenses? What guidance would you recommend?

See my answer to question 20.  If there is to be some listing of legitimate expenses then it should be done in an inclusive manner (so as to avoid the law of unintended consequences) similar to that in legislation concerning a birth mother’s surrogacy costs.  A good example of drafting of those costs, which sets out clear guidelines but at the same time allows flexibility to take into account the individual circumstances of each case, is section 11 of the Surrogacy Act 2010 (Qld) which provides: “11 Meaning of birth mother's surrogacy costs (1) A birth mother's surrogacy costs are the birth mother's reasonable costs associated with any of the following matters— (a) becoming or trying to become pregnant; (b) a pregnancy or a birth; (c) the birth mother and the birth mother's spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order. (2) Without limiting subsection (1), the following amounts are a birth mother's surrogacy costs— (a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1); Example of a reasonable medical cost for paragraph (a)— a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure (b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement; (c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into; (d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including— (i) the cost of counselling obtained by the birth mother or the birth mother's spouse (if any) before or after entering into the surrogacy arrangement; or (ii) the cost relating to the preparation of a surrogacy guidance report under section 32; (e) a reasonable legal cost for the birth mother and the birth mother's spouse (if any) relating to the surrogacy arrangement and the transfer of parentage; (f) the value of the birth mother's actual lost earnings because of leave taken— (i) for a period of not more than 2 months during which a birth happened or was expected to happen; or (ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds; (g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage. Examples of other reasonable costs for paragraph (g)— travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth travel and accommodation costs associated with a birth mother's attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court (3) In this section— legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage. medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.”

Section 6.7 (see also Section 7.5)

Q25. Do you consider 18 years of age too late to have access to this information?

• Should earlier access to the information be possible?

The age of 18 is considered to be the age of majority in Australia.  Courts have nevertheless recognised the Gillick Competence Test.  A possibility might be to have an earlier age subject to their being reports from say two doctors that the person concerned has Gillick competence.  That does, however, seem a complex manner of doing things and a more straight forward way may be to retain the current mechanism that when the child reaches sthe age of majority that they are therefore entitled to know.  To rely on the Gillick Competence Test would give further level of uncertainty for donors as opposed to a clear demarcation line as to when the child turns 18.  Posthumous donation is typically happened in cases where men have been killed.  I’m aware of a case or cases where a court has authorised the removal of sperm from the deceased partner that the clinic has then been reluctant or unable to provide treatment. It is suggested that there ought to be an alternative test: a. If written consent from the donor; or b. A court or tribunal has made an order for the retrieval of gametes from the deceased in which case it ought to be presumed that there is authorisation to carry out treatment.

7   Use of donated embryos

General Comments on Section 7

The issue of named donors appears to be an ongoing problem.  In Groth and Banks[2013] a man and a woman represented to a Victorian IVF clinic that they were a couple.  They were not.  Under the Status of Children Act (Victoria) he signed a form for the clinic to say that he was not a parent but merely a donor. The ruling under the Family Law Act means that he was a parent.  It is essential in my view that known donors and the recipients of known donors ought to have the option of legal advice and preferably obtain that legal advice as to the implications of their actions. A current trend is for lesbian partners to donate an egg to be carried by their partner.  There is a presumption by these couples that by virtue of these actions they will both become parents of a child, because the law says that they are both parents of the child and they have undertaken this project jointly.  I have been in several cases where the birth mother has presumed that she is the mother and the other mother is not.  This can have quite drastic implications if those parties separate. In the honeymoon period when the couple are considering having a child this issue appears not to have been adequately addressed by them. In cases where a lesbian couple have a known sperm donor I am strongly of the view that there should be a written donor agreement, even though such a document is probably not legally binding.  The purpose of having such an agreement in place is to set out clearly in black and white for all concerned, including the IVF unit and the Federal Circuit Court or the Family Court later as  to the intention of the parties. As was demonstrated in the recent case of Megan Jane Hooper, a copy of relevant news article is attached, Ms Hooper forged her husband’s signature.  It has been pointed out to me by overseas colleagues that if the consent forms had been properly witnessed by lawyers then the chances of such a fraud occurring would be minimal.  There’s certainly strength to that argument.

           

Q57. Have you encountered any difficulties in the interpretation and/or application of the current ethical guidance in Section 13?

There is ongoing difficulty for those in IVF units as to whether they have facilitated surrogate pregnancy for commercial purposes.  It has been said to me repeatedly by fertility doctors including the Fertility Society of Australia Conference last year when I presented about legal and ethical issues to do with surrogacy and at the Merc Sorono Conference this year in Brisbane that doctors do not know what the word “facilitate” means and they are therefore reluctant to provide any assistance to their patients.  Because a great divergence of views between doctors as to whether they could inform their patients about the availability of commercial surrogacy overseas, balanced against a concern that if they were to provide any information to their patients they might be facilitating surrogate pregnancy for commercial purposes or might be committing some criminal offence such as aiding and abetting payment of a donor for greater than her reasonable expenses incurred or aiding and abetting the entry into of a commercial surrogacy arrangement. I note that in the Northern Territory commercial surrogacy is legal as there are no laws there concerning surrogacy.  The only clinic there, Repromed, will not undertake surrogacy, in part because there are no laws therefor there cannot be a parentage order made in favour of the intending parents – for altruistic surrogacy, and in part because if they were to engage in commercial surrogacy they would be in breach of clause 13.1.  In short compass the licensing requirements as set out in the guidelines should not be in addition on this point to the law in each jurisdiction.  Why should the Ethical Guidelines prohibit IVF Units from undertaking commercial surrogacy when the law in the Northern Territory does not?  Why is it unethical for doctors to undertake preliminary tests of patients whom have chosen to undertake commercial surrogacy overseas?  Whilst there might be difficulties for doctors specifically in Queensland, New South Wales and the ACT for doctors in Victoria, for example, where it is clear that it is legal to undertake commercial surrogacy overseas nevertheless for doctors to undertake that work might be seen as “facilitating commercial surrogacy”.

Q56. Do you think that there are gaps in the current ethical guidance in Section 13?

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Specific Questions

Section 13.2

Q57. In view of developments in other countries, should there be compensation, more than expenses, for gestational mothers congruent with the reproductive effort contributed?

I was once opposed to commercial surrogacy as I believed that it necessarily resulted in the exploitation of women and potentially the trafficking of children.  According to recent reports approximately 1000 children were born in India and Thailand alone to Australian intended parents in the year ended 30 June 2012.  If an international non-government organisation is correct and there are 20,000 I note that in the Northern Territory commercial surrogacy is legal as there are no laws there concerning surrogacy.  The only clinic there, Repromed, will not undertake surrogacy, in part because there are no laws therefor there cannot be a parentage order made in favour of the intending parents – for altruistic surrogacy, and in part because if they were to engage in commercial surrogacy they would be in breach of clause 13.1.  In short compass the licensing requirements as set out in the guidelines should not be in addition on this point to the law in each jurisdiction.  Why should the Ethical Guidelines prohibit IVF Units from undertaking commercial surrogacy when the law in the Northern Territory does not?  Why is it unethical for doctors to undertake preliminary tests of patients whom have chosen to undertake commercial surrogacy overseas?  Whilst there might be difficulties for doctors specifically in Queensland, New South Wales and the ACT for doctors in Victoria, for example, where it is clear that it is legal to undertake commercial surrogacy overseas nevertheless for doctors to undertake that work might be seen as “facilitating commercial surrogacy”.

There is ongoing difficulty for those in IVF units as to whether they have facilitated surrogate pregnancy for commercial purposes.  It has been said to me repeatedly by fertility doctors including the Fertility Society of Australia Conference last year when I presented about legal and ethical issues to do with surrogacy and at the Merc Sorono Conference this year in Brisbane that doctors do not know what the word “facilitate” means and they are therefore reluctant to provide any assistance to their patients.  Because a great divergence of views between doctors as to whether they could inform their patients about the availability of commercial surrogacy overseas, balanced against a concern that if they were to provide any information to their patients they might be facilitating surrogate pregnancy for commercial purposes or might be committing some criminal offence such as aiding and abetting payment of a donor for greater than her reasonable expenses incurred or aiding and abetting the entry into of a commercial surrogacy arrangement.

I note that in the Northern Territory commercial surrogacy is legal as there are no laws there concerning surrogacy.  The only clinic there, Repromed, will not undertake surrogacy, in part because there are no laws therefor there cannot be a parentage order made in favour of the intending parents – for altruistic surrogacy, and in part because if they were to engage in commercial surrogacy they would be in breach of clause 13.1.  In short compass the licensing requirements as set out in the guidelines should not be in addition on this point to the law in each jurisdiction.  Why should the Ethical Guidelines prohibit IVF Units from undertaking commercial surrogacy when the law in the Northern Territory does not?  Why is it unethical for doctors to undertake preliminary tests of patients whom have chosen to undertake commercial surrogacy overseas?  Whilst there might be difficulties for doctors specifically in Queensland, New South Wales and the ACT for doctors in Victoria, for example, where it is clear that it is legal to undertake commercial surrogacy overseas nevertheless for doctors to undertake that work might be seen as “facilitating commercial surrogacy”.