The
Victorian Government is undertaking a review of assisted reproductive treatment law
in Victoria. The review is being
conducted by Michael Gordon AM, a lawyer who is a former chair of the Victorian
Assisted Reproductive Treatment Authority and Patient Review Panel.
Mr
Gordon has said:
“It
is now a decade on since the last significant review of assisted reproductive
treatment regulation in Victoria, and it is timely to reflect on the
significant changes that have occurred since then, including:
·
changes
to the number, ownership and management of assisted reproductive treatment
clinics from the clinician-owned and led clinics originally established in
Victoria;
·
great
advances in treatments and technology for IVF and related procedures;
·
changes
to social values and opinions, including changes to legislative rights and
responsibilities;
·
changes
to the Marriage Act for same-sex marriage and other changes dealing with gender
and sexuality.”
Mr Gordon also says:
“Assisted
reproductive treatment offers many benefits, and it is important that it is not
inappropriately limited by people’s ability to pay or by where they live, nor
affected by inadequate knowledge or information, or by discrimination according
to gender, sexuality, identity, race or other attributes.”
The
review has identified a number of legal rights of access. For example, section 47 of the Assisted Reproductive Treatment Act
allows for the posthumous use of gametes or embryos where “the treatment procedure is carried out on the deceased person’s
partner or in the case of a deceased woman by the woman’s male partner
commissioning a surrogacy arrangement”.
The
review comments:
“This
appears to restrict the posthumous use of gametes by people in same-sex
relationships and by single women who may require a surrogate because they are
unable to carry a baby themselves. It
may be timely to consider where there is an appropriate rational for such a
restriction.”
The
review notes that a single cycle of IVF treatment can cost well in excess of
$8,000. “Costs can quickly add up where multiple cycles of treatment are
required.”
Furthermore:
“Demand
for donated gametes and embryos continues to rise, without a corresponding
increase in the supply of donors. This
has resulted in shortages of donor gametes and increasing pressure on clinics
to source donor sperm, eggs and embryos.
These shortages may be even more acute for people from diverse ethnic
groups, who seek to source gametes/embryos from donors with a shared ethnic background.”
It
was noted the small but increasing number of surrogacy arrangements and that
the restrictions about finding donors and surrogates:
“…designed
to protect people from exploitation, may have the effect of leading people to
make arrangements outside the regulatory framework and therefore without
support. It is understood that
unmoderated online forums and discussion groups connecting potential donors and
surrogates with intended parents have become common over recent years. There is significant but undocumented use of
these forums that may bypass the legislative restrictions on advertising.”
Compensation for donors and surrogates
The
review states:
“It
has been suggested that there may be some lack of clarity about what
constitutes reasonable expenses for donations.
This lack of clarity has resulted in different interpretations and
different levels of compensation paid by different clinics within
Victoria. This could act as a
disincentive to those who may otherwise be interested in participating on an
altruistic basis or result in donors ‘shopping around’ between clinics to
receive the highest level of compensation.
As
to surrogates:
“Victoria
has among the most restrictive rules in Australia in relation to reimbursement
of surrogates. Unlike New South Wales,
Queensland and Tasmania, for example, the Victorian regime does not allow for
any additional insurance expenses incurred by a surrogate to be met by the
intended parent, nor is there provision for lost income as a result of leave
taken during pregnancy.”
Concern
is raised about Victorians undertaking overseas surrogacy:
“There
can be complex legal issues associated with overseas surrogacy, depending on
the nature of the agreements entered into and the laws of the country in which
the surrogacy arrangement occurs…many countries where Australians may pursue
surrogacy arrangements have little regulatory oversight or protection for
surrogates or intending parents.
Reportedly, there is a rising trend towards multinational commercial
surrogacy operations, with major players responding to tightening restrictions
in one country by moving to another less regulated country.”
Furthermore:
“There
are risks for the child to be born.
Unethical surrogacy arrangements do not put the rights and interests of
children to be born first. Non-existent
or inconsistent record keeping means that children born of surrogacy
arrangements using donated gametes are unlikely to have access to information
about their genetic history.
For the surrogate, a lack of regulation can increase the
risk of exploitation. Health risks
associated with pregnancy can be exacerbated through pressure to agree to risky
procedures such as multiple embryo transfers or deliveries toned to meet the
schedule of the intended parent.
Finally, poorly regulated countries may also expose
intending parents to risk of exploitation.
People may pay high sums of money and, if promised services are not
delivered, there may be little opportunity for recompense.”
LGBTI people
The
review states:
“The
language of the Act reflects the social attitudes and understanding of
diversity that existed at the time it was drafted. Over the last decade, attitudes and
recognition of the rights and needs of LGBTI people have evolved dramatically,
and LGBTI people are increasingly making use of assisted reproductive treatment
services. Seen through today’s lens some
of the provisions of the Act appear outdated at best and at worst
discriminatory…It has also been noted that the Act’s guiding principles state
that “persons seeking to undergo treatment procedures must not be discriminated
against on the basis of their sexual orientation, marital status, race or
religion”. It is time to consider if
this is sufficiently inclusive or whether it should, for example, also extend
to discrimination on the basis of gender identity and/or intersex status.”
Submissions
to the review can be sent to art.review@dhhs.vic.gov.au. Submissions close on Friday, 21 September
2018.
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