Tuesday, May 27, 2014

City Fertility Centre Melbourne

On Friday I visited the lab of IVF clinic City Fertility Centre, along with renowned fertility specialist Dr Bruce Shapiro and his assistant Shiva Price from Las Vegas Fertility Center, ahead of the Surrogacy Australia conference, which was held over the weekend. A big thank you to the manager, Helena Jericho for setting up the visit.
















City Fertility Centre in Melbourne is on leafy St Kilda Road.






Incubators are essential for the operation of an IVF lab.

As is liquid nitrogen...









'



Pouring liquid nitrogen is an art form, given its dangerous nature...


Tuesday, May 20, 2014

Sperm is not taken, it is ejaculated...

Last week Ian Maynard, the Director General of Queensland Health wrote to Queensland IVF clinics. This is part of what he had to say:

"In Queensland, under section 41 of the Transplantation and Anatomy Act 1979 (the Act), it is an offence to advertise for the buying of (human) tissue or the right to take tissue from the bodies of persons, unless the proposed advertisement has been approved by the Minister and contains a statement to that effect.

ART providers wishing to advertise in Queensland therefore must comply with the Act by making a formal application for Ministerial approval. Should you or your staff wish to advertise in relation to gamete donation, you must make an application to do so, by submitting your proposed advertisement together with other relevant detail to my office for ministerial consideration. "

All correct so far as it goes concerning egg donors- but sperm donors don't need doctors to take the sperm from them- after they masturbate it leaves their bodies from ejaculation. As sperm does not need to be taken by doctors from the bodies of donors, therefore in my view clinics are free to advertise for sperm donors without the need for approval from Lawrence Springborg as Minister for Health.

This is what I wrote to the Minister last week:



16 May 2014


The Hon Lawrence Springborg MP
Minister for Health

By email:        health@minsterial.qld.gov.au



Dear Mr Springborg

Advertising for Egg and Sperm Donors by IVF Clinics

I am a surrogacy and family lawyer in Brisbane.  I am aware that a view has been expressed by Queensland Health that IVF clinics must obtain your approval under section 41 of the Transplantation and Anatomy Act 1979 to advertise seeking any gamete donations.

This view is, with respect incorrect as a matter of law.

Section 41 of the Act makes it an offence to advertise for the buying of human tissue or the right to take tissue from the bodies of persons unless the proposed advertisement has been approved by you as the Minister and contains a statement to that effect.

It is clear on a reading of that Act that tissue includes eggs and sperm.

The key phrase in the section is “the right to take tissue from the bodies of persons”.  Breaking down that phrase it is clear:


  • ·         In effect only doctors have the right to take tissue, therefore so far as intended parents are concerned, there is no prohibition on advertisements by intended parents seeking egg and sperm donors;



  • ·         Tissue includes eggs and sperm;



  • ·         There is a requirement to take tissue from the bodies of persons.


Therefore, with the comparative exception of men who have undertaken vasectomy there is on its face a requirement to obtain Ministerial approval for egg donors but there is not a requirement to obtain ministerial approval for advertising for sperm donors.  To put it bluntly, sperm is ejaculated from the body following masturbation.  It is not taken from the body.  It’s already left.  Eggs, however, are removed from the body in an invasive procedure much as other tissue might be taken from a body.


I am seeking confirmation from you that Ministerial approval for advertising by IVF clinics for sperm donors is not required.


Yours faithfully                                                         




Stephen Page                                                            
Harrington Family Lawyers                                   

Monday, May 19, 2014

The Hague surrogacy project marches on...

For some years now I have written about the proposed Hague Convention on international surrogacy, for example through my role with the American Bar Association. An international convention has the potential to make the lot of intended parents considerably easier in transitioning from one country to another, but also has the potential to turn the journey into a nightmare.


I expressed concern in 2011 that the then model for a Convention being mooted by two UK academics (which was to conflate surrogacy with adoption) could have meant a disaster for Australian intended parents. After all, given our experiences with adoption as compared to surrogacy, who would want a process taken over by the Government, determining who can or can't be parents, causing lots of agony and pain- and along with higher costs might result in intended parents waiting 8-12 years instead of 18 months to 2 years so that they can have the joy of becoming parents?


The Hague project is continuing to progress. In April The Hague Secretariat reported to member nations about progress. When I talk about The Hague, I am talking about The Hague Conference on Private International Law, an international body comprising member nations, who then sign conventions. Two well known examples are the Hague Intercountry Adoption Convention and the Hague Child Abduction Convention (the latter being particularly well known due to the Italian four sisters case that was played out in the Family Court and in the media).


So what did the report tell us? Well for international surrogacy lawyers like me it was a fascinating read, in which the Secretariat said- some nations in favour of a Convention, some like the USA are opposed, and we need to ask more questions, as well as giving a reasonably accurate overview of current international surrogacy issues. The Secretariat also said that surrogacy ought not to be conflated with adoption, and in the midst of it all I was surprised to see that I was quoted (although not named), about the growth in international surrogacy arrangements:



"For example, one specialist Australian lawyer reported that he provided legal assistance in 2 incoming ISA cases in 2008, whilst in 2012 he dealt with 100 such cases, with this trend set to continue in 2013."

What I found fascinating in the study and the summary commentary were some of the facts and figures. I have set some of these out below. Except where I have indicated I am the source of information, all information is from The Hague.


For a start, it seems that tiny Monaco bans ALL forms of assisted reproductive technology, but several countries, such as Thailand, a favourite for Australians undertaking surrogacy, have no regulation of ART at all: 

 




Many, many children have been born from IVF over the years, and in 2012 a record number of children were born through IVF in the US. It is depressing to see the number of IVF cycles per year compared to the number of children conceived from those cycles (about 1 in 4):



Countries have different views about whether a Hague Convention should be a priority:



Significantly, the USA is opposed to there being a Hague Convention:



Although the numbers were very small and the numbers skewed somewhat through the responses received, it is interesting to see who is undertaking international surrogacy:



As you age, some countries impose limits on whether there will be treatment. The age of 45 appears to be significant:



And then there are the costs:

The costs of egg donors varies widely. It was surprising that Indian egg donors are paid more than those from the Ukraine.


International legal surrogacy costs. The US/UK example is for UK clients who undertake surrogacy in the USA.



Medical costs. The Australian figures I have calculated at A$15,000 per IVF cycle, of which with luck there might only be one, but there could be three. There was one disastrous US case where the figure was off the dial (and which showed there were insurance issues)but generally US costs were comparative.


Agency fees: What is interesting about these fees is that the fees paid in India are considerably higher than those experienced by some parents in the USA.

Fees to the surrogate (as opposed to her costs incurred). It was noted that the costs incurred by a surrogate in Canada for example were US$20,000. The average to pay surrogates in the US was over US$30,000. By contrast I have seen clients pay US surrogates between US$10,000 and $30,000.


Health insurance costs:


And finally the overall cost (which in each country can vary widely), and as can be seen varies between the experiences of lawyers and those  of intended parents. What is interesting is to see that India and Thailand are not as cheap as often believed, when compared to the US:























 



Tuesday, May 6, 2014

NHMRC IVF 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?

Begin typing…


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”.