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Draft Ethical guidelines on the use of assisted reproductive technology in clinical practice and research submission

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Comment on specific Sections, clauses or sentences of the draft revised Draft Ethical guidelines
Specific Comments: 

I consider that there has been excellent drafting as to the first paragraph both as to the support to the individual or couple and as to the qualifications of the person undertaking counselling.


I agree with the sentiments contained in the paragraph.  The paragraph does not, however, address legal issues facing doctors.  There is a national scheme under what is commonly called the Human Cloning Act, being matching Commonwealth, State and ACT legislation.  It is an offence, as pointed elsewhere in the draft guidelines, to pay donors other than their out of pocket expenses.  The offence is an extremely serious one being a maximum of 15 years under all of the legislation, except Western Australia where the maximum is 10 years imprisonment.  Under State legislation those going overseas may inadvertently commit an offence in Australia.  For example, section 12 of the Criminal Code (Qld) provides to the effect that if an act if committed in Queensland or part or the effect is in Queensland then the offence is committed in Queensland.  A common process is for the overseas egg donor agency to email to the Australian intended parent/s an egg donor agreement.  That is normally printed and signed in their home and then emailed back to the egg donor agency overseas.  The offence may well have been committed in undertaking that action.

Payment is commonly made by the intended parents directly to the donor agency or to the donor which again would constitute part of the offence or the effect of the offence, therefore meaning that the offence has been committed.

Criminal law recognises principal offenders.  In that example it would be the intended parents.  However other people can be deemed to be the principal offenders.  In Queensland law it could be someone who has conspired with, aided or abetted or counselled or procured those undertaking overseas egg donor contracts.  Put simply if a doctor advises patients to go overseas for egg donor contracts and does not do so in a manner which makes it plain that a criminal offence might be committed and the intended parent/s need to obtain legal advice, and then documents that process, the doctor may find that he or she has committed an offence under the relevant State Human Cloning Act

There should be recognition in the Ethical Guidelines as to these complex legal issues.  I have spoken at several conferences where I have raised this issue with doctors and they have asked for clarification as to what role they should take.  It would be helpful if that clarification were in the guidelines.


This addition about verification of identity is welcome, particularly in the fraud case reported in Western Australia last year.  Minimisation of fraud when it comes to ART is welcome.


A matter that has not been addressed in the guidelines and ought to be is at the time of giving consent consideration to what should happen to the embryos in the case of relationship or marriage breakdown.  Already there has been a number of binding financial agreements entered into between former partners under the Family Law Act dealing with the ownership of embryos.  There have been at least two court cases in the Federal Circuit Court so far in which the ownership of embryos has been a live issue.  It is only a matter of time before there will be litigation on this point in the Family Law Courts or other courts.  Identification by clinics in their consent forms will assist intended parents to consider this issue.  There should be a requirement dealing with this issue referred to in the guidelines.



The statement “commercial surrogacy is illegal in Australia.” is incorrect as a matter of law.  It is correct in all jurisdictions bar the Northern Territory.  The Northern Territory has no laws on surrogacy and as a result commercial surrogacy is legal there.  The only clinic in the Northern Territory does not, in accordance with its obligations under the existing guidelines, and its South Australian licencing requirements, offer commercial surrogacy services in the Northern Territory, but nevertheless it is possible for backyard, traditional, commercial surrogacy to occur in the Northern Territory.


I don’t quibble with anything that is stated in the paragraph but as with my comments as to 4.2.5 doctors should be very careful as to the nature of advice that they give their patients.  I have had a number of clients tell me that they were advised by their treating IVF doctor by undertaking commercial surrogacy overseas, in those parts of Australia where to do so would be a criminal offence, therefore also meaning that the doctor has committed a criminal offence.

I also note the complication in South Australia following recent amendments to the Family Relationships Act 1975 (SA), where there is an expectation that doctors and intended parents will comply with the (yet undrafted) State Framework for Altruisitc Surrogacy, and that it seems those going overseas for surrogacy need the approval of the State Attorney-General first.


I wonder as to the utility of this paragraph.  The obligation to obtain counselling is provided under State and ACT law.  Sometimes the independent counsellor will be recommended by the IVF clinic sometimes the intended parents will organise the counsellor themselves.  Often the counsellor will be selected by the solicitors acting for the parties.  Requirements of 8.9.2 are in addition to often stringent requirements under State law and should not be required.


Depending on State law the listing of the various out of pocket expenses as “including” may be misleading.  For example, in Victoria it is possible to reimburse a surrogate for legal advice before entering into the surrogacy arrangement but not for legal advice and representation afterwards.  Similarly it would appear in Victoria that the payment of insurance may be in breach of regulations, resulting in the surrogacy arrangement being a commercial surrogacy arrangement.  A clarification of 8.11.1 noting that as State and Territory laws vary and should be checked would be helpful and instead of the word “including” the phrase “which may include” would be more accurate.


The reference to “an independent body with the legal authority to do so” is vague.  Is it proposed to be a court of law? If so, what would be the cause of action?  The existing guidelines refer to an Ethics Committee.  I consider that this is the most appropriate form of “an independent body” because of the ability to obtain different points of view of the various professionals and with the expectation that the committee would be independent of the management of the relevant IVF clinic in the sense that it would have a right of veto if it considered that ethical matters had not been properly complied with.  Is it proposed that lawyers acting for the clinic would be such “an independent body”?  I don’t see that they would be and I would urge the council to consider a reference as in the current guidelines to an ethics committee.

Appendix 3b

There is quite simply a terrible shortage of donors in Australia.  Australian intended parents have gone as far afield as Argentina, United States, Canada, Mexico, Spain, Greece, Cyprus, Ukraine and, historically, India and Thailand (and now anecdotally Cambodia) to seek donor eggs because of an actual or perceived shortage of donor eggs in Australia.

I would urge that enquiries to be made in the UK, other than merely with the HFEA as to the success or otherwise of their program of paying donors.

Information I have received from colleagues in the United Kingdom is that whilst the changes are welcome, the reality is that there continues to be a shortage of donors in the UK with the result that UK intended parents continue to travel to the United States and other places to undergo egg donation, out of necessity.

In my view the American Society for Reproductive Medicine in its ethical ruling in 2007 correctly identified the issues concerning egg donors.  The ASRM said in its ethical ruling:

            “Does monetary compensation oocyte sharing create the possibility of undue inducement   and exploitation in the oocyte donation process.  Women may agree to provide oocytes in          response to financial needs.  High payments could lead some prospective donors to conceal      medical information relevant to their own health or that of their biologic offspring.  Patients    undergoing IVF who cannot afford the procedure may, because of the intensity of their             desire to have children, consent to share oocytes without careful consideration or risks and             burden.  With both types of compensation, there is a possibility that women will discount the           physical and emotional risks of oocyte donation out of eagerness to address their financial    situations or their infertility problems.  Financial compensation also could be challenged on       grounds that it conflicts with a prevailing belief that gametes should not become products       bought and sold in the marketplace.

            … compensation based on a reasonable assessment of the time, inconvenience, and            discomfort associated with oocyte treatment can and should be distinguished from payment      for the oocytes themselves.  Payments based on such an assessment is also consistent with          employment and other situations in which individuals are compensated for activities       demanding time, stress, physical effort, and risk.

            As payments to women providing oocytes increase in amount, the ethical concerns increase            as well.  The higher the payment, the greater the possibility that women will discount risks.  High payments, particularly for women with specific characteristics, also convey the idea      that oocytes are commercial property.  Moreover, high payments are disturbing because        they could be used to promote the birth of persons with traits deemed socially desirable,         which is a form of positive eugenics.  Such efforts to enhance offspring are morally troubling because they objectify children rather than assign them intrinsic dignity and worth.  Finally, high payments could make donor oocytes available only to the very        wealthy.”

The ASRM went on to say:

            “Although potential harm must be acknowledged and addressed, financial compensation    may be defended on ethical grounds.  First, providing financial incentives increases the          number of oocyte donors, which in turn, allows more infertile persons to have children.           Second, the provision of financial or in-kind benefits does not necessarily discourage            altruistic motivations; indeed, in surveys of women receiving such benefits, most reported           that helping childless person remained a significant factor in their decision to donate …

            Third, financial compensation may be defended on grounds that it advances the ethical goal           of fairness to donors.  There is no doubt that egg donors bear burdens on behalf of       recipients in society, and compensation for bearing those burdens are justified morally.          Because the burdens of donation are similar regardless of the ultimate use of the oocytes,      compensating egg donors for fertility therapy differently from donors for research cannot be         justified… the failure to provide financial or in-kind benefits to oocyte donors would            arguable demean their significant contribution.  Such an approach also would treat female    gamete donors differently from sperm donors, who typically receive a financial benefit          (albeit a modest one) for a much less risky and intrusive procedure.

            Fourth, the pressures are created by financial incentives do not necessarily exceed and may           be less than those experienced by woman asked to make altruistic donations to relatives or         friends.

            Although the physical and psychologic risks entailed in oocyte donation are real, they are   not so severe as to justify intervention to limit the decision-making authority of adult      women.  Programs offering financial incentives should take steps to minimise the possibility    of undue influence and exploitation by incorporating certain safeguards into the disclosure       in counselling processes.  Programs can also structure the provision of incentives in ways   that reduce the likelihood that women will be improperly influenced to donate.  Such steps         would reflect good ethical practice to induce the likelihood of later legal action by         dissatisfied donors.”

The reality is that in Australia we are able to provide safeguards in place to protect donors.

The same cannot be safely said in some developing countries.  In one surrogacy agency in India, which was highly favoured by Australian intended parents at the time, events alleged to have occurred in 2010 which resulted in the death of an underage egg donor.

Intended parents are desperate to have children.  If we do not make it easier and more encouraging of donors to donate then the reality is that intended parents will go overseas where protections are less and the chances of the child knowing who the extraordinary woman was who donated to help give them life will never be known to that child.

A fundamental reality is that Australian intended parents go online, find information via google and then set off overseas.  In 2014 I spoke at a conference on cross border reproductive care.  One of the other speakers was a woman who, unable to find an egg donor locally, went online and then went to Spain.  She had a child through egg donation.  She knew that the egg donor would never be known but was satisfied that her needs had been met in the ability to have a child.  Quite simply she was desperate.

During the course of discussions it became apparent to this woman that her child was potentially psychologically impoverished by not being able to ever know who the egg donor was.  At that moment this woman had a Damascene moment in which she realised the enormity of what she had undertaken.

Hundreds of children are born overseas to Australian intended parents through surrogacy each year, although the numbers are not definitive.  Many, if not a majority of these children have been conceived using egg donors.  Many of these children when growing up will never know who was the egg donor and many will also never know who was the surrogate.  This is because of overseas legal and [practical regimes preventing that disclosure.

We must do all we can in Australia to ensure that egg donation is much more available.  This necessarily involves the payment to donors to compensate them for their efforts.

In its ethical ruling, the American Society for Reproductive Medicine noted the vast difference between the impact on donors of their donation, a sperm donor taking approximately one hour but egg donors taking at least 56 hours, a much more intrusive approach.

The Society then stated in respect of the research analysis from 1993:

            “The above analysis fails to consider the time spent by sperm donors undergoing    interviewing and screening.  Even if this additional time is taken into account, however, the    lengthier time commitment of women providing oocytes supports substantially higher          discomfort, risk, and physical intrusion than sperm donation, sperm donor reimbursement   rates are reasonably considered to under estimate the amount that is appropriate for women             providing oocytes.”

General Comments
General Comments: 

I have had clients from every State and Territory and in 17 countries overseas undertaking surrogacy and fertility matters.  I would like to thank the Council for the great thoughtfulness with which  it has drafted the draft guidelines.

Page reviewed: 20 April, 2017