Access to Assisted Reproduction

Introduction

Should we screen people before they access ART?

Different states and territories answer this question in different ways across Australia.
In Australia,  three states have legislation that requires certain criteria to be met before a woman (and her partner if any) is permitted access to assisted reproduction. The legal requirements governing access to assisted reproduction in Victoria, Western Australia and South Australia are discussed below.

In the other states and territories there are no laws that set out specific eligibility criteria for ART. Counsellors or ART providers may exercise discretion if there are significant concerns about an applicant, provided they are not acting against anti-discrimination laws. The National Health and Medical Research Council Ethical Guidelines on the Use of Assisted Reproductive Technologies in Clinical Practice and Research may also be relevant.

Victoria

Victoria

In Victoria, the Assisted Reproductive Treatment Act 2008 (Vic) provides that certain criteria must be met before a woman and her partner (if any) may access ART. 1

Consent and Counselling

Potential ART recipients may only undergo treatment if they have given informed consent and had counselling.

Counselling can help people;

  • prepare for treatment
  • be fully informed
  • understand risks
  • consider long term implications
  • explore emotional impacts of treatment, and
  • make informed decisions.

Reasons for Treatment

A woman must be (a) ‘unlikely to become pregnant’ or (b) unable to carry a pregnancy or give birth to a child; or (c) at risk of transmitting a genetic abnormality or genetic disease to a child.

Being ‘unlikely to become pregnant’ does not require ‘infertility’.

Rather it means that any women (including single women or lesbians) who are unlikely to become pregnant without treatment may access ART.

Presumptions against treatment

There are presumptions against treatment if the woman or her partner have a) proven charges of sexual or violent offences; or b) child protection orders removing a child.

The excluded person may apply to the Patient Review Panel for review. The panel will decide whether treatment may proceed. Decisions can be reviewed by the Victorian Civil and Administrative Tribunal, and subsequently by the courts if necessary.

The presumptions against treatment mean that a woman and her partner (if any) must undergo police checks and child protection order checks before accessing treatment in Victoria. 2
Western Australia

Western Australia

The Human Reproductive Technology Act 1991 provides that artificial fertilisation procedures be carried out only for the benefit of persons eligible under the Act. Broad eligibility requirements include that

  • participants are adequately assessed and counselled;
  • the welfare of the participants is properly promoted;
  • the prospective welfare of any child to be born as a result of the procedure is properly taken into consideration; and
  • equity, welfare and general standards prevailing in the community are taken into account in the practice of reproductive technology. 3

The Act also contains specific provisions concerning access to ‘in vitro fertilisation procedures’. 4

Access to IVF is based upon ‘medical reasons’, such as clinical infertility. This is because IVF would be employed only by women who cannot conceive using artificial insemination .

Artificial insemination is available to all women in Western Australia, regardless of sexual orientation, marital status or fertility.

Access to IVF

  • Effective consent must be given;
  • Consideration must be given to the welfare and interests of the participants and of any child likely to be born as a result of the procedure;
  • The reason for infertility must not be age;
  • A couple must be married or in a de facto relationship and must be of the opposite sex to each other.

Uses of IVF

IVF may be used

  • when a couple/woman cannot become pregnant due to medical reasons;
  • when a child might otherwise be affected by genetic abnormality or disease;
  • to avoid transmission of infectious diseases;
  • when a woman is party to a legal surrogacy agreement.

Additional Restrictions

    Part 7 of the WA Directions also provide:
  • Medical practitioners must maintain records for decisions regarding eligibility for IVF, and
  • Counselors must be separate from assessment processes.
    In addition the Directions provide:
  • a minimum age for a donor of gametes,
  • that a donor must not have been coerced, and
  • that sperm/egg donors cannot be relatives to a recipient.
South Australia

South Australia

In South Australia the Assisted Reproductive Treatment Act 1988 (SA), 5 and the Assisted Reproductive Treatment Regulations 2010 (SA), 6 require that ART not be provided by registered persons except in the circumstances set out below.  A maximum penalty of $120,000 for failing to comply with the requirements may be imposed.

Access to ART

Access to IVF is only possible

  • if it appears to be unlikely that, in the person’s circumstances, the person will become pregnant other than by an assisted reproductive treatmen;
  • if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally (Eg. HIV);
  • if it is provided for the posthumous use of sperm or embryos created with sperm from deceased person who consent to such use prior to their death;
  • for the purposes of a recognized surrogacy agreement. 7

Registered practitioners must comply with the provisions of the NHMRC Guidelines.

Note: The requirement for registration (and therefore to adhere to the conditions for registration) does not apply to assisted insemination provided by a health professional or assisted insemination provided other than for fee or reward. The current legislation, however, requires those health professionals wishing to provide assisted insemination to be ‘approved’ by the Minister, who may place conditions upon them.

 

Qld NT NSW ACT Tas

Screening for access to ART in other states/territories

Queensland, Western Australia, the ACT, Tasmania and NSW have not passed laws that set out criteria for people who wish to access ART.  Health practitioners in those states and territories would be guided by their professional judgement, general medical practice and ethical guidelines. Anti-discrimination laws would also be relevant.

There is ongoing debate about whether screening applicants to standard ART is a means to protect children. 8

In NSW, the Health Department decided not to implement legislation mandating eligibility criteria, stating:

“it is recognised that some children will be born into families where they will suffer harm from their parents. Accordingly laws have been enacted that enable the government to intervene in the care of such children and in some cases for children to be removed from the custody of their parents and alternative arrangements to be made for their care. The role of the legislature has not been to make rules regarding classes of persons who may or may not become parents (as this is not necessarily a predictor of harm) but to make rules to safeguard the rights of individual children whose welfare has been compromised.9

However NSW did not go so far to prohibit any exclusion from treatment. Clinical discretion could still be exercised provided it did not breach existing anti-discrimination laws.

In addition, screening applicants for violent or sexual offences and or child related concerns have increasingly been discussed in relation to certain assisted reproduction practices, such as surrogacy. This may be because such practices are seen as being more like adoption in certain circumstances.

Refusing treatment based on marital status or sexual orientation

In Australia, some clinics and or laws previously restricted access to ART to women who are married or in heterosexual de facto relationships. In two separate challenges in South Australia 10 and Victoria 11, laws that restricted access in such a way, were held to contravene section 22 of the Sex Discrimination Act 1984 (Cth). The state laws were declared invalid as s 109 of the Australian Constitution provides that ‘when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. This meant that single women, for example, could access treatment.

In states or territories without legislation, it is still likely to be unlawful to deny treatment based upon a woman’s marital status or sexuality pursuant to Commonwealth and state anti-discrimination laws, 12. However, a state/territory may exclude ART from their anti-discrimination laws–for example, the Northern Territory Anti-Discrimination Act 1992 prevents discrimination in relation to services but states that such provisions do not apply to the carrying out of an ‘artificial fertilisation procedure’ (which includes both AI and IVF procedures. 13

Notes:

  1. Assisted Reproductive Treatment Act 2008 (Vic), sections 10-15.
  2. See Assisted Reproductive Treatment Act 2008 (Vic), section 14 regarding the presumptions against treatment, and sections  82-98 re patient review panel and appeals process.
  3. Human Reproductive Technology Act 1991 (WA), s 4
  4. Human Reproductive Technology Act 1991 (WA), s 23
  5. Assisted Reproductive Treatment Act 1988 (SA), s 9
  6. Assisted Reproductive Treatment Regulations 2010 (SA), Cl 8
  7. Assisted Reproductive Treatment Act 1988 (SA) s9(1)(c)
  8. For further discussion of this point see Sonia Allan ‘Gate-keeping Parenthood: The Law and Access to Assisted Reproductive Treatment’ (2012) 2(3) Family Law Review 149.
  9. New South Wales Department of Health, Consultation Draft Assisted Reproductive Technology Bill 2003 Information Guide New South Wales (2003) at [4.3].
  10. Pearce v South Australian Health Commission (1996) 66 SASR 486
  11. McBain v State of Victoria [2000] FCA 1009, (2000) EOC 93-102.
  12. For example see Anti-Discrimination Act 1977 (NSW), s 47; QFG v JM (1997) EOC 92-902; BC9705768; JM v QFG [1998] QCA 228; [2000] 1 Qd R 373; (2000) EOC 93-047
  13. Anti-Discrimination Act 1992 (NT), s 4(8).