Eligibility Criteria for ART in New South Wales
a.There are different guidelines, laws and regulations that cover research, procedures, and dealings regarding assisted reproductive treatment (ART) in different Australian territories and states. The lack any enacted legislation by commonwealth regulating or guiding assisted reproduction technology. For eligibility to undergo ART, there exist legislation and legal requirements in different Australian states such as Western Australia, South Australia, and Victoria to guide the process. Still, in some states, there lacks any law that set out certain ART eligibility criterion. Whether one is eligible for the procedure is decided by the healthcare practitioners with guidelines from ethics, anti-discrimination laws, general medical practice, or their professional judgment.
For my home jurisdiction, Sidney, the Assisted Reproductive Technology Act 2007 (ART Act) used in New South Wales (NSW) regulates social as well as ethical aspects of ART. The health department in NSW does not implement legislation that mandate eligibility criteria for ART. In this regard, Jodie is eligible for IVF since the ART Act does not prohibit any adult female from undergoing the process, independent of their marital status. Additionally, anti-discrimination laws do not apply to Jodie’s case.
The additional information required from Jodie include whether she has ever had In vitro Fertilization (IVF) in the past, whether she has children, whether she has been using fertility drugs, and the number of embryos she prefers per cycle.
- Prior to undergoing IVF process, various requirements for consent exist. Firstly, it is a requirement that Jodie should consent to the fertility treatment by consenting to retrieval of her eggs, in case it is her eggs to be used in the process.
Secondly, consent to information disclosure by the Fertility for All will be necessary since this clinic should not disclose Jodie’s treatment information unless they have Jodie’s consent.
Thirdly, Jodie’s consent to the use of her eggs and embryos for her treatment will be required. Similarly, if Kareem’s sperm will be used for IVF, his consent will be required to removal and utilization in the treatment. Also, Jodie will be required to provide the proper parenthood consents to legally recognize the child’s father. Additionally, the donor of the sperm to be used will be required to consent to having details of identification accessible to the child upon turning eighteen years. The sperm donor will also be required to provide written informed consent for inclusion of his name on the New South Wales central ART registry for donors.
- As a legal issue of concern, Jodie may be faced with a challenge while providing the parental consent of the child if IVF will be carried out without Kareem’s consent and she will have to utilize another donor’s sperm. This will be so since Jodie and Kareem are unmarried.
b.In Sidney, a sperm donor can withdraw consent at any time provided the donated gamete has not been used to create an embryo or has not been placed in the body of a female recipient. As IVF Australia states, donors of sperms still own their sperms even during the period of storage within any ART providing clinic in New South Wales. In this regard, the sperm donated by Maxwell four years ago can be deemed his although it is in possession of the Fertility For All and he can withdraw his consent since it has not yet been utilized in any ART process. However, there are some legal requirements that must be met when one wants to withdraw their donation consent. Maxwell has to present a duly signed written notice. Also, a notification to the client who was considering treatment using Maxwell’s stored sperm must be given. From the consent withdrawal date in the appropriate manner, the sperm is required to be lawfully stored for 12 months to allow the withdrawing individual to reconsider their withdrawal decision.The HFEA provides a form for use in withdrawing consent and when filled fully and signed can be used. Alternatively, a signed letter can also be used.
- In regard to legal requirements for keeping of records, the ART provider is required to keep record regarding gamete provider’s identity, spouse, or offspring, the provenance of any embryo or gamete, consent of the gamete provider, period of storage of the gamete, and the uses of any embryo or gamete, including details of exportation from NSW or to another AET provider. Secondly, the ART provider is required to retain the necessary participant’s information for a period of 50 years following making of the record.
Additional Information Required from Patients
c.In my home jurisdiction, Sidney, the Surrogacy Act 2010 (New South Wales) is the governing legislation that guides matters pertaining surrogacy. Commercial surrogacy is not permitted and is thus, illegal. Therefore, one of the legal issues that may arise in relation to Sene’s role as a surrogate is her financial situation. Since Sene is currently unemployed, lack money, or even stable residence, she may not legally qualify to be a surrogate since she may be unable to effectively provide for herself. The Surrogacy Act 2010 (NSW) does not support any monetary gains to the surrogate and only legalizes altruistic surrogacy. Therefore, although Sene is legally entitled to reasonable surrogacy cost resulting from medical, legal, and counseling bills by the intended parents as a surrogate, her surrogate role should be selfless and should not be dependent on the intended parents.
Another legal issue concerns the involvement of Sene, if any, after the birth of the child.
The NSW Surrogacy Act 2010 also requires that a surrogate must undergo counseling by qualified psychologist, psychiatrist, or social worker. The counseling session may make apparent the psychological challenges Sene is undergoing. As a result, the other legal issue may arise from Sene’s psychological problems resulting from the imprisonment, and may render her unqualified to be a surrogate upon conduction of a psychological summary. Her failure to reconnect with family and tendency to isolate self may be interpreted as detrimental to surrogacy, reducing the chances of making her a successful surrogate.
Also, the still existing trauma of being separated from her 2 year old son may further complicate her eligibility as a surrogate since she may further be traumatized during separation with the child born out of her surrogate role.
Lastly, Sene’s criminal history may be of concern to the surrogacy. Since it is a requirement that a surrogate’s criminal record be screened before surrogacy, Sene’s drug trafficking offense and the five years of imprisonment may be a legal issue.
With regard to Queensland, my secondary jurisdiction, the Queensland Surrogacy Act 2010 regulates arrangements pertaining to surrogacy, and is similar in most aspects as the NSW Surrogacy Act 2010. Most of the legal issues, thus, are similar as above. The Surrogacy Act 2010 (Queensland) does not legalize commercial surrogacy just like the NSW surrogacy act but entitles the surrogate to reasonable costs related to the surrogacy. Therefore, the legal issue resulting from Sene’s financial instability, as already explained will still be applicable to Queensland.
Similarly, the Queensland Surrogacy Act requires that the surrogate undergo counseling prior to a surrogacy arrangement to ensure that individuals are aware of the psychological as well as social implications of surrogacy and parentage order. From the counseling and psychosocial background check, may reveal psychological instability and trauma, making it an issue of concern since Sene appears not to be emotionally ready to be a surrogate.
Additionally, a detailed criminal background check is required prior to surrogacy arrangement. This may be an issue of concern in Sene’s case die to her tarnished criminal record.
- There are some ethical issues that arise from surrogacy. Firstly, physical and emotional attachment of the child and the surrogate exist during the pregnancy period. Detachment after birth and having no legal rights to the child after a surrogacy arrangement with the intended parents is an ethical concern. With Sene having been separated from her son before, the effect of detachment may more significant. Secondly, informing the child of their birth mother later in life is an ethical matter.
Greenfield, F. , Withdrawal of Donor Consent (1 November 2016) <https://www.fishermeredith.co.uk/site/blog/fm-blog/withdrawal-of-donor-consent>
Health Law Central, Access to Assisted Reproduction (n.d) <https://www.healthlawcentral.com/assistedreproduction/access/>
IVF Australia, Sperm Donation (n.d) <https://www.ivf.com.au/spermdonation>
Natalie Gamble Associates, Consent Law (nga law): Eggs, Sperm and Embryos <https://www.nataliegambleassociates.co.uk/knowledge-centre/consent-law-eggs-sperm-and-embryos>
Nelson, E. Law, Policy and Reproductive Autonomy: A Framework for Law and Policy. London. Bloomsbury Publishing, 2014
New South Wales Government, Assisted Reproductive Technology (13 December 2016) https://www.health.nsw.gov.au/art/Pages/default.aspx
New South Wales Assisted Reproductive Technology Act 2007
New South Wales Surrogacy Act 2010
Queensland Surrogacy Act 2010
Victorian Assisted Reproductive Treatment Authority, VARTA, Legislation and Guideline Overview (n.d)<https://www.varta.org.au/regulation/legislation-and-guideline-overview>
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