Advocacy

IVF legislation – Lobbying for your rights

At Flinders Fertility, we’re actively lobbying to improve reproductive medicine laws and processes. To stay up-to-date with our latest efforts, the current legislation and what it all means for you, bookmark this news page.

On this page:

  1. Transgender.
  2. Surrogacy.
  3. Cryopreservation - 10 Year Limit and For Non-Medical Purposes
  4. Equal Opportunity Act 1984 (SA).

Transgender.

It is currently not clear whether transgender patients fall within the scope of regulation 8(1) of the  Assisted Reproductive Treatment Regulations 2010 (SA). The question is whether, by virtue of being transgender, the person is suffering from a "medical condition", the treatment of which may result in her becoming infertile.

While surgery and hormone treatments will likely result in infertility, the real issue is whether being transgender falls within the definition of "medical condition" for the purposes of the Legislation.  As with the definition of "woman", the Legislation itself provides no guidance.

In Re Kevin (Validity of Marriage of a Transsexual) [2001] FamCA 1074, a case involving a female to male transsexual who successfully had his marriage declared valid on the basis that he was a "man" for the purposes of the Marriage Act 1961 (Cth), the judge noted that the evidence before him clearly showed that that transsexualism was "a medical condition with a biological basis by reason of sexual differentiation of the brain after birth".

Flinders Fertility has been of the view that the Assisted Reproductive Treatment Act 1988 (SA) ("Act") and Assisted Reproductive Treatment Regulations 2010 (SA) be amended so that it is clear that "medical condition" encompasses transgender identity.

Amendments to the Act were finalised recently prohibiting discrimination on the basis of sexual orientation, gender identity, marital status or religious beliefs.  This means that the lack of clarity around transgender dissipates. We understand that the amendments will not take effect until 21 March 2017.

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Surrogacy.

Flinders Fertility accepts that surrogacy is not strictly a matter for the Assisted Reproductive Treatment Act 1988 (SA)  (“Act”) and Assisted Reproductive Treatment Regulations 2010 (SA) (“Regulations”).  South Australian law limits surrogacy to heterosexual couples.  The South Australian Statutes Amendment (Surrogacy) Act (“Surrogacy Act”) was passed in 2009 making altruistic surrogacy for legally married or defacto couples legal.  Commercial surrogacy of any form is illegal in Australia.  While the Surrogacy Act was a big step forward, it:

  1. Limited surrogacy to legally married or defacto couples (not open to same sex couples or singles).
  2. Prohibited advertising for surrogates.
  3. Maintained the Australia wide position of altruistic surrogacy.

As a consequence, many South Australian couples joined their interstate counterparts in looking overseas for a surrogate. However, people taking part in an international surrogacy arrangement face problems with respect to defining their legal relationship with the resulting child, how they can be recognised as that child’s only legal parents and, if they achieve that, whether that parental status will be recognised in other countries. There is also the problem of whether what they have done might result in them being prosecuted for a criminal offence.

Flinders Fertility is of the view that in light of the recent issues with surrogacy overseas, the Australian and South Australian law be changed conditionally removing the limiting nature of the Surrogacy Act, all or in part.

Flinders Fertility also considers that surrogates should receive financial compensations beyond their out-of-pocket expenses, however currently the restrictions are incorporated with Commonwealth Legislation.  Section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of any inconsistency; hence there are significant difficulties with changing the financial aspect of surrogacy at the State level.

Recent amendments to the Legislation were finalised recently removing infertility as a requirement for treatment, and a clause included prohibiting discrimination on the basis of the sexual orientation, gender identity, marital status or religious beliefs.  This means that surrogacy will be available to same sex couples and singles.  We understand that the amendments will not take effect until 21 March 2017.

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Cryopreservation - 10 Year Limit and For Non-Medical Purposes  

10 Year Limit.
Under the National Health and Medical Research Council ("NHMRC") guidelines, there is limited provision for extension of the 10 year limit for the cryopreservation of fertilized eggs.  There’s no scientific or medical reason for a 10 year limit.  Flinders Fertility is of the view that patients should be allowed to cryopreserve their eggs, embryos and sperm as long as they want, subject to the position on maximum treatment age.

Non-Medical Purposes (Social Banking).
Unlike Eastern Australian States, the use of ARM for cryopreservation in South Australian is available for medical purposes, but not for social reasons.

At this point, women tend to cryopreserve oocytes at a the suboptimal time from a clinical point of view – in their mid to late 30 year olds or for medical reasons– when both oocyte quantity and quality have diminished and success rates for eventually establishing a pregnancy are limited. This also gives rise to a number of ethical, psychological and cost concerns, for example:

  1. Procedures such as In Vitro Fertilisation may give false hope to older women;
  2. Women giving birth at or beyond the age of 35 years old have an increased risk of giving birth to a child with genetic or chromosomal abnormalities.  Aside from possible health problems with the baby, women 35 years old and older are also at an increased risk of developing health problems themselves during pregnancy. These mothers have a greater chance of developing blood pressure problems during pregnancy and their risk of developing diabetes is higher than in younger mothers. Mothers 35 years old and older also have a greater chance of having an undiagnosed underlying medical condition that increases the risk of maternal death.
  3. The lower success rates often result in multiple treatment events thereby leading to higher costs to the patient and Government;
  4. Although the causes of infertility are overwhelmingly physiological, the resulting heartache may exact a huge psychological toll. Individuals who learn they are infertile often experience the distressing emotions common to those who are grieving a loss. Typical reactions include depression, anger, and frustration.  While treatments for infertility offer help and hope, repeated failures may actually heighten stress and anxiety.

Flinders Fertility is of the view that social fertility banking in South Australia be available.

Amendments to theSouth Australian Legislation were finalised recently removing infertility as a requirement for treatment meaning that fertility banking for social reasons will be available.  We understand that the amendments may take effect on 21 March 2017.

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Equal Opportunity Act 1984 (SA)

Broader Definition of Infertility.
Under the Assisted Reproductive Treatment Act 1988 (SA) and Assisted Reproductive Treatment Regulations 2010 (SA) the following are not eligible to access assisted reproductive medicine - lesbian couples where the mother is not medically infertile; gay couples; and single men – gay or heterosexual, adolescent or man.  The legislation only allows for a man in a genuine domestic basis with a woman.

The Equal Opportunity Act 1984 (SA) makes it unlawful when providing services to discriminate against a person because of sexuality.

Amendments to the legislation were finalised recently removing infertility as a requirement for treatment, and a clause included prohibiting discrimination on the basis of the sexual orientation, gender identity, marital status or religious beliefs.  We understand that the amendments will not take effect until 21 March 2017.

Advanced Age.
Advancements in assisted reproductive medicine ("ARM") are extending the boundaries of biological reproduction. With the help of In Vitro Fertilization ("IVF") and donor eggs an increasing number of women in their 40’s and post-menopausal women are bearing children.

The Assisted Reproductive Treatment Act 1988 (SA) and Assisted Reproductive Treatment Regulations 2010 (SA) and National Health and Medical Research Council guidelines are silent on the matter of age.  Access to ARM is generally left to the discretion of individual fertility clinics.

Arguments in favour of IVF and egg donation to patients of advanced age are based upon, for example:

  1. Reproductive right.  Society recognises individuals’ rights to make reproductive choices regardless of their life expectancy or age;
  2. Age discrimination.  The Equal Opportunity Act 1984 (SA) makes it unlawful when providing services to discriminate against a person because of age, although there are some exemptions.

The major arguments against include:

  1. That there is a natural’ limit to reproductive capacity that is intrinsic to being human, and to go beyond this limit is unnatural;
  2. Pregnancy in postmenopausal women pose a greater risk of obstetrical and neonatal complications to both mother and child;
  3. Parenting poses significant emotional and physical demands that some people of advanced age may not be able to handle;
  4. Welfare of the child;
  5. Potentially diminishing financial and social support systems.

The provision of ARM to patients of advanced age places registered organisations, health professionals, women and their partners, and children born from ARM in a relatively heightened position of risk as decision making based on the above arguments for and against suggests that the provision of and access to treatment entails consideration of a broad range of complex subjective factors.

There are currently no “normal practices” or “accepted professional standards”, including in the Legislation and Guidelines, for a health professional to guide or direct their duties, and for patients to understand the potential consequences of treatment.

Flinders Fertility believes that treatment to patients of advanced age must be specifically considered, perhaps in the form of evidence based professional standards aligned to the Legislation or an amendment to the Regulations designed to convert the complex and uncertain realities into the decision equivalent of “treat” or “not treat”.  Such mechanisms will strengthen the ability of health professionals to reach decisions with patients that truly serve their interests and the welfare of the child.
 

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