Dr Roger Magnusson, Professor of Health Law and Governance at Sydney Law School, discusses new legal and regulatory changes in NSW to the verification of IVF births involving donated sperm, eggs or embryos.
We previously discussed the case of Natalie Parker, an Australian mother of two young boys who, following the conclusion of IVF treatment, donated three spare embryos to a woman she met on the Embryo Donation Network, a place where donors and recipients can advertise and make contact.
Parker was prepared to donate the embryos, but with conditions attached: she wanted ongoing contact between the genetic siblings.
Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from their ART (assisted reproductive technology) provider. Pregnancy will be a shared goal of both parties.
In this case, however, the recipient evidently wished to sever contact with Parker, or to be free of the conditions that had been imposed. The recipient apparently lied to IVF Australia in order to conceal the fact of pregnancy.
“She was just thinking about the baby”, Parker said, “and now she’s got the baby she wants to enjoy it herself and not acknowledge it’s got other connections outside the family”.
“They’ve just used me for what they wanted and then just tossed [me] aside”, she later told 60 Minutes.
Legal and regulatory changes have now been introduced into NSW that are intended to reduce the likelihood of incidents like this occurring in future. This piece briefly reviews them.
Changes to the Code of Practice for Assisted Reproductive Technology Units
The Code of Practice for Assisted Reproductive Technology Units, which is overseen by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia now requires the ART provider to obtain a written declaration from the recipient, prior to the treatment cycle, that the patient/couple will “provide information about the treatment cycle outcome”.
In this case, the recipient of Mrs Parker’s embryo declined to attend for an IVF test to confirm pregnancy, and may have told IVF Australia that she had miscarried in order to convey the impression that she was not pregnant.
Changes to the Assisted Reproductive Technology Act 2007 (NSW)
Amendments to the Assisted Reproductive Technology Act 2007 (NSW) beef up the counselling requirements that apply to IVF providers, requiring them – in cases where the woman receiving treatment involved the use of donated gametes – to receive information about the “extended list of matters” set out in s 13(3). These matters include the obligation that the ART provider has to obtain information about the recipient and any offspring born as a result of the procedure: see s 13(3)(c).
Secondly, the legislation imposes an obligation on ART providers to take reasonable steps to find out, between 1 month and no later than 4 months following treatment, whether the recipient of the gamete or embryo became pregnant as a result of the treatment: s 30(5).
The legislation refers to a woman using a “donated gamete”, but this term includes a reference to a gamete used to create a donated embryo”: s 4B.
Section 30(7) requires the ART provider to take reasonable steps to find out, between 10 months and no later than 15 months after the ART treatment whether the pregnancy resulted in a live birth, and the full name, sex, and date of birth of the offspring.
Thirdly, record-keeping obligations have also been strengthened. Section 31 of the Act requires ART providers to keep records of the matters in respect of which they are required to take reasonable steps to verify.
For a woman who has received treatment using a donated gamete, the ART provider must keep records that indicate whether the recipient became pregnant within a month of receiving the treatment, unless the ART provider does not know this (s 31(1)(b1)).
Where a child has been born as a result of an ART procedure, the ART provider must keep details of the full name, sex and date of birth of the offspring, as well as details of the birth mother and gamete donor: s 31(1)(c).
The ART provider must also record, within 15 months following the provision of ART treatment, whether the recipient gave birth as a result: s 31(1)(c1).
Under s 33, where an ART provider becomes aware that a child was born following treatment involving a donated gamete, they must provide (to the Secretary of the Health Department) full particulars of the records that they are required to keep under s 31.
Where an ART provider does not know – 16 months following treatment involving a donated gamete – whether a child was born as a result, the Secretary must also be informed.
Fourthly, under s 34, the Secretary is authorized to issue directions to a health service provider requiring them to provide information for the purposes of determining whether a child was born as a result of ART treatment involving a donated gamete.
Fifthly, the Assisted Reproductive Technology Act 2007 provides for the establishment of a “central register” to allow access to “identifying information…about a donor by an adult offspring of the donor” who was born as a result of a procedure involving the donor’s donated gamete (ss32A, 32C).
Finally, s 62 of the Act has also been amended. S 62 creates an offence for giving false or misleading information “in response to a request for information that an ART provider is required to obtain, or to take steps to obtain, under Part 2.”
This offence provision would apply to the recipient of a donated egg or embryo who gave false information to the effect that they did not fall pregnant as a result of the ART procedure involving the donated embryo.
This offence has a maximum penalty of 200 penalty units for an individual, which is 200 x $110 = $22,000, a substantial monetary penalty.
In summary, the focus of the amending legislation is to require the ART provider to obtain information about whether or not a recipient of donor eggs or embryos falls pregnant, and the details of any child who is subsequently born.
The legislation also seeks to ensure that there is no repeat of a situation where a recipient lies to the ART provider about whether or not they became pregnant or have given birth to a child involving donated eggs or embryos.
This article was published with the permission of Sydney Health Law.
Dr Roger Magnusson is Professor of Health Law and Governance at Sydney Law School. He teaches Critical Issues in Public Health Law and Law, and Law, Business Regulation and Healthy Lifestyles within the Master of Health Law program. Roger’s research interests include: regulatory responses to non-communicable diseases (including tobacco control, obesity prevention, public health nutrition); public health law generally; and law, governance and health development. He is currently co-chair of the Ad Hoc Working Group on Implementation, Monitoring and Accountability supporting the World Health Organisation’s Global Commission on Ending Childhood Obesity. Contact Professor Magnusson at [email protected] or connect via LinkedIn .
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