Victoria surrogacy law is likely to be reformed, as the Final Report of the Independent Review of Assisted Reproductive Treatment in Victoria has been released, after a 12-month review of the Assisted Reproductive Treatment Act 2008. The Review was conducted by Michael Gorton AM, Senior Partner at Russell Kennedy Lawyers and a team of staff at the Department of Health and Human Services. The Review considered submissions by members of the public, consumers of fertility treatment, clinics, specialists, counsellors, VARTA, surrogates, donors, intended parents and lawyers. You can download the full Report here. Below I’ve provided a summary of some of the salient points from the Recommendations.
Some of the reforms detailed below have been implemented in the Assisted Reproductive Treatment Regulations 2019, which you can read more about here.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.
The recommendations fall into several categories – information and support, inclusive practice, access and affordability, establishing a public sperm and egg bank, removing regulatory barriers to access to donated gametes and embryos, and supporting altruistic surrogacy arrangements. The Report recommends, overall, that changes to the legislation and practice models should be introduced to ensure that diverse communities feel more included and safe when accessing fertility treatments.
A recent Victorian case involving a married but separated woman who wished to proceed with infertility treatment found that the Victorian law was discriminatory. The current law requires women in this position to seek the consent of their former partner to the infertility treatment, even if they are not providing gametes in the treatment. The Review recommends that the Act be amended to remove any discrimination against married women who wish to access assisted reproductive treatment following separation. Notably, the Andrews’ Government has already introduced a Bill to rectify this issue, and it will likely pass in August.
For same-sex female couples accessing clinic-recruited sperm donors, they often find themselves facing the donor limit – that is, that a donor can donate to up to 10 women. Same-sex female couples by definition are two women – which means if they intend to utilise the same sperm donor, they each count as ‘one woman’ in the donor limit. What this means, in reality, is that the couple may find that the limit is reached before they’ve finished creating their family and that means they cannot utilise the same donor and their children won’t share the same donor. A simple change in the language of the Act would allow for the donor limit to apply to ‘families’ rather than ‘women.’
Altruistic surrogacy is legal across Australia. Unfortunately, the laws are State-based, which means we have seven pieces of legislation regulating surrogacy. In Victoria, rather astoundingly, the regulations provide that surrogates can only be reimbursed for legal, medical and travel expenses. There is no allowance for lost income or other pregnancy or birth related expenses, such as childcare or maternity clothing. NSW and Queensland legislation is much more pragmatic, and our submission to the Review was that Victorian laws should be brought into line with our interstate counterparts. The Review recommends that the Regulations be amended to allow for the payment or reimbursement of reasonable costs that are incurred by a surrogate where the costs would not have been incurred but for the surrogacy arrangement. This is great news for intended parents and surrogates wishing to pursue surrogacy in Victoria.
Traditional surrogacy is legal in Victoria, but not through an IVF clinic. Whilst clinics in other States are often not keen to facilitate traditional surrogacy arrangements, in Victoria it’s actually illegal for them to do so. And because making it illegal for a clinic to do it doesn’t stop people from doing it at home (you don’t always need clinic to make a baby!), there has been a lot of misinformed advice whispered in Victorian clinics – that *traditional surrogacy is illegal* even though it’s not.
The Reviewers heard from several traditional surrogates, including myself, and have recommended that traditional surrogacy arrangements be treated the same as gestational surrogacy arrangements. Parties to a traditional surrogacy arrangement will still be able to conceive via home insemination; the recommendation is such that all arrangements will be scrutinised by the Patient Review Panel. This might seem a bit harsh, particularly for those of us that have engaged in traditional surrogacy and enjoyed not meeting with the PRP. However, it is in the interests of the child, the surrogate and the intended parents that everyone involved is offered the same support and information as a gestational surrogacy arrangement, and PRP oversight will hopefully facilitate that.
Currently only counsellors employed at an ART clinic can provide surrogacy counselling. This is neither patient-centred, nor does it allow for consumers to choose their counsellor. It is recommended that the Act be amended to state that counselling in respect of surrogacy arrangements must be provided by an ‘appropriately qualified counsellor’. Such a qualification is likely to be a counsellor registered with ANZICA. They would not need to be employed or registered with a clinic.
Victoria is one of the only States that does not require a surrogacy agreement to be in writing. The Review recommends that surrogacy agreements be in writing, with specific provisions included. This is a positive step, ensuring consistency, but also provides the parties with some clarification as to their obligations in a surrogacy arrangement. It will be important that any written surrogacy agreement is practical and promotes positive relationships between the parties, rather than providing a strict framework for the arrangement. You can read more about my thoughts on written surrogacy agreements here.
It is illegal to publish anything that indicates a need for a surrogate or that you would be willing to enter into or facilitate a surrogacy arrangement. The Review recommends that advertising be permitted, with strict guidelines as to what is appropriate in an advertisement. Currently, people seeking the assistance of a donor can advertise with the permission of the Minister for Health – there seems to be no logical reason why advertising for an altruistic surrogate should be illegal. In my view, allowing advertising for surrogacy opens up the conversation in the community and promotes altruistic surrogacy as an option within Australia. Unfortunately, many parents have travelled overseas to pursue surrogacy due to it being so inaccessible in Australia.
Overall, the Report is a really positive step forward in ART laws for Victoria. The Andrews’ Government has indicated that it will likely implement the Recommendations, so it’s a matter of watch this space to see when and how that is done.
Sarah has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.