Victoria; Changes to Patient Review Panel surrogacy rules

Following the recent ART interim review report last year into ART regulation in surrogacy, the regulator of surrogacy  in Victoria, the Patient Review Panel, has scrapped all its previous guidance and said there will be new guidance come 1 July 2019. Currently there is no information about what guidance the Patient Review Panel provides- as to whether surrogacy can or cannot happen in Victoria. In the meantime Victorians just have to guess at what might be approved or not approved.

The new guidance is not known, saved that I have been told by a reliable source that the Patient Review Panel will not approve a surrogate who is 45 years or older. Other States do not have such a hard and fast rule.

The ART review was not given the task to role of the Patient Review Panel. Instead, it was made quite plain that the Patient Review Panel was outside its terms of reference. Nevertheless, the review seems to have touched a raw nerve with those who have deal with the Panel. The review felt compelled to respond and put in a separate section about the Panel. While the review said that it had not investigated the claims as they were outside its terms of reference, nevertheless “the perceptions described are common”.

The PRP was seen as being slow:

“There is a perception among some respondents to the consultation, including both those who have had matters determined by the Panel and providers, that Panel processes are slow. This can be frustrating and distressing for people.

“The panel put us off the first time as they wanted to find out more information about my prognosis … this felt totally out of line. Our fertility specialist, lawyer and oncologist professionally expressed why this wasn’t ok. This put our progress back over a month.

…

The panel is busy, and has huge delays. I am turning 40 next month. My chances are getting lower every day as I age.”

“[There should be] more information about what to expect from the PRP process in Surrogacy. I didn’t mind the PRP experience but the anxiety of not knowing what exactly we were walking into and how much pressure was put on was hard to cope with.”

“Others, including individuals who have had matters heard by the Panel, report that the experience itself can be confronting and difficult. One clinic relayed feedback from patients that ‘the meetings are intimidating, daunting, unpredictable and that they feel the system is punitive’.

A number of individuals told the Review they found the conduct of Panel hearings to be overly formal and legalistic. Some said they were asked questions they found intrusive, insensitive or rude. This was particularly the perception of some from the LGBTQI+ community.”

“Some stakeholders, including clinics, recipients of treatment and their representatives, have made claims that the Patient Review Panel is not consistent in the information it seeks from clinics or from parties to surrogacy arrangements.

They change the ‘rules’ for different people, allowing some flexibility while being difficult and unyielding with others about the same issues.

Survey response – recipient of assisted reproductive treatment

Others stated that there is a lack of transparency surrounding Panel processes and decision making, or that the Panel may seek information or set requirements that go beyond what is required to make determinations under the Act. For example:

•      A number of clinic representatives commented there is a lack of clarity as to what constitutes acceptable evidence to demonstrate a deceased partner’s consent for the posthumous use of gametes. One clinic proposed that the Patient review guidance note on this matter requires review.

•      People involved in surrogacy arrangements stated that the guidance note regarding the approval of surrogacy arrangements required review to accurately reflect the role of the Panel in these cases.

•      A clinic reported that, in relation to surrogacy matters, the Panel is ‘requesting multiple legal opinions and comparing the contents, rather than ensuring the patient has sought legal advice and understands the advice provided’.

•      A surrogate understood that the PRP requires all parties, including donors, to attend hearings in person, even where parties reside interstate and travel has significant impact on health, employment and child care.

I think the Patient Review Panel should be more transparent, approachable, and less dogmatic in its approach and processes.

Survey response – surrogate”