Thursday, January 09, 2020
Australian IVF clinics no longer to ask for copies of surrogacy arrangements
With the exception of Victorian and Western Australian clinics, Australian IVF clinics are no longer going to be seeking copies of surrogacy arrangements that have been entered into by the intended parents. This is following a letter issued by the President of the Fertility Society of Australia in December.
The letter in turn reflects direct representations that I made to the Society. The President and Vice President of the Society wrote to clinics:
Two issues arise from time to time in regard to surrogacy arrangements:
1. The provision of the legal advice given to the parties to the surrogacy arrangement.
2. The provision of the surrogacy arrangement to the clinic.
Provision of legal advice
Client legal privilege or legal professional privilege as it is sometimes called is fundamental to the administration of justice. It is fundamentally wrong that any regulator or IVF clinic insists on a provision of this advice as a pre-condition to treatment. It is appropriate that any regulator or clinic receive a certain checklist of matters so that the regulator or clinic can know that the parties in question have acted in accordance with the law and the advice that they have received covers certain enumerated specified issues.
The Fertility Society of Australia (FSA) ultimately cannot control what either of the regulators, the Patient Review Panel in Victoria and the Reproductive Technology Council in Western Australia, requires but the FSA agrees with the concerns of Mr Stephen Page that clinics, in the absence of legislation or regulatory requirement, cease seeking that a copy legal advice be provided to them.
This is also in agreement with the opinion expressed in the recent Gorton review that criticised the Patient Review Panel for its insistence in obtaining a copy of the legal advice given to parties to a surrogacy arrangement. The review made plain that, instead, the Patient Review Panel should be able to rely upon an appropriate certificate of lawyers in question that certain matters have been covered.
Provision of the surrogacy arrangement
The practice of clinics insisting on being provided with a copy of the surrogacy arrangement is also fundamentally at odds with the common practice in comparison countries such as the US and Canada where instead the lawyers provide clearance that the legal requirements have been met. Clinics, by insisting on being provided with a copy of the surrogacy agreement, are potentially putting themselves forward for liability if something goes wrong with the surrogacy arrangement.
In two States where regulatory approval is required, namely Victoria and Western Australia, the clinic will need to have a copy of the surrogacy arrangement. In all other States, it should not, and it would be helpful if there were a consistent approach by clinics seeking certain requirements for clearance.”