Victoria considers abolishing child protection and criminal history checks for ART/surrogacy
The Victorian Government is considering abolishing the current requirement in Victoria which mandate anyone undertaking assisted reproductive treatment (including surrogacy) there to have to pass child protection and criminal history checks.
The feedback of stakeholders to the Victorian Government was rather telling:
. Overall feedback from stakeholders Stakeholders supported removing the checks. In addition to specific comments below, some general comments included that the checks:
• are offensive, unfair and humiliating
• are unnecessary, particularly as some clinics note that in their experience the majority of presumptions against treatment are not upheld by the Patient Review Panel
• cause women and their partners distress and anger, in addition to the burden of infertility
• are not based on sound evidence
• are discriminatory, as they do not apply to comparable medical procedures (such as vasectomy reversal), nor to the general population that conceives naturally
• are not required in any other jurisdiction in Australia or overseas
• represent the most common complaint by patients and clinics since the Assisted Reproductive Treatment Act 2008 was introduced in 2010.
In addition, some clinics noted that there is an element of interpretation associated with some criminal offences, and counsellors are not always clear whether a certain criminal behaviour triggers a presumption against treatment. What would be the anticipated benefits and risks of removing the checks? Stakeholders commented that the benefits of removing police and child protection order checks may include:
• removing distress associated with the checks, at a time when women receiving treatment and their partners are often feeling anxious about their fertility
• removing a cost burden
• reducing delays until treatment, including the potential to miss the first treatment cycle – currently there can be a wait of more than four weeks for a child protection order check
• removing further distress and delays of up to several months resulting from appearing before the Patient Review Panel where a presumption against treatment applies
• a more positive counsellor-patient relationship, which is compromised by having to explain the check requirements to women and their partners wishing to access assisted reproductive treatment.
Stakeholders noted in relation to risks of removing the checks:
• in the last ten years since the checks were introduced, the child safeguarding regulatory landscape in Victoria has changed significantly, with the introduction of the reportable conduct scheme, child safe standards and child information-sharing schemes, expansion of mandatory reporting of child abuse, and significant government investment in initiatives addressing family violence
• clinics already undertake a comprehensive, holistic approach to counselling, clinical assessment and review to identify and follow up any identified concerns relating to women receiving treatment or their partners. For example, clinics may delay or refuse treatment pending further review by a medical advisory and/or ethics committee, as well as referring to a specialist practitioner, if there are concerns about a person’s physical, psychological or social wellbeing. These practices ensure practitioners and counsellors are better informed and able to manage risk factors in ways the checks cannot, and do so throughout the course of treatment
• there is no evidence suggesting risks to children born as a result of assisted reproductive treatment are greater, compared with children conceived naturally. What assistance from the department/government would assisted reproductive treatment providers require to identify/respond to risk factors?
• Clinics stated if the checks were removed they would not require guidelines to be developed by the department or the regulator to assist them to implement the changes. This is because clinical and counselling processes are already in place, and are tailored to the individual circumstances of the woman and her partner. How long would stakeholders require to operationalise the new arrangements?
• Clinics advised they would not require any lead time to implement the changes, as they could update their communication materials to coincide with the timing of the passage of any bill through Parliament.
• The department noted some time may be required to make any necessary changes to the Regulations. Are there transitional/operational issues to manage if checks are removed?
• Clinics stated there would be minimal operational issues to manage, and this would be limited to updating website and other communications and internal policies.
• Stakeholders generally considered any transitional arrangements required in legislation would be a matter for the department and the Patient Review Panel to resolve.
• Clinics noted that if a person had a presumption against treatment recorded and subsequently sought treatment after any legislation is implemented, clinics would reassess the person through clinical and counselling discussions prior to treatment.