Creating a family is usually a joyous, natural and spontaneous next step in any loving relationship. But, in recent times, for a variety of technological, societal and other reasons, many couples have embraced the use of assisted reproductive treatment (‘ART’) as an integral element in the child-birth process. During the past five years alone, ART procedures conducted in Australia have increased by 10% on average.
Thankfully, the overwhelming majority of such stories have a happy ending. But what happens when something goes wrong?
There are various legal avenues of redress available to victims of negligent or otherwise inappropriate behaviour by ART providers. Proceedings for damages for personal injury may be brought to compensate victims for resultant psychological suffering and/or financial loss. ART providers who have breached statutory guarantees – such as that the gametes are of acceptable quality and fit for purpose, or that ART services themselves will be provided with due care and skill – may be sued under the Australian Consumer Law. Where proper prior consent has not been obtained, an ART provider may even find themselves liable in tort for trespass to person and/or assault and battery.
Nyst Legal have acted on behalf of a string of claimants who have launched legal proceedings claiming damages from IVF providers for negligent provision of ART services. Whilst such claims remain relatively rare, it has become increasingly apparent in recent times that complaints are in fact more common than the general public would expect. So much so that concerns raised in the course of several high-profile cases recently prompted the Queensland Office of the Health Ombudsman (‘OHO’) to conduct an in-depth investigation into the provision of ART services in this state.
In the course of its investigation, the OHO focused on a range of themes and concerns, but the appropriate collection, storage, identification and distribution of gametes and embryos was perhaps the most predominant, accounting for around 40% of all consumer complaints against ART providers. The complaints ranged from minor, such as the destruction of mislabeled ampoules, to severe, such as using the wrong sperm ampoule in an ART procedure. The Reproductive Technology Accreditation Committee (RTAC)’s data astoundingly reflects that Queensland ART providers have the highest national rate of non-conformities related to identification and traceability, at 42%. But some of the ART provider audit data unearthed during the OHO’s investigation was even more astounding. For example, one provider reported that, not tens, not hundreds, but thousands of donor sperm samples, frozen before 2020, did not comply with accepted double-witnessing standards. This means that potentially thousands of donor sperm ampoules at that facility could have been mislabeled, misplaced, or even misused.
Other glaring issues were identified by the OHO, such as allegations of inadequacies in the donor screening process, failure to inform families of potential medical conditions developed by children using a particular donor, inconsistency of record keeping across ART providers, and a lack of transparency or willingness by ART providers to engage with consumers regarding incidents.
One may be inclined to think that, given ART quite literally and directly impacts people’s lives, there would be a clear and stringent legislative regime governing its use. Right?
Well, not really.
ART providers in Queensland follow a self-regulatory accreditation system, which requires adherence to the National Health and Medical Research Council Guidelines and the RTAC Code of Practice. However, this self-regulation has no enforcement mechanisms or sanction regime to deal with non-compliance, other than consequences for licensing and accreditation, which is governed by the Fertility Society of Australia and New Zealand.
But, if eventually passed into law, the Queensland Government’s new Assisted Reproductive Technology Bill 2024, may finally provide some much-needed effective oversight of the ART industry in this state. The Bill comes off the back of numerous recommendations of the OHO Inquiry, including:
- Legislation of a standardised suite of processes to ensure consistent record keeping and reporting;
- Disposal of stored donor material that does not meet current identification standards;
- Comprehensive documentation of incidents and immediate reporting to the accrediting body;
- More extensive screening of donors;
- Requirement that registered healthcare practitioners provide independent confirmation of a donor’s medical history;
- Introduction of a policy and procedure regime where there is an implied potential medical risk to children conceived from a donor;
- Mandatory disclosure to other families with the same donor and parameters for withdrawing risky donors from further use; and
- A requirement that all ART providers adopt the ‘Australian Open Disclosure Framework’.
It sounds to me like a very positive step forward. Let’s hope so, for everybody’s sake.
