Reproductive health, IVF and surrogacy: legal and ethical issues

Alison Choy Flannigan

Hall & Wilcox, Sydney

alison.choyflannigan@hallandwilcox.com.au

Julio Copo

Arochi & Lidner, Ciudad de México

jcopo@arochilindner.com

Complex legal and ethical issues surround assisted human reproduction, in vitro fertilisation (IVF) and surrogacy including:

• Reproductive medicine/IVF – when does life begin?
• IVF – should women have the human right of reproductive freedom?
• Human rights – do children have the right to life?
• IVF, surrogacy and parentage – the exploitation of impoverished women to become surrogates.
• Embryo selection and designer babies.

Reproductive medicine/IVF – when does life begin?

Assisted reproductive health is totally unacceptable to a number of religions, while some forms of religions accept most of its forms which do not involve gamete or embryo donation.[1]

One of the issues is that a number of embryos are created, with some being discarded during the process, and religions value the sanctity of life. The issue then becomes ‘when does life begin’?

LePage v Center for Reproductive Medicine

The United States case of LePage v Center for Reproductive Medicine, P.C. (Albama Supreme Court, USA) arose when three couples, who had already become parents through IVF, sued the Center for Reproductive Medicine (‘the clinic’), claiming that the clinic’s negligence in leaving the cryogenic nursery unlocked and vulnerable to an intruder resulted in the deaths of their frozen embryos, which the clinic conceded were human. The Mobile County trial judge dismissed the cases, reasoning that a frozen embryo is not a ‘child’ under Alabama law. The plaintiffs then appealed to the Alabama Supreme Court. Like several other state high courts, the Alabama Supreme Court has long recognised that the Wrongful Death of a Minor Act recognises the personhood of ‘unborn children’. 

In a seven-to-two decision authored by Justice Jay Mitchell, the Alabama Supreme Court reversed the trial court and held that the ‘text of the Wrongful Death of a Minor Act applies to all children, without exception.’

In the immediate aftermath of the court’s decision, Alabama IVF clinics ceased operations. However, on 6 March 2024, Alabama Governor Kay Ivey signed SB159 into law. The bill provides broad criminal and civil immunity to IVF clinics in the state, so much so that some clinics have since resumed operations.

Under Australian common law, the foetus under current Australian law appears to have little protection as it is not a legal ‘person’ or ‘human being’ until it completely exits its mother by being born alive.

Artavia Murillo et al (In Vitro Fertilization) v Costa Rica

In 1995, by means of an Executive Decree, Costa Rica regulated assisted reproduction techniques. In 2000, the Supreme Court of Costa Rica declared this Executive Decree as unconstitutional, effectively banning IVF. Fifteen babies had already been born through IVF between 1995 and 2000, and nine couples were currently undergoing medical treatment for IVF.

The nine couples brought the case against Costa Rica before the Interamerican Court.

In its ruling, the Supreme Court of Costa Rica mainly argued:

1. Infringement of the principle of legal reserve: ‘only by means of a formal law, issued by the Legislative Branch through the procedure provided in the Constitution for the issuance of laws, is it possible to regulate and, if applicable, restrict fundamental rights and freedoms.’
2. IVF practices ‘clearly violate the life and dignity of the human being’: The right of a human being not to be deprived of their life or suffer illegitimate attacks by the state or private individuals.
3. Public authorities and civil society must help them to defend theirselves against attacks to their lives.
4. Since conception, a person is a person with the right to be protected by the legal system
5. The right to life is in favour of all, without exception, including those to be born.
6. IVF can only be performed if there is no embryonic loss.

Inter-American Court of Human Rights Case No: 12.361 – Gretel Artavia Murillo et al (‘In Vitro Fertilization’) v Costa Rica

In 2012, the Inter-American Court, by vote of five-to-one, decided that the 2000 decision of Costa Rica’s Constitutional Chamber was a violation by Costa Rica of the American Convention on Human Rights. In its ruling the Interamerican Court established:

1. The decision to be or not to be a mother or father is part of the right to privacy and freedom of self-determination; it includes the decision to be a mother or father in the genetic or biological sense.
2. The right to privacy is related to: (i) reproductive autonomy and (ii) access to reproductive health services, which involves the right to access the medical technology necessary to exercise this right.
3. The rights to privacy and personal integrity are also directly and immediately linked to healthcare.
4. The lack of legal safeguards to take reproductive health into consideration can result in serious undermining of the right to reproductive autonomy and freedom.
5. Conception requires both fertilisation and implantation. A fertilised ovule that is not implanted cannot develop. Conception cannot be understood as a moment or process outside of a womb.
6. Comparative analysis was carried out of the Universal Human Rights System, European Human Rights System, African Human Rights System, the Oviedo Convention, several cases of the European Courts of Human Rights, CEDAW and the Convention of the Rights of Children. None support a claim that an embryo is a person.
7. The state cannot argue that its national legislation provides broader protection to the right to life, as this interpretation is disproportionate and could impinge on other rights.
8. State interference must follow a legitimate end and align with reasonability, necessity and proportionality.
9. The ruling of the Supreme Court created indirect discrimination pertaining to gender, economic capacity and disability.

The Court ordered the following reparations:

1. Take all appropriate measures to prevent the ban on IVF from continuing.
2. Regulate the necessary aspects pertaining to IVF.
3. Guarantee gradual access to IVF in the public health institutions in Costa Rica.
4. Grant psychological treatment to the victims who wish to receive said treatment.
5. Implement training for judiciary employees pertaining to human rights, reproductive rights and discrimination.

Farnell & Anor and Chanbua – the Baby Gammy surrogacy saga

In Australia, perhaps the most controversial surrogacy case is Farnell & Anor and Chanbua [2016] FCWA 17 – the baby Gammy surrogacy saga.

The case involved the surrogacy, birth and parentage of two babies: Pipah Farnel and her twin brother, Nareubet Minjaroen, known as ‘Gammy’. The babies were born via surrogacy to a birth mother, Mrs Chanbua, who lives in Thailand, in December 2013.

The Farnells saw a documentary about commercial surrogacy in Thailand. The Farnells had been trying to have a baby for years, including undergoing ten cycles of IVF. They knew that commercial surrogacy was illegal in Australia, and saw Thailand as their last chance.

After taking medical advice, the Farnells abandoned their plan to have embryos created from Mrs Farnell’s eggs and instead decided to combine Mr Farnell’s sperm with ova from an unidentified woman. They were assured by the Department of Immigration that any resulting child would receive Australian citizenship.

Around the same time, Mrs Chanbua found herself in debt, which prompted her to offer her services as a surrogate mother. She was introduced to Thailand Surrogacy by an agent. She already had two children, but was told by her agent that she was too young to become a surrogate. She therefore assumed the identity of an older relative using fake papers.

On 23 May 2013, two embryos were implanted in Mrs Chanbua at a clinic operated by Dr Visut Suvithayasiri (Dr Visut). Mrs Chanbua was in a de facto relationship with Mr Chanbua at the time. He consented to the procedure. Neither he nor Mrs Chanbua had received any legal advice or counselling about the arrangement.

On 28 September 2013, the Farnells received an email from Antonio advising that a test had revealed there was a ‘risk of Down’s syndrome’, but reassuring them that the doctor did not think anything was wrong. Antonio advised the Farnells that another test was available if they were concerned about the initial result. They asked for the test to be undertaken. On 22 October 2013, the Farnells were advised that the further test had revealed that the male foetus had Down’s syndrome.

The twins were born on 23 December 2013, baby Gammy with Down’s syndrome. They arrived earlier than expected, so the Farnells were not present for their birth, but they made their way to Thailand as quickly as they could. Upon their arrival in Bangkok on 29 December, the Farnells were surprised to find that the twins had been born at a suburban hospital rather than at Bangkok Christian Hospital. They also learned that Mrs Chanbua had left the twins in hospital and returned to her home town.

Mr Farnell is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl.

The case made international headlines as there were allegations that the Farnells had abandoned baby Gammy in Thailand. In his judgment, Justice Thackray found the Farnells did not abandon Gammy, and had wanted to keep him. However, at some time during the pregnancy, ‘it is clear that Mrs Chanbua had fallen in love with the twins she was carrying and had decided she was going to keep the boy’.

Ms Chanbua sought orders from Western Australia’s Family Court to have Pipah returned to her. The Court held that Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though the court held that they would love her and would do everything they could to care for all her needs. The other option was for Pipah to live with her birth mother in Thailand.

It must be stressed that there were only two options. The court chose the one least unsatisfactory for Pipah, whose best interests are the paramount consideration.

Justice Thackray said the case:

‘should also draw attention to the fact that surrogate mothers are not baby-growing machines, or gestational carriers. They are flesh and blood women who can develop bonds with their unborn children. It is noteworthy that no evidence was provided about the long-term impact on mothers of giving up children they carried, and there was no evidence of the impact on the children themselves. Nor was there any expert evidence of the impact on the other children of birth mothers who would have seen their mother pregnant, and perhaps felt the baby move in her belly, only to find that the baby never came home from hospital. Did those children wonder who would be the next to be given away? And what of their feelings of grief and loss if they were misled into believing the baby had died?’[2]

Reproductive health and IVF legislation in Australia

Assisted reproductive technology (ART) treatment is regulated in the ACT, NSW, SA, WA and Victoria by specific legislation, including:

• Assisted Reproductive Technology Act 2024 (ACT)
• Assisted Reproductive Technology Act 2007 (NSW)
• Assisted Reproductive Technology Act 2024 (Queensland)
• Assisted Reproductive Treatment Act 1988 (SA)
• Human Reproductive Technology Act 1991 (WA)
• Assisted Reproductive Treatment Act 2008 (Vic)

The Queensland Assisted Reproductive Treatment Act only received assent on 19 September 2024.

Tasmania and the Northern Territory do not have specific legislation regulating assisted reproductive technology. Providers of assisted reproductive technology in these jurisdictions are self-regulated under:

• the National Health and Medical Research Council’s (NHMRC) Ethical guidelines on the use of reproductive technology in clinical practice and research;[3] and
• the Reproductive Technology Accreditation Committee’s Code of Practice for Assisted Reproductive Technology Units.[4]

In broad terms, the New South Wales legislation sets out the process for a person to be registered to provide assisted reproductive technology treatment, and the maximum penalty for those providing treatments and are not registered. The legislation also details the standards, services and disclosure to be provided by facilities, and the maximum penalties if these standards and services are not provided.

The legislation provides the way in which a gamete or embryo may be used and stored, and the consents required for such, as well as time limits to use gametes or embryos.

Records must be kept under the legislation: the information to be kept, the retention period of the information, and the way information may be transferred and destroyed is also prescribed in the legislation. The legislation also establishes a central register and details the information that must disclosed for the central register. Any information kept for the records or register may be accessed or disclosed in the circumstances under the legislation.

The other jurisdictions are similar.

There is also legislation on the posthumous/post mortem use of material and donor conception in some states, including the posthumous use of gametes, such as section 46 of the Assisted Reproductive Treatment Act 2008 (Vic).

Surrogacy and parentage in Australia

Surrogacy

Commercial surrogacy is illegal in all states in Australia. This means the surrogate and her partner cannot be paid for carrying a baby for someone else. While altruistic surrogacy is permitted in some jurisdictions, the intended parents must cover the surrogate’s expenses in relation to surrogacy, pregnancy and birth.

When referring to surrogacy, there are two different types:

• traditional surrogate – where the surrogate provides their own egg, usually during an artificial insemination process; and
• gestational surrogacy – where all genetic material is provided by either the intended parent/s or a third party.

The relevant laws include:

• the Surrogacy Act 2010 (NSW)
• the Surrogacy Act 2022 (NT)
• the Surrogacy Act 2010 (Qld)
• the Surrogacy Act 2019 (SA)
• the Surrogacy Act 2012 (Tas)
• the Assisted Reproductive Treatment Act 2008 (Vic)
• the Surrogacy Act 2008 (WA)
• the Parentage Act 2004 (ACT)

Broadly speaking, in New South Wales, the legislation specifies what a surrogacy arrangement is. It prohibits commercial surrogacy arrangements and advertising, with the maximum penalties set out. The reasonable costs associated with a surrogacy agreement are listed to determine when a surrogacy arrangement is and is not commercial.

The legislation sets out the application process for, the making of, preconditions for the making of and effect of a parentage order, including:

• time limits;
• details to be included in a report from a counsellor;
• the surrogacy being altruistic;
• requirements relating to the birth mother and intended parent/s and
• specific requirements for counselling and legal advice.

Disclosing or publishing information relating to a surrogacy arrangement is prohibited, and the maximum penalty for same is detailed in the legislation. The legislation also contains the rights of access to birth information for certain persons, and the application process for this information.

Legislation in other states is similar. However, we recommend legal advice should be sought as there are differences in each state and territory. For example, in Victoria, a registered ART provider may carry out a treatment procedure on a woman under a surrogacy arrangement only if the surrogacy arrangement has been approved by the Patient Review Panel:

‘40 (1)  The Patient Review Panel may approve a surrogacy arrangement if the Panel is satisfied of the following—

(a)        that a doctor has formed an opinion that—

(i)        in the circumstances, the commissioning parent is unlikely to become pregnant, be able to carry a pregnancy or give birth; or

(ii)        if the commissioning parent is a woman, the woman is likely to place her life or health, or that of the baby, at risk if she becomes pregnant, carries a pregnancy or gives birth;

(ab)      that the surrogate mother’s oocyte will not be used in the conception of the child;

(ac)      that the surrogate mother has previously carried a pregnancy and given birth to a live child;

(b)        that the surrogate mother is at least 25 years of age;

(c)        that the commissioning parent, the surrogate mother and the surrogate mother’s partner, if any, have received counselling and legal advice as required under section 43;

(d)        that the parties to the surrogacy arrangement are aware of and understand the personal and legal consequences of the arrangement;

(e)        that the parties to the surrogacy arrangement are prepared for the consequences if the arrangement does not proceed in accordance with the parties’ intentions, including—

(i)         the consequences if the commissioning parent decides not to accept the child once born; and

(ii)        the consequences if the surrogate mother refuses to relinquish the child to the commissioning parent.

(f)        that the parties to the surrogacy arrangement are able to make informed decisions about proceeding with the arrangement.’

Parentage

The right to apply for parentage orders is regulated. The legislation includes:

• the Parentage Act 2004 (ACT)
• the Surrogacy Act 2010 (NSW)
• the Surrogacy Act 2010 (Qld)
• the Surrogacy Act 2012 (Tas)
• the Surrogacy Act 2019 (SA)
• the Assisted Reproductive Treatment Act 2008 (Vic) and Status of Children Act 1974 (Vic)
• the Surrogacy Act 2008 (WA) and Artificial Conception Act 1985 (WA)

In broad terms, the legislation sets out the application process, making of, preconditions for the making of, and effect of a parentage order, including time limits, details to be included in a report from a counsellor, the surrogacy being altruistic, requirements relating to the birth mother and intended parent/s, and specific requirements for counselling and legal advice.

While the legislation in the other states is similar, we recommend you obtain legal advice as there are differences in each state and territory.

Citizenship

Section 12 of the Australian Citizenship Act 2007 (Cth) provides that a person born in Australia is an Australian citizen if a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born or the person is ordinarily resident in Australia for the first ten years of the person’s life.

Under section 16 of the Australian Citizenship Act a person born on or after 26 January 1949 is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of birth.

In the Baby Gammy case it was held that by operation of the Artificial Conception Act 1985 (WA) that the child’s parents are the birth mother and her husband, who were in a de facto relationship at the time of the artificial fertilisation procedure, as:

• Section 60H(1) of the Family Law Act 1975 (Cth) does not apply to surrogacy;
• Section 60F(1)(b) of the Family Law Act 1975 (Cth) does not apply to children born as a result of artificial conception procedures; and
• The child is therefore not a ‘child of a marriage’ and the Family Court Act 1997 (WA) applies.

A child’s ‘parentage’ can be transferred, as is required in surrogacy matters. Most jurisdictions in Australia have enacted amendments to their legislation to recognise a non-birth mother as a presumptive parent of a child born through assisted reproductive services, for example, in the parentage legislation referred to above, including Part IV (including section 21) and section 19 of the Status of Children Act 1974 (Vic):

‘A child born overseas to an Australian citizen does not automatically become an Australian citizen at birth. You can apply for the child to become an Australian citizen by descent under the Australian Citizenship Act 2007 (Cth) and the Australian Citizen Regulations 2016 (Cth).’[5]

It therefore makes it clearer if one or the proposed parents is a biological parent, for example the proposed father donated the sperm to the surrogate. In all cases involving surrogacy, the parties must provide:

• written and signed consent to the application from the surrogate mother;
• a certified copy of identity documentation for the surrogate mother showing her photo and signature;
• a certified copy of the surrogacy contract signed by the surrogate mother and commissioning parent(s); and
• medical reports including evidence of embryo creation and transfer.

If the surrogate is located overseas, they will also need to check the laws of the country in which she resides.

Acknowledgement: This article follows a presentation at IBA Mexico on Assisted Reproduction including Surrogacy and IVF at the Annual IBA conference in Mexico 2024 with Dr Daniel Pascal (Hospital Angeles del Pedregal, Mexico), Barbara Connolly KC (UK), Julio Copo Terres (Arochi & Lindner SC Mexico), Shivani Luthra Lohly (India) and Hilka Hollman (Dawson Cornwell UK).