Project Officer – Assisted Reproductive Technology
Health & Research Ethics Section
National Health and Medical Research Council
GPO Box 1421
CANBERRA ACT 2601
ethics@nhmrc.gov.au
Dear Project Officer,
Review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology
in Clinical Practice and Research, 2007
Thank you for the opportunity to make a submission on the review of Part B of the Ethical
Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research,
2007.
I do so as an ordinary member of the public, without any special qualification or expertise in
assisted reproductive technology (ART), but with a strong interest and passionate
commitment to the legal and substantive equality of lesbian, gay, bisexual, transgender and
intersex (LGBTI) Australians.
I do not propose to answer all 60 of the questions contained in the public consultation
document on the NHMRC website, but will instead focus my comments on those issues
which are most relevant to LGBTI equality, as well as to the issue of commercial surrogacy.
In particular, I would like to make comments about the following five areas:
1. Conscientious Objections
2. Transmissible Infections
3. Unknown but Directed Donations
4. Selection for Particular Characteristics
5. Commercial Surrogacy
1
1. Conscientious Objections
My first concern is about the breadth of the description of conscientious objections in
paragraph 5.9 (page 12 of the consultation document). Specifically, this paragraph provides
that “[i]f any member of staff or student expresses a conscientious objection to the
treatment of any individual patient or to any ART procedures conducted by the clinic, the
clinic must allow him or her to withdraw from involvement in the procedure or program to
which he or she objects.”
While I note that the provision of ART services may, for some staff members of students,
raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows
for conscientious objections even when such objections are themselves unethical.
For example, the provision as drafted would allow an individual member of staff to refuse to
provide ART services to a person on the basis of that person’s sexual orientation, gender
identity or intersex status (if that person believed that ART services should not be provided
to such persons) or on the basis of relationship status (if the person believed that only
‘opposite-sex’ married persons should have access to ART).
With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue
introduction of federal anti-discrimination protections in 2013) and of different relationship
statuses (including the 2008 reforms to federal de facto relationship recognition), none of
these objections – while potentially genuinely held by the individual – should be allowed as
the basis for refusing to provide ART services. Nor should conscientious objections on the
basis of any of sexual orientation, gender identity, intersex status or relationship status be
recognized as acceptable or ‘ethical’ in the context of these Guidelines.
If paragraph 5.9 is to be retained in the Ethical Guidelines, I recommend that it be amended
to specifically note that conscientious objections do not apply, and are not accepted, with
respect to the sexual orientation, gender identity, intersex status or relationship status of
the intended recipient of the ART procedure or service.
2
2. Transmissible Infections
My second concern also relates to the breadth of provisions contained in the Guidelines, in
this case paragraph 6.4 (titled Minimise risk of infection, on page 19 of the consultation
document). Specifically, sub-paragraph of this section provides that “[c]linics should not
accept donations from people at an increased risk of transmissible infections”.
While I acknowledge the importance of reducing the risk of transmission of communicable
diseases, I believe that the wording of this sub-paragraph allows for potential
misinterpretation or misapplication to prohibit donations from all people from a particular
demographic group who may be over-represented in notifications for a transmissible
infection (for example, men who have sex with men, who are currently disproportionately
represented in HIV notifications in Australia).
This level of prohibition – at demographic group level – would ignore the particular
behaviours or characteristics of the individual, which in practice make that individual more
or less susceptible to transmission.
My concern is this area is founded on the ongoing exclusion of all men who engage in samesex sexual intercourse from donating blood, irrespective of their particular behaviours or
characteristics and therefore actual risk.
It is my view that any risk assessment, if deemed necessary at all, should be performed at
individual level, rather than demographic group, and that the Guidelines should make this
differentiation explicit in this section.
I would also note that the requirement contained in sub-paragraph 6.4.2 (that “[a]ll donors
of gametes should undergo appropriate infection control surveillance”) is possibly all that is
necessary to be included in this section in any event. If the individual concerned is being
tested for relevant infections, and appropriate monitoring is being undertaken, then subparagraph 6.4.1 may in fact already be redundant.
3. Unknown but directed donations
3
This concern relates to the paragraphs addressing ‘unknown but directed donation’ of both
gametes (paragraph 6.9, at page 20 of the consultation document) and embryos (paragraph
7.6, at page 29).
I am strongly opposed to the recognition, even under Ethical Guidelines, of any ability of
donors to restrict the use of their gametes or embryos to “certain individuals, such as those
from a particular ethnic or social group.”
This creates the possibility of donors restricting the use of their gametes or embryos to
people of a particular sexual orientation or gender identity (for example, to cisgender
heterosexual people), and therefore to excluding other people on the basis of their sexual
orientation, gender identity or intersex status. It also appears that this would allow for
similar distinctions to be made on the basis of relationship status.
I note that paragraph 6.9 highlights that “[t]his type of directed donation is illegal in some
jurisdictions.” I believe that it should be made illegal in all jurisdictions. The principle of nondiscrimination, including non-discrimination against LGBTI people, should trump any ability
of potential donors to discriminate against people on the basis of sexual orientation, gender
identity, intersex status of relationship status.
Even where ‘unknown but directed donations’ are not made illegal under law, the placing of
such restrictions on the donation of gametes or embryos should not be respected through
these Guidelines (as they currently are in both paragraphs 6.9 and 7.6, which conclude by
saying “[i]n the remaining states and territories, clinics must not use the gametes/embryos
in a way that is contrary to the wishes of the donor.”)
At this point I note that there are two options to implement such a recommendation – and
that is to either override any expressed discriminatory preference of the donor and provide
the gametes/embryos to others irrespective of whatever qualification was sought, or to
reject all such donations and ensure that their gametes/embryos are not used. I am
comfortable with either outcome, as they both satisfy the principles of equality/nondiscrimination, although I highlight the fact that the former would allow more
gametes/embryos to be used by individuals or couples who may require them.
4
4. Selection for Particular Characteristics
Paragraph 11.1 of the Ethical Guidelines (headed Do not select sex for non-medical
purposes, on page 48 of the consultation document) states that “sex selection (by whatever
means) must not be undertaken except to reduce the risk of transmission of a serious
genetic condition”. I support the inclusion of this principle in the Guidelines.
However, I note that, in future, there exists the potential that research may create the
possibility of determining the likely (or at least increased predisposition towards a specific)
sexual orientation or gender identity of a child born as a result of assisted reproductive
technology. I also note that, for certain groups within the umbrella term intersex (such as
congenital adrenal hyperplasia and androgen insensitivity syndrome) these diagnostic tests
are already a possibility, while additional groups within intersex may be able to be
determined in the future.
Given that the incredible diversity of sexual orientation (including heterosexuality,
homosexuality and bisexuality), gender identity (recognizing those who are cisgender and
those who are transgender) and sex (including intersex status) of human life is natural, and
that all people, including LGBTI people, are equal, and should be treated as such, I believe
the Guidelines should also include a prohibition on the selection of reproductive material on
the basis of (likely or prospective) sexual orientation, gender identity or intersex status.
While for sexual orientation and gender identity, this scenario – the screening of embryos
for such characteristics – may ultimately prove to be some years or even decades into the
future, I believe that it is vital to lay down this signpost, that such discrimination will not be
tolerated, now, thereby setting a precedent for if and when it is ever required. In the case of
intersex status, such guidelines are necessary now, to support and recognize sex diversity.
5. Commercial Surrogacy
Finally, I note that paragraph 13.1 of the Ethical Guidelines (on page 52 of the consultation
document) states that “[i]t is ethically unacceptable to undertake or facilitate surrogate
pregnancy for commercial purposes.”
5
While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not
necessarily agree with such a broad-sweeping and all-encompassing statement against
commercial surrogacy. I do not believe there is sufficient evidence to assert that in every
single situation commercial surrogacy is ‘unethical’ or ‘wrong’.
Of course, I am, like most people, sensitive to the very real potential for commercial
surrogacy to result in the exploitation of women for their reproductive capabilities. This has
to be a major, if not the major, consideration in determining whether to allow commercial
surrogacy and if so what form of regulation might be appropriate.
However, I am also aware that the current legal situation – where commercial surrogacy in
Australia is banned, and as a direct result of these laws an increasing number of Australian
individuals and couples are engaging in commercial surrogacy arrangements overseas – may
in fact cause a far greater degree of exploitation of women, especially in developing
countries and/or countries which do not closely regulate surrogacy arrangements.
It may be that a domestic ban on commercial surrogacy has, contrary to the intended
outcome of those who introduced it, in fact resulted in greater exploitation of women when
considered as a whole. It may also be that, creating a domestic commercial surrogacy
scheme, which would allow for direct oversight by Commonwealth (or State and Territory)
authorities, could lead to a significant reduction in the potential for such exploitation.
I do not expect the review process considering these Guidelines to come to a conclusion
about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest
what a domestic commercial surrogacy scheme would look like.
However, I do believe that this is an issue that requires further investigation, and could be
the subject of a comprehensive review by the Australian Law Reform Commission, or their
State and Territory equivalents.
The ALRC could be asked not to review whether such a scheme should be adopted but to
determine, if commercial surrogacy was to be allowed in Australia, what the best possible
scheme (with the least potential for the exploitation of women) would look like. The
6
Parliament, and the wider community, could then discuss and debate the option that was
put forward and make an informed choice about whether such a model was preferable to
the ongoing domestic ban on commercial surrogacy (and the corresponding trend to
overseas surrogacy arrangements).
I believe that such a debate, informed not just by a practical proposal but also by the realworld consequences of the current ban, is vital before we can truly come to grips with and
possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.
Thank you for taking my submission into consideration.
Sincerely,
Alastair Lawrie
20 April 2014
7