Abortion law reform and conscientious objectors in NSW

New South Wales is on the cusp of reforming its decades-old abortion laws.

Reproductive Health Care Reform Bill 2019 which passed the State’s Legislative Assembly last week abolishes the triumvirate of criminal offences for abortion in the Crimes Act 1900 (ss 82-84), together with any residual common law liability for performing an abortion.

It creates a new offence for an unqualified person to perform or assist in the performance of an abortion.

New requirements for lawful abortion

The version of the Bill passed by the Legislative Assembly includes a number of requirements that were absent from the Bill as originally introduced by Independent MP Alex Greenwich.

The Bill follows Queensland legislation in authorising a medical practitioner to perform an abortion on a consenting woman who is not more than 22 weeks pregnant.

Before doing so, the doctor must consider whether the pregnant woman would benefit from counselling about the proposed abortion, and if so, must provide her with information about how to access such counselling, including publicly-funded counselling (s 7).

Beyond 22 weeks, an abortion may only be performed in a hospital or other approved facility (ss 6(1)(d), 12).

A woman seeking an abortion beyond 22 weeks must first consult a “specialist medical practitioner”, defined to mean a specialist registered in obstetrics and gynaecology, or alternatively – and rather vaguely – “a medical practitioner who has other expertise that is relevant to the performance of the termination, including, for example, a general practitioner who has additional experience or qualifications in obstetrics.”

The first specialist medical practitioner must consult with a second specialist medical practitioner and both must conclude that “in all the circumstances, the abortion should be performed”, having considered the pregnant woman’s medical circumstances, her current and future physical, psychological and social circumstances, and professional standards (s 6).

However, these requirements (including the requirement for the doctor to be a specialist) do not apply if the doctor believes that the abortion is necessary to save the woman’s life or save another foetus (s 6(4)).

The Bill authorises medical practitioners, nurses, midwives, pharmacists or Aboriginal and Torres Strait Islander health practitioners to assist in abortions in the practice of their health profession, provided they comply with the requirements summarised above (s 8).

Conscientious objectors

Then comes the bit about conscientious objectors.

The NSW Bill follows abortion liberalisation laws in other States, including Queensland, Victoria, and Tasmania, in recognising a medical practitioner’s conscientious objection to advising about, assisting or performing an abortion.

However, the Bill requires conscientious objectors who have been asked to perform or advise about an abortion to refer the woman to another medical practitioner (or health service) whom they believe “can provide the requested service and does not have a conscientious objection to the performance of the termination” (s 8).

To me, that looks a lot like compelling a doctor to participate in facilitating an abortion, irrespective of their moral beliefs.

The Bill is oddly worded, but s 10 appears to indicate that failure to perform one’s statutory duty and to refer a woman seeking an abortion to a medical practitioner who is happy to provide one, is something that can be taken into account in considering complaints made against that doctor to the Medical Council of NSW, or complaints to the Health Care Complaints Commission.

So why privilege the conscience of doctors when it comes to abortion, as distinct from treating abortion like any other medical service?

Stop and think about it.

Because abortion is only one of the most long-standing and bitterly contested medical ethics issues of all time, and medical practitioners who sincerely believe that abortion is morally wrong all or most of the time are hardly newcomers to the health system.

Because the foetus is not nothing – just ask the thousands of women out there who would do anything to fall pregnant, or stay pregnant – and if the foetus is not nothing then a medical practitioner ought to be given the moral space to decide whether and under what circumstances they will participate in the process that leads to killing it.  As courts have said in other contexts, a foetus is not just tissue of the woman in the same way as, say, a diseased appendix or diabetic limb.

Rather than recognising that we live in a pluralistic society where fundamental disagreement persists around issues like abortion and assisted dying, the Bill adopts a triumphalist, winner-takes-all approach, presumably in order to eliminate obstacles to access.

It is hardly surprising that in Victoria, where a similar law was introduced in 2008, some conscientious objectors have not complied with their legal obligations.

Triumphalist legislation

The willingness of Australian Parliaments to liberalise abortion laws reflects the gradual strengthening of personal autonomy and individualism as dominant values in Australian life.

(Moral conservatives in the neoliberal camp, with their Thatcherite view of the world, their easy slogans like “personal responsibility” and “nanny state” have, ironically, helped to create the conditions where progressive abortion laws can now be passed).

But the point is that doctors have personal autonomy too.  As professionals – meaning highly skilled and ethically reflective people with a commitment to the ideals of their profession – doctors have never been mere servants to the designs of their patients.

By all means over-ride a doctor’s conscience if an abortion is necessary to save the pregnant woman’s life.  But otherwise, why threaten the right to practice of a doctor who, for deeply felt moral reasons, cannot participate in a referral system for killing unborn babies?

As I read the legislation, the Bill creates an offence for failing to refer a woman to another doctor who “does not have a conscientious objection to the performance of the termination” that has been requested in the circumstances.

It co-opts not only “right-to-lifers”, but others who believe that the moral status of an abortion depends on the circumstances.

A doctor might believe, for example, that terminating a foetus because it is a girl rather than a boy, is wrong.

In response to concerns about sex selection abortion, the Bill requires the Minister to conduct an inquiry on this issue within 12 months.  However, it doesn’t exempt a doctor who might refuse to refer a couple who want to terminate their foetus because it is the wrong sex.

As it stands, most of the reforms in the Reproductive Health Care Reform Bill 2019 are welcome.  But where is the public interest in requiring conscientious objectors to cross moral boundaries?

Some will feel that it ushers in religious discrimination.

And they won’t comply.  They might well say: since when did the State have the authority to require me to be part of a referral system for killing the unborn?

Dead dogs…non-communicable diseases: Australia’s pivot to the Pacific islands an opportunity to take Pacific health priorities seriously

Barely 100 metres from Australia’s High Commission in Nukoalofa, Tonga, lies this plaque – erected by the People’s Republic of China.

In 2012, China upgraded a small section of road in the Tongan capital, installing drains beside the sidewalk in a town prone to flooding.

Close by, in other parts of the town, rain collects in deep pools and has nowhere to run, even though the sea lies only metres away.  There are no drains.

And two blocks from the Australian High Commission, a dead dog lies in the water outside someone’s submerged front yard.  It takes days, people say, for the rainwater to subside.

Welcome to the Pacific.

Australia’s pivot to the Pacific is welcome news.

Although significantly driven by Australia’s national security interests, higher levels of investment and development assistance provide at least the possibility of alignment with the public health needs of the region, and an opportunity to take Pacific health priorities seriously.

Health security begins with adequate sanitation, drainage, and safe water supplies.  But increasingly, mitigation will be needed against tidal surges and seawater level rises, and the impacts global warming will have on agriculture and food security, water supplies, housing and livelihoods.

Non-communicable diseases (NCDs) including diabetes and cardiovascular disease are out of control in the Pacific, thanks to high rates of smoking, obesity, and the displacement of traditional diets with cheap, imported junk foods.  A culture of feasting may also play a role.  (For further comment, see here, and here).

Significant progress has been made.  Around Nukualofa, for example, you’ll find fresh fruit and vegetable markets, and curbside stalls selling locally-grown produce.

Tonga has also innovated in ways that Australia has not, establishing a statutory Health Promotion Foundation (2007), and training new cohorts of NCD-specialising nurses.

In 2013, Tonga introduced an excise tax on sugar-sweetened beverages, and a T$1 per kilogram tax on a range of animal fats, in order to discourage consumption of fatty meat, including mutton flaps and turkey tails.  Taxes on fatty meats and sugary drinks were increased further in 2017.

But geography and the absence of economies of scale work against these dispersed island groups.  Tonga has beaches and coral waters to die for, yet it is not well known as a tourist destination.

On the island of Foa, in the Ha’apai island group, there are two low-key resorts owned by expats, where you’ll be charged NZ$60 for the 5km drive, across the causeway, to the airport.

A few Tongan nationals work at the resort, but how much money filters down to the impoverished communities that live on the island?

In any event, Pacific island economies need far more than tourism.  They need more economic activity across the board, and the infrastructure to enable it.

Throughout the Pacific, public health legislation needs updating.  Enduring sources of funding are needed to build regulatory capacity, including for enforcement.  Episodic funding, with heavy emphasis on epidemic preparedness, is of course welcome but leaves other core challenges under-funded.  The Pacific Commission’s Public Health Division has done magnificent work; this work, and the funding that supports it, needs to continue.

Australia’s “pivot” is an opportunity to re-set relations and to invest meaningfully in Pacific health priorities.

At least in this area, perhaps a bit of strategic competition isn’t a bad thing.

Are you interested in health law?  Sydney Law School offers a Master of Health Law, and Graduate Diploma in Health Law that is open to lawyers, health professionals and other approved applicants.  Click here, here and here for more information.

Medical treatment in the best interests of the child: onshore, and offshore

There are troubling disparities between the medical treatment that children receive, depending on whether they live onshore – in Australia, or offshore – in immigration detention in places like Nauru.  But do these disparities have a legal basis?

Medical treatment and the best interests of the child: onshore

Exercising their parens patriae jurisdiction, Australian Supreme Courts will intervene – paternalistically, and unapologetically – to ensure that children receive the medical treatment that is in their best interests.

In many circumstances this means granting orders to authorise medical treatment so that Australian children don’t die.

Although the context is very different, recent cases in NSW and Victoria involving the administration of blood products to Jehovah’s Witnesses illustrate the point.

In Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259, the Supreme Court of NSW authorised the administration of blood products during open heart surgery that the court expected an unborn baby would require following birth.  The pregnant woman was a Jehovah’s Witness who had prospectively refused to allow her child to receive blood.

In a similar case held a few weeks later, the Supreme Court authorised a blood transfusion, if necessary, during surgery on a 6 year-old to remove a tumour.

In Mercy Hospitals Victoria v D1 & Anor [2018] VSC 519, the court order cleared the way for a blood transfusion to be given to a 17 year-old pregnant girl if she haemorrhaged following birth.

People may disagree about the merits of compelling a Jehovah’s Witness teenager to accept a blood transfusion, but the point is that courts have jealously guarded the scope of the parens patriae jurisdiction, and it survives intact to ensure that children in Australia receive medical treatment when it is in their best interests to do so.

Medical treatment and the best interests of the child: offshore

A consensus seems to have arisen among many Australians that treating children poorly and neglecting their physical and psychological needs is the price to be paid for “stopping the boats” and preventing asylum seekers from “jumping the queue”.

This issue has become highly politicised.

Politicians flash border protection pectorals, and many Australians respond positively.

But do Australians really want children to be neglected, and denied medical treatment?

Because that’s what’s been happening for many years, and it’s set to happen again if the “Medevac Bill” (the Home Affairs legislation Amendment (Miscellaneous Measures) Act 2019 is repealed.

Before considering this legislation, let’s pick a case study, but take our facts – not from the Minister’s office, but from an institution in our democracy that should and must remain apolitical: the courts.

Rowena’s story

“Rowena” (a pseudonym) is a young girl; we don’t know her age but we know she is not yet a teenager.

Her parents fled their country of origin, and travelled to Christmas Island by boat.  They arrived in 2013, thereby becoming “unauthorised maritime arrivals” under Australia’s Migration Act 1958.

Under section 198AD, they were transferred to Nauru, a country of 21 sq km that assesses asylum seekers who wish to settle in Australia, pursuant to a Memorandum of Understanding between both governments.

The Australian Government pays all the costs of assessing and housing asylum seekers.

These accommodation precincts (whatever you want to call them) would not exist if they were not a manifestation of Australian government policy.

In 2014, Rowena’s parents were assessed as refugees under the Refugee Convention and granted temporary settlement visas in Nauru.

However, Rowena and her parents were not permitted to settle in Australia.  Unless they chose to return to their home country, they were obliged to remain indefinitely on Nauru, or until a third country agreed to settle them.

Around March 2017, Rowena’s parents separated, and her father went to live with his new girlfriend.

Rowena’s mental health began to deteriorate around April that year.

In October 2017, Rowena told a child psychologist employed by International Health and Medical Services (IHMS, a health services contractor), that a voice tells her that “dying is better than living, you’ll be free”.

Rowena told the child psychologist that “she wants to die and she wants to kill herself and that if she was going to kill herself she could ‘make myself lost in the jungle and put a knife in my stomach’”.

In December 2017, Rowena attempted suicide by taking 14 tablets of her mother’s medication.  She was admitted to hospital with respiratory distress, chest and abdominal pain.

Three days later, a counsellor employed by IHMS wrote in the clinical notes that Rowena said: “The medication didn’t kill me, I will try something else”.  “I will kill myself with a knife or jump off the rocks”.

Rowena told the counsellor that she knew how to kill herself because she “has seen in the movies people stabbing themselves with knives”.

She told the counsellor that “attempting suicide made her feel good”.

A psychiatrist employed by IHMS wrote:

“It was clear that this bright child was a little confused on what it meant to be dead.  She was persistent in her thought of wanting to die and leave this world but it was not quite synonymous with her intent to kill herself.  She interspersed the theme of wanting to die with hopes of leaving Nauru and starting a new life elsewhere”.

Rowena’s mother began sleeping in the same room as Rowena for fear she might commit suicide.

However, on 18 December 2017, Rowena ran away from her mother and according to an affidavit by Professor Louise Newman, a child psychiatrist and Professor of Psychiatry at the University of Melbourne, “was found in a position to jump from a height and said that a voice was telling her to jump, jump, jump”.

Professor Newman concluded that there was “clearly an immediate risk” that Rowena would engage in further suicidal behaviour.

Rowena required, in her opinion, treatment by specialists qualified in child psychiatry “in an inpatient child mental health facility with appropriate supervision”.

On 20 December, Rowena and her mother were transferred to the Restricted Accommodation Area within the Regional Processing Centre on Nauru.

According to Professor Newman, this was not an adequate response.

Professor Newman wrote: “Supervision is essential as this child has now run away on two separate occasions and is experiencing command hallucinations urging her to suicide”.

In Professor Newman’s opinion, Rowena needed a safe environment where she could live with her mother and sister, “supported by trained child and adolescent mental health staff on a 24 hour basis”.

Nauru does not provide such facilities.

Rowena v Minister for Immigration and Border Protection

Rowena’s circumstances came before Justice Murphy in the Federal Court in February 2018.

According to evidence in that case, a panel called the “Overseas Medical Referral” Committee, based in Nauru, was required to approve all medical transfers, in conjunction with Australian Border Force officials.

According to evidence given by a GP who had previously worked for IHMS on Nauru, the Overseas Medical Committee was erratic and poorly administered, and the medical transfer system “inefficient and driven by political and not medical concerns”.

After multiple attempts to obtain authorisation from the Commonwealth, IHMS, and others to transfer Rowena from Nauru, Rowena, through her litigation representative, sought an injunction requiring the Minister for Immigration and Border Protection to transfer her to a specialist child mental health facility that could provide the comprehensive psychiatric care recommended by specialists.

The basis for her case was that the Australian Government (the Commonwealth) owed her a duty of care which it had breached, and continued to breach, by “failing to provide her with access to safe and appropriate medical facilities and treatment”.

As Murphy J stated, “The application essentially alleges a continuing tort”.

The Court considered whether there was an arguable case that the Commonwealth owed Rowena a duty of care, applying well-known “salient features” identified in Caltex Refinieries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, [102]-[103].

The Commonwealth conceded that there was a serious question to be tried, but argued that Rowena’s psychiatric problems could be adequately treated on Nauru, despite there being no child psychiatrist stationed in Nauru, and no specialist child mental health facility there.

[As an aside, the Commonwealth’s concession followed a judgment by Bromberg J in the Federal Court in a well-known 2016 case involving an African woman who, while on Nauru, was raped while she was unconscious and suffering a seizure (likely caused by epilepsy).  The Minister for Immigration, Peter Dutton, refused to transfer the woman from Nauru to Australia for the purposes of having an abortion.  He was, however, willing to fly her to Papua New Guinea, where abortion was illegal and could expose her to criminal liability.

In that case, the Minister denied any duty of care to the pregnant woman.  The Federal Court decided that the Minister did owe her a duty of care which required him to “procure for her a safe and lawful abortion”.  The discharge of the Minister’s duty of care did not require the woman to be brought to Australia.  However, the duty was not discharged by arranging for the abortion in PNG.]

Does the Australian Government owe children and adolescents in immigration detention a duty of care?

In Rowena’s case, Murphy J concluded that:

“I am disinclined to accept that outpatient treatment coupled with a child psychiatrist visiting every few months (or even every month) will provide the mental health care treatment the applicant needs and adequately protect her in relation to the risk of suicide.  I do not consider that the OMR [Overseas Medical Referral] process is adequate or likely to be sufficiently swift to adequately protect against the risk of suicide”.

Murphy J found that the balance of convenience favoured the injunction, and ordered the Commonwealth to “remove [Rowena] from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations”.

Rowena’s story is not unique

Similar cases involving sick and suicidal children are reported:

  • here (suicidal 10 year-old boy)
  • here (suicidal 17 year-old boy), and
  • here (adolescent girl who had cut herself, refused food and water and would soon require nasogastric feeding).

In another case, the Commonwealth sought to exclude entry of a two year-old girl with herpes encephalitis, a “serious and life-threatening neurological condition”, arguing (against the evidence of IHMS and consultant specialists) that she could be appropriately treated at the Pacific International Hospital in Papua New Guinea.

What a joy it must be to act for the Minister in these cases: seeking to use the law to deny children urgently needed medical and psychiatric treatment.

In each of these cases, it was Australian courts that provided a measure of decency, compelling the Minister to do what he would otherwise refuse to do: provide a reasonable level of care to children suffering (mostly) psychiatric trauma caused or aggravated by the circumstances of their detention offshore.

Another shared feature of these cases is that the Commonwealth has been forced to concede that there is an arguable case that they owe each of these children a duty of care.

This makes sense.  After all, these children’s daily lives are framed – if not dominated – by Australian government policy.

They depend on the Minister for Home Affairs (previously called the Minister for Immigration and Border Protection) for food, shelter, security and health care.

As Ben Doherty writes, it’s only when these cases get to court that humanity prevails.  Until that time, officials from the Department of Home Affairs delay as long as they can, apparently to please their political masters.

The “Medevac Bill”

In February 2019, against the wishes of the Morrison government, the Commonwealth Parliament passed the “Medevac Bill”.

The Act required the Secretary to identify so-called “legacy minors” (persons aged under 18 years held in a regional processing country as at 1 March 2019), and required the Minister to either approve or refuse the transfer of each legacy minor to Australia within 72 hours after being notified.

Under the legislation, the transfer of minors to Australia is [was] automatic unless the Minister reasonably suspected (on advice from ASIO) that the transfer would be prejudicial to security or that the person has a substantial criminal record (s 198D).

The Act also provides for the transfer to Australia of “relevant transitory persons” where two or more treating doctors form the opinion that the person requires medical or psychiatric treatment that cannot be provided by the regional processing country.

Again, the Minister is taken to have approved their transfer unless, within 72 hours, the Minister intervenes on the basis that [he] reasonably believes that appropriate medical or psychiatric treatment can be provided without their transfer, or that the transfer would be prejudicial to security, or that the person has a substantial criminal record (s 198E).

The Minister’s decision can be appealed to the Independent Health Advice Panel, comprised of independent and Australian government doctors (see s 199B), who can over-rule the Minister about whether the person’s transfer to Australia is necessary in order to provide them with appropriate medical or psychiatric treatment (s 198F).

The legislation also provides that family members of a legacy minor, family members of a transitory person, and other persons recommended by the treating doctor to accompany a transitory person – may be transferred to Australia, unless the Minister intervenes within 72 hours on the grounds above (ss 198C, 198G).

Where the Minister does intervene, [he] must table a statement before Parliament explaining [his] reasons (s 198J).

Thirty-one transfers to mainland Australia have occurred since the Act became effective.  Of nine transfers rejected by the Minister, two were overturned by the Independent Health Advice Panel.

What’s at stake?

The Australian Government opposed the Medevac Bill because it took medical transfers out of the hands of the Minister for Home Affairs, Peter Dutton, substituting an independent medical process.

Following the decisive victory of the Morrison government in the 2019 federal election (18 May 2019), the Home Affairs Minister has stated the Medevac Bill should be repealed in its entirety.

Labor Senator Kristina Keneally has not ruled out considering amendments, but stated that the Act “provides a way for people who are sick to get the care they need and ensures the Minister has final discretion as to who can come”.

Asylum seeker policy will continue to be controversial.

Children, however, are not responsible for the fact of their detention, and should not be conscripted into the endless – and merciless – politics of Australia’s immigration debate.

Denying children – or for that matter, adults – appropriate medical and psychiatric care is miserably cruel.

Politicians who have supported and enabled the denial of medical treatment to children do not represent the values of Australia.  You do not speak for us.

I cannot help thinking that we can learn something here from the common law method.

As every law student learns, courts – conventionally, at least – seek to apply existing principles and to develop them modestly, where necessary, but to avoid making sweeping pronouncements that extend too far beyond what is necessary to reach an appropriate decision.

Perhaps Australian politicians, too, whatever their beliefs about offshore detention, should take an incremental step towards compassion, and do the right thing in the case at hand, granting the children of asylum seekers medical and psychiatric care of the same standard they would want their own children to receive, instead of visiting the sins of the parents upon them.

Are you interested in studying health and medical law?  Sydney Law School offers a Master of Health Law and Graduate Diploma in Health Law.  See also here, and here.

 

The World Health Organisation, the International Health Regulations, ebola and other pandemics: seminar announcement

The International Health Regulations (IHR) (2005) are the primary global instrument for responding to, and seeking to prevent and limit the impact of public health emergencies of international concern, including communicable diseases with pandemic potential. The International Health Regulations are legally binding on all World Health Organization (WHO) Member States, including Australia.  The IHR were revised following the SARS outbreak in 2003.

Over the past decade, the world has faced a number of significant health events, including H1N1 pandemic influenza in 2009, the 2014–2016 Ebola outbreak in West Africa, and the 2018 Ebola outbreaks in the Democratic Republic of Congo. Each of these events has tested the utility and function of the revised IHR.

In this seminar, a panel of leading experts in public health law and global health security will examine whether the International Health Regulations are meeting their goal of protecting public health, international trade, and human rights, and whether the obligations in the IHR are sufficiently robust to respond to ever more complex public health emergencies.

The speakers are:

Dr Mark Eccleston-Turner, Lecturer in Law, Keele University

Title: The WHO response to Ebola in the DRC: a critical analysis of the legal application of the International Health Regulations

Dr. Alexandra Phelan, Centre for Global Health Science and Security, Georgetown University; Adjunct Professor, Georgetown University Law Center

Title: Human Rights under the International Health Regulations in an era of nationalism: laws in Australia and the United States

Dr. Sara Davies, A/Professor in International Relations, School of Government and International Relations, Griffith University

Title: The Politics of Implementing the International Health Regulations

Venue: Sydney Law School, Monday 17 June, 6.00-7.30pm.

This free event is a side-event to the first Global Health Security Conference in Sydney, Australia held from 18 – 21 June 2019.

You can register to attend this event here.

For more background on the speakers, click here.

The people’s award for undermining taxpayer-funded health promotion messages goes to…

(drum roll)

The people’s award for undermining taxpayer-funded health promotion messages goes to…

Mars Wrigley Confectionary, makes of Maltesers, a confectionary multinational who have just launched this Maltesers-inspired chocolate bar into Australia.

 

You’ll want to sit down for this, it urges in billboard advertising.

Clearly something momentous.  A new chocolate bar.  With Maltesers.  Call a press conference or something.

Sharing the billboard with and cleverly undermining a taxpayer-funded marketing campaign from the Australian Sports Commission which encourages Australian children to “find your 30” minutes of physical activity each day.

You can read more about their campaign here.

I wondered if they were taking the mickey.  Let’s move it Aus – find your 30!

Err…no.  Sit down, be a couch potato and snack on a British import that is 53% sugar and 30% fat.

According to the Australian Bureau of Statistics, 25% of Australian children are either overweight or obese.

 

Verifying IVF births involving donated sperm, eggs or embryos: changes to the law in New South Wales

A previous post discussed the case of Natalie Parker, an Australian mother of two young boys who, following the conclusion of IVF treatment, donated three spare embryos to a woman she met on the Embryo Donation Network, a place where donors and recipients can advertise and make contact.

Parker was prepared to donate the embryos, but with conditions attached: she wanted ongoing contact between the genetic siblings.

Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from their ART (assisted reproductive technology) provider.  Pregnancy will be a shared goal of both parties.

In this case, however, the recipient evidently wished to sever contact with Parker, or to be free of the conditions that had been imposed.  The recipient apparently lied to IVF Australia in order to conceal the fact of pregnancy.

She was just thinking about the baby”, Parker said, “and now she’s got the baby she wants to enjoy it herself and not acknowledge it’s got other connections outside the family”.

“They’ve just used me for what they wanted and then just tossed [me] aside”, she later told 60 Minutes.

Legal and regulatory changes have now been introduced into NSW that are intended to reduce the likelihood of incidents like this occurring in future.  This post briefly reviews them.

 

Changes to the Code of Practice for Assisted Reproductive Technology Units

The Code of Practice for Assisted Reproductive Technology Units, which is overseen by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia now requires the ART provider to obtain a written declaration from the recipient, prior to the treatment cycle, that the patient/couple will “provide information about the treatment cycle outcome”.

In this case, the recipient of Mrs Parker’s embryo declined to attend for an IVF test to confirm pregnancy, and may have told IVF Australia that she had miscarried in order to convey the impression that she was not pregnant.

Changes to the Assisted Reproductive Technology Act 2007 (NSW)

Amendments to the Assisted Reproductive Technology Act 2007 (NSW) beef up the counselling requirements that apply to IVF providers, requiring them – in cases where the woman receiving treatment involved the use of donated gametes – to receive information about the “extended list of matters” set out in s 13(3).  These matters include the obligation that the ART provider has to obtain information about the recipient and any offspring born as a result of the procedure: see s 13(3)(c).

Secondly, the legislation imposes an obligation on ART providers to take reasonable steps to find out, between 1 month and no later than 4 months following treatment, whether the recipient of the gamete or embryo became pregnant as a result of the treatment: s 30(5).

The legislation refers to a woman using a “donated gamete”, but this term includes a reference to a gamete used to create a donated embryo”: s 4B.

Section 30(7) requires the ART provider to take reasonable steps to find out, between 10 months and no later than 15 months after the ART treatment whether the pregnancy resulted in a live birth, and the full name, sex, and date of birth of the offspring.

Thirdly, record-keeping obligations have also been strengthened.  Section 31 of the Act requires ART providers to keep records of the matters in respect of which they are required to take reasonable steps to verify.

For a woman who has received treatment using a donated gamete, the ART provider must keep records that indicate whether the recipient became pregnant within a month of receiving the treatment, unless the ART provider does not know this (s 31(1)(b1)).

Where a child has been born as a result of an ART procedure, the ART provider must keep details of the full name, sex and date of birth of the offspring, as well as details of the birth mother and gamete donor: s 31(1)(c).

The ART provider must also record, within 15 months following the provision of ART treatment, whether the recipient gave birth as a result: s 31(1)(c1).

Under s 33, where an ART provider becomes aware that a child was born following treatment involving a donated gamete, they must provide (to the Secretary of the Health Department) full particulars of the records that they are required to keep under s 31.

Where an ART provider does not know – 16 months following treatment involving a donated gamete – whether a child was born as a result, the Secretary must also be informed.

Fourthly, under s 34, the Secretary is authorized to issue directions to a health service provider requiring them to provide information for the purposes of determining whether a child was born as a result of ART treatment involving a donated gamete.

Fifthly, the Assisted Reproductive Technology Act 2007 provides for the establishment of a “central register” to allow access to “identifying information…about a donor by an adult offspring of the donor” who was born as a result of a procedure involving the donor’s donated gamete (ss32A, 32C).

Finally, s 62 of the Act has also been amended.  S 62 creates an offence for giving false or misleading information “in response to a request for information that an ART provider is required to obtain, or to take steps to obtain, under Part 2.”

This offence provision would apply to the recipient of a donated egg or embryo who gave false information to the effect that they did not fall pregnant as a result of the ART procedure involving the donated embryo.

This offence has a maximum penalty of 200 penalty units for an individual, which is 200 X $110 = $22,000, a substantial monetary penalty.

In summary, the focus of the amending legislation is to require the ART provider to obtain information about whether or not a recipient of donor eggs or embryos falls pregnant, and the details of any child who is subsequently born.

The legislation also seeks to ensure that there is no repeat of a situation where a recipient lies to the ART provider about whether or not they became pregnant or have given birth to a child involving donated eggs or embryos.

Why the media gets it wrong on obesity

“I’m not overweight”, writes columnist Katrina Grace Kelly in The Australian.  “I’m just the helpless pawn of a vicious corporate conspiracy”.

Amusing read, but it also illustrates why public health researchers are failing to cut-through with governments and the broader community on obesity.

“The ‘obesogenic environment’ is the culprit here, apparently”, Kelly writes, referring to a recently-released report from the Obesity Collective, and to recommendations from the Senate Select Committee into the Obesity Epidemic in Australia.

“The creators of the obesogenic environment are government, society in general and the harbingers of all evil – corporations, specifically, companies in the food and beverage sector, now being referred to as Big Food.”

She adds: “We are fortunate to have researchers on the public payroll, so they can conduct studies to arrive at such previously unimaginable conclusions”.

 

It’s all personal responsibility, stupid

Kelly’s beliefs about obesity illustrate why the problem is so hard to tackle at a population level.

The dominant framing of obesity as purely a matter of personal responsibility seems obvious, intuitive.  No one is force feeding us, right?

But it has a downside: if you’re fat, look in the mirror, you only have yourself to blame.

According to the Australian Bureau of Statistics, the proportion of adults who are overweight or obese has increased from 56% in 1995, to 67% in 2017-18, with an additional 900,000 adults becoming overweight in the 3 years since the previous survey in 2014-15.

There is a troubling trend here, but for many people, it’s difficult to accept that the causes of the trend might be different from the causes of an individual’s obesity.

 

Personal policy, and public policy

If you are obese, having greater personal responsibility is an excellent suggestion – it’s an excellent “personal policy”.

But it turns out to be a rather silly and unproductive explanation for the trend towards population weight gain.

For one thing, personal responsibility is not a new idea; in fact, it’s a strategic failure, so urging people to have more of it is unlikely to reduce obesity rates in future.

Viewing obesity in terms of the failure of personal responsibility also means that the dramatic trend towards weight gain over the past couple of generations – affecting many millions of people in most countries of the world – is best explained in terms of an unprecedented, mass deterioration in self-control.

Who could have guessed?!

Framing obesity in terms of individual responsibility probably does little to help those who are obese, although it might make the rest of us feel smug.  It also deflects attention from both the causes of, and the solutions to, the problem at a population level.  And that’s what healthy public policy needs to be directed towards.

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