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SAME SEX FAMILY LAW

In Vitro Fertilisation (IVF) for Same Sex Couples

In Vitro Fertilisation (IVF) involves fertilizing an egg with sperm outside the body. The intricate process comprises monitoring and stimulating ovulation, extracting eggs, and allowing fertilization in a laboratory. Subsequently, the resulting embryo is implanted into the uterus, or it can be frozen for future use.

Diverse Paths for Lesbians

For lesbian couples, IVF opens avenues for biological connections. Options range from fertilizing one partner’s eggs with donor sperm and implanting them in the other partner’s uterus to the woman having her eggs implanted into her own uterus. Donor embryos can also be used when eggs are unavailable or nonviable.

Navigating Regulation

IVF regulations are state-specific, with each state and territory having its own legislation. Some states (Victoria, South Australia, Western Australia, and New South Wales) regulate Assisted Reproductive Technology (ART). However, these laws must align with the non-discrimination clause of the Sex Discrimination Act 1984 (Cth). In the absence of state legislation, NHMRC ethical guidelines come into play. Potential challenges include expenses, especially when importing sperm, and eligibility for Medicare rebates. It’s crucial to check with the chosen fertility clinic regarding Medicare rebates, as interpretations of “clinical relevance” may vary.

Evolution of Access for Lesbians

Historically, restrictions affected lesbians and single women in some states. In South Australia, where IVF was limited to medically infertile women, discrimination issues arose. However, legal changes in March 2017 granted same-sex couples and single lesbians access to IVF, marking a positive shift in inclusivity.

Embarking on an IVF journey requires careful consideration of legal frameworks and clinic-specific policies. Staying informed about eligibility, regulations, and evolving legal landscapes is essential for a smooth and empowering IVF experience.

Navigating the IVF Process: An Overview

Embarking on the IVF journey involves specific steps, typically outlined by fertility clinics, to ensure a comprehensive and informed experience.

1. Psychological Counselling
Many clinics mandate counselling sessions with a psychologist, a crucial step in the IVF process. During these sessions, prospective parents, especially same-sex couples, may be asked about their family dynamic, including how they plan to communicate the family structure to their child. Questions about terminology, such as whether both partners will be referred to as “Mum” and how information about donors will be shared, are common.

2. Consent Forms

As a couple pursuing IVF, signing consent forms is a requisite. These documents outline specific procedures and, if applicable, address the legal rights over stored embryos in the event of a separation. It’s essential for couples to carefully review and sign these forms to establish clarity on legal matters associated with donor eggs, sperm, or embryos.

3. Legal Considerations

In some instances, there have been reports that fertility clinics may overlook having lesbian couples sign forms related to embryos created within the relationship. To mitigate potential issues post-separation, it is advisable for lesbian couples to proactively request and sign such forms. This precautionary measure can prevent legal complications, ensuring that both partners are on the same page regarding their reproductive choices.

4. Reciprocal IVF – Conceiving with Your Partner’s Eggs
For lesbians, the option of conceiving a child using their partner’s eggs and chosen donor sperm is known as Reciprocal IVF. This approach is often chosen to foster a sense of connection and involvement for both mothers in the creation of their baby. Additionally, it becomes a viable option in situations where one partner faces medical conditions such as being born without a uterus, undergoing a hysterectomy, dealing with a serious illness, or when a party simply prefers not to carry a child.

Should you decide to pursue this path, discussions with your chosen fertility clinic are crucial. Each clinic may have specific procedures to be followed, including counselling sessions.

In the context of a de facto relationship, where both partners consent to the conception procedure, legal considerations are indifferent to which mother carries the child or whose eggs are utilized. Both mothers possess legal status as parents and are recognized as “intended parents.”

Determining eligibility for the Medicare rebate is an important inquiry to make with your fertility clinic. Typically, you would need to be classified as medically infertile to qualify. It’s worth noting that some clinics may not categorize you as medically infertile unless there is a specific medical condition preventing either you or your partner from achieving pregnancy.

5. Birth Register and Genetic Heritage

Fertility clinics are obligated to maintain a register of children born through donated sperm or eggs. This register serves as a valuable resource for children to access information about their genetic heritage upon turning 18. Donors are informed of this practice before making their donation, ensuring transparency and ethical considerations.

Being informed about these procedural aspects not only empowers individuals and couples undergoing IVF but also contributes to a smoother and legally sound reproductive journey.

Utilising Superannuation for IVF Financing

As the demand for IVF rises alongside its associated costs, an increasing number of women are exploring the option of tapping into their superannuation funds to fund their fertility treatments.

Ordinarily, accessing superannuation before the age of 55 is restricted. However, specific circumstances may permit earlier access, particularly when it comes to funding essential medical treatments. This includes instances where the treatment is deemed necessary for addressing life-threatening injuries or illnesses, relieving acute or chronic pain, or mitigating acute or chronic mental disturbances. Importantly, this avenue is only available if the required treatment is not accessible through the public health system and cannot be funded through other means, even after considering the liquidation of assets. Such access to superannuation falls within the category of a release under “compassionate grounds.”

Compassionate Grounds Criteria for Superannuation Release

The eligibility criteria for accessing superannuation under compassionate grounds are outlined in regulation 6.19A(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

The oversight of these regulations is managed by the Australian Prudential Regulation Authority (APRA), while the Australian Taxation Office (ATO) handles the assessment of applications for the early release of superannuation based on specific compassionate grounds. These grounds include:

  1. Medical or dental treatment for the applicant or a dependent.
  2. Transport for medical or dental treatment for the applicant or a dependent.
  3. Modification to the applicant’s home or vehicle to accommodate a severe disability for the applicant or a dependent.
  4. Palliative care for a terminal illness for the applicant or a dependent.

To qualify for early release on compassionate grounds for IVF treatment costs, you must demonstrate an inability to cover the expenses through alternative means. This may involve a lack of savings or other financial resources to fund the treatment. Supporting evidence of your financial situation, such as bank statements and relevant financial documents, will need to be submitted.

The ATO will consider applications related to the costs of medical treatment not readily available through the public health system, including certain procedures and medications. Regulation 6.19A(3)(a) mandates the submission of a written statement from two registered medical practitioners, with one being a specialist. This statement should certify that the medical treatment is necessary to:

  • Treat a life-threatening illness or injury.
  • Alleviate acute or chronic pain.
  • Alleviate an acute or chronic mental disturbance.

Your General Practitioner

A general practitioner (GP) is a licensed medical professional. Typically, one of the medical practitioners who can furnish a supporting letter for a request for the early release of your superannuation funds will be your or your partner’s GP.

Specialist

A registered medical specialist is a physician who has undergone additional medical training beyond general practice, specializing in areas such as gynaecology, obstetrics, or psychiatry. They possess extra qualifications and are officially registered as specialists.

A consultant physician, for example, an endocrinologist with a subspecialty in fertility or a psychiatrist, is considered a specialist according to the legislation. Any specialist providing an opinion should be highly specialized in the specific field and include their credentials.

As per Regulation 6.19A(3)(b), the certifying medical practitioner must confirm that the patient’s treatment is not readily available through the public health system. The emphasis on “readily” is significant, as the key consideration is whether the treatment is easily accessible to the patient or their dependant. This requirement is met:

  • If the treatment is available in a public hospital but comes with an excessively long waiting period that the patient or their dependant cannot endure.
  • If a surgeon mandates private hospital treatment that is financially unfeasible for the patient, or they lack private health insurance.

The certification must explicitly state that the treatment is both necessary and not readily available in the public health system.

The Procedure

In your journey as a lesbian seeking IVF for conception, the initial step involves obtaining a letter from your GP. Following this, a psychiatrist, not a psychologist, needs to confirm your condition, indicating that you are experiencing an “acute or chronic mental disturbance due to your inability to conceive.” The legislation distinguishes between psychiatrists and psychologists, recognizing only the former as medical practitioners. Alternatively, your fertility specialist is now authorized to sign the application form, removing the previous requirement to consult a psychiatrist.

The psychiatrist’s report should emphasize that IVF treatment is anticipated to enhance your mental health rather than worsen it. It must acknowledge your awareness of the associated risks and the possibility of not achieving pregnancy. Importantly, the report must affirm that the needed treatment is not readily accessible through the public health system.

While other health professionals can provide supporting evidence about your specific condition, these documents do not serve as certification.

Medical practitioners are required to fill out the “Early Release of Superannuation on Specified Compassionate Grounds Report by Medical or Dental Practitioner and/or Specialist form (MO017).” This information aids the ATO in evaluating your eligibility for early superannuation access. If you choose to submit the application online through MyGov, the process typically takes between 2 to 4 days. Below is a link to the form:

https://www.ato.gov.au/Individuals/Super/In-detail/Withdrawing-and-using-your-super/Withdrawing-your-super-and-paying-tax/?page=4#Howtoapply

Upon successful approval, you will receive a letter for submission to your superannuation fund. The release of funds will follow, typically within five to seven business days, allowing you to embark on your IVF journey. It’s important to note that the released funds will be subject to taxation, classified as income for that particular financial year.

Several companies, like SuperCare (with an approximate cost of $800), offer to manage the process on your behalf, handling interactions with your superannuation fund. While this service comes at a cost, it’s worth mentioning that the process itself is not overly complex, and you have the option to undertake it independently, potentially saving on expenses.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.