With more and more couples and individuals turning to in-vitro fertilisation (IVF) or other assisted reproductive technologies (ART) in order to conceive, the industry is booming. In Australia, it is estimated to be a billion-dollar industry.

Lack of oversight

Unlike most other areas of medical practice, ART has very limited professional regulation – certainly there is no national regulation.  As such, there are no standard processes and procedures and even if there were, there is no entity authorised to ensure compliance.  Clinics are not required to publish their rates of success (or failure) and clients of the clinics often fear repercussions if they raise concerns or make a complaint.  They are concerned that they will be denied access to ART in the future and be left without a chance to start a family.

Who can I make a complaint to?

Although there is no specific body dealing with the regulation of IVF clinics and others involved in ART, the NSW Health Care Complaints Commission (HCCC) is empowered to deal with complaints about individual doctors and nurses as well as institutions such as a clinic.  An individual or solicitor acting on their behalf can make a formal written complaint to the HCCC which deals with complaints about the conduct, health or performance of health practitioners as well as clinics and hospitals in NSW.

Amongst the remedies available to the HCCC, there is no power to order compensation.

Outcomes of complaints referred to the HCCC include:

• Conciliation
• Investigation
• Imposing restrictions on a practitioner’s registration
• Making public comments to improve future practice or treatment
• Prosecuting complaints at a disciplinary tribunal

Further information is available on their website www.hccc.nsw.gov.au

Find out more about resolving a medical dispute and what is a health disciplinary hearing?

What sort of things can go wrong?

Our medical lawyers have dealt with – and are aware of – a wide variety of situations that can and have given rise to negligence actions:

• laboratory mix-ups and witnessing errors by doctors and embryologists which can lead to a parentage mix up
• equipment failure for example freezing/cryopreservation gear
• accidental destruction of embryos such as by unknowingly turning off an incubator
• loss or damage to eggs, embryos and blastocysts
• negligent embryo transfer procedures
• failure to screen donor sperm adequately
• ovarian hyperstimulation syndrome (OHSS)
• failure to use correct donor gametes (sperm or eggs)
• the wrong sperm being injected into an egg
• implantation of embryos into the wrong women
• inappropriate advice such as embarking on a course of IVF when contraindicated by the woman’s history or poor ovarian reserve
• negligent surgery

Donor children

Since egg and sperm donation have really only increased in popularity in the last 20-30 years, it is only now that children born as a result of this form of ART (so called ‘donor children’) have become adults and are starting to question their parentage. Although there is no accurate record of the number of donor children in Australia, the Donor Conception Support Group estimates that within Australia there are about 60,000.

Sadly, it is only recently that rights have been granted to donor children. Here in NSW, only children born after 1 January 2010 have the right to identifying information about donors.

For children born before 2010, many find that records of donors have either been destroyed or no records were ever kept. When the error later becomes apparent, family upheaval is inevitable.

Given the ramifications emotionally, psychologically, socially and legally, is there anything more important to those involved than the question(s): Who is my parent? Is this my child?

Regulation of donors

The safest way to access donor sperm is via a clinic.  Clinics quarantine donor sperm for three months before screening for infections.  They also require all parties involved to undergo counselling and the donor to sign a document regarding paternity for protection against child support and to prevent the donor claiming access rights to the child in the future.

Although the physical characteristics of a donor can readily be ascertained by a clinic, it is unclear to what degree other information provided by a donor is tested by a clinic.  It is feasible that a donor might not tell the truth when providing information such as IQ, job and education.  Aside from disappointment that the recipient has not got what they thought they were getting, there is no quantifiable harm caused.  This is in stark contrast to a donor who conceals a family history of disease and genetic disorders which has far reaching consequences for his offspring.

Due to a shortage of available donor sperm, more and more individuals are turning to the internet for overseas sperm donors and insemination kits.  Although this might be considerably cheaper and more accessible, the risks are greater and range from lack of infection control to potential paternity disputes.  There are also no constraints on the number of times a donor can provide sperm increasing the risk of half-siblings unwittingly forming relationships together.

How can we help?

Our medical negligence team is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over 30 years. We can assist you by providing expert advice and legal support regarding your options. Contact us today.

*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.