IN VITRO FERTILISATION (IVF) is when an EGG is fertilised by sperm outside of the body.
The process includes monitoring and stimulating a woman’s ovulation process, removing eggs from the woman’s ovaries, and letting sperm fertilise the eggs in a laboratory. The fertilised egg (or embryo) is then grown for two to six days after which it is implanted into the same or another woman’s uterus to establish a pregnancy. Fertilised eggs can also be frozen and used at a later date.
For lesbians, IVF is a path to parenting that allows each partner to feel physically or biologically connected to their child. One woman may have her eggs fertilised with donor sperm and implanted into her partner’s uterus. And of course the woman may have her eggs implanted into her own uterus if that is what the couple decides, or if she has no partner. A woman may have a donor embryo implanted into her uterus if she has no eggs or they are not viable.
The laws around IVF are regulated by each state and territory[i], so national laws are not generally applied.
Legislation in four states (Victoria, South Australia, Western Australia and New South Wales) regulates Assisted Reproductive Technology (ART), subject to (since August 2016) it not being discriminatory under the Sex Discrimination Act 1984 (Cth).
Each of these pieces of State legislation established a state regulatory body which issues licences to clinics that provide ART services. When there are any differences between the State body and the guidelines, the legislation takes precedence. If there is no legislation, then the National Health and Medical Research Council (NHMRC) ethical guidelines apply. If the State legislation is discriminatory based on marital status or sexual preference, then the Sex Discrimination Act 1984 (Cth) applies and should override the State legislation.
IVF can be expensive, particularly if you are also purchasing sperm, since most fertility clinics in Australia are required to import sperm from overseas.
Up until recently, there were still some restrictions on lesbians (in South Australia lesbians had to be “medically infertile”[ii]) and single women accessing IVF and associated procedures. Additionally, Medicare rebates are not available if the procedure is not “clinically relevant”, meaning that it is necessary for the appropriate treatment of the person who requires it.[iii]
Some fertility clinics have interpreted this to exclude lesbians and single women from accessing Medicare rebates where their infertility is deemed to be “social” infertility as opposed to “medical” infertility. Some clinics will deem lesbian couples’ infertility as “clinical”, making them eligible to access Medicare rebates.
Before you start your IVF journey, I would recommend you contact your chosen fertility clinic about whether you are eligible for the Medicare rebate. Lesbians now generally have access to IVF as single women and in same-sex relationships.
Until recently, South Australia only allowed IVF for medically infertile women. Lesbians who were denied IVF treatment on the basis of discrimination in South Australia had to apply to the Supreme Court for treatment under the Sex Discrimination Act 1984 (Cth).
On 21 March 2017, the South Australian Statutes Amendment (Surrogacy Eligibility) Act 2017 came into effect to allow same-sex couples and single lesbians access to IVF.
Most fertility clinics have required steps and procedures for women interested in doing IVF, such as counselling with a psychologist. The psychologist might ask you questions like, “How will you explain your family situation to your child”, “Will you and your partner both be referred to as “Mum”, “Will you tell your child about the donor”, “Will you refer to the donor as dad”, etc.
As a couple, you will have to sign consent forms for the specific procedures you are undergoing; if you are storing embryos, you may have to sign forms stating who has the legal rights over the embryos should you and your partner separate. This process provides you with the information you need about using donor eggs, sperm, or embryos and the social and emotional concerns that may be associated with your decision.
I have heard recently that some fertility clinics don’t make lesbians sign forms in relation to embryos created during the relationship. I highly recommend asking your fertility clinic for a form to sign for you and your partner to prevent any issue arising in the unfortunate event that you do separate. Imagine if you separated and your ex-partner had legal rights over your embryos and then prevented you later on from having a child.
The fertility clinic is required to keep a register of the birth of a child as a result of donated sperm or eggs so that children can access information about their genetic heritage when they turn 18. Donors used in Australia have to be advised of this before they donate.
Accessing your superannuation to pay for IVF
Given the rise in need and costs to IVF, women are now turning to their superannuation funds to help pay for treatment.
Generally, you can’t access your superannuation before you are 55, but under some circumstances, you may be able to access it earlier. These circumstances include helping to pay for medical treatment[iv] if the treatment is necessary to treat a life threatening injury or illness, alleviate acute or chronic pain, or alleviate an acute or chronic mental disturbance. However, this is only if the treatment you need isn't available through the public health system and you can’t pay for it any other way, including the option of liquidating assets. This falls under a category of a release under “compassionate grounds”.[v]
What are the criteria
The criteria for compassionate grounds are set out in regulation 6.19A(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
The Australian Prudential Regulation Authority (APRA) is responsible for overseeing regulations and the Australian Taxation Office (ATO) is responsible for assessing applications for early release of superannuation on specific compassionate grounds, including:
medical or dental treatment for the applicant or a dependant;
transport for medical or dental treatment for the applicant or a dependant;
modification to the applicant’s home or vehicle to accommodate a severe disability for the applicant or a dependant; and
palliative care for a terminal illness for the applicant or a dependant.
In order to qualify for the compassion grounds early release, you will be required to show that you can’t meet the cost of IVF treatment by any other means. For example, you may not have savings or other financial resources to pay for the treatment. You will need to submit supporting evidence of your financial position such as bank statements and other financial documents.
The ATO will consider applications to meet the cost of medical treatment that is not readily available through the public health system such as certain procedures and medication.
Regulation 6.19A(3)(a) requires that you must submit to the ATO a written statement from two registered medical practitioners, and one must be a specialist, which certifies that the medical treatment is necessary to:
treat a life-threatening illness or injury;
alleviate acute or chronic pain; or
alleviate an acute or chronic mental disturbance.
A general practitioner (GP) is a registered medical practitioner. In most cases, one of the medical practitioners who can provide you with a supporting letter for an application for early release of your superannuation funds will be you or your partner’s GP.
A registered medical specialist is a doctor who has had further medical training above general practice i.e. gynaecologist/obstetrician/psychiatrist. They will have additional training in a chosen speciality and be registered as a specialist.
A consultant physician i.e. endocrinologist with subspecialty in fertility/psychiatrist, is considered a specialist under the legislation. Any specialist giving an opinion should be specialised in the specific area and list their credentials.
Regulation 6.19A(3)(b) requires the medical practitioner to certify that the treatment for the patient is not readily available through the public health system. I bolded the word “readily” because whilst treatment may be available, the real issue is whether it is readily available to the patient or their dependant. The requirement is satisfied:
IF treatment is available in a public hospital, but only after a very long waiting period, for which patients or their dependant cannot wait; or
a surgeon requires patients go to a private hospital beyond their means or they do not have private health insurance.[vi]
The certificate must say that the treatment is both necessary and not readily available in the public health system.
As a lesbian trying to conceive via IVF, you could first obtain a letter from your GP. You may then see a psychiatrist who may confirm you are suffering from an “acute or chronic mental disturbance due to your inability to conceive”. I note that you would need to see a psychiatrist, not a psychologist. A psychologist is not considered a medical practitioner under the legislation. The ATO has now removed the requirement to see a psychiatrist and your fertility specialist can now sign the application form.
The report from a psychiatrist should state that the IVF treatment will improve your mental health, not exacerbate it, and that you are aware of the risks of IVF and that you still may not achieve a pregnancy. The report must also state that the treatment you require is not readily available under the public health system.
Other health professionals can supply evidence to support your application and confirm that you are being treated for a particular condition, but these documents cannot be used as certification.
Medical practitioners will need to complete a form entitled “Early Release of Superannuation on Specified Compassionate Grounds Report by Medical or Dental Practitioner and/or Specialist form (MO017)”. This information will help the ATO determine if you are eligible to access your superannuation early. If you submit the application online through My Gov, the process usually takes between 2 to 4 days. Here is a link to the form:
If you are successful, you will be sent a letter to send to your superannuation fund. The funds will be released to you (in around five to seven business days) and you can start your IVF journey. Be aware that the funds will be taxed and classed as income for that financial year.
There are companies that will manage the process for you and deal with your superannuation fund, such as SuperCare (at a cost of around $800). The process is not complicated and you can do it yourself and save on costs.
Summary of Main Points:
IVF is a conception process in which an egg is fertilized with sperm outside the body.
Lesbians now have access to IVF as single women and in same-sex relationships in most states.
Courts have recognised known donors as legal parents in IVF cases where the birth mother was a single woman when she underwent the insemination procedure.
De facto partners of women undergoing IVF are considered the “other intended parent”, if the parties were in a de facto relationship at the time of conception and the parties consented to the IVF procedure.It is possible to access your superannuation to pay for IVF treatment but you must meet the special conditions for compassionate grounds, which includes obtaining certification from two qualified physicians.
[i] Assisted Reproductive Treatment Act 2008 (Vic), Assisted Reproductive Technology Act 2007 (NSW), Assisted Reproductive Treatment Act 1988 (SA) and Human Reproductive Technology Act 1991 (WA)
[ii] s 9 Assisted Reproductive Treatment Act 1988 (SA)
[iii] ss 3 and 20(1) Health Insurance Act 1973 (Cth)
[iv] Reg 6.19A (1) of the Superannuation Industry (Supervision) Regulation 1994 (Cth)
[v] reg 6.19A (3) of the Superannuation Industry (Supervision) Regulations 1994 (Cth)
[vi] reg 6.19A(3)(b) Superannuation Industry (Supervision) Regulations 1994 (Cth)
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.
If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at firstname.lastname@example.org.