The Victorian Infertility Amendment Act 1995 has been amended by Victorian Parliament so that the infertility treatments regulated under the Act can now be extended to include harvesting eggs from women in order to create cloned human embryos for research purposes.

The legislation was debated, but all attempts to discuss amendments moved by both government and opposition members were overridden by Premier Steve Bracks exercising discipline over his colleagues. An attempt to have the Bill examined by a Parliamentary Committee was also overridden as a matter of Party discipline. In other words, what was meant to be a conscience vote turned into high farce. Next week the Premier and his Treasurer fly out to the US for a biotechnology conference, able to boast that Victoria can offer unfettered access to the new technology.

This happened in the face of the Parliamentary Scrutiny of Acts and Regulations Committee issuing an alert advising the Parliament that there are human rights issues in the legislation in relation to involving women in research where the risks to them are high. Those risks include hyperstimulation of ovaries, general anaesthesia and abdominal surgery. That breaches the international standards that require non-therapeutic research to be no more than low risk.

The National Perinatal Statistics Unit Report for the 2004 year records that there were 308 ovarian hyperstimulation syndrome cases reported for women who underwent ART treatment cycles in Australia in 2004. Of these, 257 (83.4%) were reported as being admitted to hospital. Overall, OHSS occurred in 1.3% cycles that involved superovulation.

The Committee also issued an alert in relation to the protected status of human embryos in the laboratory. The Committee’s human rights alert was not discussed.

Unless this legislation comes back to the Parliament, it will remain a matter for common law processes to protect women. Their case has not been made easier by this Bill which has a good faith get out clause for researchers and institutions. However it is likely that indemnity lawyers for the institutions will still be concerned about the tort implications of permitting high-risk non-therapeutic procedures on women in dependant relationships.

There are also concerns about the consent process. The Australian Health Ethics Committee has issued draft guidelines to supplement this legislation. The guidelines indicate concern about young women researchers, who are thus in a dependant relationship being pressured to become egg donors, as reportedly happened at the University of Seoul. Young women also are at risk of being made infertile by research procedures on their ovaries. The guidelines also indicate concern about women on IVF programs being asked by the doctors, on whom they depend, to donate eggs that they would otherwise use to seek to have a child.

This bill has become Paterson’s curse. The drafting is confused, ambiguous, and in places contradictory. But more than that it actually fails in its stated aim to achieve a licensing regime for this area of research, because it adopts a definition of what constitutes an embryo that excludes embryos generated in the laboratory and not for transfer to a woman.

The embryo definition depends on an entity being formed other than by fertilisation and which has the capacity to form a primitive streak. The capacity to form a primitive streak (the stage at which organs begin to form) depends on the embryo being transferred to a woman and these embryos are never to be transferred. They do not therefore have the capacity form a primitive streak and so no licence is needed to form cloned embryos in the laboratory.

The latter is just one of the oddities in the legislation that would normally have been found and repaired if the Bill had been subject to the ordinary scrutiny that government Bills get in their formation.

Peter Fray

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