Assisted Reproductive Technologies and Surrogacy

Unhindered access to Assisted Reproductive Technologies (ART) in recent years has provided an enormous boost to loving families who have previously found it difficult to navigate the medico-legal restrictions on their decisions to expand their family.

For those entering the ART landscape, as donors, birth parents, surrogates or intended parents, understanding issues around parentage is critical. It is important that before embarking on your journey you obtain legal advice to ensure that you and your loved ones have clarity and comfort as you move forward.

At elringtons, our lawyers are expert in advising people on parenting and family law matters, as well as on ART and surrogacy laws.

Elringtons Resources

If you would like to discuss your ART or surrogacy journey, you can speak to Anya Aidman, one of our senior solicitors specialising in ART and surrogacy law.

e:  | p: +61 2 6206 1300

Health Industry Business Advice

Our commercial team is experienced and equipped with industry knowledge and know-hows having worked closely with various private sector businesses in the healthcare industry.

We assist healthcare providers including among others, medical specialists, dentists, pharmacists, physiotherapists, with:

  • Purchase of business
  • Sale of business or business interest in a practice
  • Pharmacy location rules
  • Leasing and property law
  • Business structures
  • Partnerships
  • Funding arrangements
  • Franchising
  • Regulatory issues

We are committed to finding commercial and practical solutions for our healthcare clients so that our clients may focus on what they do best.

If you would like to discuss your healthcare business query, you can speak to Shalini Sree who specialises in provision of business advice specific to the health and medical industry.

e:  | p: +61 2 6206 1300

Elringtons Health Law Update: Adverse Effects of Contraceptive Implant Mirena

We recently wrote about some serious side effects from contraceptive implants, Mirena and Implanon, which had initially been reported by the ABC.

Since then, there has been a case of a woman in QLD who suffered severe blood loss and can no longer have children, due to an issue with the Mirena implant. It is said the Mirena was incorrectly fitted and that this particular woman had a retroverted uterus, which increases the chances of side effects for a woman who has such a contraceptive device implanted. The surgery found a massive tear to her uterus, which is aligned with the ABC’s report that other uterus perforations have resulted from the Mirena.

In this particular case, the woman has said she was not warned of the risks, particularly regarding different uteruses, by her GP prior to having the device implanted.  A doctor owes a duty of care to you when prescribing you the right treatment and when giving warnings about the side effects on a treatment. As we say in our article Medications and Medical Negligence:

A doctor’s duty to warn about side effects extends to a side effect which a reasonable person in the circumstances would think was significant.  This accounts for the severity of a side effect, how often it might occur, and a patient’s particular circumstances.

Take for example the drug sodium valproate (Epilim).  It is known to carry a risk of birth defects if taken by women who are pregnant.  A doctor should warn a woman trying to get pregnant, or who is pregnant and taking Epilim, of this risk.  It is a serious risk.  However, a doctor treating a female patient who chooses not to have children or is unable to have children, need not be warned of the risk, as that patient would attach no significance to it.

A person’s particular circumstances may require a doctor to warn about a side effect which they ordinarily would not be required to warn about. For example, a patient who only has vision in 1 eye would likely place more importance on a slight risk of harm to their vision than someone who has no sight impairment. Another example is where a person asks particular questions of their doctor about risks of harm and side effects.

The poor Queensland woman ought to have been warned about the potential side effects. While a doctor owes you a duty of care, one way to help prevent side effects from occurring is to inform yourself of the proposed treatment. We made recommendations in our article Hospital Complications and Negligence about the sort of questions you may ask:

In 2018 the Harvard University recommended 7 questions to ask a doctor when they prescribe a new medication. These are:

  • Why do I need this medication, and how does it work?
  • What are the risks and benefits?
  • Are there side effects?
  • How do I take this medication?
  • Do I need to avoid anything while taking this new medication?
  • How soon will the medication work, and how long will I be taking it?
  • When will you review how well this is working for me?

These types of questions can help you know about the treatment and the risks and benefits of the treatment.

If you have a contraceptive implant and have experiences any side effects, you should seek immediate medical advice. If your side effects have led to further medical treatment, time off work, or other pain and suffering, compensation may be available to you. A medical negligence claim can seek damages to help compensate for and suffering experienced.

We have further information available to help you understand your rights and any remedies available to you following medical negligence:

Please feel free to contact our medical negligence team for further information or to discuss your circumstances.

For similar, or further information, see:

Children and Consent to Medical Procedures

Everyday decisions about a child’s health and medical care can be made by either a parent of a child, or any other person exercising parental responsibility for a child.  Major long-term medical decisions in relation to a child must be made in consultation with both parents or all persons who have been granted parental responsibility in relation to the child.

Parental Responsibility

Under section 61C of the Family Law Act (“the Act”), each parent of a child shares joint parental responsibility for the child unless that responsibility have been displaced by a court order.

Under s61B of the Act, parental responsibility in relation to a child means “all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children”.

Parenting orders can be made granting parental responsibility to any other person determined by the court under section 64C of the Act. However, section 65C provides that parenting orders can only be applied for by:

  1. a) a parent of the child;
  2. b) the child;
  3. c) a grandparent of the child; or
  4. d) any other person concerned with the care, welfare or development of the child.

Parental Responsibility and Consent

Health and medical treatment is illegal unless a patient consents to it.  In relation to child, there must be consent from someone with parental responsibility for the child.  This differs slightly in life threatening situation, where limited treatment may be provided when it is not possible to obtain consent beforehand. For example, a car accident involving both parents and a child, where the parents are unable to consent to treatment for the child.

In the event that two or more people hold parental responsibility, they will need to consent to a medical procedure. If parties are not able to agree, they may need to seek that a court make a determination on the issue.

However, there are some major medical procedures which cannot be performed on a child without first obtaining the consent of a court, regardless of whether the parents and medical practitioners have consented to the procedure.

Situations where Court involvement may be required

There are many different circumstances which require the Court to become involved in relation to consent and children’s medical procedures.

If parents, or those with parental responsibility, disagree with each other in regard to medical procedures or treatment, the court may need to decide on the treatment. This can range from less invasive procedures such as orthodontic treatment to something as serious as deciding whether to keep a person’s life support on.

In cases where the child is considered mature enough to make decisions regarding their own medical treatment, the child may be considered to be ‘Gillick competent.’ This means that the child has reached a level of understanding and intelligence required to make their own decisions in relation to their medical treatment.

In instances where a hospital or medical practitioner’s views on treatment differ to the parents’, a court order again may be necessary. In the case of Director Clinical Service, Child & Adolescent Health Services & Kiszko & Anor an order was made requiring a child to undergo chemotherapy treatment against the wishes  of both parents.

Similarly, there are certain procedures which require court orders, regardless of whether the parents’ consent.

Special medical procedures and Court involvement

There are some medical procedures, known as ‘special medical procedures’ that require permission from the court in order to be performed on a child.

Some examples of special medical procedures include:

  • sterilisation;
  • Stage two gender reassignment; or
  • Certain other major surgeries.

The reason that court orders are required for such procedures is that they are considered to extend outside of the usual parental powers, meaning they are permanent, irreversible or significantly life-altering. Importantly, the court becomes involved to take into account the best interests of the child.

The orders the court will make varies with the circumstances of each case. In as the case of Re Marion, it was found that the performance of a hysterectomy on a 14 year old girl living with severe intellectual and physical disabilities was in the child’s best interests. By contrast, in the case of L & GM & MM it was found the proposed sterilisation of a 17 year old physically and intellectually disabled girl was not in the child’s best interests. Furthermore, some cases require the court to go further than making a simple “yes or no” ruling and may prescribe the particulars of a procedure to be carried out on a child.

In situations where stage 2 gender reassignment treatment is proposed for a child with gender dysphoria, an order must be obtained by a court pursuant to section 67ZC of the Act unless the child is considered to be Gillick competent.

If your child or children are facing a medical procedure that may require court involvement or if you simply want to discuss your options in this complex space, you can contact Anya Aidman or another one of our experienced family law solicitors to discuss your matter further. In addition to our experienced family law team, elringtons specialises in health law, meaning we have the expertise and experience to resolve complex issues which arise from health and medical treatment.

For more information or to make and appointment in either our Canberra or Queanbeyan office please contact:

e:     | p: 02 6206 1300

e:         | p: 02 6206 1300


Further reading:

Consenting to Health and Medical Treatment

Choosing and Refusing Medical Treatment