Queensland IVF patient told her embryo didn't comply with new laws gets go-ahead for transfer
The mother of one, who's in her late thirties, had used a donor from the US sperm bank Xytex for her first child, and to fertilise her frozen embryo.
Earlier this month, Monique, who asked we not use her real name, was told by her fertility clinic the treatment could not go ahead, because they did not have the necessary information about her overseas donor.
"I made decisions based on what was acceptable six, seven years ago."
Under Queensland legislation passed last year, fertility clinics must keep more detailed records for all their donors.
Monique's clinic Queensland Fertility Group (QFG) told her they were unable to get the extra information from Xytex that they needed to comply and could not go ahead with her treatment.
Days after being told it would be impossible to conceive a full biological sibling for her primary school-aged son, QFG said "after further conversation with Queensland Health" her transfer could go ahead.
QFG also told her she could use the last vial of the donor's sperm she had stored.
The back-and-forth has cost her a treatment cycle and left her distressed.
It has also highlighted the difficulty legislating what had, until September last year, been a largely self-regulated industry in Queensland.
QFG is not the only clinic affected.
Earlier this month, Monash IVF wrote to 11 affected patients, telling them the clinic would be in breach of the legislation if they provided treatment, including already-created embryos, without first getting contact information for their donors.
The ABC can reveal Queensland Health's Chief Medical Officer Dr Catherine McDougall sent a letter to IVF providers on Friday, in which she said the new regulatory scheme was "not intended to be a barrier to people receiving treatment".
"I want to reiterate that Queensland Health has not advocated for patient treatment to be stopped on the basis of [the laws] as this is counter to the intent of the Act and introduction of the regulatory scheme," she said.
"Whether cycles will be continued is a clinical matter for you and I would encourage you to discuss this internally to decide what pathway forward there may be for your patients."
Dr McDougall said although the current section of the Act requires strict compliance — "without which a gamete cannot be used" — Queensland Health is considering whether that section "properly achieves its intended purpose".
A spokesperson for Health Minister Tim Nicholls said Queensland Health "has been clear with providers that they are currently taking an education-based approach to the new laws" while amendments to the legislation are explored.
A Fertility Society of Australia and New Zealand (FSANZ) spokesperson said this "highlights the urgent need for a nationally consistent approach to how assisted reproductive therapies are regulated in Australia".
"In our submission to Queensland Health in February 2024, FSANZ urged the government to pursue harmonised legislation with other jurisdictions, rather than implementing a fragmented state-based regulatory model," she said.
"We expressed concern that divergent state-based rules could increase patient costs and restrict access to care.
"Some of the challenges now emerging appear to be unintended consequences arising from the legislation's drafting, rather than the result of deliberate policy decisions."
Monique was approaching her mid-30s when tests showed she had "sub-optimal fertility".
She was told creating embryos would give her the "best chance" of becoming a mother.
"I had two options, either go with a local or an international donor, but the local donor options were limited, and it could take months or even a year to access a local donor," she said.
With "time being of the essence", she opted for the American sperm bank Xytex.
She had her son using an embryo made with the donor sperm. Earlier this year, she felt ready to try for a second child, using an embryo made with the same donor.
Five days before she was due to have her last stored embryo implanted, she got a call from QFG telling her the treatment had been cancelled because of requirements under the legislation.
"I did my first of the two transfers last month, which wasn't successful, and I was scheduled to do my last transfer on Wednesday, when I got called on Friday afternoon saying it was cancelled … because of the changes to the Queensland legislation," she said.
She felt blindsided.
"They said they thought they would be able to get the information they needed from Xytex but they found out [this month] that wasn't going to happen, so they said that was the catalyst for calling me to say it wasn't possible," she said.
"I feel like I could have been notified a long time ago that this could potentially affect me.
Xytex did not respond to the ABC's questions.
Days later QFG sent her an email apologising for the delay and distress caused and confirming her she had been approved for treatment.
"I can confirm that after further conversation with Queensland Health that we can approve your treatment to proceed with the embryo created with XYTEX and the XYTEX frozen sperm in storage," the email said.
"Your treatment cycle can be planned at a time convenient to you."
Monique is relieved but said the process had been "ridiculous".
"I have trust issues at this point," she said.
"I'm mostly angry at Queensland Health, but also pretty upset about the last eight months [when] I should have known about the situation from QFG."
She said she wanted her son's sibling to be his genetic sibling.
"I don't know if my heart would be in a new donor," she said.
The ABC asked QFG how many other patients were affected, and whether they too had been allowed to use their embryos.
QFG said it was "actively working with Queensland Health to finalise the details of a more appropriate, patient-centred resolution to this difficult issue".
The information collection requirements of the Assisted Reproductive Technology Act are currently enforceable.
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