- Should a couple who are unable to have children naturally due to a lifestyle choice be allowed to do so via IVF?
- Should the birth of a healthy, but unintended child be something for which compensation should be claimed?
- Should the ACT continue to have medical negligence laws that are out of step with the rest of Australia?
- Should you be able to sue for relationship stressors which are a normal part of parenting?
What makes me more uneasy is, however, the thought that "There but for the grace of God, go I".
I could be the parent with unexpected twins and a strained relationship and career.
I could be the surgeon who performs or supervises a completely routine procedure while the patient utters something minor, innocuous, or unheard while sedated.
Nobody outside the theatre can profess to know what happened during that procedure, or what the successful conception rates of IVF are now, or whether it is unusual to implant a single or multiple embryos in a mother-to-be who is desperate to have children.
Just imagine - you are about to wheel into the operating room when the patient says "Doc, don't messh up my tatt. Ith really importanth to mee... zzzz..."
The patient is half awake and non compos mentis, there is no way to remove the skin cancer without cutting through the tattoo. You have a signed consent form authorising removal of the lesion. You can't remember whether you discussed the tattoo at the time of consent - but it's hard to believe that you didn't. It's highly likely that the patient won't remember making that comment. Do you cancel the case? Do you proceed?
That may or may not be what happened - but I can imagine it happening to me tomorrow.
SMH: Lesbian sues over IVF twins (Click to See)
Lesbian sues over IVF twins
September 18, 2007 - 2:50PM
A lesbian woman felt violated and devastated when she learned she was pregnant with twins, after she had told a Canberra obstetrician she wanted only one child through IVF, a court heard yesterday.
In what is believed to be the first case of its kind in the ACT, the former Canberra woman and her female partner are suing obstetrician and gynaecologist Sydney Robert Armellin for the wrongful birth of one of their twin girls, now aged three, claiming more than $400,000 for the cost of raising her to the age 21.
They claim the twins' birth mother had told Dr Armellin minutes before she was sedated and implanted with two embryos that she wanted only one embryo implanted. They had previously told him they wanted only one child.
However, an embryologist under Dr Armellin's supervision implanted two embryos, resulting in the birth of non-identical twins.
The birth mother, now working in Melbourne as a social research and planning consultant, wept as she told the ACT Supreme Court how hard it had been to cope with the unplanned twin pregnancy.
"I remember sitting on the couch and feeling devastated, absolutely devastated," the 40-year-old mother said.
She and her partner, who were living in Watson at the time, had planned to go to England after the birth, but their plans were scrapped when they discovered they would be having twins, jeopardising their careers, relationship and health.
She suffered pre- and post-natal depression, could work only a few hours at a time because of the pain, and she and her partner needed relationship counselling for about 18 months.
"We argued and we had a terrible time with the stress of what we had expected to be a time of great joy."
They also had to confront the options of aborting one of the embryos, or giving up one of the children for adoption. They decided to keep both children as an abortion would have put the other child at risk, and adoption would have been too painful.
"The experience of my pregnancy was so far removed from what I had anticipated that I was in relationship counselling, in a great deal of pain, and someone was suggesting that [adoption] was an option."
The women's names were suppressed until today, when visiting judge Justice Annabel Bennett will make a ruling as to whether to permanently conceal their identities.
The women's barrister, Hugh Marshall, SC, argued it could be distressing for the children to discover several years down the track that their mothers did not want to have them both.
The birth mother told the court she earned more than $100,000 in the recent financial year, and her partner also worked full time.
They had first gone to Dr Armellin, who has a private practice in Deakin and also does work for John James Hospital and Calvary Hospital in December 2002, seeking artificial insemination treatment. They chose to use sperm from a Danish donor, as the father of one of the women was German.
After three unsuccessful treatments of artificial insemination, Dr Armellin recommended in-vitro fertilisation.
The mother told the court she and her partner had told Dr Armellin and a nurse at the Canberra Fertility Centre that they wanted only one child.
However, they had been under the impression that they could only decide how many embryos to implant on the day of the procedure, depending on the quality of the embryos.
They had signed a pre-admission form two months before the procedure, saying they consented to one or two embryos being implanted, but claimed the nurse at the fertility centre had said: "Just put 'up to two' and you can let us know any time up to the procedure."
Consequently, the mother had told Dr Armellin she only wanted one embryo implanted only minutes before she was sedated, in November 2003.
As well as seeking damages for the cost of raising a child, the birth mother is claiming about $17,000 for lost earnings as a result of an extra two months' maternity leave, and for the physical problems and medical expenses incurred as a result of carrying twins. She was rendered almost immobile in the second and third trimesters of the pregnancy.
Dr Armellin's barrister, Kim Burke, told the court her client admitted being told by the birth mother shortly before the procedure that she wanted only one embryo implanted, but this did not amount to negligence.
"The defendant's position is that the duty of care did not extend to preventing or avoiding multiple births," Ms Burke said.
"The conversation [minutes before the procedure] is not a negligent act because there was a document signed saying one to two embryos."
Bris Times: Lesbian IVF case divides community (Click to See)
Lesbian IVF case divides community
Carol Nader | September 20, 2007
They wanted to have a child together. Instead, they got two. Some might call it a blessing. But to this couple, the unexpected addition to their family was devastating. So devastating, that the unnamed lesbian couple are now suing Canberra obstetrician Dr Sydney Robert Armellin for more than $400,000. Most of it is to cover the cost of raising one of their twin three-year-old girls.
The couple allege they had made it clear that they wanted only one embryo transferred during the IVF process. Instead two were transferred, leading to the twin birth. The impact on their relationship and indeed their lives, according to evidence given in court this week, has been considerable.
"She always said that she had a big heart filled with love," the non-birth mother said of her partner in the ACT Supreme Court yesterday. "I find (now) that she doesn't have the same ability to love that she used to and the same capacity to, I guess, embrace differences and issues as a couple or as a team."
The case has divided public opinion and dominated talkback radio. It would have been particularly poignant for couples who have spent years going through the rollercoaster of IVF only to end up childless.
"A number of people seemed quite surprised that they would be complaining about such good luck," says Melbourne IVF director Dr John McBain.
The case, while the first of its kind, mirrors another, legal experts say. Carmen Currie, a senior associate at law firm Holding Redlich who specialises in IVF law, says it resembles a "wrongful birth" scenario. In 2003, the High Court decided that damages could be awarded to a couple after a woman's failed sterilisation operation resulted in a pregnancy. The doctor had failed to tell the woman the sterilisation might not work.
"The High Court has already formed its view that damages are available in those circumstances, and they were careful in that case to not reflect upon the worth of the child or whether they were wanted or unwanted," Currie says. "The focus is on whether there was an act of negligence that should be compensated."
There seem to be two arguments, says medical ethicist Dr Leslie Cannold. The first is straightforward — that this is an allegation of medical negligence like any other. But the complicating factor is where the second argument comes in — that this happens to be about the birth of what is believed to be a healthy child.
Traditionally, she says, the law has been happy to compensate for the birth of a child born unhealthy as a result of negligence. But there is discomfort when it comes to compensating for a healthy child. This is because of a popular perception that a healthy child's birth is always a blessing.
"These cases reflect the tension between our old ideas about children … and our new ideas that reproduction is a choice, and sometimes we don't want to have a child — healthy or not," Cannold says.
The landmark case will be watched with great interest by IVF clinicians around the country.
"We knew that if we put two embryos back when a person only wanted one, this would be the very situation that would arise," says Melbourne IVF chairman Dr Lyndon Hale. "All units are required to have a risk assessment of all the things they do, and we've always considered this an area of risk."
Melbourne IVF requires its doctors to ask patients how many embryos they want transferred. That is put in writing and signed by the doctor — but not the patients. Hale says the other safeguard is that the patient can actually see how many embryos will be transferred during treatment via a video link from a microscope. "What we do to all the patients is we show them the embryos before they get loaded into the catheter," Hale says. He says a patient would only be required to sign on embryo transfers if they wanted to have two embryos transferred against medical advice.
Melbourne's other major IVF clinic, Monash IVF, requires patients to sign consent forms (pictured above) that specify how many embryos will be transferred. Managing director Donna Howlett says couples have to sign a new form each time they start a new cycle, because their treatment might change. "If the couple decide prior to the embryo transfer that they only want one back, the only way that would be changed on the day of the embryo transfer is if there was a discussion with the couple and the clinical decision was that the embryos were of a very poor quality," Howlett says.
If it was decided that day that they would transfer two embryos instead of the previously agreed one, the couple would be required to sign a new consent form. "You can't have a consent form with one and then transfer two."
Hale says the other things that could potentially go wrong during IVF are implanting an embryo belonging to the wrong couple, or putting the wrong sperm with a woman's eggs. There is, after all, such a thing as human error. Even if only one embryo was transferred, twins would still be a possibility. The embryo could split and then the couple would have identical twins. There's nothing anyone could do about that, Hale says. "That's an act of God or nature."
The other thing that could happen, in the case of a heterosexual couple, is one embryo could be implanted and then the couple has sex and conceives naturally — again the result would be twins. It's a rare situation, but possible.
Where in past years as many as four embryos have been used in an IVF cycle, doctors now agree that one is best practice. Multiple births come with increased risks of complications in pregnancy or premature labour, leading to the birth of sick babies.
Doctors and patients must carefully weigh the risks associated with multiple births against maximising a woman's ability to get pregnant. In some cases, the fear of not getting pregnant at all may be stronger. It is rare for clinics to transfer more than two embryos at once. Monash IVF won't do it under any circumstances, even if the woman is over 40. "We try and encourage one embryo for everybody under 40 unless there's another clinical indication that two is warranted, particularly for a first cycle for someone under 40, we would strongly encourage one embryo transfer," Howlett says.
HALE says the possibility of litigation is a fact of life for all doctors. "This is not just about IVF … doctors are human like everyone else. Things go wrong with medical procedures, and one course of action open to patients is obviously a legal one."
The couple in the Canberra case, whose names have been suppressed by the court, wept in court this week as they told of the emotional consequences of learning they were having twins.
Gerard Brick, a member of the Australian Multiple Birth Association who has naturally conceived 10-year-old twin boys, says the cost of having multiple births goes beyond the fiscal.
"If you've got one child that's ill who is up all night or won't settle and it disturbs another child, you've then got two children that are disturbed and upset," Brick says.
"When you've got two babies, it's very difficult. If you've never had a child before, as a parent you're a fish out of water anyway … If you don't know what to do with one, you don't know what to do with the other. It does take its toll."
That emotional toll of a multiple birth can also be felt on relationships. That was highlighted in the Canberra court yesterday, when the non-birth mother said she felt at times their relationship would not survive the stress.
Brick says he knows of people who have "packed up and left and walked out on marriages" because of a multiple birth. Others stick it out and work as a team. "There's financial stresses, there's social stresses, there's emotional stresses and not all relationships will survive that, but then it could be the same with a single child. It's not necessarily multiple-specific."
The Australian Family Association, however, says the problem with the case is it highlights a "consumeristic mentality".
"Here we have a case where the addition of a sibling is deeply resented because it's impinging on the adults concerned, their lifestyle and their economic aspirations," says spokeswoman Angela Conway. "This second child is a blessing and a gift to them and also to their other child and it is tragic that they're not able to see it."
In Victoria, a lesbian couple can access IVF only if they are medically infertile. Such restrictions don't exist in the ACT. The Victorian Law Reform Commission has recommended that the infertility requirement be abolished, and the State Government will make a decision by the end of the year. But the consensus appears to be that the couple's sexuality in this case is irrelevant, because a married couple could have found themselves in the same predicament.
John McBain, who helped pave the way for single women and lesbians to legally access IVF in Victoria if they are medically infertile, says sexuality is beside the point. "I think it's lucky she's part of a couple and that would make the rearing of twins so much easier, in terms of being able to cope with a multiple pregnancy. In general you would think that two incomes were better than one and two pairs of arms were better than one when it comes to raising twins."
Gerard Brick points out there's another side — what if only one embryo was implanted and it did not result in pregnancy? There's financial expense in having another IVF cycle. "Do you sue for not actually conceiving a baby?" he says. "The whole point of the exercise is to have children, and now they want to sue because they have children, as opposed to a child."
News.Com.Au: Lesbian IVF case leaves ACT vulnerable (Click to See)
Lesbian IVF case leaves ACT vulnerable
September 25, 2007 11:16am
Article from: AAP
THE ACT risks becoming a litigation tourist destination if the law is not changed to prevent people suing over the birth of healthy babies, the Australian Medical Association (AMA) said today.
A lesbian couple has been subjected to widespread condemnation after they last week launched civil action in the ACT Supreme Court, suing prominent Canberra obstetrician Dr Sydney Robert Armellin.
The pair, who are the parents of twin girls, are seeking more than $400,000 in damages for the cost of raising one of their children because Dr Armellin implanted two embryos instead of the requested one.
ACT Opposition spokeswoman for family, community services and women Vicki Dunne is planning to move an amendment to the Civil Law (Wrongs) Act 2002 in parliament tomorrow to remove the potential for parents to sue over the birth of a healthy child.
AMA ACT president Dr Andrew Foote is a father of twins and supports the law being changed to enshrine the principle that a healthy baby is not a loss.
"I think that a healthy baby is not a damage and that loop hole should be closed off as they have done in Queensland, NSW and Victoria,'' he told ABC radio today.
"In particular this couple became tourists and came back to the ACT to mount this case so we now have the dubious reputation of being a litigation tourism destination.
"It is something that really gets my blood boiling.''
Dr Foote, who is an obstetrician and gynaecologist, said it was unfair Dr Armellin had been named but the women suing could keep their identities secret.
Chief Minister Jon Stanhope said he found the suggestion that he and the Labor Party believed a healthy child was a loss was highly offensive.
He said the issue was about maintaining a legal avenue for patients whose doctors have not met their duty of care, not about emotions surrounding children.
"We are talking about ... the right to sue in an instance where one has actually invested one's trust in a professional, a doctor, to prevent or provide a service and for that duty of care not to have been met,'' Mr Stanhope said.
"That's the legal principle, let's thrash that principle out rather than get into this 'oh you don't love children as much as I do' nonsense that Dr Foote is going on about.''