Emptying the Nest Egg to Fill the Nursery: Early Release of Superannuation to Fund Assisted Reproductive Technology

Abstract

This article considers the current law in Australia that regulates early release of superannuation on compassionate grounds, for Assisted Reproductive Technology (‘ART’) to alleviate a ‘mental disturbance’. We examine the role of the fertility industry and third-party intermediaries in this pursuit. Current mechanisms for early release may give rise to ethical concerns, especially given the emotional vulnerability of persons accessing ART, whose successful applications are based on a diagnosis of ‘mental disturbance’. We do not argue for a blanket prohibition of early release for ART. Rather, we make several recommendations that include financial counselling for individuals or couples – independent of fertility clinics prior to making a financial decision to access superannuation early. The law concerning early release on grounds of ‘mental disturbance’ is ripe for reform. Necessary and appropriate reforms may lead to better retirement outcomes for those accessing ART, and greater public faith in the fertility industry and its practitioners.