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The use of social media influencers to advertise egg freezing — part of a boom in fertility services aimed at healthy young women — may breach Australia's Health Practitioner Regulation National Law, the federal watchdog has warned.
Testimonial advertising for regulated health services is prohibited in Australia, but the promotion of egg freezing is a "complex area", according to the Australian Health Practitioner Regulation Agency (AHPRA), as some elements of the process are "regulated health services" while others are not.
"Testimonials, defined under the advertising guidelines as 'a positive comment about a clinical aspect of care', are prohibited in advertising under the national law," an AHPRA spokesperson said.
The Health Practitioner National Law also prohibits testimonials that advertise "a business that provides a regulated health service".
In recent months, the ABC has collated multiple posts from social media influencers spruiking the procedure, some as "paid partnerships".
Popular Melbourne-based influencer Tully Smyth has been describing her "fertility journey", sponsored by Monash IVF, one of Australia's biggest fertility providers.
In videos on Instagram, Ms Smyth films herself injecting prescription medication, detailing the specific hormone and its dosage, as well as going into hospital for egg extraction.
"Got myself some sweet robes, had a little nap and woke up to a bickie and tea," she wrote.
"It was all over so quickly! Science is WILD!"
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She also describes her treating doctor, a registered medical practitioner, as a "magician".
The ABC is not suggesting that Ms Smyth is breaching any law, but this kind of advertising is a complex area legally.
Ms Smyth did not respond to the ABC's questions.
Services provided by registered practitioners, hospital care and pharmaceutical services are all regulated health services under the national law, and are subject to advertising restrictions, according to AHPRA.
But AHPRA said testimonial advertising for some, non-clinical, elements of the egg-freezing process — such as communication and counselling — may be allowed.
"Egg freezing is a complex area as not all aspects of these businesses are considered health services and are therefore not regulated under the national law," an AHPRA spokesperson said.
Monash IVF told the ABC its paid partnership with Ms Smyth did not breach the advertising rules of the national law.
"Monash IVF takes all its legal and regulatory obligations seriously and sought legal advice on these types of partnerships before entering into any such arrangements," the company said in a statement.
"This ensured that as a regulated health service, Monash IVF would abide by advertising laws and regulations and that patients taking part in its advertising are aware of their obligations under these laws and regulations."
Another provider, Genea Fertility, said in a statement that "real life stories" help to create conversation about egg freezing.
It was tagged in a paid partnership post with "The Lady Counsel", which was deleted after ABC enquiries.
"Genea believes that real life stories of infertility help to de-stigmatise talking about this important issue," the statement read.
"Genea does not condone the use of testimonials in advertising and operates at all times in line with its obligations under the National Law."
AHPRA's advertising guidelines state that examples of testimonials include "patient stories and experiences [and] success stories".
"Testimonials are recommendations or positive statements about the clinical aspects of a regulated health service used in advertising," the guidelines state.
Monash IVF also said its advertising was not encouraging the unnecessary use of health services by healthy young women.
"These balanced perspectives are not aimed at putting pressure on other women, but rather are aimed at informing, empowering and providing women with choices which have not always been available to them," the company said.
'Plethora of information available'
According to data from the Australia and New Zealand Assisted Reproduction Database, egg freezing for non-medical purposes increased by 56 per cent between 2020 and 2021.
The procedure to extract and store unfertilised eggs can be costly, setting women back between $5,000 and $10,000 for the procedure, plus ongoing storage fees.
Perth gynaecologist Tamara Hunter, who has also worked for Monash IVF, said there was a need to "improve the quality of the information that is given out" about egg freezing.
"Like with many elective procedures, there's a plethora of information that is available out there," Dr Hunter said.
"Young women do need guidance on what and where to seek that information."
Dr Hunter said young women should follow "some simple guidelines, like going to reputable websites or social media blogs developed by fertility providers".
"I do think that anything that's testimonial-based should be discouraged," she said.
She said any information on egg freezing also needed to be balanced.
"It's also about identifying who egg freezing perhaps is not for and what the other choices [are] about their future fertility," Dr Hunter said.
Procedure a 'stressful' process
In the past year, Adelaide resident Ruth Neeves, 29, has undergone two egg retrievals, and described the experience as costly, stressful and lengthy.
"It's hardcore with the amount of hormones you pump into yourself with synthetic hormones," Ms Neeves said.
"Medicare did cover a big chunk of it, but it still did cost me upwards of $10,000 for the both of them."
A health professional herself, Ms Neeves said her decision was not one swayed by influencers.
"Some of my mates have sort of put that towards me and said, 'oh, I saw this person doing that' … or, 'I've seen this influencer doing X, Y and Z'," she said.
But Ms Neeves said she could understand how others might be more susceptible to social-media based content promoting egg freezing.
"There are girls … who can be influenced quite easily because they're scared, or they've heard their friends are having kids early, or their friends are having kids, and they're still single … and they're now going, 'well maybe I need to freeze my eggs so I make sure that I've got eggs there'," she said.
Ms Neeves believes there should be more regulation of companies that are using influencers to advertise the procedure.
"If you've got a link to follow or something like that — it's marketing and it's quite dangerous," she said.
"There is a lot of money-spinning in it, so people spend money out of fear."
Lawyer Tegan Boorman, who specialises in social media, agreed that social media advertising was a complicated area, but encouraged influencers to seek advice before they agree to promote a health service.
"It may very well be that the reason we are seeing what we are seeing is due to a lack of understanding of what those legal obligations are," Ms Boorman said.
Ms Boorman said there are avenues for influencers to get correct information about what they are legally allowed to promote.
"They should certainly be obtaining legal advice from their lawyer, if they have one, or seeking out legal counsel, if they don't already have one," she said.
"We also have the Australian Influencer Marketing Council … which can help provide guidelines."
Ms Boorman said she could understand why companies would use social media influencers to advertise services.
"Once you see businesses obtain the sort of success they obtain from using influencers in certain industries, it's not surprising that other industries might be wanting to try and adopt a similar advertising approach," Ms Boorman said.
"[But] I certainly can understand people may have concerns about what sort of impact it may have on certain social media users, particularly young users and those who are more vulnerable to being influenced in that sort of area without a full understanding of all the risks that can come with those sorts of procedures."
AHPRA said that in 2022 and 2023, it had assessed 380 complaints about advertising of regulated health services, 16 of which were related to testimonials.
None of the complaints related to egg-freezing services on social media.
The AHPRA spokesperson said that those 16 cases were investigated and all were resolved without the need for further regulatory action.
"Our approach to advertising uses a combination of proactive education for health practitioners, responding to complaints from the public and proactive [auditing] of high-risk advertising, such as cosmetic surgery advertising," the spokesperson said.