A. The Reference

1.1 On 5 October 1983 the Attorney General referred to this Commission a number of matters that the Commission has collectively entitled Artificial Conception. The terms of reference are set out in the preliminary pages to this Report. The reference was related to previous work done by the New South Wales Advisory Committee on Human Artificial Insemination, and the Commission decided to divide the subject matter into three parts:

• human artificial insemination;
• in vitro fertilization; and
• surrogate motherhood.

As a consequence, it is envisaged that the Commission will produce three reports. These reports and the aspects of reproductive technology which they cover will be, to some extent, interconnected. Basic principles and values applied by the Commission to each report will be the same. For example, it can be expected that the same importance will be attributed in each to issues involving the welfare of the child and to procedures concerning donated gametes.

1.2 In December 1984 the Commission published a substantial Discussion Paper entitled Human Artificial Insemination. The paper provided background information relating to the history and practice of AI in New South Wales and elsewhere, reviewed recent legislative policy and official initiatives and presented in detail issues for law reform. The paper sought submissions from the public.

B. Membership of the Commission

1.3 Between mid 1984 and early 1985, the membership of the Commission changed. Following the resignation of Associate Professor Cass, the expiry of the term of office of Mr Sackville and the appointment of Mr Keith Mason QC to the office of Chairman of the Commission, the Artificial Conception Division was reconstituted on 12 April 1985. Mr Russell Scott and the Honourable Justice Peter Nygh, the remaining members of the former Division, were joined by the new Chairman and by Eva Learner and Dr Susan Fleming.

1.4 The Commission’s policy in the Inquiry on human artificial insemination has been to integrate three major events, namely publication of the Discussion Paper, the consultation period which was formally concluded by a public hearing, and this Report. Accordingly there is extensive reference in this Report to the Discussion Paper and a deliberate attempt to keep repetition of material to a minimum.

II. PUBLIC CONSULTATION

1.5 Copies of the Discussion Paper were widely distributed. A public hearing was conducted by the Commission at the Maitland Lecture Theatre, Sydney Hospital on 16 April 1985. The hearing was well publicised and attended. Over 100 members of the public, including representatives of a variety of organisations, were present for much of the day and 21 made oral submissions.¹ A full transcript of the proceedings was made. The public hearing provided a forum in which members of the public could express views and make a direct contribution to the process of law reform. The Commission has carefully considered the views expressed both at the meeting and in written submissions and is grateful for the efforts of those interested groups and individuals. At the end of 1985, 48 written submissions were held.²

III. THE RESEARCH PROGRAM

1.6 In addition to public consultation, the Commission has informed itself of the range of issues and possible solutions from a number of sources. This has included the following:

• Literature Search: We have collected and examined a large amount of written material from Australian and overseas sources, ranging from scholarly and scientific publications to press reports which have been systematically accumulated and recorded. Appendix E describes part of this material.
• Research Papers: The Commission’s research staff has prepared a series of original papers for the internal use of the Commission on subjects that have special significance for law reform on AI. The subjects covered by the papers are listed in Appendix B.
• Observation Visits: Apart from the direct acquisition of information by letter, telephone and questionnaire, we have visited all known AI clinics operating in New South Wales and have interviewed principals and staff “on site”.
• Examination of Existing Laws: We have collected information about legislation on AI enacted in Australia and overseas and have made comparative studies. This comparative work has also involved examination of the reports of a number of official and government Inquiries into AI conducted in Australia, North America and the United Kingdom.

1.7 The Commission has also had regard to the report of the Advisory Committee on Human Artificial Insemination dealing with Australian attitudes to AI.³ This report was prepared for the committee by Dr Graeme Rawson and was based on two community surveys. The first was a general population survey and the second a survev of members of 40 community groups. The surveys were both designed to gauge public opinion on the issues raised by AID, and were the first of their kind undertaken in Australia. The report has been printed and widely distributed under the title Australian Attitudes to Human Artificial Insemination.⁴

IV. THE AI PROCEDURE

1.8 AI has been described as:

.....a simple procedure from the medical point of view. Semen is obtained by masturbation and is deposited by means of a syringe in or near the cervix of the woman’s uterus.⁵

The act of insemination is typically performed by a qualified nurse under the supervision of a doctor. The nurse will first use a “speculum”, an instrument of metal or plastic designed and shaped for insertion into the vagina, to enable the cervix to be seen. Next, a straw of semen will be placed in a syringe or “gun” which will be used to expel the semen so that it is lodged at the entrance of the cervix, as happens when sperm is ejaculated during sexual intercourse. The insemination is timed to coincide with ovulation which is the time of the woman’s maximum fertility in her monthly cycle. Normally inseminations will be performed on two or three successive days as this has been found to increase the likelihood of pregnancy. The semen used may be from the woman’s husband or partner or from a “donor”. It may be fresh semen or, as is more likely, it may have been frozen. The successive inseminations during any particular cycle may be from one semen donor, if frozen semen is used, or several donors when the procedure involves fresh semen. Although AID is most commonly performed under the supervision of a doctor, the techniques involved are simple and could be performed by persons without medical training.

1. Appendix F.

2. Ibid.

3. Advisory Committee Report.

4. See also Discussion Paper, ch 4.

5. Ciba Foundation Symposium 17, Law and Ethics of AID and Embryo Transfer (1973) at 3.