I. COMMERCE IN SEMEN
A. Commerce in Human Tissue and the Law
10.1 Part VI of the Human Tissue Act 1983, headed “Prohibition of Trading in Tissues”, applies a general prohibition of sale or supply of human tissue “for valuable consideration” whether the tissue comes from the supplier’s body or not and whether the person from whom it is derived is dead or not. Criminal sanctions are provided by section 32 (a maximum penalty of $4,000 and imprisonment for six months) and contracts or arrangements made in contravention of the section are void.1 The Human Tissue Act 1983 is the New South Wales adoption of the model legislation on human tissue transplantation presented in 1977 by the Australian Law Reform Commission in its report Human Tissue Transplants.2 The model legislation has now been enacted, with some State-to-State variations, in all Australian mainland States and Territories, and the provisions relating to trade apply to all human tissues including reproductive tissues. There are however, some limited exemptions from the statutory prohibition and these are described in the following paragraphs.
B. Statutory Exemptions
10.2 Section 32(3) allows “the reimbursement of any expenses necessarily incurred by a person in relation to the removal of tissue in accordance with this Act”. Tissues that have been treated or processed for medical or therapeutic use may be sold, but their original acquisition is not exempt from the trading prohibition.3 Further, the Minister has power to grant a specific exemption in special circumstances.4
10.3 In relation to semen donation, the exemption provisions of section 32(3) are not entirely clear because they extend to expenses “necessarily incurred by a person in relation to the removal of tissue in accordance with this Act”. While it seems plain that semen donation would not normally involve a removal of tissue in contravention of the Act, it is not entirely clear that the removal would be accurately described by the words “in accordance with this Act” since the mechanisms legitimizing removal of tissue generally do not apply to sperm. Even so, it seems plain that the policy of section 32 is to permit reimbursement of a semen donor’s expenses while generally forbidding commerce in that tissue.
C. Present Payments to Semen Donors
10.4 Money payments to semen donors are a feature of AID practice in New South Wales. The payments are invariably made as reimbursement of expenses and the range appears to be $10.00 to $20.00 per ejaculate or “specimen”. We believe that payments of this order are usual throughout Australia and in other Western countries such as England, Canada and the United States.5 We have been informed by many medical practitioners that they regard the payments as a necessary part of AID practice because donors are usually put to expense and inconvenience in order to donate and also because the payments are a symbolic confirmation to donors that their semen is valued and appreciated. In Chapter 5, particularly in paragraph 5.9, we discussed the worth of semen donation. We have also been informed that many donors refuse to accept the payment. However, AID practitioners consider that prohibition of the payments would adversely affect AID programs by causing a decline in donations.6
10.5 We think that current payments for reimbursement of expenses are not objectionable. However, it could be argued that, strictly, uniform payments represent in effect a standard fee and contravene section 32 of the Human Tissue Act 1983.
D. Attitudes of Other Inquiries
10.6 In the Discussion Paper we set out the varying views of other Inquiries in Australia and overseas.7 It is sufficient to say that they show wide divergence. The United Kingdom Committee in its Report expressed, somewhat reluctantly, its approval both of payment of a fee and the reimbursement of expenses.8 The Victorian Committee considered “that it would be inhuman to traffic in human tissue”, but approved “the reimbursement of donors for any costs..... in making the donation”.9
E. Other Comments
10.7 Because of the recent enactment of the Human Tissue Act 1983, we do not intend to canvass the moral and practical arguments for and against payment to semen donors. These are well recorded and readily available.10
10.8 It is also to be remembered that commerce or trade in semen may be envisaged at two levels. The first is that which involves payment to the donor. The second is the activity of commercial “banks” or organisations such as those reported to operate on a substantial business basis in the United States. Organisations of the latter kind are not yet apparent in Australia and, should they appear, would no doubt attract immediately official attention. Subject to our recommendations, the Human Tissue Act 1983 is in our view sufficient under present circumstances to protect the New South Wales community.
F. Conclusions
10.9 We have concluded that the legislative policy of prohibiting trade in human tissue as expressed by Part VI of the Human Tissue Act 1983 should not be changed in relation to semen donated or used for AI. On the other hand, the established practice of AID clinics in New South Wales whereby semen donors are paid or given reimbursement for expenses associated with donation should be seen as acceptable and as falling within the policy of section 32(3) of the Human Tissue Act 1983. Our opinion is that while section 32 is generally applicable to semen, section 32(3) does not exempt from section 32(1) semen donated for AID because the exemptions only apply “in relation to the removal of tissue in accordance with this Act.” We consider that those words are not apt to describe the procedure of semen donation. Specific legislative exemption is therefore desirable to enable the lawful reimbursement of expenses. We also draw attention to section 32(4), under which the Minister would have power to determine from time to time a standard fee for payment of semen donors while also permitting reimbursement of expenses additional to or beyond that fee. In view of the small amount normally paid for expenses, we think that the setting of a standard fee by the Minister would be a practical and desirable way of controlling this subject. We recommend that the reimbursement of any expenses necessarily or reasonably incurred by a semen donor in relation to the lawful donation of his semen for AID be allowed and that legislation be enacted to ensure that such reimbursement is lawful. We also recommend that the Minister give consideration to setting from time to time a standard fee under section 32(4) of the Human Tissue Act 1983 for payment to semen donors as well as permitting further reimbursement of expenses, to the extent that they exceed the standard fee in a particular case.
II. STORED SEMEN-DOMINION, CONTROL AND OWNERSHIP
A. Property in Human Tissue
10.10 No useful purpose is served, in our opinion, by discussing in this Report the difficult question whether the common law recognises the concept of ownership as applicable to human body materials. There is good authority for the general proposition that the common law does not recognise proprietary rights or interests in human tissues.11 However, we are concerned with only one kind of tissue, namely donated and stored semen. We believe that the issues of dominion or control over this tissue in the context of AID can best be resolved by specific legislation and not by leaving them to the processes of litigation and judicial determination.
10.11 The issues relating to dominion over semen in the context of AID are probably the same in principle as those relating to donated ova, but are not likely to be seen as of equal significance to those relating to fertilized ova (embryos) in the context of IVF. The power to control, use and dispose of human reproductive tissues in relation to the processes of artificial conception is an important matter in its own right, whatever may be the general legal principles applicable to proprietary rights in human tissues.
B. Semen Donated for AID
10.12 We take the general view that if a man donates semen unconditionally for use in AID there is no basis for him to assert rights and powers over its subsequent use. This is implicit in the Artificial Conception Act 1984 which precludes him from legal paternity and which implicitly accepts the converse, namely that he will have no duties or obligations to a resulting child.
10.13 Human semen is routinely frozen and stored for future use in AI. We are aware of no medical time limit that must be imposed, although as time passes the effectiveness of donated semen for fertilization declines. In view of the purpose of the donation and the simplicity of its production we recommend that legislation be enacted to the effect that the AI clinic should have the power to determine the use, storage and disposal of semen donated to it for AID. This power should carry some conditions and exceptions, for example, the clinic should be obliged, if a special use or purpose is stipulated at donation, to use it for that purpose although the clinic should have power to refuse to accept semen in the first place.
C. Semen Donated or Stored for a Specific Purpose
10.14 Following the exception envisaged in paragraph 10.13, a man and a clinic should be free to make an agreement setting out the terms applicable to his semen donation for AID and should also be free to reach a discrete agreement for the storage of his semen for his or his wife’s subsequent use, for example, where he is about to undergo surgery or chemotherapy, or has a medical condition that might make him infertile.
D. Duration of Storage and Disposal of Semen
10.15 Whatever the purpose of storage, it seems to us that a means of terminating it should be envisaged. As far as semen for AID is concerned, we see no reason to set a time limit on the period of storage. At the same time, we see no reason to oblige a clinic to store semen indefinitely. If a clinic decided to cease storage or close its storage facility it should be free to do so unless it had entered into a contrary agreement.
10.16 The United Kingdom Report made recommendations on the duration of storage of both semen and eggs. It suggested a periodic review by the clinic at five-year intervals. The clinic would be obliged to ascertain the wishes of the donor or depositor for continued storage, donation or destruction. If the donor should die or cannot be traced or fails to give instructions then the power of use and disposal should pass to the clinic.12 The report made no recommendation on the question of a clinic deciding to discontinue storage.
10.17 The National Health and Medical Research Council guidelines of October 1982 expressly provided for stored human embryos by setting an overall time limit of 10 years or the period “of conventional reproductive need or competence of the female donor” whichever is the longer.13 The Ontario Report addressed the duration of storage of fertilized ova (embryos)14 but did not deal directly with time limits in relation to stored semen.
10.18 Our opinion is that an AI clinic should have power to discontinue storage of semen donated for AID and to dispose of it if it so decides. However, we recommend that where an agreement has been made regulating the terms under which semen is to be stored, the clinic should, subject to the terms of the agreement, be under an obligation first to communicate with the donor or depositor and provide a reasonable opportunity for alternative arrangements to be made. We further recommend that the clinic’s power of disposal be exercisable if the donor should die or cannot be traced or fails to give instructions.
III. SUMMARY OF RECOMMENDATIONS
(1) The reimbursement of any expenses necessarily or reasonably incurred by a semen donor in relation to the lawful donation of his semen for AID should be allowed and legislation enacted to ensure that such reimbursement is lawful.
(2) The Minister should give consideration to setting from time to time a standard fee under section 32(4) of the Human Tissue Act 1983 for payment to semen donors as well as permitting further reimbursement of expenses to the extent that they exceed the standard fee in a particular case.
(3) On the subject of dominion and control over donated semen and stored semen, legislation should make provision to the following effect:
(a) As a general rule the AI clinic should have the power to determine whether, and in what manner, semen donated to it for AID will be used, stored and disposed of.
(b) The power in (a) should be subject to any agreement made by the donor and the clinic setting out the terms applicable to his semen donation for AID.
(c) If a man and a clinic make an agreement for the storage of his semen for his or his wife’s or partner’s subsequent use, the clinic should, subject to the terms of the agreement, have power to discontinue storage and to dispose of the semen only after first giving the depositor a reasonable opportunity to make alternative arrangements. The clinic’s power of disposal will also be exercisable if the donor or depositor dies, cannot be traced by the clinic or fails to respond.
FOOTNOTES
1. s32(5).
2. Australian Law Reform Commission, Human Tissue Transplants (ALRC 7, 1977) appendix IV.
3. s32(2).
4. s32(4).
5. United Kingdom Report, para 4.27; Ciba Foundation Symposium 17, Law and Ethics of AID and Embryo Transfer (1973) at 53,57 citing R M Titmuss, The Gift Relationship (1971), and at 101: Ontario Report at 167-169.
6. Discussion Paper, para 9.2.
7. Id, para 9.6.
8. United Kingdom Report, para 4.27.
9. Victorian Report, paras 3.10, 3.11.
10. See eg note 2, paras 174-182: Ciba Foundation Symposium 17, note 5 at 53.
11. Note 2, paras 13,168; for a general discussion of the legal position see Russell Scott, The Body as property (1981).
12. United Kingdom Report, paras 10.7,10.8.
13. National Health and Medical Research Council, Ethics in Medical Research (October 1982) at 27.
14. Ontario Report at 214-217.
