11.1 Until the Artificial Conception Act 1984, the registration of births of AID children was a matter of considerable concern for law enforcement and for lawmakers. The reason was that it was widely believed that often a consenting husband, in contravention of the law, would register himself as the father of his wife’s AID child.1 The Family Law Council Report cited a 1981 research paper prepared in the Federal Attorney-General’s Department which stated:
. . . the NSW registration authorities have indicated that no registration form presented to them has ever disclosed that the child resulted from AID.2
Ample evidence is available that this practice was (and no doubt, is) widespread in Australia and overseas and, on occasions, encouraged by government instrumentalities.3 Our inquiries of AI clinics in New South Wales have caused us to conclude that recipient couples normally indicate their desire and intention not to disclose to their AID children the circumstances of conception. The reluctance of AID parents to place on public record the fact of their resort to AID may be readily imagined. Nevertheless, it is a criminal offence to furnish wilfully false information with respect to a birth certificate.4 Similar statutory provisions can be found in other Australian States and overseas.
11.2 The concern that numbers of citizens were deliberately breaking the law, or felt compelled to do so, has largely disappeared since the commencement of the Artificial Conception Act 1984 on 1 August 1984. That Act provides that when a married woman has received AID with her husband’s consent and gives birth to a child as a result “the husband shall be presumed, for all purposes, to have caused the pregnancy and to be the father”.5 The birth may be registered accordingly. We refer in Chapter 13 to the Australia-wide enactment of legislation of this kind since August 1984 and to acceptance of the policy on which it is based throughout Western countries both in legislation and in the reports of official inquiries.6
11.3 The enactment of this clearly-expressed “status” legislation has now given rise, in some quarters, to the suggestion that its presumptions are not desirable and that it should be amended so as to require the biological facts to be put on official records.7 A recurrent claim in support of this suggestion for further law reform is that a function of birth registration is to provide “a record for each individual of his or her blood or genealogical connections, of his or her progenitors.”8 We do not accept this claim, and believe it to be incorrect. The birth registry is not, nor is it intended to be, a source of biologically or genetically accurate information. The legislation expresses no such principle. It is further demonstrated by the fact that the births of large numbers of children are, and have over the years been, officially registered “without paternity”. In our Discussion Paper we cited official figures which showed that, on average, 4.7 per cent of births in New South Wales were registered in this fashion in 1981-1983.9 The Ontario Report discusses the same subject and reaches the same conclusion, after giving a variety of circumstances in which the birth register accepts and even encourages the recording of “social reality” in preference to “biological accuracy”:
. . . the act is not really intended to..... establish a true biological record of Parentage. Rather, registration by and large creates a social record of parentage.10
A further persuasive example is the general legal presumption that a child born to a married woman is the child of her husband.11
11.4 We believe that the policy of the new status legislation and its acceptance of social paternity should be respected. Further, we are not persuaded that the legislative pursuit of biological truth is practical or justifiable under the circumstances of AID practice in New South Wales, and have given our reasons at length in Chapters 8 and 13. We think, on the contrary, that it is arguable that the Artificial Conception Act 1984 has both clarified and improved the law. It allows AID couples to register births free from the fear of breaking the law and clearly defines the legal status of the typical AID child. We make no recommendation for reform on this subject.
11.5 Two related matters should be mentioned at this point. The first is the registration of’ the birth of a child from a widow following her insemination by her deceased husband’s stored semen after his death. This is dealt with as a discrete subject in Chapter 12. The second is the reference given to this Commission by the Attorney General on 11 November 1985 to make recommendations for law reform in relation to:
1. Criteria for registration of the surname of a child of married and unmarried parents; registration procedures and acknowledgment of paternity in relation to an ex nuptial child; details to be recorded in relation to births and deaths; provision of certificates omitting potentially embarrassing details appearing in a registration;
While we remain of the view that reform of the law is not called for in relation to the matters discussed in this Chapter, we must respond specifically to these terms of reference in a separate report. The recommendations for reform that will appear in that report will flow from our consideration of the specific matters listed in the terms of reference and will not be preempted by this present Report.
FOOTNOTES
1. Discussion Paper, paras 15.6,15.7.
2. Family Law Council Report, para 6.41.
3. Discussion Paper, para 15.6 citing Royal College of Obstetricians and Gynaecologists, Artificial Insemination (London, March 1979).
4. Registration of Births, Deaths and Marriages Act 1973 ss57-59; Crimes Act 1900 ss337, 547A.
5. s5(2).
6. Paras 13.15-13.21 above.
7. Discussion Paper, para 15.4; Family Law Council Report, para 6.4. 1 0.
8. Family Law Council Report, pira 6.4.2; United Kingdom Report, para 4.25.
9. Discussion paper, para 15.8.
10. Ontario Report at 70.
11. See generally M Aronson et al, Litigation: Evidence and Procedure (3rd ed, 1982) at 504,505.
