A. Human Infertility and AI

13.1 A person born as a result of AI is typically the child of a married woman whose husband is infertile. For some infertile couples childlessness in marriage is a tragedy. The United Kingdom Committee, discussing infertility, said:

Childlessness can be a source of stress even to those who have chosen it . . . For those who long for children, the realisation that they are unable to found a family can be shattering. It can disrupt their picture of the whole of their future lives.¹

When we speak of infertility in marriage, we are not referring to a minor social phenomenon. It is generally accepted in medical and scientific literature that 10 to 15 per cent of all couples of childbearing age are infertile.² Most of us are familiar with the statements made in recent years that infertility in Western society is increasing and that the reasons for the increase are not known. Examination of the raw information on annual birth rates provided by the Australian federal government shows a clear decline.³ In Australia between 700,000 and 1,000,000 persons are now partners in infertile marriages.⁴ There exist varied opinions about the significance of infertility in marriage, and the justification of its treatment by medical practitioners. However, infertility is likely to be a matter of considerable sensitivity for those affected by it. This in turn suggests that actions such as medical treatment for infertility, insemination of a wife with the husband’s or a donor’s semen and the birth of an AI child will also, for some, be matters of considerable sensitivity. The answers to the questions whether AI children should be told the truth about the conception, whether they should have access to all available information on the subject, whether detailed records should be kept and if so by whom, are likely to reflect deep divisions of opinion. There are no more difficult issues than those arising from these and related questions. In this Chapter our attention is principally devoted to AID.

B. Telling the Truth About Genetic Parentage

13.2 The debate about the claim of the AID child to be told the truth about parentage and origin has its source in adoption practice and major changes in thinking that have taken place in recent years favouring the supply of personal information to adopted people in a context of openness and frankness. As a general proposition, openness and frankness are preferable to secrecy and deceit. However, it is sometimes easier to propound a desirable objective than it is to achieve it.

13.3 The Commission’s awareness of this fundamental alteration in approach to adoption is derived from its research and from the long professional involvement in this field of one of its Commissioners,⁵ to whom we are indebted for advice both on developments and policy formulation. We believe that we have been able to remain abreast of the debate, which is a continuing one. In particular we have considered sensitive and contentious questions such as the supply of information that identifies persons, the transfer to the field of artificial conception of philosophy and principles seen as suitable for use in adoption, and the equation of adopted persons with persons born as a result of the use of donated reproductive tissues. We are aware that the new approach has begun to reflect in adoption legislation such as the United Kingdom Adoption Act 1976 and the Victorian Adoption Act 1984.

13.4 We discussed the issues at length in the Discussion Paper⁶ and analysed the factual differences between the circumstances of children in a typical adoption and those in typical cases of AID and IVF. The fact is that the typical adopted child has no biological relationship to the adopting parents, while the typical AID child is borne by its biological mother under arrangements to which her husband is a willing party from conception, and is raised by her and her husband. The typical IVF and AIH child is born to and raised by both its biological parents. Once again we emphasise that despite the inevitable use of expressions such as “AID child” and “IVF child” we refer to all persons, whatever their ages, born following these procedures of artificial conception and do not confine our comments to infants.

C. Two Crucial Questions

13.5 Our research and inquiry has led us to the view that two questions have particular significance in AID, namely:

• should Information that identifies a party to AID be made available to another party or another person without the first party’s consent?
• by whom should AID records be kept?

The answers to these questions are likely to disclose the fundamental differences of opinion referred to in paragraph 13.1. These differences appear to have resulted in an alignment on one side of people who believe that a donor’s claim to anonymity and confidentiality and a recipient couple’s claim to decide what to tell their AID child should have effect, and on the other side of people whose perception of the welfare of the AID child causes them to take the view that the child should be given a “right to know”, by means of enforceable legal rights to information that can override all contrary claims.

II. ACCESS TO AI RECORDS

A. The Debate

13.6 Whether information recorded by AI clinics and practitioners should be made available to AI children (or other interested persons) is a matter of real contention. Our inquiries of New South Wales clinics led us to the conclusion that AID parents do not, as a rule, inform their children of their AID origins.⁷ We found, however, that the clinics normally provide counselling on this subject and advise patients to make their own decision.

13.7 The two sides of the debate may be illustrated by reference to the contrasting recommendations that have been made recently by two Australian official reports and two overseas reports.

B. The Victorian Report

13.8 The importance of this report lies in the fact that, together with other reports of the Victorian Committee, it led to the enactment in November 1984 by the Victorian parliament of Australia’s first statute regulating the practices of AI, AID and IVF.⁸ The Victorian Report itself was limited to IVF, but many of the principles which it enunciated were extended by the Parliament to AI. No official inquiry into AI or AID was held in Victoria. The basic principle propounded by the Victorian Report on the subject here in question was put as follows:

Whether or not a person pursues her or his origins, It should be possible for everyone to discover them..... There is..... a substantial and growing view that the values of honesty and integrity are crucial to the creation of a happy family . . . ⁹

Pursuant to this proposition, the legislation has created a government register into which must be put comprehensive details of all gamete donors, AID pregnancies, recipients, resulting children and all abnormalities in those children.¹⁰ The provision by the hospital of the information to the register is compulsory and is supported by a criminal sanction.¹¹ Access to information in the government register by children born as a result of AID procedures was envisaged by the report but it did not recommend the supply of information that would identify a donor. The legislation in its present form provides only for the supply of non-identifying information.¹² We examined the Victorian Report and the legislation (then a Bill) in our Discussion Paper and expressed some reservations about its underlying principles and assumptions in relation to the supply of information through a central government register.¹³ These reservations extended to the assumption that legislative intervention of this kind is justifiable as a support for the stated social value of “honesty and integrity” and that statutory compulsion is an acceptable route “to the creation of a happy family”.¹⁴ We expressed doubts (also discussed earlier in this Report) whether it is justifiable for the law to assume that the AID child under normal conditions of practice, is necessarily the child of the donor and drew attention to the lack of factual information about AI practice in the Victorian Report (due, obviously, to the limits of the terms of reference).

13.9 It seems to us that parents may be honest and open with their children and yet decide that it is not in the children’s interests to be given all information regarding their origins. The issues are whether the parents should be left to exercise discretion in the light of the circumstances and whether it is the role of the law to intrude. If legislation is to compel the recording and the supply of specified genetic information without regard to individual circumstances, the legislation must be based on some other principle than “the values of honesty and integrity”.

C. The Family Law Council Report

13.10 The Family Law Council was created to advise the federal Attorney-General on matters relating to family law under the Family Law Act 1975 (Cth). It decided in early 1984 to examine, via a sub-committee, the matters dealt with in its report. This is not the place to discuss the constitutional limits on the reach of the Family Law Act. However, it should be borne in mind that the Act and the power of the federal government are limited, to use non-technical language, to children of married persons and do not extend to all children.¹⁵ The main recommendation of the report, which was published in July 1985, is that a body should be established and named the National Council on Reproductive Technology with the function of monitoring medical research and practice related to reproductive technology and advising governments and the public accordingly.¹⁶ However, the report itself contains many recommendations for federal and state lawmaking including keeping of, and access to information and records in relation to children born as a result of the use of donated gametes.¹⁷

13.11 The Family Law Council Report’s recommendations on the present subject proceed from the following statement of principle:

The practice, experience and research of the past 20 years in adoption emphasize the following as essential to the healthy social and psychological development of children in their families:

• honesty and openness in family relationships .....
• access to medical and/or identifying information and records where required..... in terms of the child’s/adult’s needs and rights;

and are based on the paramountcy of the welfare and interest of the child/adult.¹⁸

The recommendations following this statement of principle are applied or transferred to persons born following the use of donated gametes in artificial conception, and include the following:

That, in recognition of the importance of access to knowledge and information of genealogical origins, legislation and practice provide for access to such information by the child/adult:

• that such information be of a non-identifying nature prior to the child reaching 18 years of age; and
• that identifying information be available for adults over 18 years of age.¹⁹

13.12 It is significant that this report is the only one we have seen that recommends the creation of a statutory right in favour of an AID child to obtain identifying information about parentage. It is also important, before proceeding to the two overseas reports, to set out some facts as we have them:

• The AID child is not in an equivalent position to the typical adopted child for reasons already stated.²⁰ However, advocacy of a legal right to identifying information about a donor equates adoption with AID.²¹
• The Adoption Act 1984 (Vic) is the only statute enacted in Australia that provides a legal right for an adopted person to have access to identifying information about biological parents.²² We are informed that no other State or Territory will provide such information against the wishes of a biological parent.²³
• We should add that since the publication of our Discussion Paper, the Marshall Review Report has been published by the Minister for Youth and Community Services on the subject of adoption in New South Wales. That report recommends that adopted persons on reaching 18 years should have access to their original birth certificates. It further recommends that “policy be developed..... to release additional relevant identifying information from adoption records . . .” ²⁴
• No other Australian Inquiry nor any overseas Inquiry has suggested the creation of a legal right of access to identifying information in artificial conception.
• In England and other places where a statutory right has been given to the adopted person to obtain a copy of his or her birth certificate, it does not follow that the certificate will contain details of the biological father.²⁵

D. The United Kingdom Report

13.13 The United Kingdom Report pays regard to the principle of the welfare of the AID child, but does not use that principle as a starting point. The following extracts clearly show the report’s approach:

• [T]here is a need to maintain the absolute anonymity of the donor.....²⁶
• [O]ur general view is that anonymity protects all parties not only from legal complications but also from emotional difficulties.²⁷
• AID has tended to be surrounded with secrecy. This secrecy amounts to more than a desire for confidentiality and privacy, for the couple may deceive.... the child is well... However, while we agree that it is wrong to deceive children about their origins, we regard this as an argument against current attitudes, not against AID in itself.²⁸
• [T]he [AID] child should have access to the basic information about the donor’s ethnic origin and genetic health and [non-retrospective] legislation [should] be enacted to provide [a] right of access to this [upon reaching the age of eighteen years.²⁹

The United Kingdom Report does not discuss or recommend access to identifying information about parentage in artificial conception. In our view the foregoing excerpts show the reason. England is regarded as the pioneer of legislation giving access to information about an adopted person’s biological parentage, yet that legislation gives access to the birth certificate, not to identifying information as such. Triseliotis, the adoption expert who is credited with causing the enactment of the English legislation, commented as follows:

My research studies have shown that approximately 98% of adopted people are satisfied with non-identifiable information passed on to them by their parents. For the tiny minority who are not satisfied and set out on a quest, the reasons are mostly associated with secrecy and evasion pursued by the adoptive parents, or with some other serious identity crisis.³⁰

The United Kingdom Report declined to deal with the question of a central register of births by artificial conception and recommended that the matter be studied later.³¹

E. The Ontario Report

13.14 The Ontario Commission thoroughly discusses all aspects of this subject from the creation of records, their content and retention, to the difficult questions of access and confidentiality. The Commission is firmly of the view that full records of the parties to AID should be created so that a linkage can be made if health considerations require it. It insists with equal firmness upon preservation of the confidentiality of records and the anonymity of the parties between themselves.³² As for access to the records by the AID child, the report reaches conclusions that are in clear contrast with the two Australian reports. It should be stated that, unlike the United Kingdom Report, those conclusions are reached after lengthy discussion of the issues. Thus:

Before we deal specifically with access to medical records, we wish to raise the critical threshold question concerning whether a child should be told of his biological origins . . . [W]e agree in principle with the view expressed in a Report of the Royal College of Obstetricians and Gynaecologists in the United Kingdom that “the decision to disclose to the child the nature of its parentage should at the present time remain with the ‘legal’ parents” . . . Each family situation is different, so that a general hypothesis-that, for example, secrecy is deceitful and fundamentally unhealthy-while perhaps reasonable and compelling in the abstract, cannot be translated into meaningful statutory directive.³³

[A]fter a child has, in fact, discovered that he or she was artificially conceived..... the Commission recommends that the decision concerning access to medical records by the parties involved-the woman, her husband or partner (if any), the child, and the donor should be left to individual members of the medical profession. However, under no circumstances should any doctor or other person disclose information that could in any way identify the parties involved.³⁴

F. Our Comments on the Debate

13.15 Plainly, there are differences between the philosophy and social principles underlying the two Australian reports and those underlying the United Kingdom Report and the Ontario Report. There appears also to be a difference of approach concerning the desirability of legislative intervention in this aspect of domestic life. We find ourselves unable to agree with the conclusions of the Family Law Council Report on access to identifying information, or with the Victorian Report and legislation on the method of recording information. There are several reasons for this, which we outline in the succeeding paragraphs.

13.16 We agree that openness, integrity and honesty in all relationships, including family relationships, are desirable. However, there is nothing original or unusual in that proposition. In our view, it is not justifiable to use such proposition as a reason for enacting legislation. In the words of the Ontario Report, used in relation to the decision to disclose to the child the nature of its parentage, “the decision..... does not lend itself..... to legislative resolution”.³⁵ There is another aspect of the “openness” proposition that concerns us, namely our belief that the ideal of openness in family relationships should extend to many more matters than biological parentage. For example, a child might be seriously affected by a parent’s lies or deceit concerning past criminal behaviour, past marriages, serious illness or financial instability. Why should the law select this one area of possible lack of openness as meriting legislative intervention?

13.17 Secondly, the factual difference between the parental circumstances of the AID child and the typical adopted child has already been twice referred to in this Chapter. We are aware that some people say that an AID child can suffer serious identity problems in relation to paternity alone, despite the “halving” of the problem as applied to an adopted person. Nevertheless, we believe that this factual difference is significant and has not been addressed in the Australian reports that rely on the adoption parallel.

13.18 Thirdly, there is an assumption behind the Victorian approach, to which we have already referred in this Chapter and in Chapter 9, namely that the semen donor, under present conditions of AID practice, may be assumed with certainty to be the genetic father of the child in question. We doubt that justification exists for this assumption.

13.19 Fourthly, neither of the Australian reports (nor any other report that we have read) attempts a balancing of its recommendations with an important matter of principle, namely the claim of competent adult parents to personal autonomy and liberty to make their own decisions in relation to reproduction and family matters, including the welfare of their children.

13.20 Fifthly, both Australian reports assume that the acquisition of accurate genetic information about parenthood is so important that legislation to underwrite it is necessary. Neither contains any discussion of the merits of this assumption nor, in particular, of those cultures and communities that have not taken this view of the importance of the genetic link. Examples may be readily given from Maori, Polynesian and Aboriginal culture of circumstances where social parenthood is accepted as at least equal to biological parenthood. We are aware of the notion of “genealogical bewilderment” in sociological literature, but believe that the imperative of “biological truth” should have been argued because the proposition was used as a foundation for recommendations for legislation.

13.21 Our final reason is the inconsistency of the policy espoused by the two Australian reports and the “central register” provisions of the Victorian Infertility (Medical Procedures) Act 1984 with the legislative policy of the 1984 status legislation relating to children born as a result of the use of donated gametes. The Artificial Conception Act 1984 and the Status of Children (Amendment) Act 1984 (Vic) both reject biological parenthood and replace it with social parenthood in AID. The husband who consents to the use of donated semen for his wife’s pregnancy, the “social father”, is presumed to have caused the pregnancy and to be the father for all legal purposes. This legislation goes further than adoption legislation on this point. The Family Law Council Report saw some of the problems which the status legislation raises for its own recommendations on “the right to know” biological facts and recommended that the Australian States and Territories should amend their status legislation (and also their birth registration laws) to reflect the report’s views on biologically accurate record keeping.³⁶ We do not regard this as an acceptable approach. The Victorian and New South Wales status legislation of 1984 followed some five years of consideration by the Standing Committee of Attorneys-General. Its policy on paternity is not only now common throughout Australia, but has been adopted or recommended throughout the Western world, beginning with the Uniform Parentage Act of 1973 in the United States and including the United Kingdom, Canada, the Council of Europe (for all European nations), New Zealand and South Africa..

G. Submissions from the Public

13.22 Twenty-six of the written submissions on AI held by the Commission expressed views on the creation and keeping of records. Six of these stated their support for the supply to AID children of identifying information about semen donors and one appeared to favour it without saying so specifically. However, 14 specifically advocated restriction to non-identifying information, and the remainder were concerned with other aspects of record keeping. Of the 22 persons and organisations who made oral statements and submissions to the Commission at its public hearing on 16 April 1985, 19 discussed the question of access to records. Five favoured the supply of identifying information about donors to AID children as a legal right, while 15 favoured restriction to non-identifying information.

H. Conclusions

13.23 We have concluded that insufficient reason exists for creating legal rights in favour of any person for access to recorded identifying information about semen donors or any other party to AID. Accordingly, we recommend that no person should have a legal right of access to information that may identify a party to AID, and no record keeper may divulge such information, unless the person who is the subject of the information formally consents. As for non-identifying information or identifying information to the supply of which the person to be identified consents, we believe that access may be granted for “good cause”. Under existing legal procedures and the law of evidence, access to any records can normally be ordered by the courts for the purposes of legal proceedings. We see no need to interfere with this. We recommend that a statutory entitlement should be created whereby AID recipients, AID children, semen donors and any other person, upon showing “good cause” may have access to recorded non-identifying information either by agreement with the record keeper or, failing agreement, upon the decision of a person or body nominated by the Minister for Health. The majority of Commissioners envisage that “good cause” will involve the health and welfare of a party to AID. However, Justice Peter Nygh is of the view that “good cause” should be defined more restrictively, to refer only to information necessary for the physical well-being of the AID child. We further recommend that the supply of information should not necessarily confer a right of access or inspection of the records themselves. Our conclusions on the question of a central register of information are in paragraph 13.30.

III. CREATING AND KEEPING AI RECORDS

A. In General

13.24 We now turn to creating and keeping records, the extent of the records, the persons to whom they should relate, the persons who should keep them and the duration of retention. Firstly, the Commission has decided in principle that appropriate information about the parties to AI should be recorded. The principal purpose of recording and keeping information should be to secure the good health and welfare of parties to AI, in particular the semen recipient, the resulting child and the semen donor. AID records could relate to the recipient woman, her husband or partner (if any), the resulting child and the semen donor. Before dealing with feasible procedures for creating records, the question should be asked whether the law already requires records to be created. In the following paragraph, we suggest that the law requires records to be created, on the assumption that AI is classified as a medical practice. If our recommendations in Chapter 4 are implemented, the systematic practice of AI will be confined by the law to medical practitioners. It can therefore be expected that records will be made and kept about AI “patients”.

B. Who is the Patient?

13.25 Who is (or are) the patient (or patients) in AI? Is it legally compulsory for a medical practitioner to create and keep records about patients? On the basis that AI is a proper subject of medical practice, we are of the view that in the typical case that arises for treatment, where a heterosexual couple experience infertility, both the partners are patients. The male will have a condition such as oligospermia or azoospermia that calls for expert medical advice and treatment, and the female will receive the insemination. Both will be counselled. However, there does not appear to be any statutory requirement in New South Wales compelling the creation of medical records.³⁷ This may be contrasted with the law of Ontario where:

. . . seventy-seven pieces of legislation, including regulations, [deal] with the reporting, collection, storage, use, dissemination, confidentiality, retention, or disposal of health information.³⁸

The creation of medical records in Australia is, however, required by the Code of Ethics of the Australian Medical Association. Rule 6.1.2 of the Code provides:

Every patient has a right to expect a complete and thorough examination into his condition and that accurate records will be kept.³⁹

We conclude from this ethical rule, and our belief that medical practitioners habitually create and keep records of patients and their treatment, that good medical practice requires that these steps be taken. It follows that the common law could be expected to recognise this practice and impose a legal duty to follow it, breach of which may amount to negligence. The next question is whether the semen donor and the AID child are “patients”.

13.26 We discussed in Chapter 8 the question whether semen donors are “patients” of the clinics or medical practitioners to whom their semen is given. Our inquiries of New South Wales clinics disclosed that all clinics which use frozen sperm create and keep coded, confidential systems of donor information and all give confidentiality and anonymity to donors.⁴⁰ The donor records are kept for varying periods, from a reasonable time after a donor ceases to be a donor and the results of his donation are known, to “indefinitely”. We are therefore satisfied that regard for the welfare of the parties to AI has caused the establishment in New South Wales of the practice of record-keeping in relation to semen donors, despite the lack of clarity and definition of this relationship with the medical profession. Even so, we have reached the conclusion that it is desirable for the matter to be clarified by an official statement requiring records about semen donors to be kept, and our recommendations reflect this conclusion. The Ontario Report expressed the same view but was able to deal with the matter more directly because of the existence in Ontario of extensive statutory requirements for patient” record keeping:

[W]e recommend that the relevant statutes, regulations, and professional rules be amended to make it clear that gamete donors are patients for the purposes of record keeping.⁴¹

13.27 Strictly speaking, the AID child as such is not a “patient”. Obviously the parents of the child, or one of them, could create that status contractually with the clinic. The Ontario Report suggests that the child may have a special status that attracts duties owed by the clinic:

Indeed, it might well be professional misconduct where a physician failed to maintain records required for the conscientious and professional care of persons, other than patients, to whom legal, fiduciary, or ethical duties are owed. These other persons could include artificially conceived children, who, while not patients, have frequently been said to be persons to whom physicians owe at least ethical duties. Thirdly, under traditional negligence law, there would likely be a legal duty of appropriate record keeping owed to patients and others, including children, who foreseeably might be prejudicially affected by the failure to keep such records.⁴²

C. Conclusions

13.28 We recommend that all clinical records relating to AI and AID and to the parties to AI and AID shall be retained by the practitioner or clinic who provides the service. We further recommend that the extent of the records and their contents and the methods to be used to assist in preserving confidentiality and anonymity, should not be prescribed by legislation because they are essentially matters for good medical practice. Minimum requirements for patients’ records are prescribed by legislation in some jurisdictions, for example Ontario and England.⁴³ Our view is that regulations are the appropriate means of prescribing such matters and we believe that under the Medical Practitioners Act 1938, the Minister already has power to make such regulations. However, at this stage we do not recommend the preparation of regulations, believing that the existence of power to make them is sufficient. We would prefer to see attention given to this subject by the medical profession itself, by organisations such as the Australian Medical Association, the Royal Australian College of Obstetrics and Gynaecology and the Fertility Society of Australia, either severally or jointly. Rules or regulations on this subject should pay regard to the need for confidentiality, privacy and anonymity of the parties⁴⁴ and to possible requests on those subjects by the parties. We further express the view that regulations should take into account the realities of medical practice and should not place impractical obligations on any person. For example, it is not unusual for women to seek AID from a public hospital clinic as a specialist service on referral from their medical advisers. In such cases the women may leave the clinic after insemination or after pregnancy and the clinic will not learn about the birth of a child unless special arrangements are made. Therefore, while we agree with the practice of recording details of children born as a result of successful inseminations, there must be a limit on the clinics’ duty and the extent to which they should be obliged to “follow up” patients or seek information that is not readily available. The Infertility (Medical Procedures) Act 1984 (Vic) makes specific concessions on this subject.⁴⁵ Attention is also drawn to the Ontario Report:

[W]e recommend that there should be no positive duty on artificial conception practitioners to take steps to ascertain whether conception and birth have taken place or to ascertain the medical status of any child.⁴⁶

IV. WHO SHOULD KEEP RECORDS?

13.29 Having recommended that AI records should be compulsorily created and kept, we now recapitulate some of the results of our inquiries. These show that AI in New South Wales is practised mainly in organised clinics in public hospitals and that AI is now rarely practised by individual medical practitioners.⁴⁷ The reason is that patients suitable for AI are normally referred to one of the specialist clinics. We identified eight AI clinics in New South Wales, six of which are in major public hospitals. We have been supplied with no evidence or suggestion of any misbehaviour or abuse on the part of any AI clinic or any medical practitioner in relation to records or the failure to keep records.

13.30 Because of the recent Victorian legislation, the Infertility (Medical Procedures) Act 1984, the question arises of a central register of AI information. We have already described the Victorian experience on this subject, which has no counterpart, so far as we are aware, in North America or the United Kingdom. We emphasise that the Victorian legislation resulted from a report on IVF, although the central government register proposed will also contain details of parties to AID. As far as New South Wales is concerned, we see no case for the establishment of a central register of AID information. If our earlier recommendations are accepted, specific legislation and supporting regulations or guidelines will ensure the creation and retention of detailed records. AImost all of these will be held in public hospitals. The remainder will be held in private clinics which will not only be governed by the legislation, but conducted by medical practitioners already controlled by the Medical Practitioners Act 1938. A central register would, in our view, be a duplication of record keeping that will already have been done as a statutory obligation. We cannot see justification for it, or for the expense and resources necessary to conduct it. Accordingly, we recommend that there be no establishment of a central register to contain details of AI, AID or any of the parties involved.⁴⁸ The records should be kept by clinics and practitioners.

V. DURATION OF RECORD RETENTION

13.31 We believe that a direct obligation on AI clinics to retain AI medical records on a permanent basis should not be imposed by statute. There should be a procedure whereby the obligation may be terminated and the records disposed of (or destroyed). We note that under the various Ontario statutes relating to medical records, individual medical practitioners are required to keep normal “patient” records “for a period of six years after the date of the last entry in the record or until the practitioner ceases to engage in the practice of medicine, whichever first occurs”.⁴⁹ Public hospitals in Ontario are obliged to keep medical records for 50 years.⁵⁰ The introduction of a fixed statutory period of retention is, in our opinion, not required in New South Wales. Our advice is that the inheritance by an AID child of a disease or abnormality will be known or apparent at birth or very shortly thereafter, except in the rarest of circumstances.⁵¹ Such circumstances, if they do occur, are likely to result from human error or ignorance as much as scientific or medical error, for example, the semen donor is unaware that he carries a transmissible abnormality. We recommend that there be no fixed time limit for retention of records but that a procedure be provided whereby a record keeper may apply for permission or authority to dispose of records or transfer them to an acceptable custodian. A suitable source of such permission would be an Advisory Committee envisaged in Chapter 15 or a person or body nominated by the Minister for Health. The procedure should be broadly specified by statute and, if thought desirable, could include some principles of a general kind to assist decision making, and to guide potential applicants on the nature of the considerations that will justify an application. We are reluctant to make recommendations that add to the burdens and work-load of courts or involve expense and undue formality.

VI. RECORD KEEPER’S DUTY TO INFORM A PERSON AT RISK

13.32 In our Discussion Paper we devoted a separate chapter to the question whether a record keeper should be placed under a legal obligation or duty to seek out and advise parties to AI whose health is found to be at risk.⁵² This possibility, which could arise from an unexpected abnormality or disease appearing in a donor or an AID child, has given concern to some Inquiries into artificial conception⁵³ and has been extensively discussed in this Commission. In order to ascertain whether our concern was well based or not, we sought the advice of a noted geneticist, Dr Gillian Turner of the Prince of Wales Children’s Hospital, Sydney, on the likelihood of the transmission of disease or abnormality by AI procedures.⁵⁴

13.33 Dr Turner made the point that we have previously discussed, namely that taking a thorough and accurate history of a semen donor is an important step that would reveal and eliminate most risks.⁵⁵ She confirmed that there are very few conditions or diseases that can be transmitted by sperm that will not be revealed by taking a donor’s history.⁵⁶ The risks are caused by donors who ought to know that they carry a disease or who deliberately provide false information or who simply are unaware that they carry disease.⁵⁷ However, Dr Turner made the telling point that the maintenance of records is likely to benefit the health of donors and their other offspring rather than AID children, because the AID children will have been born with their inherited characteristics. After considering the matter, we have concluded that the risks involved do not call for a specific legislative or statutory obligation. We are satisfied that any clinic or medical practitioner made aware of a risk or danger of this kind would normally take steps to advise the person at risk. Procedures to be followed are not a suitable subject for legislation, because every case will be governed by its own facts. The nature of the risk and the disease, and the sensitivity of the information should be taken into account when determining the most appropriate method of dealing with the problem. Our conclusion is that the decisions are essentially for the medical profession, and the profession must carry the discretionary power to determine what to say, when to say it and even whether to say it. Although we believe that in principle, a party who is at risk should be told, we recommend that no action be taken to create or impose by legislation, an obligation or duty on the part of the record keeper to seek out and advise a party to AI that he or she is under a risk to health. We also note that there could be circumstances in which a record keeper may be considered to be under a duty, based on existing common law principles, to communicate information.

VII. RETROSPECTIVITY OF LEGISLATION

13.34 In the event that the recommendations in this Chapter are accepted, consideration must be given to retrospectivity of the legislation. We have indicated that clinics and medical practitioners already follow the practice of recording information about the parties to AI and AID. It can therefore be expected that extensive records will be in existence when the legislation commences to operate. The legislation would confer on some persons rights of access to recorded information, and record keepers might be entitled and in some cases obliged to disclose information. Should those rights and obligations affect information already recorded?

13.35 The desirability of retrospective operation of a statute will depend on the circumstances. Parliament has power to enact legislation with retrospective effect if it chooses. The Artificial Conception Act 1984 directly provides for retrospective application by including in its ambit pregnancies occurring and children born both before and after its commencement.⁵⁸ No doubt the reason for this is that the statute is intended to confer benefits upon certain persons and protect their interests. Retrospectivity should not, in such cases, be objectionable. However, different considerations could arise in relation to newly created statutory rights, duties and obligations. A person who was a semen donor under an understanding or arrangement about anonymity made when the law was different, may well have a good ground of complaint concerning the compulsory supply of identifying information. However, as far as non-identifying information is concerned, we are of the view that application of the legislation to existing records is justified on the ground that it is intended to foster the welfare and health of AID children and other parties. We recommend that legislation conferring rights of access to certain recorded information apply to existing records.

VIII. SUMMARY OF RECOMMENDATIONS

Access to AI Records

(1) No person should have a legal right of access to information that may identify a party to AID and no record keeper should divulge such information, unless the person who is the subject of the information formally consents.⁵⁹

(2) Information about any party to AI or AID that does not identify a person may be made available “for good cause” by a record keeper. In the event that agreement cannot be reached on “good cause” the matter should be determined by a person or body nominated by the Minister for Health. “Good cause” should be defined or indicated by legislation and should be based, in principle, on the health and welfare of a party to AI or AID.

(3) The supply of information should not necessarily confer a right of access to or inspection of the records themselves.

Creating and Keeping Records

(4) All clinical records relating to AI and AID and to the parties to AI and AID shall be retained.

(5) The extent of the records, and their contents and the methods to be used to assist in preserving confidentiality and anonymity, are matters for good medical practice and should not be prescribed in a statute.

Who Should Keep Records

(6) Records should be created and kept by AI clinics and practitioners. There should be no establishment of an official or other central register.

Duration of Record Retention

(7) Records should be retained until such time as permission is lawfully given to dispose of all or some of them under principles and procedures envisaged by paragraph 13.31.

Record Keeper’s Duty to Inform a Person at Risk

(8) No action should be taken to create or impose by legislation an obligation or duty on the part of a record keeper to seek out and advise parties to AI whose health is found to be at risk.

Retrospectivity of Legislation

(9) Information lawfully supplied pursuant to (1) and (2) above may include information recorded at the time the relevant legislation takes effect.

1. United Kingdom Report, para 2.2.

2. S Cahill and S Suchy, The Infertility Resources Handbook (1981) at 13; A Stanway, Why Us? A Common-Sense Guide for the Childless (1980) at 12. See also Russell Scott, “Test Tube Babies, Experimental Medicine and Allied Problems” (1984) 58 Australian Law Journal 405 at 407, footnote 16.

3. Australian Bureau of Statistics, Year Book Australia 1980 (ABS Cat No 1301.0) at 105.

4. In 1982 there were approximately 3.5 million married couples in Australia. Assuming 10 to 15 per cent of those couples to be infertile, the incidence of persons who were partners in infertile marriages may be estimated at between 700,000 and 1,000,000: Australian Bureau of Statistics, Australian Families 1982 (ABS Cat No 4408.0) at 13.

5. Eva Learner, Part-time Commissioner, Manager of Human Resources in Staff Development (Bidura Remand Centre). See also Marshall Review Report.

6. Discussion Paper, ch 12.

7. Id, para 12.8.

8. Infertility (Medical Procedures) Act 1984 (Vic).

9. Victorian Report (1983), paras 3.29,3.30.

10. ss 19,21.

11. s 19.

12. s22.

13. Discussion Paper, paras 12.9-12.12.

14. Id, para 12.12.

15. The Commonwealth of Australia Constitution Act 1901 (Cth) s5l(xxi), (xxii).

16. Family Law Council Report, para 6.1.10.

17. Id, paras 6.3.11-6.3.13.

18. Id, para 6.3.2.

19. Id, para 6.3.1 1.

20. See para 13.4 above.

21. Family Law Council Report, paras 6.3.2, 6.3. 1 0.

22. ss 92(2), 93.

23. Discussion Paper, ch 12, footnote 5.

24. Marshall Review Report at 42,43,52 and 53.

25. Discussion Paper, para 12.3.

26. United Kingdom Report, para 4.22.

27. Id, para 3.2.

28. Id, para 4.12.

29. Id, para 4.21.

30. J Triseliotis, “Recent Developments in Adoption” (unpublished article, April 1980) at 13.

31. United Kingdom Report, para 13.9.

32. Ontario Report at 186.

33. Id at 187,188.

34. Id at 189,190 [our emphasis].

35. Id at 188.

36. Family Law Council Report, paras 6.2,6.4.

37. The medical practitioner may be guilty of “misconduct in a professional respect” if he or she does not make and keep medical records. See Medical Practitioners Act 1938 ss27,30.

38. Ontario Report at 78.

39. Australian Medical Association, Code of Ethics (1984 ed) at 11.

40. Discussion Paper, para 12.16.

41. Ontario Report at 185.

42. Id at 184 [our emphasis].

43. See G Sharpe and G Sawyer, Doctors and the Law (1978) at 116,117. The minimum extent of a medical record under Ontario legislation requires a practitioner to:

(a) keep a legibly written or typewritten record in respect of each patient..... setting out,

(I) the name and address of the patient,

(II) each date the [practitioner] sees a patient,

(iii) a history of the patient,

(iv) particulars of each physical examination of the patient by the [practitioner],

(v) investigations ordered by the [practitioner] and the results of the investigations,

(vi) each diagnosis made by the [practitioner] respecting the patient, and

(vii) each treatment prescribed by the [practitioner] for the patient;

(b) keep a day book, daily diary or appointment record setting out the name of each patient seen or treated or in respect of whom a professional service is rendered by the [practitioner].

See also C R A Martin, Law Relating to Medical Practice (2nd ed, 1979) at 1 12,113. In the United Kingdom, under the auspices of the National Health Service established by the National Health Service Act 1946, Terms of Service contained in National Health Service (General Medical and Pharmaceutical Services) Regulations 1974 lay down duties which require general practitioners to:

Keep records of illness of patient[s] and..... treatment of them, in prescribed form, [and to] forward them to [a] Committee when called for.

44. See Ch 15 below.

45. s19.

46. Ontario Report at 187.

47. Discussion Paper, paras 1. 11 - 1.15.

48. In support, see Ontario Report at 184-185.

49. Ontario Report at 80.

50. Id at 8 1.

51. Letter to Advisory Committee from Dr G Turner dated 12 August 1983.

52. Discussion Paper, ch 13.

53. See eg Ontario Report at 186.

54. Discussion Paper, paras 13.4,13.5.

55. Id, para 13.4.

56. Ibid.

57. Paras 5.14, 5.15 above.

58. s4(1).

59. A much more restricted view of the information that should be made available was that contained in the United Kingdom Report, para 4.2 1, which recommended restriction to “basic information about the donor’s ethnic origin and genetic health” to be made available to an AID child after reaching the age of 18.