I. INTRODUCTION
14.1 In this Chapter we address the question whether special legislative provisions should be enacted to impose duties upon AI practitioners, medical personnel, semen donors or recipients and their husbands. In relation to medical personnel, a related question asks whether they should be given specific legislative immunity or relief from legal liability if they act in good faith and without negligence when performing an act or duty imposed in relation to AI by the recommendations in this Report.
II. THE LEGAL POSITION
A. Relationships Created by AI
14.2 The relationships created by the practice of AID are numerous, as are the potential sources of complaint and damage. The former include those of doctor and patient, doctor and semen donor, doctor and spouse of patient (and spouse of donor), doctor and AI child (and AID child), parent and AID child, donor and recipient, and donor and AID child. This Chapter is concerned with civil liability and not with the creation of criminal or statutory offences which have been already dealt with in Chapter 5. For practical purposes we are concerned with the law of negligence although many disputes could arise that involve other common law principles such as those relating to trespass, battery and contract.
14.3 Our broad conclusion is that the existing common law and the judicial system should be left to deal with matters of civil liability. Although there appear to be no rules or principles of common law directed specifically to the liability of AI practitioners, there exist general duties, privileges and obligations applicable to the parties to AID and their relationships as is the case with other aspects of medical and professional practice and human relationships. The normal processes of litigation should be followed until inadequacy can be demonstrated.
14.4 In this context, some circumstances call for separate reference. These, in our opinion, are the following:
- actions for damages which have made their appearance with courts of common law countries in recent years and have been called “wrongful birth” claims and “wrongful life” claims;
- the legal relationship of doctors with semen donors;
- the protection of medical personnel.
B. Wrongful Birth and Wrongful Life
14.5 A typical claim for damages for wrongful birth will be made by a parent against a medical practitioner who has negligently carried out a sterilization operation or an abortion with the result that the claimant has become the parent of an unexpected or unwanted child. Success, if it results for the claimant, will come from application of the principles of the law of negligence or contract.1
14.6 The claim for damages for wrongful life2 is a claim by a child for compensation for having been born at all. Such a claim has its origin in a negligent act by a medical practitioner as a result of which the child is born with disease or defect, for example, a child born with mental abnormalities because of a doctor’s negligent failure to diagnose rubella in the pregnant mother and advise her of the desirability of an abortion. The English courts have, to date, rejected such claims on public policy grounds, stating that it is unacceptable to give a person damages on the basis that the person would have been better off never to have been born at all. It is possible that Australian courts may take a similar view of such claims, although it is to be noted that in the United States and Canada, claims of this kind have developed much further than in England.3
14.7 We have mentioned these claims because it is possible that they may increase and that related kinds of claim could appear. This could arise from rapid developments in recent years in the medical treatment of infertility and of embryos and fetuses in utero, as well as the obvious adaptability of the common law. In Australia, a court has already confirmed the legal liability of a negligent medical practitioner to a defective child born eight years after the negligent behaviour.4
14.8 This leads to the conclusion that the principles upon which the doctor’s liability is based may be equally applicable to parents and to donors. We are aware of no Australian case in which a child has sued parents for damages resulting from breach of a duty not to cause birth defects. However, there appears to be no reason why such a claim could not be made and succeed. It is possible, by means of the same reasoning, to envisage a claim for damages by an AID child against its parents and the medical personnel involved in its conception, on a ground comparable with “wrongful life” or “dissatisfied life”,5 namely that they have caused the child to be born as a kind of social freak.6 The Ontario Report came to a similar conclusion.7
14.9 Although the law in this area is obviously developing we do not regard any legislative initiative as necessary. The law is best left to the courts for determination. In the words of the Ontario Report:
. . . the challenges presented by wrongful life and related claims cannot and should not be resolved within the four corners of a report on human artificial reproduction.8
We recommend that no action be taken to enact legislation to impose specific legal liability upon medical personnel, semen donors or parents to pay compensation for damages or injury resulting from AI or AID.
C. The Legal Relationship of Doctors with Semen Donors
14.10 In discussion of the legal liability of medical personnel in AI and AID one apparent anomaly arises, namely the relationship between the AI practitioner (or clinic) and the semen donor. The anomaly is “apparent” because although some people may believe that the donor is a patient, it seems plain that he is not.9 However, it is reasonable to suggest that in some circumstances the donor is entitled to the same duties of confidentiality and anonymity as a normal medical patient. Because of these considerations and our analysis in paragraphs 8.6 to 8.13 we have recommended that the donor should be treated as though he is a patient for the purpose of record keeping10 and that the law should impose upon AID practitioners and clinics the same obligation to observe confidentiality and give anonymity in relation to semen donors as medical practitioners have to patients.11
D. The Protection of Medical Personnel
14.11 If statutory obligations and duties are placed upon AI practitioners pursuant to this Report is it necessary or desirable to confer direct statutory protection from liability upon a person who acts in good faith to comply with the statute? Assume that an AID practitioner interviewed and tested a semen donor pursuant to a statutory requirement, but obtained diseased semen because the donor lied. Assume also that the practitioner acted in good faith and without negligence. Does he or she require specific statutory protection? We do not believe so. An act done in good faith and without negligence should be protected on ordinary common law principles. A statutory statement is unnecessary. Hence, we recommend that no action be taken to enact legislation to confer exemption from liability upon medical personnel who act in good faith and without negligence when performing an act or duty imposed by legislation in relation to AI or AID.
III. SUMMARY OF RECOMMENDATIONS
(1) No action should be taken to enact legislation to impose specific legal liability upon medical personnel, semen donors or parents to pay compensation for damages or injury resulting from AI or AID.
(2) No action should be taken to enact legislation to confer exemption from liability upon medical personnel who act in good faith and without negligence when performing an act or duty imposed by legislation in relation to AI or AID.
FOOTNOTES
1. Sciuriaga v Powell [1980] CA Transcript 597; Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098. The law on this subject is by no means settled. In a recent English decision, Thake v Maurice [1984] 2 All ER 513 Pain J accepted a claim for breach of contract relating to a filed vasectomy and awarded damages for the support of the resulting unplanned child to the age of 17. The plaintiff claimed that the defendant surgeon had given a collateral warranty that the surgery would make him irreversibly sterile, and that as a result he was induced to have the operation. This case is to be contrasted with previously reported claims for wrongful birth, which were founded in negligence. The decision was overturned on appeal: [1986] 1 All ER 497. The Court of Appeal held that as medicine was not an exact science, a doctor could not be regarded as guaranteeing the result of any operation or treatment. However, the plaintiffs were entitled to damages for distress, pain and suffering. See also Discussion Paper, paras 18.6-18.8, 19.3 and 19.4.
2. McKay v Essex Area Health Authority [1982] QB 1166. For some American decisions on “wrongful life” see J N Turner, “Family Solidarity in the Brave New World” (1982) 7(3) Australian Child and Family Welfare 16.
3. Ontario Report at 194-197.
4. Kosky v The Trustees of the Sisters of Charity [1982] VR 961.
5. Ontario Report at 195.
6. Discussion Paper, paras 19.3,19.4.
7. Ontario Report at 197.
8. Ibid. The developing nature of this area of law may be further illustrated by the report in October 1985 of an action in California by a woman who had been treated with infertility drugs and thereafter gave birth to seven babies from the same pregnancy, three of whom lived. She and her husband claimed damages of $4.5 (Aust) million from the medical practitioners who prescribed the drugs, alleging negligence and “wrongful death” by reason of bringing about the pregnancy: “Parents sue over too many babies” Sydney Morning Herald, 10 October 1985 at 9.
9. Paras 13.25, 13.26 above.
10. Para 13.28 above.
11. Para 8.13 above.
