15.1 We expressed the view in our Discussion Paper that there is much to recommend the establishment of an official Advisory Committee on AI.¹ The committee that we favoured was one of limited membership, comprising mainly medical experts, possibly with one or two members who could provide advice on the law and on government policy. Its functions would be principally to work promptly with AI practitioners, helping with interpretation and application of broad statutory provisions and “good practice” recommendations, as well as recommending guidelines for good practice and collecting accurate information about AI in New South Wales.

15.2 We put a second option, which envisaged an Advisory Committee of a more general kind with a wider interdisciplinary membership. It would have a larger brief, extending to monitoring, advising and licensing along the lines recommended by recent Australian and overseas Inquiries.² Such a committee could be intended to maintain an overview of all aspects of artificial conception and not be limited to AI. We intend to give further attention to this subject in our reports on IVF and surrogate motherhood, including the practicality of such committees. Although the Commissioner-in-charge of this reference was, possibly, the original advocate in Australia of such a monitoring approach,³ we believe that the costs and benefits to the Australian community of a plethora of state and federal monitoring and advisory committees on human reproduction and perhaps all biomedical advances must be carefully considered. It would not necessarily serve the public interest to create numbers of similar organisations with wide membership and little power as a substitute for dealing directly with the hard issues raised by the new biomedical technology.

II. OUR APPROACH TO AI REGULATION

15.3 We envisage an amount of direct statutory regulation of AI, but also put forward suggestions for broad statutory guidelines or statements of principle on a number of subjects and on many issues, we suggest that there should be no statutory regulation at all. Our proposals involve considerable reliance upon the medical profession and a policy of keeping statutory legal rules and traditional criminal sanctions and penalties to a minimum.

15.4 In the Discussion Paper we set out in some detail the reasons for our approach. These included:

• our satisfaction, after personally visiting each clinic in New South Wales and inquiring into its methods and results, that high professional standards have been maintained, satisfactory success rates achieved, and abnormalities in resulting children kept at a rate that is not higher, and may be lower, than with children born as a result of normal sexual intercourse;
• the absence of evidence of any practice in relation to AI on the part of hospitals or the medical profession that would be considered unacceptable to the community at large;
• evidence of community approval of AID as a treatment for infertility in marriage, and of community confidence in the practice of AI by the medical profession, particularly in public hospitals, as disclosed by the surveys conducted for the Advisory Committee on Human Artificial Insemination;
• the absence of evidence or reason to conclude that detailed legal regulation, licensing, statutory controls, sanctions and punishments are called for in New South Wales or are likely to produce better results in AI than have been produced by the medical profession itself. With the exceptions recommended in this Report we see no reason why AI should be subjected to detailed legal control any more than other normal aspects of medical practice;
• our inability to suggest any benefit to New South Wales that would balance the cost of creating and policing a system of detailed regulation; and
• the fact that all public hospitals offering AI have ethics committees capable of advising on ethical questions affecting medical practice within the hospital.

15.5 There are aspects of AI that are unusual. One is that AI is not therapeutic in the normal sense, but aims to produce the conception of a child. The tissue involved (semen) has a reproductive capacity. Another is that the subject evokes strong public feeling. Further, we believe that medical practitioners might sometimes welcome assistance with difficult decisions on the matters which we recommended should be left to them. Examples are the question of admission to AID programs (see Chapter 6) and screening and testing semen donors and semen (see Chapters 9 and 10). There is also the possibility that developments could change the significance of subjects that at present call for no legal resolution, such as sex predetermination and semen mixing. These considerations suggest to us that the scheme of regulation in this Report would be aided, or strengthened, by an official Advisory Committee.

15.6 We have, however, reached the conclusion that the creation of an Advisory Committee should not be recommended solely in relation to AI. The issues raised by in vitro fertilization and other forms of artificial conception, as well as surrogate motherhood, should also be considered before the final decision is made because those activities are also likely to call for the establishment of such a committee. If, as now seems likely, a substantial number of advisory committees are established by state and federal governments a need for co-ordination and co-operation will arise. This possibility reinforces our opinion that the final decision on a New South Wales Advisory Committee should be deferred until our reports on IVF and surrogate motherhood are completed.

1. Discussion Paper, paras 23.3-23.6.

2. See eg Family Law Council Report, paras 7.8.2-7.8.5; United Kingdom Report, para 13.3: Queensland Report at 46-49.

3. See Russell Scott, “Legal Implications of In Vitro Fertilization and Embryo Transfer”, paper delivered at ANZAAS Congress (Sydney, May 1982).