A. Introduction

2.1 Laws in existence at the time modern AI procedures became effective were plainly not designed to regulate those procedures. Neither statute law nor common law was developed with AI in mind. It followed that the application of existing legal principles to the practice of AI was likely to produce results that were unexpected, and often unwanted. In the case of AIH, that is, a married couple using the husband’s sperm, there appeared to be few legal problems (see paragraph 12.1 below). However, with donated sperm undesirable legal consequences were likely to be caused by traditional legal principles. Confirmation is given by the United Kingdom Report in the following words:

 

Under existing law neither AIH nor AID is unlawful. A child born to a married couple as a result of AIH is the legitimate child of that couple . . . In theory the husband of the woman who bears an AID child has no parental rights and duties in law with regard to that child: these in principle lie with the donor, who could be made liable to pay maintenance, and who could apply to a court for access or custody.¹

 

 
• When donated sperm is used who is the resulting child’s father?
• When a man who has stored his sperm leaves a gift by will to his “children”, what is the entitlement of a child born some years after his death?
• How should the rights and obligations of parenthood be applied in such cases?
• How can paternity be proved?
• If a medical practitioner is involved, what is the extent of his duty of confidentiality and to whom is it owed?
• What are the respective rights and liabilities of donor, recipient and medical practitioner in a case where there is a defect in the reproductive tissue that leads to the appearance of disease or defect in a resulting child?
• What information should be placed on the birth register and what consequences flow from a registration containing false information?

   

 

The legal problems arising from AID are so far-reaching and presently so complicated that only clear and precise legislation can clarify the situation.⁴

 

2.3 Since late 1983 most Australian legislatures have enacted uniform legislation clarifying the legal status of AID children. The Victorian parliament enacted unique additional legislation in November 1984 imposing statutory control upon AI and IVF. The commencement of government and official interest in AI in Australia may be reasonably dated at 1977 when the Australian Law Reform Commission completed its report Human Tissue Transplants. In its Working Paper No 5 dated 18 January 1977 and in its subsequent report, Report No 7 dated 30 June 1977, that Commission devoted specific attention to medical and scientific advances with human reproductive tissues. In chapter 4 of the report it made the following recommendation:

 

Legislation, following separate inquiry, should be considered in relation to the artificial insemination of human beings, and the consequences which may ensue from the acts of donating semen for reproductive purposes and the artificial implanting of semen in a woman. Related matters such as the legitimacy of children, the inheritance of property, and matrimonial or family law rights and liabilities, should also be carefully considered.⁵

 

2.5 In 1982 the Australian States began independent action, and since that time official Inquiries and (committees concerned with reproductive technology have been set up in every State. Details of state and federal Inquiries together with Australian legislative measures on AI are described in chapters I and 3 of the Discussion Paper and are referred to in the following paragraphs of this Report.

2.6 In late 1983 and 1984 the first Australian legislative steps were taken to deal with the legal status and paternity of AID children. The Family Law Amendment Act 1983 (Cth), which commenced on 25 November 1983, inserted a new provision in the Family Law Act 1975 (section 5A) under which an AID child, born to a married woman who has been inseminated with donor sperm with her husband’s consent, is “deemed to be a child of” the husband. Legislation which allows recognition by the Marriage Act 1961 (Cth) of the above-mentioned presumption if created by a state law was enacted by the Marriage Amendment Act 1985 in March 1985.⁷ There are limitations on the scope of these provisions. The limitations arise from the Australian Constitution, which gives power to the Commonwealth to make laws relating to “marriage” and to “divorce and matrimonial causes: and in relation thereto, parental rights and the custody and guardianship of infants”.⁸ Thus, the presumption of paternity created by section 5A is only for the purposes of the Family Law Act 1975 and will have no wider application than that Act. The effect of the section is to broaden the meaning of “child of the marriage” for the purpose of the application of the Family Law Act. The amendments to the Marriage Act 1961 will prevent the concept of illegitimacy from applying to AID children under federal marriage law if the law of a State shows an intention that the child is to be treated as the child of the recipient and her husband.

2.7 In February 1984 the New South Wales parliament passed Australia’s first self-contained statute dealing with artificial conception. That Act, the Artificial Conception Act 1984, deals with the legal status and paternity of AID children and IVF children using, in principle, the same approach as the Commonwealth legislation amending the Family Law Act 1975. It came into effect on I August 1984. The Act contains only six sections and rejects biological paternity in favour of social paternity when a husband consents to the use of donor sperm to achieve his wife’s pregnancy by artificial means, whether AID or IVF. It is retrospective, so that the paternity presumption applies in relation to children whenever born and the presumption itself is irrebuttable. De facto marriages or relationships are included in the reference to marriage. The sperm donor has neither the rights nor the obligations of paternity. He is presumed not to be the father of the child whether the recipient woman is married or not, and that presumption is also irrebuttable. Therefore in the case of an AID child born to a woman who is not married, there will in law be no father.

2.8 A cognate Act, the Children (Equality of Status) Amendment Act 1984, was passed at the same time for the purpose of preserving the presumptions of paternity that could arise in cases where a husband has not consented to his wife’s AID.

1. Status of Children (Amendment) Act 1984

2.9 The Victorian Status of Children (Amendment) Act 1984 was enacted in May 1984 and by arrangement with New South Wales also commenced on 1 August 1984. The Act reflects the draft legislation that had for some time been under consideration by the Standing Committees of Attorneys-General and uses in principle the same approach as the Commonwealth legislation amending the Family Law Act 1985. It clarifies the legal status of children born following AID and children born following IVF when donated gametes (sperm or ova or both) have been used. The Act contains five sections and its approach to AID is similar to the New South Wales Artificial Conception Act 1984. However it does not use identical phrasing, and different judicial interpretations may therefore ensue. It attributes paternity of an AID (and an IVF) child in the same fashion as the New South Wales Act.⁹

2.10 The Infertility (Medical Procedures) Act 1984 was passed in November 1984 and received Royal Assent on 20 November 1984. At the time of writing, only three sections were operative; sections 1 and 2 (formal preliminary provisions) and section 29 which provides for the establishment of a Standing Review and Advisory Committee. These sections were proclaimed to commence on 14 May 1985. The Act contains an extensive regulatory system for human artificial insemination, in vitro fertilization and surrogate motherhood.

2.11 Significant provisions of the Infertility (Medical Procedures) Act 1984 relating to AI are the following:

 
• Only medical practitioners may “carry out a procedure of artificial insemination”. An exception is made for persons who carry out artificial insemination “in an approved hospital”. The Act provides a procedure whereby a hospital may make application to the Minister for approval of the hospital as a place at which AI may be carried out.¹⁰
• AI shall not be carried out unless the recipient woman and her husband have received “counselling, including counselling in relation to prescribed matters, from an approved counsellor”.¹¹
• Hospitals and medical practitioners who carry out AI must create and keep detailed records as prescribed. Information must be transmitted to the Health Commission and kept there in a government register.¹²
• Particulars of a donor must be provided in writing to the recipient woman.¹³
• It is an offence to carry out “a procedure of artificial insemination . . . where the semen used for the artificial insemination or relevant procedure was produced by more than one man”.¹⁴
• It is an offence for a donor to “make a statement that is false or misleading by reason of the inclusion in the statement of false or misleading matter or of the omission from the statement of any material matter” unless the person “believed on reasonable grounds that the false matter was true, the misleading matter was not misleading or, in the case of an omission, that no material matter had been omitted.”¹⁵

   

2.12 The Family Relationships Act Amendment Act 1984 was passed by the South Australian parliament in December 1984. Royal Assent to the legislation was given on 20 December 1984 and the Act was proclaimed to commence on 14 February 1985. It follows the scheme of the Victorian Status of Children (Amendment) Act 1984 described in paragraph 2.9 above. The Act also contains a “sunset” clause which provides that it will not apply to children conceived after 31 December 1986.¹⁶

2.13 Recent legislation on the status of AI children enacted by these States and Territories implements a similar policy to the statutes described in paragraphs 2.6,2.7,2.9 and 2.12. Particulars are as follows:

• Status of Children Amendment Act 1985 (Tas) - proclaimed to commence on 28 November 1985;
• Artificial Conception Act 1985 (WA) - operative as from 1 July 1985;
• Artificial Conception Ordinance 1985 (ACT) - gazetted on 7 November 1985; and
• Status of Children Amendment Act 1985 (NT) - passed on 22 August 1985.

   

2.14 We were advised orally by the Department of Health in Queensland in April 1986 that Queensland is in the process of preparing legislation on AID.

A. Introduction

2.15 The following paragraphs are not intended to be a comprehensive statement of the legal position relating to AI at an international level. The assembly of up-to-date information from each individual jurisdiction in the United States is not feasible, nor has it been possible to obtain detailed particulars of the regulatory approach of each European nation. However, the information provided below is, we believe, a useful summary of the legal position in a number of leading Western societies.

2.16 The Discussion Paper provided a description of a draft model code of laws prepared by the Council of Europe in 1979 for its member nations, entitled Draft Recommendation on Artificial Insemination of Human Beings.¹⁷ The recommendation was never adopted by the Council of Europe’s Committee of Ministers and lience the model code never became law. However, in November 1985 the Council of Europe’s Committee of Experts on Medical Research on Human Beings (CAHBI) met in Strasbourg to give further consideration to a draft code of principles for the regulation of human artificial procreation.¹⁸ The draft principles will be submitted to interested organisations at a hearing at Trieste, Italy in June 1986. In the light of that hearing and further consideration, CAHBI will finalise its recommendations at meetings later in 1986. The completed text will be presented as a model for legislation to the 21 member countries, after approval by the Committee of Ministers of the Council of Europe.¹⁹

2.17 Apart from the Council of Europe initiatives, direct statutory control of the performance of AI has been achieved in Sweden with the enactment in December 1984 of the Insemination Act. The Swedish Insemination Act contains seven sections and provides that AID may be carried out only in a hospital under the supervision of a specialist physician. The policy of the Act is to restrict the performance of AI so that it is made available only to women who are married or in de facto relationships. Cognate legislation (an amendment to the Parenthood and Guardianship Code) enacted in December 1984 deals with the status of the AID child and follows the same approach as the Australian legislation of 1983 and 1984 described earlier in this Chapter, providing that the consenting husband of a married woman will be presumed to be the father of the child.

2.18 As far as the United Kingdom is concerned, we understand that at the end of 1985, legislation pursuant to the recommendations of the United Kingdom Committee was being prepared for submission to the English parliament. Our Discussion Paper set out the course of United Kingdom Inquiries on artificial conception from 1982.²⁰ The major recommendations of the United Kingdom Committee which relate to AI are as follows:

 
• AID should be available on an organised basis under the control of a statutory licensing authority. Persons providing AID services should be licensed by the authority, and the services should be available only to infertile couples.
• Good practice requires that written consent of both partners should be given before AID treatment begins.
• The law should presume that the husband has consented to AID unless the contrary is proved.
• There should be a limit of 10 children who can be fathered by one donor.
• Semen donors should be given only their expenses.
• The AID child should be treated by law as the legitimate child of its mother and her consenting husband.
• Semen donors should by law have no parental rights or duties to the child.
• A central government register comprising the National Health Service numbers of semen donors should be established and clinics should check the National Health Service numbers of all donors against that register.²¹

   

2.19 The United States has a longer legislative history of action on AI than other Western nations. This was described briefly in the Discussion Paper.²² Our most recent information is that 25 States have adopted laws which provide that the artificial insemination offspring is the legal child of the sperm recipient and her consenting husband.²³ Further, 11 States require that the husband’s consent to artificial insemination of his wife be filed with the State.²⁴

2.20 According to the Ontario Law Reform Commission, in its 1985 report on Human Artificial Reproduction,²⁵ two Canadian jurisdictions, Quebec and Yukon Territory, have responded to the growth in the practice of artificial conception by enacting artificial insemination laws. The Ontario Report itself contains recommendations regarding the practice of artificial insemination, which are expected to be enacted into laws. Some of the most significant of the Committee’s recommendations relating to AI are as follows:

 
• Legislation should expressly require a donor’s free and adequately informed consent as a precondition to the donation or use of his gametes.
• At the time of donation, a donor should be entitled to restrict the use of the donated gametes to a specified purpose.
• After donation, but prior to the use of their gametes in a fertilization procedure, donors should be entitled either to require their donation to be wasted or returned to them, so that the gametes may not be used for artificial conception, research or any other purpose.
• A donor’s consent to the donation of his gametes, given at the time of donation, should remain of legal effect until withdrawn or otherwise altered.
• Sperm banks should be permitted to operate on a commercial basis. However, they should be allowed to operate only under licence and under stringent regulations setting standards of operation.
• An AID child should be presumed to be the legal offspring of its birth mother, and that woman’s consenting male partner.
• A donor of sperm should be presumed to have no legal relationship to the child arising from the fact of donation.
• With respect to registration of the birth of an artificially conceived child, the gamete donor should not be named in the register of births, nor should the fact of artificial conception appear in such register.
• Where a woman gives birth to a child conceived posthumously by means of her deceased husband’s or partner’s preserved sperm, the woman should be entitled to register the birth showing the deceased as the father of the child.
• Anonymity concerning the identity of all parties involved in artificial conception-the donor, the recipient, her spouse or partner (if any) and the child-should be preserved in the medical records.²⁶

   

FOOTNOTES

1. United Kingdom Report, para 4.9.

2. A Asche, “AID and the Law” in C Wood et at (eds), Artificial Insemination By Donor (1980) at 109; A Asche, “Ethical Implications in the Use of Donor Sperm, Eggs and Embryos in the Treatment of Human Infertility”, paper delivered at Monash University, 4 May 1983.

3. A Asche (1983), id at 1.

4. A Asche in C Wood et at (eds), note 2 at 109.

5. Australian Law Reform Commission, Human Tissue Transplants (ALRC 7, 1977) para 42.

6. Discussion Paper, para 1.17.

7. s26.

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

9. Discussion Paper, para 3.10.

10. ss17,7.

11. s18.

12. ss 19,21 and 22.

13. s20.

14. s26.

15. s27.

16. s6.

17. Discussion Paper, para 3.19.

18. Australia was present as an observer, represented by Mr Russell Scott and Dr W A Langsford, on the initiative of the National Health and Medical Research Council.

19. Council of Europe, CAHBI Meeting Report, CAHBI (85) 3 (Strasbourg, 19-22 November 1985).

20. Discussion Paper, para 3.22.

21. United Kingdom Report, paras 4.16, 4.17, 4.22-4.24, 4.26 and 4.27.

22. Discussion Paper, paras 3.20,3.21.

23. Hearings before the Subcommittee on Investigations and Oversight of the Committee on Science and Technology, House of Representatives, Human Embryo Transfer (Ninety-eighth Congress, Second Session, August 1984) at 176.

24. Id at 181.

25. Ontario Report.

26. Id at 275-280.