A. Australian Public Opinion

6.1 In our Discussion Paper we asked whether all women of child-bearing age should be regarded as eligible for, or perhaps entitled to, access to AID technology.¹ As a basis for our question we drew attention to the significant community disapproval of the availability of AID to unmarried women disclosed by the Advisory Committee surveys and the low proportion of people prepared to give positive approval to that availability.² The results of those surveys are as follows:

• The practice of AID as a means of conception for a married woman when she and her husband are not fertile or carry a genetic disease is approved by almost three-quarters of the community over 14 years of age.
• Approximately 60 per cent of the community expressly disapprove of the availability of AID to unmarried women.
• No more than 15 per cent positively approve of AID for unmarried women.³

6.2 However, it should be noted that the surveys were designed to ascertain broad attitudes⁴ and were not intended to provide answers for all possible circumstances that could apply to all women. The questions and responses and some other matters related to the surveys were examined in the Discussion Paper.

6.3 Apart from public opinion, tenable arguments and propositions may be put for and against a restrictive approach to the provision of AID. Propositions for a restrictive approach include the following:

• statutory acceptance of AID (implicit in the enactment of the Artificial Conception Act 1984) does not imply that it should be available generally;
• modern AID in Australia has developed as a means of alleviating infertility or dealing with genetic abnormality in marriage and legislation on AID should have the same objective.

Propositions against a restrictive approach and in favour of more general availability of AID include the following:

• the claim of the individual woman to autonomy, freedom and the achievement of pregnancy by means of AID services should be balanced against such evidence of community opinion as has been produced to date and should be resolved in favour of the individual;
• unmarried or single women are not by law forbidden to become pregnant. Accordingly, the law should not exclude them from pregnancy by means of AID;
• refusal of AID to particular women or groups of women is inconsistent with the spirit or intention of modern laws that declare human rights, support the principles of equality and prohibit discrimination in the supply of services.

B. Other Official Inquiries

6.4 Treatment of this subject by other Inquiries has been uneven. The United Kingdom Report did not discuss it at all, but concluded that AID should be subject to licensing and available only to “infertile couples”.⁵ The Victorian Report resulted in legislation that totally excludes from IVF treatment women who are not legally married and exhibits a similar exclusionary attitude to AI, although the relevant provision on AI is ambiguous.⁶ On the other hand, the Ontario Report gave detailed consideration to eligibility and acceptance for AID, opening its discussion in the following words:

One of the most controversial issues respecting the new reproductive technologies concerns eligibility to participate in an artificial insemination or IVF programme, and, more specifically, the question of marital status.⁷

As shown below, the Ontario Report recommended wide eligibility of persons to be considered for artificial conception services, but restrictions on acceptance of applicants according to standards to be prescribed “focusing on the human factors involved, and not on the matter of status.”⁸

II. ANTI-DISCRIMINATION AND THE LAW

A. Discrimination and the Duty to Treat

1. The General Question

6.5 The existence of legislation that forbids discrimination in the supply of “services” on the grounds of marital status or sex⁹ makes it desirable to consider the general question whether a medical practitioner has an unfettered legal right or power to accept or refuse patients and to refuse to continue treatment once it has begun. Depending on the answer to the general question will be the need to address the specific question whether carrying out AI is a “service” that falls within the statutory prohibitions.

2. New South Wales

6.6 At common law a medical practitioner, like any other person providing a service, is free to accept or refuse any person as a patient. Further, the common law imposes no general duty upon a physician to give treatment to the sick or injured.¹⁰ In New South Wales legislation has varied this last mentioned principle, and the Medical Practitioners Act 1938 requires a doctor to attend and treat a person when requested to do so, if there is “reasonable cause to believe that such person is in need of urgent attention”.¹¹ However, the requirement of urgency makes it unlikely that this legislative provision would apply to patients who are to receive AI.

6.7 The Anti-Discrimination Act 1977 could give rise to arguments that denial of AID amounts to prohibited discrimination. Legislation of this kind is now widespread in Western countries.¹² Typically, it provides that, except when acting in compliance with a conflicting statute, a person behaves unlawfully by withholding “services” from another person for reasons of a discriminatory kind, for example on the ground of marital status, sex, race or handicap. In the case of AI the circumstances may determine what are properly to be described as the “services” provided.¹³

3. South Australian and Ontario Approaches

6.8 This problem has been recognised by other jurisdictions, for example South Australia and Ontario in Canada. The South Australian legislature amended its anti-discrimination legislation in February 1985 by specifically excluding AI from the reach of that legislation.¹⁴ The Ontario Law Reform Commission in its 1985 report Human Artificial Reproduction and Related Matters¹⁵ discusses the question of eligibility of women for admission to AI and IVF programs at length, in the light of the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, 1981 both of which prohibit discrimination in the supply of services. The Ontario Commission stated its final view in the following words:

[A] majority of the Commission has come to the conclusion that, while participation in an artificial conception programme should not be a right given to every infertile or genetically diseased person or couple wishing to have a child, eligibility for participation should not be restricted to married couples or, indeed, even to Couples.¹⁶

The Ontario Commission appears to have been reluctant to recommend an exemption of AI and IVF from anti-discrimination legislation:

[I]t should be borne in mind that, under section 46(2), the Legislative Assembly may legitimise other Acts or regulations violative of the [Human Rights] Code where “the Act or regulation specifically provides that it is to apply notwithstanding [the Code]. This option, however, may well be unpalatable to the Legislature.¹⁷

The Ontario Commission’s approach stands in contrast with the actions of the South Australian legislature, although both supported the proposition that receipt of AID from an AI clinic should not be seen simply as an enforceable legal right of any person.¹⁸ We also support that proposition.

B. Discontinuance of Treatment

1. The Medical Practitioner

6.9 It will often be the case that despite the regular administration of AI over a period of time, for example over six or 12 menstrual cycles, a female patient fails to become pregnant. In such a case the patient could justifiably be refused further treatment if the medical practitioner forms the genuine opinion, after taking into account all the circumstances, that further treatment is useless or not likely to succeed. This result proceeds from the principle that a doctor may terminate treatment when a patient has no further need of medical treatment or where further treatment is, in the doctor’s reasonable opinion, pointless or not justified.¹⁹

2. The Hospital Clinic

6. 10 Is an institution, for example, a public hospital, under the same duty or a greater or lesser duty to patients than an independent medical practitioner? It appears that a hospital has no special legal duty or obligation to accept patients, except for the obligation imposed upon public hospitals under section 30(6) of the Public Hospitals Act 1929 which provides:

No destitute person shall be refused relief at any hospital by reason only of his inability to pay therefor.

A further question arises about the allocation of treatment and resources by a hospital when demand exceeds supply, for example an insufficient number of kidney dialysis machines to treat patients suffering from kidney failure. Opinions have been expressed that a public hospital cannot be under a legal duty to apply treatment beyond that which is ordinarily available according to its resources, and that there is no absolute duty upon such a hospital to provide medical treatment.²⁰

6.11 Scarcity of hospital resources is relevant to AI and IVF programs conducted by public hospitals which are usually confined to a limited number of patients at any given time.²¹ Other limitations that are necessary are related to the age of patients, the number of “treatment cycles” per patient, and the time of a patient’s ovulation.²² Our conclusion is that a patient refused treatment or continued treatment because of insufficient resources in a hospital will in principle, have no legal claim or action on the basis of the refusal.

C. Contrary Agreements

6.12 Our comments in relation to the decision to treat or to discontinue treatment all relate to cases where there is no contrary agreement between the parties. If the agreement or contract made with the patient contains terms or conditions applicable to treatment and discontinuance of treatment, those terms or conditions can be expected to apply. A prudent practitioner or hospital should therefore cover these matters by making a clear arrangement at the outset.

III. ACHIEVING REFORM

6.13 We have expressed the belief that the availability of AI services is not a matter for legislation alone.²³ In the preceding Chapter we referred to the continuing shortage of donated semen in New South Wales, and discussed ways to overcome it. In relation to claims upon scarce AID services a balance must be achieved between the historic fact that the practice is normally a means of treating infertility in marriage, the need to have regard to the welfare of the resulting child and the community attitudes disclosed by the Advisory Committee Report referred to in paragraphs 6.1 and 6.2. We note that the Queensland Committee recommended that AID should “normally” be given only to married women (including women in “de facto marriages”) and that the subject should be dealt with by ethical guidelines rather than legislation.²⁴ We interpret this as indicating that in the Queensland Committee’s view a restriction against unmarried women should be capable of relaxation in some cases. Much more unyielding are the United Kingdom Report and the Victorian legislation, already described in paragraph 6.4. On the other hand the approach taken in the Ontario Report commends itself to this Commission. In that report, the Ontario Commission recommended that while all people should be prima facie eligible for artificial conception services, actual acceptance into an artificial conception program should depend upon satisfaction of certain criteria.

6.14 We recommend the enactment of legislation to provide that a person who lawfully performs AI as part of medical practice shall not administer AID to a woman until the person has given due consideration to the following:

• whether the woman is a member of a couple who are infertile or who have (one or both) a genetic or other abnormality that is likely to affect their children;
• the welfare and interests of a child that might result;
• the home environment and stability of the household in which the child would live;
• whether or not counselling is desirable;
• the physical and mental health, and age, of the prospective parent or parents and their emotional reaction to artificial conception.

Provided that consideration is duly given to the matters listed above, we recommend that there should be no other restriction on the decision-making power. The Commission does not envisage the creation of an offence punishable by fine or imprisonment for breach of the duty imposed by the foregoing recommendation. However, the Commission recommends that the concept of “misconduct in a professional respect” which is applied by section 27(2) of the Medical Practitioners Act 1938 should be applicable to such a breach.

6.15 We have recommended criteria for the administration of AID and not for medical treatment for infertility. Acceptance for treatment for infertility is not the same thing as acceptance for treatment for AID. If the function of a clinic is to treat infertility it should have the powers, rights and duties applicable to decisions to accept patients and begin treatment. It should not be liable or compelled under complaint based on anti-discrimination law or any other law to provide as a separate service a procedure that may or may not have become advisable in the course of infertility treatment. If this were possible, a person could select particular medical skills and compel their exercise.

6.16 Our intention is that eligibility to be considered for treatment for infertility will not be restricted by any recommendation in this Report. It will be no narrower than eligibility for any other medical treatment offered by a clinic or practitioner. If treatment is begun, administration of AID will only lawfully occur if the prescribed criteria for its administration are fulfilled. Anti-discrimination principles will be applicable at that stage, but they will be subject to the criteria themselves.

6.17 It follows that a person not affected by infertility whose wish is to receive AI from a “fertility” or “infertility” clinic will have no legal right to compel the provision of AI by the clinic. On the other hand, a person affected by infertility would be entitled to be considered for treatment and would be able to call anti-discrimination laws in aid if they were applicable, for example if treatment were refused on the ground of marital status, race or handicap. Of course, if a clinic did not restrict its function to the treatment of infertility but held itself out as simply providing the service of AI, the prescribed criteria and anti-discrimination laws would be applicable to the initial decisions to provide AI to a particular person.

6.18 Our recommendations are intended to pay due regard to existing legal principles, including those of anti-discrimination. At the same time we have taken community opinion as expressed in the Advisory Committee Report into account in the form and context of the criteria prescribed in paragraph 6.14. We have also been concerned to leave untouched, as far as possible, the established general right of medical practitioners to accept or refuse any patient for treatment, to decide the nature of the programs they are prepared to offer and the diseases they are prepared to treat, and to conduct their practices as they reasonably see fit, according to their resources and ability.

IV. SUMMARY OF RECOMMENDATIONS

(1) Legislation should be enacted to provide that a person who performs AI as part of medical practice shall not administer AID to a woman until the person has given due consideration to the following matters:

• whether the woman is a member of a couple who are infertile or who have (one or both) a genetic abnormality that is likely to affect their children;
• the welfare and interests of a child that might result;
• the home environment and stability of the household in which the child would live;
• whether or not counselling is desirable;
• the physical and mental health, and age, of the prospective parent or parents and their emotional reaction to artificial conception.

(2) Breach of the duty imposed by legislation in accordance with recommendation (1) should be capable of being found to be “misconduct in a professional respect” either within section 27(2) of the Medical Practitioners Act 1938, or by a comparable provision.

FOOTNOTES

1. Discussion Paper, para 6.1.

2. Advisory Committee Report at 21 (table 3.1), 24 (table 3.6).

3. Id at 21 (table 3.1).

4, Id at 4.

5. United Kingdom Report, para 4.16.

6. Infertility (Medical Procedures) Act 1984 (Vic) ssl7, 18. Although the Act does not specifically require a woman to be married to receive AI, s18 does provide that AI can only be administered when both a woman and her husband have received counselling.

7. Ontario Report at 153.

8. Id at 1 58.

9. See Anti-Discrimination Act 1977 s47.

10. See G Sharpe and G Sawyer, Doctors and the Law (I 978) at 55.

11. s27(2)(c).

12. Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982 (Can); Human Rights Code. 1981 (Ont). Australian legislation includes Anti-Discrimination Act 1977, Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Sex Discrimination Act 1975 (SA), Equal Opportunity Act 1977 (Vic), Equal Opportunity (Discrimination Against Disabled Persons) Act 1982 (Vic).

13. For a definition of’ “services” under the Act, see L v Registrar of Births, Deaths and Marriages (1985) EOC, para 92.142.

14. Sex Discrimination Act 1975 s37a (inserted by the Family Relationships Act Amendment Act 1984 s8(4) which came into effect on 14 February 1985).

15. Ontario Report at 46-51, 153-159.

16. Id at 157.

17. Id at 50.

18. Id at 157.

19. See generally Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (WP 28. 1982) at 1-14.

20. D Brahams, “A Doctor’s Justification for Withdrawing Treatment” (1985) 135 New Law Journal 48: R v Secretary of State for Social Services, West Midlands Regional Health Authority and Burmingham AHA (Teaching) ex parte Hincks and Others (1984) 2 The Lancet 1224.

21. For example, in January 1986 the Royal North Shore Hospital’s Department of Obstetrics and Gynaecology had 3,000 female applicants on the waiting list for their IVF program. The waiting period be( ,ore the applicant commenced treatment was approximately two years. (Personal communication with Sister Craven, IVF Co-ordinator, 16 January 1985).

22. At Royal North Shore Hospital, a patient is assessed after six treatment cycles of AI. The patient is then permitted another six months of AI treatment, and if no pregnancy has resulted at the end of this time, the patient is referred to an IVF program. (Personal communication with Sister Cover, 10 April 1986).

23. Discussion Paper, para 6.4.

24. Discussion Paper, para 6.3.