A. Introduction

7.1 In the practice of AI, various consents may be sought or given-consent by a woman to receive AI or AID, consent by her husband to AID, consent by a man to donate semen and consent by his wife to the donation. The Commission believes as a matter of good professional practice, consents should be obtained from each of these parties to AI and AID. Although our opinion generally is that there is no present need for legislation to impose compulsory consent requirements, we believe that the development of standard forms of consent should be encouraged. If an Advisory Committee is created pursuant to Chapter 15, one of its functions could be the encouragement and development of such uniformity. Failing this, the medical profession should attempt to develop uniformity.

B. Consent to AID by Recipient Woman

7.2 We recommend that no legislation should be enacted to regulate consent procedures by the female recipient of AID. Consent to medical treatment is covered by common law principles¹ and there is no special characteristic of AID that requires a direct statutory statement.

C. Consent to AID by Husband of Recipient

1. Is it Necessary?

7.3 In our Discussion Paper we examined the problems of requiring a spouse’s consent as a condition of a person’s liberty to pursue a particular course of conduct. Considerations of personal autonomy are relevant to the issue of consent. On the other hand, experienced practitioners may believe that the absence of a husband’s consent bodes ill for the AID child and suggests the possibility of an unstable or hostile household.

7.4 There appears to be an overlap or confusion in some reports between the question whether or not a husband should consent to his wife receiving AID and the related question of the effect of the husband’s consent upon the status of the AID child and his relationship with the child. The United Kingdom Report and the Victorian Report (1983) dealt directly with the first question. The Victorian Report (1983) took a strict view that consents to IVF must be formally given in writing before treatment can be lawful. The consequent Victorian legislation appears to be ambiguous in relation to AID.² The United Kingdom Report, on the other hand, saw no need for the law to require a husband’s consent or to specify its form, although it was firmly of the view that good medical practice requires the written consent of both partners before AID is performed.³ The Queensland Report said nothing on the first question, but spoke clearly on the need for the husband’s consent as a prerequisite to his legal paternity. The Ontario Report did the same, discussing the question of paternity but not the question of a husband’s consent as such.⁴

7.5 Our conclusion was foreshadowed in our Discussion Paper.⁵ We do not believe that the law should prescribe a general requirement for a husband’s consent and we so recommend. That decision should be made in a clinical context. Good medical practice requires that both parties should give consent, preferably in writing, to AID. The consents should follow advice and counselling and the written form should be determined after careful consideration by the clinic and its advisers. In the interests of the AID child, insemination should be a joint decision by the couple and they should both appreciate the implication of their actions.

2. The Effect of the Husband’s Consent on the Status of the Child

7.6 Under the Artificial Conception Act 1984 the consenting husband is the legal father of the AID child “for all purposes”.⁶ We drew attention in our Discussion Paper to two unusual consequences of the provisions of this Act, one relating to surrogate motherhood and the other to the artificial insemination of a widow using her deceased husband’s stored sperm.⁷ The issues raised by the former will be dealt with later in the course of this Reference. The latter is dealt with in Chapter 12 of this Report.

7.7 Because of the important and permanent consequences of the husband’s consent, the question of its form and proof is significant. Thorough discussions of the issues raised by this question appear in the Report of the English Law Commission, Family Law-Illegitimacy ⁸ and the Ontario Report.⁹ At the heart of the, matter is the proposition that the husband’s consent should always be written, witnessed and in a prescribed form. The United Kingdom Report exposed the weakness of this proposition in the following words:

The legal status of the AID child should not have to depend on proof of consent to treatment or on the existence of a document evidencing consent. In other words, the burden of proof should rest on the husband to show he has not consented.¹⁰

Both the Law Commission and the Ontario Report took the same strong view. We agree.¹¹

7.8 Discussion of the paternity issue is preempted to some degree by the Artificial Conception Act 1984 which creates a rebuttable presumption that a husband (including a “de facto husband”) of a woman who has received AID has consented to the procedure.¹² We do not favour execution of a written consent as a legal condition of paternity in these circumstances. The basis of decision should be an examination of the husband’s overall conduct, including taking into account written documents. It would be wrong, in our view, if a person’s legal status and paternity depended entirely upon the correct completion of a document. If the written consent did not comply with prescribed requirements such as witnessing, the child’s status and paternity might be permanently altered. Neither the New South Wales nor the Victorian status legislation specifies any form for the husband’s consent, or the evidence needed to prove it. This suggests that consent is provable according to the normal rules of evidence, from documents or conduct. We agree with this approach. The law could go even further, for example by allowing retrospective consent by a husband by subsequent ratification, or by attributing paternity to him unless he objected at the time of insemination or within a specified period after the child’s birth (provided he had been made aware of the facts). However, this would require amendment of the Artificial Conception Act 1984, and we believe that amendment of that recent legislation should only occur for significant reasons, not for marginal “improvement”. Accordingly, we recommend that no legislative reform be made in relation to a husband’s consent insofar as paternity and the status of the AID child are concerned.

D. Consent to Semen Donation

7.9 We repeat the view expressed in our Discussion Paper¹³ that no legislative statement is called for in relation to procedures or documents for consent to semen donation either by the donor or by his wife and we so recommend. However, we believe that clinics normally require donors to sign a written consent evidencing the conditions of their relationship, and some clinics also require the consent of donors’ wives.¹⁴ These are matters of medical practice, to be left to the clinic and to agreement between the parties. We note that the relationship of doctor and patient may not normally exist between a clinic and a donor (see Chapter 8 and paragraph 13.28).

II. COUNSELLING

A. The Commission’s Conclusions

7.10 TheCommissionbelievesthattheavailabilityofcounsellingisanessential ingredient in the practice of AI, AID and the treatment of infertility generally. In our Discussion Paper we expressed the opinion that every party to AID could benefit from counselling and that counselling is an important prerequisite to the commencement of treatment and to joining a program.¹⁵

There is no subject or activity in infertility on which there is greater need to have regard to practicality and the reality of available resources than counselling. The amount and quality of counselling available from a clinic will be governed by resources of money and staff. Two initial factors will determine this availability, namely the amount of public money allocated to hospitals and training facilities, and the calibre of the particular clinic. These in turn will be influenced by public demand for the service.

7.11 It is for these reasons, and others mentioned below (paragraphs 7.12-7.14), that the Commission has concluded that counselling is a process that should not be made compulsory by legislation. Infertility is a significant social problem and its alleviation merits the attention and support of the community. This attention and support is not so much a matter for law reform or legislation as one of Organisation, enthusiasm by patients, publicity and the generation of pressure upon governments and parliaments. We recommend that no action be taken to enact legislation with a view to making counselling compulsory for any party to AID or in relation to any part of the procedure of AID, or for the training or availability of counsellors. However, we further recommend that good professional practice should encourage and, if possible, ensure the availability of skilled, fully-trained counsellors to all parties to AI and AID if needed at any stage of the procedures involved.

B. Considerations Governing Our Conclusion

7.12 A number of groups giving evidence in our Public Hearing in April 1985 emphasised the need for counselling opportunities to be available to AID recipients and other persons involved in programmes for technically assisted pregnancy. The importance of distinguishing between counselling for the resolution of infertility as such and counselling before and during participation on an AID program was also mentioned. Other official Inquiries have also strongly supported the need for counselling to be available in the treatment of infertility. The Victorian Committee took the view that counselling is essential for participants in IVF programs.¹⁶ Their recommendations led to the enactment of provisions in the Infertility (Medical Procedures) Act 1984¹⁷ whereby extensive counselling is now compulsory for parties to IVF and also for both spouses in AID. The Queensland Committee took the view that counselling is “a crucial part of any infertility service” and made extensive recommendations about the need to provide trained counsellors for IVF and AID.¹⁸ It is not yet known whether Queensland legislation will make counselling compulsory.

7.13 Turning to Inquiries overseas, we note that the Ontario Report lacks discussion of counselling and contains no recommendations on the subject. On the other hand, the United Kingdom Report expresses strong views in favour of its availability:

We . . . believe that counselling should be available for infertile couples and for donors The counselling that we envisage is. . . aimed at helping individuals to understand their situation and to make their own decisions about what steps should be taken next . . . it should involve a skilled, fully trained counsellor . . . [and] should be available to all infertile couples and third parties at any stage of the treatment.¹⁹

The United Kingdom report did not recommend that counselling be compelled by statute, although it did recommend that it should be available “both as an integral part of the National Health Service provision and in the private sector.”²⁰

7.14 We have been informed by patient and “consumer” groups involved with the operation of the Victorian legislation, that some patients object to the legal compulsion of the Victorian legislation.²¹ They believe it to be unduly paternalistic and a derogation of their autonomy and personal liberty. In addition, we believe that shortages of highly qualified counsellors have led to delays and other objections by patients. The inflexibility of statutory compulsion could, in our view, result in substantial and undesirable difficulties if skilled counsellors were not readily available.

III. SUMMARY OF RECOMMENDATIONS

Consents

(1) As a matter of good professional practice, consents should be obtained from each of the parties to AI or AID. The development of standard forms of consent is desirable.

(2) There is no present need in New South Wales for legislation to impose compulsory requirements for consent to be given:

• by a woman to receive AID;
• by the husband (or partner) of a woman before she may receive AID;
• by a semen donor before donation; or
• by the wife of a semen donor to his donation.

(3) There is no present need for further lawmaking or law reform in relation to a husband’s consent insofar as his paternity of his wife’s AID child is concerned and insofar as the status of that child is concerned. However, in the event that consideration is given in the future to review or amendment of that legislation and the provisions in question, the Commission directs attention to its views expressed in paragraph 7.8.

Counselling

(4) No action should be taken at this stage to enact legislation with a view to making counselling compulsory for any party to AID or in relation to any part of the procedure of AID, or for the training or availability of counsellors.

(5) Good professional practice should encourage and, if possible, ensure the availability of skilled, fully-trained counsellors to all parties to AI and AID if needed at any stage of the procedures involved.

1. For general discussion see P D G Skegg, Law Ethics and Medicine (1984), chs 2-4.

2. Infertility (Medical Procedures) Act 1984 sl8. See also Discussion Paper, para 17.5.

3. United Kingdom Report, paras 4.23,4.24.

4. Ontario Report at 1 76-1 78.

5. Discussion Paper, para 17.7.

6. s5(2).

7. Discussion Paper, para 17.9.

8. The Law Commission, Family Law - Illegitimacy (Law Corn No 118. London 1982), paras 12.13-12.1 7.

9. Ontario Report at 176-1 78.

10. United Kingdom Report, para 4.24.

11. Discussion Paper, paras 17.11,17.12.

12. s5(4).

13. Discussion Paper, para 17.14.

14. Id, paras 17.14, 17.15.

15. Id, para 17.20.

16. Id, para 17.18.

17. s18.

18. Discussion Paper, para 17.19.

19. United Kingdom Report, paras 3.3,3.4.

20. Id, para 3.4.

21. Confirmed by telephone communication with Dr Barbara Burton, 18 October 1985 and Mr Ken Campbell, 22 October 1985. Dr Burton is Co-ordinator of Combined New South Wales In Vitro Fertilization Support Groups and President of IVF Friends, Sydney. Mr Campbell is President of IVF Friends, Melbourne.