Commencing at 9.30 a.m.

Maitland Lecture Hall, Renwick Pavilion, (Level 5), Sydney Hospital, Macquarie Street, Sydney

1. PUBLIC HEARINGS

The New South Wales Law Reform Commission announces that it will hold public hearings as part of the consultative process in its inquiry into the need for law to regulate human artificial insemination (AI).

Background

The inquiry into AI is the first of three projects in the Commission’s major reference called Artificial Conception. The other two projects are:

• in vitro fertilization (IVF)
• surrogate motherhood.

In each of the three projects it is intended to consult the public after publishing a discussion paper which outlines the issues as the Commission sees them and seeks submissions and comments from the public. After a consultative period the commission will move to the preparation of a final report. The present project is confined to AI and submissions will not be accepted on IVF or surrogate motherhood at this stage.

Who may Attend?

The hearings will be open to all members of the public and considered submissions and suggestions for law reform on the issues raised in the Discussion Paper (described below) will be accepted whether written or given orally. The Commission reserves the right to reject any submission and to refuse to take any evidence or comment if in its judgment it is not directly related to issues concerning AI or is not relevant to law reform.

The Discussion Paper

In December 1984 the Commission published a Discussion Paper in its project on AI. The paper contains 23 chapters and copies are available at the nominal price of $1 each The paper contains a history of AI in Australia, the results of the Commission's own research and details of AI practice not previously publicly available.

A summary of the views and tentative recommendations of the Commission on AI as set out in the Discussion Paper appears on the following pages. We also include some of the principles that underlie those views and tentative recommendations.

2. SOME QUESTIONS FOR LAWMAKERS

Without suggesting that any particular issue is more important that others we now set out some of the key questions that must be answered by lawmakers:

• Should the law seek to control AI only when it is performed as a practice as opposed to being done on a private or individual basis?
• Should the law restrict the practice of AI to the medical profession?
• Should all women be eligible to join AI programs or should some be not eligible?
• What should the law do about semen donors who deliberately or knowingly provide false information about their health (we bear in mind the possibility of transmitting disease by semen e.g. hepatitis, AIDS and venereal disease)?
• What should the law say about commerce in semen?
• Should AID children have a legal right to information about their biological origins.?
• What should be put on the birth certificate of AID children?
• What should the law say about the birth certificates and inheritance rights of a child born from a widow inseminated with her dead husband's sperm?
• What should the law say about ownership of, dominion over and control of stored semen?

3. THE DISCUSSION PAPER: A SUMMARY

The views and recommendations of the Commission set out in the Discussion Paper are summarised below. They are tentative and not final The Chapter numbers refer to chapters in the Discussion Paper.

Legislative Regulation of AI (Chapter 5)

If legal regulation of AI is introduced it should affect and control persons who perform AI as a practice, as opposed to persons who perform AI on a private or individual basis. The law should require that the practice of AI be restricted to hospitals and the medical profession On a private or individual basis the act of AI should remain unregulated by law for a number of good reasons (paras.5.6, 5.7).

Eligibility for AID (Chapter 6)

The questions of eligibility for AID and acceptance of patients for treatment should be a matter for professional determination by medical experts, possibly within a framework of legislative guidelines. Assistance in decision-making may be given to the medical profession by way of principles placed in legislation without creating rigid statutory categories of eligibility and exclusion. Considerations such as the welfare of the child the special status of marriage, and the notion of AID as a medical treatment for infertility may provide grounds by which unrestricted access to AID programs is not acceptable. The establishment of an official Advisory Committee (see Chapter 23) may provide assistance (paras.6.4, 6.7 and 6.8).

Recruitment, Selection and Screening of Semen Donors (Chapter 7)

Semen donation for AID is an acceptable act and offers real benefit to infertile couples. Strict legal regulation is not necessary to govern recruitment, selection. screening, and testing of semen donors, but it may be desirable for the law to intervene by way of statutory guidelines. However, there appears to be a basis for creating a specific statutory criminal offence for a person knowingly to give false information or to conceal information about his health in relation to semen donation A donors withdrawal of consent to the use of his sperm and the related question of dominion over donated sperm may be preempted or entirely answered by a well-drawn instrument executed by donor and clinic prior to donation (paras.7.3, 7.13, 7.14, 7.16 and 7.18).

Semen Screening and Analysis (Chapter 8)

Semen screening and testing are best left to medical and scientific experts. Legislative intervention appears not to be warranted, but publication of standard guidelines by the medical profession, regulating testing and storage of semen is recommended (paras.8.5-8.6).

Commerce in Semen (Chapter 9)

Section 32 of the Human Tissue Act, 1983 prohibits sale and supply of human tissue (including semen) "for valuable consideration". We agree with the policy expressed in the Act, but suggest that an amendment to s.32 may be desirable in relation to reimbursement of expenses incurred by a semen donor (paras.9.3-9.5).

"Accidental Incest" Between AID children (Chapter 10)

The likelihood of innocent consanguineous mating between AID children in New South Wales is mathematically low. In view of that fact and the careful procedures already established by the medical profession, our view is that legislative intervention is not needed. However, guidelines on the considerations that should govern decisions about the frequency of use of a donor s sperm could be useful We have no concluded view whether the production of guidelines should be left to the medical profession or whether legislation should make some contribution (paras. 10.9-10.10).

Semen Mixing (Chapter 11)

Donated sperm (and eggs) should not be used with the deliberate purpose of creating confusion about a child's paternity. However, it should be understood that normal AID practice using fresh sperm may give rise to an inability to be certain of a child's paternity because it involves multiple insemination of the recipient with sperm from different donors. If the law intervenes to compel parties to AID to follow procedures designed to enable the paternity of an AID child to be ascertained with certainty (which cannot be guaranteed in all cases) it is likely to render unlawful normal AID practice using fresh sperm (paras. 11.11, 11.12 and 11.14).

Record Keeping in AID (Chapter 12)

The compulsory establishment of government registers containing information about the parties to AID is not warranted. However, if such a register is created, there should be a statutory conferring of confidentiality of the records.

Records about donors, both identifying and non-identifying should be created and, subject to later comments, kept. Details of children born as a result of successful inseminations should also be kept- There is no need to create special records relating to medical personnel involved in AID. The bulk of recorded information is, and should remain non-identifying. However, we see the need for the existence of identifying information so that a link maybe made between donor, recipient and AID child if needed.

There should be a general statutory requirement that AID clinics and practitioners create records about the parties to AID that will enable an appropriate information link to be made between them if necessary. The appointment by statute of an official record keeper should not be required.

The AID child should have access to all non-identifying information that is recorded about the donor. However, no legal right should be created in favour of an AID child or any person for access to identifying information about an AID donor or any other party to AID. Indeed, there may be some justification for destruction of identifying information after an appropriate period (paras.12.20, 12.23, 12.24, 12.25, 12.28, 12.29, 12.30 and 12.31).

Duties of AID Record Keepers (Chapter 13)

The possibility of unexpected disease or defect being inherited by an AID child through donor sperm is, for reasons set out in this Chapter, low. Sufficient records and information should be kept for the AI clinic to act in the health interests of the donor and the AID child if necessary.

Legislation to compel a record keeper to pass on, for example, to a donor, information concerning disease or defect in an AID child is not desirable. However, in principle, a party at risk should be told. It is undesirable for the law to prescribe a statutory duty to this effect The matter should be left to the experience and skill of the medical profession (paras.13.3, 13.6 and 13.7).

Retrospectivity of Record Keeping Legislation (Chapter 14)

Legislation that confers rights of access to recorded information of a non-identifying nature upon the parties to AID should apply to both existing and future records (paras. 14.3, 14.4).

Registration of Births of AID Children (Chapter 15)

The Artificial Conception Act, 1984 provides (since 1 August 1984) that the husband of the AID recipient “shall be presumed, for all purposes... to be the father” of the resulting AID child. The typical AID child will thus be the subject of lawful birth registration that shows social rather than genetic, paternity. We offer no recommendation for further reform on the issue of registration of birth of AID children (paras.15.9-15.12).

Sex Selection (Chapter 16)

No legislative action is required at present if a simple and safe method of sex selection becomes available the desirability of legislation should be considered.

Consents and Counselling (Chapter 17)

There should be no statutory provision requiring a spouse's or partner s consent as a condition of a woman's right to receive AID, although we believe that good medical practice requires that both partners give consent, preferably in writing. Consent should follow advice and counselling by the AID clinic and its form should be determined after careful consideration by the clinic and its advisers, including legal advisers. A legal requirement for the consent always to be in writing is not necessary. For the purpose of determining paternity under the Artificial Conception Act, 1984 retrospective consent by a woman's partner to her insemination should be allowed. Consent Could be presumed from conduct Paternity could be attributed to a partner unless he objected at the time of the insemination or within a specified period after the child's birth provided he had been made aware of the facts.

Legislation requiring specific consent to the AID procedure by the female recipient is not required. Common law principles and sound medical practice should provide adequate protection

Form and requirement of consent to semen donation by either semen donors or their partners is a matter for the clinic and for agreement between the parties. Statutory intervention is not warranted. Neither is the provision of counselling to the parties to AID a matter for legislative statement although we believe it is an essential ingredient in the practice of AID (paras.17.7, 17.12-17.16 and 17.20).

Legal Liability and Immunity of Medical Personnel (Chapter 18)

We have expressed the view in this Paper that a number of statutory obligations and duties should be placed upon AID practitioners. We consider that conversely a practitioner or staff member of an AID clinic who performs a statutory duty in good faith and without negligence should be protected from liability.

Donors are not patients and should be given a legal entitlement to anonymity and confidentiality of personal information. Protection of the same kind for the donor’s wife or partner, or the AID child, is not called for (paras.18.4, 18.5).

Liability of Donor and Recipient Couple (Chapter 19)

We see no need for new statutory provisions dealing with the donor’s civil liability under existing legal principles for damages for misrepresentation or failure to tell the truth about his state of health. In Chapter 7 (see above) we discussed the possibility of creating a statutory offence as an additional measure. As for a recipient's liability to an AID child, no statutory statement is called for on an AID child's entitlement to sue its parents for damages resulting from breach of an alleged duty relating to birth defects (paras. 19.1, 19.2 and 19.3).

Artificial Insemination by Husband's Sperm (AIH) (Chapter 20)

The special case of artificial insemination of a woman with her husband's stored sperm after his death (posthumous conception by AIH) raises implications for the laws of inheritance. This is a unique case in which it could be assumed that the donor and the recipient wish biological paternity to be legally recognised. There seems no basis for failing to provide for recognition of paternity in a deceased father. Statutory regulation appears to be necessary to prevent the exclusion of posthumously-conceived AIH children from paternity under recently-enacted legislation dealing with the status of AI D children. Regarding posthumous inheritance of property, legislation at present appears not to be justified. If legislation is preferred we favour an approach that would preclude the posthumously-conceived AID child from entitlement to share in the "father's" estate unless the father' made direct testamentary provision on the subject (paras.20.1, 20.3, 20.6, 20.7 and 20.8).

Confidentiality of AID Information (Chapter 21)

It is desirable as a general rule to preserve anonymity between donor and recipient. An exception exists where the recipient requests that the semen of a known person be used. A general statutory duty of confidentiality in relation to every person acquiring information about the parties to AID may be appropriate (paras.18.4, 21.5, 21.6 and 21.7).

Dominion, Control and Ownership of Stored Sperm (Chapter 22)

Questions relating to dominion or control over stored semen called for specific statutory provisions, regulation or guidelines. It is desirable to bear in mind the need to create a sensible procedure that enables a clinic to conduct its program without interruption. In the case of semen donation the AID clinic or medical practitioner to whom it is given should in general have the power to determine its use and disposal. Exceptions can arise where sperm is supplied for a different purpose, for example, storage for a man about to undergo medical treatment such as chemotherapy whereby he may be rendered infertile (paras.22.1, 22.4, 22.5 and 22.6).

An Advisory Committee on AI (Chapter 23)

We have suggested statutory regulation on a number of subjects, the creation of broad statutory guidelines on a number of subjects, and on others have expressed the view that there is no call at present for statutory regulation or guidelines. Our proposals involve substantial reliance on the medical profession, and a deliberate policy of keeping detailed legal rules to a minimum. We are not persuaded that detailed legal regulation, licensing or rules on AI would produce better results than have been produced by the medical profession in New South Wales to date. However, there are circumstances and possibilities which suggest that the community interest would be well served by the existence of a rapid decision making facility. The appropriate body for such purposes could be an advisory committee of limited membership comprising mainly medical experts, possibly with one or two members who could provide needed advice on the law or on government policy. The proposed functions of such a committee, together with the discussion of the possibility of a committee of wider membership are discussed in this Chapter (paras.23.1, 23.2, 23.4, 23.5 and 23.6).

4. ISSUES FOR REFORM

We set out below some of the principles and propositions that underlie the opinions and tentative views expressed in the Discussion Paper.

• Promotion and support of the heterosexual and married family is a justifiable policy for the legislature to adopt. This need not exclude consideration of the claims or interests of other kinds of family or other domestic relationships.
• Such a policy need not require active legislative opposition to procreation by single persons.
• The decision of a single woman to have a child by sexual intercourse, without the subsequent presence of the father, is now acceptable to the community (see paragraph 1.9). There is no active policy of the law to discourage such a decision nor is there any good reason why the State should act to limit the right to bear children to married women.
• Legislation on AI should reflect the long-standing recognition and commitment of the law of New South Wales to the principle that the welfare of the child is the first and paramount consideration in relation to a child's upbringing.
• In the case of married women AID raises issues for society additional to those raised bv marital sexual intercourse because of the use of the sperm of a stranger to the marriage to achieve pregnancy.
• The Australian community is justified in relying upon its medical profession to conduct the practice of AID ethically and efficiently.
• Legal intrusion into the procedures involved in AI should not be excessive and may justifiably have the object of encouraging properly-conducted medical practice to achieve the purposes of AI.
• In lawmaking and law reform the ideals of personal freedom and individual autonomy should be borne in mind.

Further information:

NSW Law Reform Commission, 16th Level, Goodsell Building, 8-12 Chifley Square SYDNEY (Entrances from Hunter St., Phillip St. and Elizabeth St.)

Telephone: (02) 238 7213

Contact: Mr. Peter Lemon (Commission Secretary)

Ms. Fiona Curtis or Ms. Yvonne Williams (AI Research)