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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 1 - An Overview
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 1 - An Overview
I. INTRODUCTION
A. Human Artificial Insemination
1.1 AI has been described as “...a simple procedure from the medical point of view. Semen is obtained by masturbation and is deposited by means of a syringe in or near the cervix of the woman’s uterus”.1 Our inquiries into Current AI practice in New South Wales hospitals have revealed that the act of insemination is typically performed by a qualified nurse. The nurse will first use a speculum (an instrument of metal or other material such as plastic designed and shaped for insertion into the vagina, to enable the cervix to be seen). Next, a straw of semen will be placed in a syringe or “gun” which will be used to expel the semen so that it is lodged at the entrance of the cervix, as happens when sperm is ejaculated during sexual intercourse. The insemination is timed to coincide with ovulation which is the time of the woman’s maximum fertility in her monthly cycle. Normally inseminations will be performed on two or three successive days as this has been found to increase the likelihood of pregnancy.
B. A Brief History
1.2 Despite, its place at the forefront of biomedical developments, artificial insemination has a long history. Respectable authority states that the wish thinkers of the third century A.D. were discussing the possibility of accidental or unintended human insemination by artificial means.2 An account of Arabs deliberately practising artificial insemination of horses in the 14th century A.D., appears time and again in books and learned journal articles.3 One historian attributes this story to an Arabian document dating from the year 700 of the Hegira (the beginning of the Muslim era) which corresponds to the year 1322 A.D.4
1.3 In 1777 Lazaro Spallanzani, an Italian priest and Professor of the University of Pavia began experiments with the artificial insemination of reptiles. He later experimented with higher species and in 1780 artificially inseminated a bitch that consequently produced three live pups.5 The first recorded attempts at human artificial insemination are said to have been made in London by the Scottish physiologist and surgeon John Hunter6 around the same time. Some writers claim that Hunter succeeded in making a married woman pregnant by artificial insemination in 1785, and that she gave birth to a child as a result.7
1.4 During the nineteenth century a more systematic approach developed. Numerous scientific reports were published disclosing that between 1850 and 1900 human artificial insemination was successfully practised by medical experts in France, England, Germany and the United States.8 No suggestion was made in these accounts that donated sperm had been used.
1.5 Around the turn of the 20th century there appears to have been a decline in medical interest in AI. Then in 1909 the first account Of Successful insemination of a married woman by donor sperm was published in the United States.9 Both the article and the practice of AID attracted adverse comment.10
1.6 From that time until World War II, Al continued to be practised and scientifically reported throughout the Western world as well as in Russia.11 Significant developments after World War II included the 1954 report of Bunge and others of four successful pregnancies following the use of frozen sperm.12 This possibility had been envisaged by Spallanzani almost two hundred years earlier and by another Italian scientist, Montegazza, in 1866. According to Corson, Montegazza “envisioned the establishment of banks for frozen human semen.”13
C. Present Practice
1.7 Since 1970 the performance of AI has become widespread in Australia and in other Western nations as an aspect of medical practice. The normal case for which AI is considered to be Suitable is one in which a husband’s semen exhibits characteristics that make conception by his wife difficult or impossible. Typically the husband’s semen will contain low numbers of spermatozoa (oligospermia) or none at all (azoospermia) or some other abnormality. Yet it is sometimes found that a couple who appear to be reproductively normal fail to achieve pregnancy. This may be due to some bodily incompatibility of that couple, with the medical likelihood that each could achieve pregnancy with another partner. Such couples may be suitable candidates for AIH if the husband’s semen contains some healthy sperms. AID can be a suitable treatment for couples where there is a risk of inheritance of a defect through the male partner and for couples with severe rhesus iso-immunization (and the associated possibility of their child being a “blue baby”.)
1.8 In this general context, AI has been seen as treatment or remedy for couples rather than individuals. It has grown rapidly as a medical answer to a specific problem (certain kinds of infertility in marriage). It has not served the function of a semen supply service for the general public, although it could do so if the public so wished.
1.9 The substantial increase in AI in recent years has been seen by many in the social and medical sciences as a direct response to the fall in numbers of children available for adoption.14 This fall is seen as a reflection of changed attitudes and rising prosperity which have made it socially acceptable for single women and women who are neither single nor married, including those living in de facto relationships, to raise their own children. Significant financial assistance to such women is also available from the social security system. In 1973 the supporting mothers’ benefit (now the supporting parents’ benefit) was introduced by the Commonwealth providing direct money payments to any woman living singly, who has “the custody care and control” of her child or children. Obviously other factors may have contributed to the fall in numbers, such as improved methods and wider use of contraception.15 Whatever the causes the result is that for many couples AI may be the most practical means of achieving parenthood.
1.10 Technically AI could be employed as a method of conception by any healthy woman capable of childbearing. Indeed, as the practice has spread, so has public awareness and the realisation that conception by artificial means carries significant social implications. Today’s technology and unprecedented rate of medical and scientific advances are likely to augment rather than diminish the incidence and social significance of procedures whereby embryos can be created otherwise than by sexual intercourse.
II. AI IN NEW SOUTH WALES AND AUSTRALIA
A. Background
1.11 As far as Australia is concerned, the most significant period for AI has been the past 14 years. This mirrors overseas events. The first local scientific journal report seems to have been published in 1970 in the Australian and New Zealand journal of Obstetrics and Gynaecology by Dr. A, M. Hill of Melbourne, Victoria.16 Dr. Hill wrote of his experience with 21 AI patients.
1.12 However, 1970 was by no means the commencing point of Australian interest. In April 1945, the Australian Army Educational Journal SALT contained a discussion of some of the issues raised by AI, under the prescient title Test-tube Babies.17 Throughout the 1950’s the Sydney press carried reports and articles indicating the occasional use of AIH and AID by the medical profession.
1.13 In 1973 Dr. Struan Robertson of Sydney published in the same journal as Dr. Hill details of his treatment of 114 AID patients over the previous five years, and reported that 60 pregnancies had resulted.18 This was the first publication in the Commonwealth of Nations of details of a substantial sample and was followed by the establishment of the clinics described below.
1.14 The systematic institutional practice of Al in New South Wales became established during the 1970’s as part of the function of fertility (or infertility) clinics in public teaching hospitals. At the present time six major hospitals have clinics that practice AI (AIH orAID or both).19 Five of these clinics are in Sydney and one in Newcastle. In addition Sydney has two substantial private Al clinics as well as a small number of specialist gynaecologists who practised. Extensive inquiries by this Commission have produced information that suggests that AI is now rarely practised by individual private medical practitioners. The reason is that it has become normal for medical practitioners to refer patients who may benefit from AI to the specialist clinics. Prior to the establishment of these clinics it was not uncommon for urologists to carry out AI as part of their practices. We believe that this is now the exception rather than the rule.
1.15 AI is practised on a similar basis in the other States of Australia in particular the state of Victoria, where Melbourne contains a number of substantial Al clinics attached to public teaching hospitals.20
B. Government and Official Interest
1.16 The commencement of government and official interest in Al 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.
1.17 Except as described in the succeeding pages the call of the Australian Law Reform Commission has gone unheeded by the Federal Government to this day, although the subject of Al has been an agenda item on the meetings of the Standing Committee of Attorneys-General since July 1980.21
1.18 In 1982 the Australian States began independent action. On 30 March of that year, the Advisory Committee on Human Artificial Insemination was established by the New South Wales Minister for Youth and Community Services under the Chairmanship of Mr. Russell Scott who later became Deputy Chairman of this Commission. The terms of reference of the Committee were directed to a number of the substantial issues raised by AI.
1.19 On 24 May 1982 the Victorian Government announced the establishment of a committee “to consider the social, ethical and legal issues arising from in vitro fertilization”. Professor Louis Waller, the Victorian Law Reform Commissioner, was appointed Chairman. The terms of reference make no special mention of Al, but the Victorian Committee expressed an interest in AID in its first (interim) report of September 1982.22 The Victorian Committee has produced two further reports, referred to in paragraphs 3.11 to 3.14 below. Although the Committee’s recommendations were all restricted to IVF, the Victorian legislation prepared and enacted pursuant to its reports, contains extensive regulation of AI as well as IVF.
1.20 In February 1983 the Cabinet in Queensland appointed a Committee of Inquiry into the laws relating to AI (inter alia).23 The West Australian Minister for Health announced in June 1983 the formation of an advisory ethics committee to consider the issues raised by in vitro fertilization.24 On 16 July 1984 the Tasmanian government created a Committee of Inquiry with terms of reference similar to those of the Victorian Committee.25
1.21 Other countries were also active in 1982 which saw the establishment of four Committees of inquiry in England,26 and a reference to the Ontario Law Reform Commission in Canada.27 Official action had been taking place in the United States for some years. The Commissioners on Uniform State Laws approved a uniform statutory provision in 1973 to regulate the legal status and paternity of AID children.28 Some 25 American states have now enacted laws on AI, including a number that have followed the Uniform Parentage Act.29
C. Terms of Reference
1.22 In New South Wales, the Government decided in 1983 that the issues raised by Al should not be considered in isolation. Other forms of artificial conception such as in vitro fertilization had caused widespread public debate. Accordingly, it was decided by the Minister for Health, the Attorney General and the Minister for Youth and Community Services that a major reference should be given to this Commission to inquire into all aspects of artificial conception including surrogate motherhood. The reference was made on 5 October 1983 with the intention that this Commission would as part of its project, take over the work commenced by the Advisory Committee on Human Artificial Insemination. The terms of reference are set out in full on page vii.
D. New Legislation
1.23 Finally, it should be recorded that in late 1983 and in 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 198;, inserted a new provision in the Family Law Act 1975 (s.5A) under which an AID child, born to a married woman who was inseminated with donor sperm with her husband’s consent, is deemed to be the child of the husband.30 At the time of writing, legislation embodying the same principle is before the Commonwealth Parliament for the amendment of the Marriage Act 1961 (Cth).31 There are of course, 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”32 and to “divorce and matrimonial causes: and in relation thereto, parental rights, and the custody and guardianship of infants”.33 Thus, the presumption of paternity created by s.5A will have no wider application than the Family Law Act itself. 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 1975.
1.24 In February 1984, the New South Wales Parliament passed Australia’s first self-contained statute dealing with artificial conception. The Act, the Artificial Conception Act, 1984 deals with the legal status and paternity of AID children and IVF children using the same approach as the Commonwealth legislation already described.34 It came into effect on 1 August 1984 and is described in more detail in Chapter 3.
1.25 In March 1984 two Bills aimed to achieve the same result35 were introduced by the Government into the Victorian Parliament. These Bills (which have since been enacted) provide additional regulation applying to a number of aspects of the practice of in vitro fertilization when donated human reproductive tissues (sperm or eggs or both) are used.
1.26 The existence of these statutes and Bills, and the results of public surveys conducted by the New South Wales Advisory Committee on Human Artificial Insemination indicate that there no longer exists a question whether the Australian and New South Wales communities accept the practice of human artificial insemination. They plainly do. The important policy questions concern its regulation.
Footnotes
1. Ciba Foundation Symposium 17, Law and Ethics of A.I.D. and Embryo Transfer (1973), p.3; see also R.J. Pepperell et al. (eds.), The Infertile Couple (1980), p.2.
2. A.M.C.M. Schelien, Artificial Insemination in the Human (1957), pp.6-7.
3. Id., p.9.
4. Ibid.
5. Id., p.12, quoting L Spallanzani, Dissertations Relative to the Natural History of Animals and Vegetables, Translated from the Italian of the Abbe Spallanzani, Vol.II, (1789).
6. Stedman’s Medical Dictionary (24th ed. 1982), p.660.
7. W.J. Finegoid, Artificial Insemination (2nd ed. 1976), p.6; see also note 2 above, p.13, quoting E. Home “An Account of the Dissection of an Hermaphrodite Dog To Which are Prefixed Some Observations on Hermaphrodites in General” (1799) 1 Philosophical Transactions of the Royal Society of London 158, where it was claimed that it was before Spallanzani’s experiments with the spaniel (ie. 1780).
8. See note 2 above, pp.16-18.
9. Id., p.19, quoting A.D. Hard, “Artificial Impregnation” (1909) 27 Medical World 163.
10. Id., pp.19-20, quoting C.H Newth (1909) 27 Medical World 197: C.I. Egbert (1909) 27 Medical World 253.
11. Id., p.22, quoting A.A. Schorohowi. “La fecondation artificielle dans l’espece humaine” (1932) 15 Gynecologic et Obstetrique 132.
12. S.L. Corson et al., “Donor Insemination” (1983) 12 Obstetrics and Gynaecological Annual 28; at p.292, quoting R. Bunge et al., “Clinical Use of Frozen Sperm” (1954) 5 Fertility and Sterility 520.
13. Ibid.
14. R. Snowden and Mitchell, The Artificial Family (1981), p.17.
15. Social Services Act 197; (No.1) (Cth.), s.9.
16. A.M. Hill, “Experiences with Artificial Insemination” (1970) 10 Australian and New Zealand journal of Obstetrics and Gynaecology 112.
17. SALT Army Education Journal, vol.10, no.4, 2; April 1945, pp.22-23.
18. S. Robertson, “Donor Insemination-A Substitute for the Infertile Male” (1973) 13 Australian New Zealand Journal of Obstetrics and Gynaecology 224, at p.225.
19. They are as follows: Royal North Shore Hospital, St Leonards’ Royal Hospital for Women, Paddington: Royal Newcastle Hospital: The Westmead Centre; Royal Prince Alfred Hospital, Camperdown.
20. The Royal Women’s Hospital, Carlton; Prince Henry’s Hospital and the Melbourne Family Medical Centre (Monash University, Department of Obstetrics and Gynaecology).
21. Letter front Secretary of Standing Committee of Attorneys General dated 27 May 1983.
22. Committee to Consider the Social, Ethical and Legal Issues arising from In Vitro Fertilization. Interim Report (Victoria Sept. 1982), para.5.9.
23. See para.3.15.
24. The West Australian, 3 June 1983, p.12.
25. See para.3.18.
26. The British Medical Association (BMA) Working Group on IVF; The Medical Research Council Advisory Group (MRC) on Human Fertilization and Embryology: The Government inquiry into Human Fertilization and Embryology (U.K.) (Government inquiry); and the Royal College of Obstetricians and Gynaecologists Ethics Committee on In Vitro Fertilisation and Embryo Replacement or Transfer (RCOG).
27. The Ontario Law Reform Commission reference is entitled Project on Human Artificial Insemination and Related Matters. Other inquiries in Canada were conducted by the Royal Commission on Family and Children’s Law, (Vancouver, British Columbia), which reported on Artificial Insemination in its ninth report in May 1975; the Law Reform Commission of Saskatchewan reported in November 1981 in a paper entitled Tentative Proposals for a Human Artificial Insemination Act: and the Advisory Committee on the Storage and Utilisation of Human Sperm reported to the Minister of National Hearth and Welfare in 1982.
28. Russell Scott, The Body As Property (1981), p.205.
29. See para.3.20-3.21.
30. Family Law Amendment Act 1983 (Cth.), insert s.5A into the Family Law Act 1975 (Cth.). It was inserted to on 28 October 1983 and proclaimed on 25 November 1983.
31. Marriage Amendment Bill 1984 (Cth.) was introduced into the Senate by the Attorney-General, the Hon. G. J. Evans (Q.C.) on 4 April 1984.
32. The Constitution (Cth.), s.51 (xxi).
33. Id., s.51 (xxii).
34. The Artificial Conception Act, 1984, received Royal Assent on 5 March 1984.
35. The Status of Children (Amendment) Act 1984 (Vic.) received Royal Assent on 15 May 1984 and commenced on 1 August 1984 (see para.3.9). The Infertility (Medical Procedures) Bill 1984 (Vic.) had at the time of completing this paper, passed both Houses of Parliament and was awaiting Royal Assent.
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