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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 12 - Record Keeping in AID
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 12 - Record Keeping in AID
I. INTRODUCTION
12.1 Two broad questions are to be considered in this and following Chapters. The first is, should information (comprehensive or less than comprehensive) be compulsorily recorded and kept about the parties to AID or any of them? The second is, are there any persons who should be allowed to make effective claims for access to some or all of that information. There are no more difficult issues in AID than those arising from these questions.
12.2 At the heart of the matter is another question - what competing interests are at stake in compulsory record keeping and rights of access? Critical interests are the welfare of the AID child (including physical health and emotional welfare) on the one hand, and on the other, the claim of the donor (and other parties involved in the AID process) to privacy, confidentiality and anonymity. A complicating factor is the claim of public health in the form of epidemiological research, which could be interested in all available information. When we use expressions such as “AID child” and “IVF child” we include all persons of whatever age born following these procedures of artificial conception and do not confine our comments to infants.
II. THE CHILD’S “RIGHT TO KNOW”
A. Adopted Children
12.3 The debate about the AlD child’s “ right to know” has its source in adoption procedures. A major change of attitude has taken place in recent years concerning the supply of genetic information to adopted people. An influential expert on adoption. J. Trisellotis, has put it in these words:
After many years of unnecessary secrecy, evasiveness and often falsification studies have now shown how important it is for all children, whether adopted, fostered or brought up in step-parent relationships, to know the truth about their parentage and origin. This applies equally to children born by AID.1
Trisellotis is credited with causing the enactment of pioneering English legislation whereby “on the basis of a single study [by him] adult adopted people in England and Wales were given in 1976 the legal right of access to their original birth certificates”.2 The desirability of telling adopted children the truth about their origins is now widely accepted in official government practice throughout Australia, but there is no clear answer to the question “how much informations” The crucial question whether the adopted person should be told anything more than “non- identifying” information about parentage remains unresolved. A fair summary of current Australian attitudes seems to be that adopted people should be told, at a suitable time, that they are adopted, and given general information about their biological parents. However, “identifying” information is held by the adoption authority, it will not be supplied unless the biological parents are agreeable. In other words, a claim by the biological parents to anonymity and privacy will be respected. Even under the English law of 1976, the supply of a copy of a birth certificate to an adopted person will not necessarily disclose details of the biological father. These details are not normally included when the mother is an unmarried woman, unless the father (if known), agrees to the inclusion. Trisellotis has commented as follows:
My research Studies have shown that approximately 98% of adopted people are satisfied with non-identifiable information passed on to them by their parents. For the tiny minority who are not satisfied and set out on a quest, the reasons are mostly associated with secrecy and evasion pursued by the Adoptive parents, or with some other serious identity crisis.3
B. AID Children
12.4 The proposition that an adopted person has “a right to know” his been transferred to public discussion of AID and IVF children born following the use of donated gametes. However there are factual differences between adopted children and AID children that are significant, and call for caution in making comparisons. With adoption, both the adopting parents usually stand in the same relationship to the child, while with the AID child born to a married Couple (which is the usual case), the wife will be the biological mother and the husband will have no biological relationship to the child. This difference arguably puts the “right to know” of the AID child in a different light from the adopted child. As one American commentator put it:
... the “genealogical bewilderment” concern, often the major factor in an adoption setting, would seemingly be lessened in an artificial insemination context. This is so because the identity and familial history of one parent is readily available to the artificial insemination child.4
Another difference is that adopted children need little knowledge of biology to understand what it is to be adopted (or orphaned). On the other hand substantial knowledge of normal human reproduction is needed for a child to comprehend AI. This suggests that in practice adopted children can be told of their biological origin at an earlier age (for example, well before adolescence) than AID children. It has been suggested that the latter could not sensibly be informed until they are much older and at an age when they are liable to problems of resolving individually and identity.
C. IVF Children
12.5 A distinction must be drawn between the AID child and most IVF children. First it should be emphasised that there are substantial differences between the typical AID case and the typical IVF case. The typical AID case involves a married woman becoming pregnant by a third parts donated sperm, with her husband’s consent. The typical IVF case involves a married woman becoming pregnant by her husband. The typical IVF case does not involve total inability to conceive and bear a child so much as inability to conceive due to the woman not having normal fallopian tubes. Other indications for IVF are the husband’s oligospermia (the numbers of spermatozoa in his semen are too low to enable reasonable quantities to reach the site of fertilization by normal sexual intercourse) and cases of so-called “unexplained infertility” (cases where no cause for the couple’s infertility can be found). Therefore the IVF child will, in the typical IVF case, be the biological child of the couple concerned, a clear factual difference from the condition of the adopted child and the typical AID child.
12.6 A further distinction must be drawn between Al D children (and adopted children) on the one hand and IVF children born from a married woman as a result of the donation to her of an ovum, or of an embryo comprised of a donated ovum fertilized by sperm from her husband or by donated sperm (not her husband’s). The resulting child will have no genetic relationship to the wife but will be born from her body. The child will or will not have a genetic relationship to the husband, depending on the sperm used.
12.7 Another important difference between AID and IVF arises from the procedures themselves. We saw in Chapter 11 (paragraph 11.9) that correct allocation of paternity cannot always be guaranteed with AID if the inseminated woman had Sexual intercourse with a man around the time of insemination or if the AID was done with fresh sperm under normal conditions of practice. This should have a cautionary influence upon law-making recommendations aimed to give effect to the child’s “right to know”. The IVF child, on the other hand, is conceived deliberately in the laboratory from sperm and an egg that can be identified with certainty. If this identification occurs, the biological origin of the child can be described with the same certainty. At the same time, it could not be denied that the woman who bears the child is the mother (or at the very least a mother), and therefore that her relationship to the child is either somewhat different (where the husband’s sperm is used) or very different (where donor sperm is used) from that of her husband. The factual differences between IVF children Of Such origins, AID children and adopted children, in so far as their relationships to their “social” and “biological” parents are concerned, suggest that different requirements or needs for true information may be had by the different classes of child.
D. Consequences of the Differences
12.8 It is important to identify different needs or requirements of the kind mentioned in the preceding paragraph because legal or statutory support of the “right to know” will involve assessing the conflict in interests referred to in paragraph 12.2. The difficulty of resolving the interests may be illustrated by contrasting the current procedures in adoption practice in Australia with suggestions made for law reform in relation to AID and IVF. With adoption there appears to be general acceptance that the interests and well-being of adopted persons require that they be told the truth about their parentage - but, curiously, not all the truth. In other words it is considered that the person should be informed that he or she is adopted but not more. The claim of biological parents to anonymity and secrecy is allowed in Australia to prevail over the adopted person’s claim for identifying information about those parents.5 If adoption, as compared with typical AID and IVF, is accepted as the case in which the child’s claim is strongest because both its biological parents are strangers to its normal (social) household, then it could be suggested that the AID child has relatively weaker claims to information, let alone identifying information because that child will, of necessity, always know the truth about its mother. In answer to this it may be said that truth is the essential requirement and that AID children are equally as entitled to be told the truth as adopted children, even though only “half” their parentage is involved. However, if the truth that is to be conveyed to the AID child is to be confined to non-identifying information (following adoption practice) about biological paternity, a question arises as to the strength or force that the law ought to employ to record and spread the information. Another factor to be weighed is the information that we have been given by all practising AID clinics in New South Wales in response to Our question whether AID parents normally show willingness to inform the future child of its AID origins. With one exception the clinics informed us that they counsel recipients to mike their own decision. Their overall belief is that AID parents do not inform their children of their AID origins.
III. CONFLICTING INTERESTS OF PARTIES TO AID
A. Victorian Approach
12.9 In the face of these varied considerations what have been the conclusions, comments and results of recent official Inquiries into this subject? We first mention the Victorian Committee’s Report on Donor Gametes in IVF. That Committee has based its recommendations on records and access to them on the following statements:
Whether or not a person pursues her or his origins, it should be possible for everyone to discover them... There is ... a substantial and growing view that the values of honesty and integrity are crucial to the creation of a happy family... Because of the great importance the Committee accords to the interests of the child and its parents in honesty and integrity in the family, the Committee recommends that it shall be unlawful to use donor gametes in IVF in such a way as to confuse those concerned about the genetic background of any child born.6
The Victorian Committee proceeded to recommend that Couples seeking IVF, and donors of gametes, should be placed under extensive statutory controls. These Included a requirement of written consent restrictions and conditions precedent to acceptance on programs, rigorous screening, counselling and supervision.7 A Substantial quantity of information is to be recorded concerning donors, recipients and resulting children. These parties are to be entitled to some of the recorded information but the quality is not specified in detail. A government register is to be established to contain comprehensive details of all donors, all AID pregnancies and all abnormalities in the children.8 The Committee envisaged that any person should be able to obtain information “about her or his own genetic background from the registry on such terms and in such circumstances as the [government] from time to time shall determine”.9 As for access to information of an identifying nature, the Committee said that it had “not Sought finally to determine ... what ... shall be provided by way of an entitlement to any person who enquires about her or his own genetic background.”10
12.10 It is important to note that the Committee’s recommendations on record keeping were confined to IVF programs. However this was not reflected by the infertility (Medical Procedures) Bill 1984 when introduced into the Victorian Parliament or when enacted. Clauses 19 and 21 of the Bill impose duties on hospitals and medical practitioners and relate both to IVF and AID, providing that details of AID donors, and of their consents, their sperm the use of the sperm (presumably this will also include details of the recipient), the resulting child, and abnormalities in the child, must be recorded in the government register. The extension of this compulsion to AID is plainly considered and deliberate because clause 21 requires the recording of details of a child who is the “possible result” of AID. We conclude that clause 21 envisages the lack of certainty of AID paternity that we referred to earlier in paragraph 11.9, but nevertheless requires the recording to take place even though the artificial insemination may not have caused the pregnancy. There are other cogent reasons, referred to later, for treating the recording of AID sperm donor information differently from IVF gamete information.
12.11 Further difficulties now appear to have arisen from a different quarter concerning the Victorian provisions for a government register. These difficulties proceed from the plain policy of the Status of Children (Amendment) Act 1984 (Vic.). For the purpose of establishing paternity of AID children that Act deliberately rejects biological relationship. When the mother is married, and her husband consents to the AID, the Act substitutes a social relationship. The biological father of an AID child is then legally excluded from paternity. In the face of this first statutory statement on artificial conception, appearing also in federal legislation and in enacted or proposed legislation in other states, some may find it inconsistent to accept the imperative of genetic accuracy advocated by the Victorian Committee particularly when its implementation must be supported by criminal sanctions and must override other objections detailed later in this Chapter. The New South Wales Artificial Conception Act, 1984, is, for present purposes, identical.
12.12 It seems to us that the principles or propositions underlying the Victorian Committee’s recommendations on this subject have two ingredients. The first is that all citizens should be able to learn the truth of their genetic origin.11 The second is that the law should intervene in the practice of IVF in order to support the social values of “honesty and integrity” because these values are “crucial to the creation of a happy family.”12 We note however that the Committee undertakes no discussion or balancing of these values against any countervailing interests such as those of the privacy of the parties including that of the AID child, and the principle of personal autonomy. As mentioned above, the Committee’s recommendations relate only to IVF. It is therefore not surprising that its report contains no factual information about AID practice in Victoria.
B. Queensland Approach
12.13 The Queensland Committee’s report13 rested its recommendations upon “principles which have a wide degree of acceptance within the community”.14 Pursuant to these principles and under the heading “Values to be protected”, the report formulated a number of entitlements that children should have in Queensland. Drawing upon the United Nations Declaration of the Rights of the Child of November 1959, it said:
The Committee consider that children need:
(a) A name and identity (Principle 3 of the Declaration).
(b) Access to a reliable medical (genetic) history (both Principles 2 and 4 speak of development in health) ...15
The conclusion that children need “a name and identity” is drawn from Principle 3 of the Declaration which states:
The child shall be entitled from his birth to a name and a nationality.16
The report then draws” inferences” from its conclusions, one of which is that provision should “be made for the keeping of sufficient medical and social information about the donor of sperm used to allow the child to have access to a reliable medical and social history”. Another inference is “[t]hat very strict screening procedures be adopted in the selection of donors”.17
12.14 The recommendations of the report relating to making AID records, and access to such records by AID children, were restricted to donors of sperm and did not extend as does the Victorian Bill, to recipients and resulting children. The report says that AID (medical) practitioners should be required to keep a history of the donor and to send a copy to the Government.18 The identity of the donor should be kept secret but could be disclosed on a court order.19 Access to the other information should be available to medical practitioners.20 The report reached no conclusion on the question whether the AID child should be entitled to identifying information, suggesting specifically that this should be a matter for future decision.21 As with the Victorian Committee, the Queensland Committee recommended that the records be made and kept but said nothing about access to them or “how much information”, it did not address the question of recording information about recipients and AID children; nor did it discuss countervailing interests of the kind referred to in paragraph 12.12.
C. Canadian Approach
12.15 Our examination of three official Canadian reports indicates a different attitude from that of the Victorian and Queensland Committees.22 The 1981 report of the Federal Advisory Committee on the Storage and Utilisation of Human Sperm placed strong emphasis on the donor’s claim to anonymity, and while approving the linkage of information about donors, specifically rejected the suggestion of a central AID registry.23 The Committee devoted chapter III of its report to record keeping and set out the cases for and against record linkage. The British Columbia Royal Commission of 1975 considered that confidential information concerning AID patients should be kept in the file of medical practitioners or “a fertility problem clinic attached to a sperm bank”.24 Similarly the Saskatchewan Law Reform Commission in 1981 expressed the view that AI physicians and clinics “should keep such records of all instances of artificial insemination as are prescribed in regulations”.25
D. New South Wales Approach
12.16 Of the eight clinics interviewed by the Commission the two using fresh sperm keep virtually no records relating to donors after the pre-determined maximum number of pregnancies or inseminations is reached. The remainder all maintain coded, confidential systems of donor information and all give confidentiality and anonymity to donors. All create information records about the donor and three keep them “Indefinitely”. Two of the remaining three destroyed all information after five years and seven years respectively from first donation, while the third destroys identifying information when the donor ceases to be a “current donor” (ie., when all his sperm has been used, the results of the usage are known, and the clinic is satisfied that he will not donate in the future) and keeps non-identifying information indefinitely. All clinics but one provide some personal details of donors to recipients. None provides any details of recipients to donors. Six clinics provide donors with some details of the child and two do not.
E. Observations
12.17 The difficulty of achieving are solution that will fairly accommodate all the competing interests is patent from the preceding paragraphs. It maybe necessary to accept that whatever decision is reached will result in injustice for somebody. There are cross currents of thought that equate issues raised by artificial conception with issues raised by adoption and that treat the latter issues as resolved whereas they are not resolved. These issues present ethical as well as social dilemmas, and proceed from the question whether or not a biological parent should be identified against his or her will. Not only are there reasons for querying whether all artificial conception should be equated with adoption in this context (except for some rare possible IVF cases when all gametes are donated), but there are reasons to query whether AID should be equated with IVF.
IV. DIFFICULTIES INVOLVED IN CREATION AND KEEPING OF RECORDS
12.18 If the objective of keeping comprehensive records of AID semen donors is to provide genetically-accurate information to the child we doubt that the objective can be certain of achievement or the concomitant legal procedures justified, for the reasons set out in earlier paragraphs and in chapter 11. If the objective is the health of the AID child, this does not seem to require the establishment of comprehensive government registers. The various procedures of the clinics in New South Wales are all directed to this end, and appear capable of achieving it by their respective systems.
12.19 Why, therefore, should comprehensive government registers be set up it all, particularly in the absence of any indication of the amount of information that should be accessible and the identity of the persons who should have access? One answer may be that all available information should be recorded as a kind of community insurance, and that the details of accessibility and other relevant matters can be worked out later after further consideration. This seems to be implicit in the Australian reports described above, and may rest upon a concern that if the information is not recorded it may be lost forever, while if it is recorded it will be available in the future and if not needed may be then discarded. We are not yet persuaded that the price to be paid by the community for such registers is justifiable.
12.20 Our view is that only the strongest of reasons can justify the compulsory establishment of record keeping and registers of the kind under discussion. Such records or registers will give the state quantities of intimate personal information about citizens that is unique and override any desire for privacy and anonymity on the part of the persons whose particulars are recorded. As for confidentiality of the records, it is plain that once they are created, confidentiality can never be guaranteed because of the possibility of deliberate breach of confidentiality and of statutory amendment in the future. Nonetheless, there should be a present statutory conferring of confidentiality if such a register is to be created.
12.21 There is also the possibility that AID programs may be adversely affected. We have been advised that this has already happened in Victoria and that “one clinic was threatened by closure as a result of the paucity of donor”.26 Without exception all AID clinics and practitioners in New South Wales with whom we have spoken have expressed the view that their AID programs would be drastically affected if anonymity could not be assured to donors. Two expressed the opinion that they would lose all donors. Other powerful objections are the expense of establishing and maintaining registers, the inconvenience for persons obliged to gather and transmit the required information the possibility that the registers would become sources for public health research projects in epidemiology where access to records is traditionally given without reference to the subjects, and the interference with established procedures. These same objections may also be made by recipients and AID children if their personal details are to be placed in the register.
V. COMPULSORY RECORD KEEPING
A. General
12.22 Should information be compulsorily recorded and kept about any or all of the parties to AID? This question raises a number of Subsidiary issues which are considered below. Before they can be addressed however, the question who the parties to AID are, must be answered. The relevant parties for present purposes are donor, female recipient, her husband or partner (if any), the resulting child, and the medical personnel.
B. The Subjects of Record Keeping
12.23 Normal medical practice should ensure that records are created about female recipients of AID and their husbands or partners. This is because the typical AID “patient” is a married couple from whom a history will be taken. Semen donors are not patients, but our inquiries indicate that comprehensive details of donors are normally recorded by or on behalf of all New South Wales AID clinics that employ frozen sperm (see paragraph 7.9). Clinics that use fresh sperm normally take personal histories of donors, and rely to some extent on their knowledge of the donor or of the kind of person the donor is. These clinics tend not to keep donor records after the donor ceases to be “current”. All clinics give assurances of anonymity to donors, although it is possible to envisage these assurances being breached. Clinics using frozen sperm all use coding systems to protect the anonymity of donors. The coding systems restrict availability of information and vary in efficiency and effectiveness. We agree that records about donors, both identifying and non-identifying, should be created and, subject to our later comments, kept.
12.24 Most AID clinics in New South Wales obtain details of children born as a result of successful inseminations. However, it is not unusual for women to seek AID as a specialist service on referral from their normal medical advisers. In such cases the women may leave the clinic after insemination or after pregnancy. The clinic will not learn about the birth of the resulting child unless special arrangements are made. We agree with the practice of AID clinics recording details of children born as a result of successful inseminations.
12.25 We are not aware of any practice of creating records of medical personnel. Obviously the normal patient records will show some, or all such details. Such records can be the property of individual practitioners, which is normal. The principal purpose of making records about medical personnel would relate to questions of legal responsibility on the part of the practitioner, the clinic or the hospital. In the case of practitioners, clinics and hospitals, their identity will normally be known to the other parties in the AID process. In the case of staff, liability would normally be borne by the employer. We therefore see no need to envisage creation of special records relating to medical personnel. To do so would require statutory compulsion.
C. Necessity of Record Keeping
12.26 There are many reasons why records should be kept about parties to AID. Some of the less persuasive reasons include the desirability in the public interest of maintaining accurate information about the genealogy of citizens, and the utility of the information for statistical and public-health research. In Our view, there exist only two reasons of sufficient cogency to require attention in the context of law reform. The first is the need to have regard to the welfare or health of the AID child or any other party to AID. The second is to answer the claim for accurate genetic information, if it can be justified, lay the AID child or by any other person. The first reason will be insufficient if it cannot be demonstrated that the records will serve the health interests of the child. The second will be insufficient if it falls to surmount two threshold questions, namely, whether the records kept can ensure or guarantee accurate genetic information, and whether the claim of the AID child or other person, which would be put, presumably, on the ground of emotional or psychological welfare, outweighing claims or interests.
D. Competing Interests of Parties to AID
12.27 The interests of the AID child in this context have already been discussed, for example in paragraphs 12.2-12.4 and 12.9-12.14. These are essential to the child’s physical health and emotional welfare, claim to learn the truth about its genetic origin, entitlement to be a member of a happy family (the Victorian Committee), and entitlement to a name and an identity (the Queensland Committee). Related interests may be had by the “recipient mother” or her husband in access to information on behalf of the child during infant. These interests all suggest claims for information about the donor. Opposing interests of the donor are based essentially on his claim to privacy and confidentiality of information. There are other opposing considerations, for example the fact that the AID child always knows the truth about its mother, and the widespread practice in New South Wales (see paragraph 12.8) of AID “parents” not informing the AID child of its origin. Whether this practice is right or wrong, the establishment of government registers of genetic information, backed by a statutory right of access, could create substantial future problems for families who genuinely believe that a child’s AID origin is best kept secret. Another consideration in favour of the donor’s claim to anonymity is the rejection of biological paternity by the recently enacted legislation on the status of AID children in New South Wales and Victoria.27 In the face of the policy of these statutes it could be seen to be inconsistent to envisage statutory rights, backed by criminal sanctions, that would enable the establishment of a different kind of paternity from the legal paternity that they create. Other opposing interests may be held by clinics on the grounds of inconvenience and expense in seeking information and following up AID recipients and children when the recipient has returned to her normal medical adviser. However, there is an interest of donors in obtaining information about their AID offspring in some rare circumstances. We have been advised that it is possible (although unlikely) that a donor could be unaware of the existence in his family of a rare inherited disease. If such a disease manifested itself in an AID child there could be reasons for seeking him out for the purpose of enabling him to obtain treatment or to take steps in relation to his other children. In opposition to this interest and to any corresponding “right” on the part of the donor to information about his AID offspring, can be placed the unlikelihood of such an occurrence. A further interest of the donor is to learn whether or not he can father healthy children.
E. Scope of Records
12.28 The extent and detail of records that should be kept on parties to AID is not a matter for this Paper. We have already set out in earlier Chapters the procedures normally followed by AID clinics in New South Wales in recording histories and details of the parties to AID. We have no evidence to suggest any failure to obtain sufficient information to allow the safe practice of AID and the birth of healthy AID babies. Therefore we confine our answer to the observation that records may be divided into two relevant kinds, those that identify a party to the AID process and those that do not. We believe that the bulk of recorded information is, and may be kept non-identifying, for example, the normal histories and physical information about donor, recipient and child. However, we see the need for the existence of identifying information so that a link may be made between donor, recipient and AID child if needed.
F. Responsibility for Record Keeping
12.29 Before stating who should keep records, it is pertinent to ask who does keep them. It has been shown by earlier paragraphs that normal patient records and records about AID children are maintained by AID clinics and that donor records are created and kept in a variety of ways by or on behalf of clinics. Some may consider that AID records are of such social importance that a designated record keeper should be appointed by statute. This appears to be the view of the Victorian and Queensland Committees. In the United States the Uniform Parentage Act of 1973 provides that certain AID records should be kept in sealed files by local courts to be opened only “for good cause shown”. Our own answer to this question is that we can see no requirement for an officially-designated record keeper unless the information is considered to be of public importance requiring official enrolment. At the present time we are not persuaded that AID information that is normally recorded, or that should be recorded under our views described above, is of such public importance that it should be kept elsewhere than in AID clinics or on their behalf as is presently done. We believe that there would be utility in a general statutory requirement that AID clinics and practitioners should create records about the parties to AID that will enable an appropriate information link to be made between them if necessary.
VI. ACCESS TO AID RECORDS
12.30 We earlier identified only two cogent reasons for keeping AID records, namely the physical health of the AID child (and perhaps the donor), and the welfare of the AID child arising from the proposition that every person has a right to accurate genetic information that give that person an identity. The principal claimant to the information is the AID child, although a claim by the AID mother on behalf of the child during infancy appears to be acceptable. There is also the possibility of a claim by donors of semen as discussed earlier in paragraph 12.19. What kind of information should be accessible to the AID child? In our view there can be no objection to making available all non- identifying information that is recorded. Access to identifying information is a different matter. Our tentative view is that there are no persuasive reasons for creating a legal right in favour of AID children or any other person for access to identifying information about an AID donor or any other party to AID. Our reasons are:
- No legal right to identifying information about biological parents is given in Australia to adopted persons.
- In any event a typical AID child stands in a different relationship to biological parents. The AID child will always know its biological mother.
- The recent pioneering legislation on the status of AID children creates an irrebuttable legal presumption of paternity in favour of the consenting husband. The donor is specifically deemed by statute not to be the father.
- The normal incidents of AID using fresh sperm make it difficult, if not impossible, to attribute paternity to the resulting child.
- If there is a possibility that an AID recipient had sexual intercourse with a man around the time of insemination a guarantee of certainty of paternity cannot be given in relation to any AID child (subject to our comments about blood tests in paragraphs 11.4 and 11.10).
- Comparisons between the typical AID child and the typical IVF child disclose differences between them that may make it undesirable, possibly misleading, to use recommendations for law reform in relation to one as a basis for law reform in relation to the other. Conversely it is possible that record keeping in relation to an IVF child born following the donation of gametes should be of an entirely different nature from that for AID, because of the novelty and rarity of the IVF process and the possibility of use of donated ova as well as donated sperm.
- Evidence is available that AID parents prefer to make their own decisions about imparting genetic information to their AID children.
- Evidence is available that sperm donors are normally offered, expect and receive anonymity and confidentiality in relation to their donations.
- Evidence is available of likely reduction of donations to AID programs in New South Wales, and actual reduction of gamete donations in Victoria. If the establishment of official or government registers of donors is announced or occurs.
- Objections to a legal right of access have been made in principle by experts writing on this subject These include the proposition that a semen donor provides sperm in circumstances comparable to blood donation and is different from the biological father of an adopted child.
- Other propositions are that AID promotes family stability by allowing couples to have children, and the community has an interest both in encouraging sperm donation and protecting the privacy of donors.28
- The establishment of accurate record systems under legal control will be expensive, inconvenient, and not necessarily feasible without alterations to current practices of same specialist clinics.
- Previous Australian inquiries have not fully argued the case in support of the provision to AID children of legal right of access to identifying information about genetic parents. The highest suggestion has been that detailed or comprehensive information should be recorded about the parties to AID and that decisions on access to this information should be made later. Such suggestions contain no discussion of the objections of principle that could be raised against the accumulation by the State of this kind of information relating to its citizens, nor its implications.
Before leaving this subject we should mention a conclusion that may be drawn from our view that no persuasive reason exists in favour of creating a legal right of access to identifying information about donors. The conclusion is that identifying information held by a clinic about a donor could reasonably be destroyed after the lapse of an appropriate period from the birth of the donor s last AID child known to the clinic, or after the donor ceases to donate and all his donated semen is used. An appropriate period would be one within which evidence of an inherited defect could be expected to have appeared - say five years. It seems from the advice described in Chapter 13 that the likelihood of a defect appearing unexpectedly in the AID child long after birth is remote if proper inquiries and histories have been taken from the parties at the normal times.
12.31 We have therefore reached the tentative conclusion that insufficient reason exists for the creation of specific legal or statutory rights in favour of any person for access to identifying information recorded about semen donors or any other party to an AID program. Similarly, we do not think that access should be given to non-identifying information unless good cause can be shown. We are aware that under existing legal procedures and the law of evidence, access to any records can normally be given by courts for the purposes of legal proceedings. We see no need to interfere with this. We would, however, agree with enactment of a general statutory statement that AID recipients, AID children and donors should be entitled to access to recorded non-identifying information either by agreement with the record keeper or if, in the opinion of a court, good reasons were present based on the health and welfare of a party to AID.
VI. ISSUES FOR REFORM
12.32 (1) Should information (comprehensive or less than comprehensive) be compulsorily recorded and kept about the parties to AID or any of them?
(2) Are there any persons who should be allowed to make effective claims for access to some or all of that information?
(3) Should records about any of the parties be created and kept at all?
(4) If the answer to (3) is yes,
(a) whose records should be kept?
(b) why?
(5) What competing interests are at stake?
(6) What records should be kept?
(7) By whom should the records be kept?
(8) If any recorded information is to be made available, how much and to whom? Should information already in existence be also available (i.e. should there be retrospectivity)?
(9) Should the law permit the destruction of identifying records relating to a semen donor after a suitable period following the birth of his last AID child known to the clinic or following his cessation to be a donor and the use of all his donated semen?
(10) What effect will the answers to these questions have on AID programs, on semen donation, and the parties to AID?
Footnotes
1. J. Triseliotis, Recent Developments in Adoption (unpublished article, April 1980), p.11.
2. J. Kraus, Adopted Persons in Search of their Origin: Review of Research, New South Wales Department of Youth and Community Services (Planning and Research Paper No. 9, January 1982), p.2. The legislation referred to is the Adoption Act, 1976 (U.K.).
3. See note 1 above, p.13.
4. LA. Smith, “Artificial Insemination: Disclosure Issues” (1979) 1 Columbia Human Rights Law Review 87, at p.97.
5. We provide the following brief statement of administrative practices in Australia and New Zealand concerning adopted children and the “right to know” their true origins:
a) New South Wales - No provision in Adoption of Children Act, 1965, for disclosure of birth records, except by order of the Supreme Court. The Department of Youth and Community Services administers an Adopted Persons Contact Register, where all adopted people and their natural parents or relatives can register, if over the age of 18 years. The Department will arrange for contact to be made, but generally will do so only if the adoptive parents give their consent to such contact. Letter from Department of Youth and Community Services, dated 5 October 1984.
b) Victoria - The Adoption of Children (Information) Act 1980, s.66A, provides for the Director-General to maintain a register in the prescribed form of names and addresses of adopted persons and of parents of children who have been adopted who have requested the Director-General to record their names. This section is now in operation. Letter from Department of Community Welfare Services (Vic.), dated 27 February 1984.
c) Queensland - No provision in Adoption of Children Act 1964, no contact register, and all information confidential. Telephone conversation on 27 August 1984, Department of Children’s Services, Adoption Unit (Qld.).
d) South Australia - No provisions in Adoption of Children Act 1966-1975 to inspect any documents unless by order of a judge or master of the Supreme Court. The Department of Community Welfare does administer an Adopted Persons Contact Register, where both parties must register of their own volition, and the department will facilitate communication. Letter from Department for Community Welfare (S.A.). dated February 1984.
e) Western Australia - No provision for access to information in Adoption of Children Act 1896-1980. Contact Register set up in 1983 to “confirm” adoptions and arrange contact where relevant parties request it Letter from Department for Community Welfare (W.A.), dated 12 March 1984.
(f Tasmania - No provision for access in Adoption of Children Act 1968, and no contact register in existence although information being recorded in an informal contact file. Telephone conversation on 27 August 1984, Department for Community Welfare.
g) A.C.T - No provision for access in the Adoption of Children Ordinance 1965, no contact registers, official or unofficial. Telephone conversation on 27 August 1984, Department of Territories and Local Government Welfare Branch.
h) New Zealand -The Adult Adoption Information Bill 1983 if passed in its present form will allow adopted adults and birth parents of adopted adults access to identifying information through birth certificate records. Letter from Department of Social Welfare (N.Z.). dated I March 1984. The Bill was originally put forward as a Private Member’s Bill. This Bill lapsed on dissolution of parliament for a snap election and has been reintroduced again as a Private Members Bill. It is currently before the Statutes Revision Committee of parliament. Letter from Department of Social Welfare (N.Z.), dated 7 November 1984.
6. Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization, Report on Donor Gametes in IVF (Victoria, August 1983), paras.3.29-3.30, 3.37.
7. Id., ch. 3.
8. Id., paras.3.29-3.36.
9. Id., para.3.33.
10. Id., para.3.34.
11. Id., pira.i.29.
12. Id., paras.3.30, 3.37.
13. Report of the Special Committee Appointed by the Queensland Government to Enquire into Laws Relating to Artificial Insemination. In Vitro Fertilization and Other Related Matters (March 1984).
14. Id., p.54.
15. Id., p.55
16. We feel that two comments should be made on this conclusion. First, it seems to us debatable that entitlement “to a name and a nationality” means the same as entittement “to a name and identity”. Secondly, it seems to us that an AID child who forms part of a family but has not been told of its genetic origin cannot necessarily be said to lack either “a name and a nationality” or “a name and identity”.
17. See note 13 above, p.56.
18. Id., p. 108.
19. Ibid.
20. Ibid.
21. Ibid.
22. Report of the Advisory Committee on the Storage and Utilisation of Human Sperm (Ottawa. 1981) Royal Commission on Family and Children’s Law, Ninth Report, Artificial Insemination (British Columbia 1975); and Law Reform Commission of Saskatchewan, Tentative Proposals for a Human Artificial Insemination Act (Nov. 1981).
23. Canadian Advisory Committee, see note 22 above, p.23.
24. British Columbia Royal Commission, see note 22 above, p.31.
25. Law Reform Commission of Saskitchewan, see note 22 above, pp.2-16.
26. Letter from Mr. I. Johnston, Chairman, Reproductive Biology Unit, The Royal Women’s Hospital Melbourne, dated 16 July 1984.
27. See paras.3.3-3.10, 12.11.
28. Russell Scott “Who Am I? (Children with Problems of Identification, Including Adoption, AID & IVF)”. a paper delivered at the Combined Annual Congress of the Australian Society for Psychosomatic Obstetrics and Gynaecology and the Biological Sciences Committee of the Australian Federation of Family Planning Associations (Canberra, March 1984.)
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