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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 17 - Consents and Counselling
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 17 - Consents and Counselling
I. INTRODUCTION
17.1 Most official or Government Inquiries into AID have devoted attention to the question of consent by one or more of the parties. Various consents are possible - consent by a woman to receive AID, consent by her husband to the procedure, consent by a man to donate semen, and consent by his wife to the donation. The references to a wife and a husband in this Paper include couples living in stable “de facto marriage” relationships, unless the context plainly refers only to legally-married persons.
II. CONSENT TO AID BY HUSBAND OF RECIPIENT
A. Policy Considerations
1. General
17.2 A careful examination of this question is likely to raise a number of important considerations about the acceptability in current social conditions of requiring a spouse’s consent as a condition of a person’s right to pursue a particular course of conduct. These considerations, when applied to AID, include the following:
- that the rate of marital breakdown is now so high that it can never be assumed that a child’s welfare, to the extent that it depends on a stable home environment, will be guaranteed by limiting AID to married women who have their husband’s consent;
- that a statutory requirement for the husband’s consent would be a diminution of the wife’s personal autonomy and human rights and this would constitute a retrograde step; and
- that such a requirement would have the effect of giving the husband a veto over the wife’s decision to have AID.
On the other hand, the absence of a husband’s consent may bode ill for the AID child, and give cause for believing that it may be raised in an unstable and possibly hostile household.
17.3 Some may take the view that the decision to accept a woman for AID should be a matter of clinical judgment for the AID practitioner. The judgment might require the husband’s consent or it might not, but a better result is likely to come from the careful case-by-case attention of medical experts than rigid requirements of legislation. This approach need not favour a statutory requirement for invariable husband or partner approval, and may suggest that the law should remain silent on this subject.
2. Approaches of Other Jurisdictions
17.4 The United Kingdom Committee reached a similar conclusion.1 The Committee saw no need for the law to require the husband’s consent or to specify its form although firmly of the view that as a matter of sound (medical) practice the written consent of both partners should be obtained before AID is performed.
17.5 The Victorian Committee, in its Report on Donor Gametes in IVF, dealt with the question of husband’s consent. The report, despite its title, included AID in a number of its comments and the observations on consent may not have been intended to be confined to IVF. Under the heading “Informed Consent” it said:
It is central to the practice of medicine in the Community that patients consent to the medical procedures or surgical operation proposed. So it follows that the couple for whom the use of donor gametes in IVF is proposed shall consent to this procedure before it is carried out. Because of the nature of the procedure, and the consequences of its successful accomplishment, both partners must understand these, and that understanding must be recorded in a document which both read and sign. This needs, in the Committee’s opinion to be completed before the partners actually begin their participation in the procedure. It is to be separate from and additional to any standard consent documents employed in the regular administration of the hospital in which the donor gametes programme is conducted. This document should [sic] at the conclusion of the information and counselling process previously described. A copy of the document should be given to the patients, and the original retained by the hospital.2
If these comments were intended to apply solely to IVF, it is not clear what the Victorian Committee’s views (if any) were on husband’s consent to AID.3 The Victorian Infertility (Medical Procedures) Bill 1984 has provided a partial but confusing answer. Clause 18 of the Bill provides -
A person shall not carry out a procedure of artificial insemination unless the woman in relation to whom the procedure is carried out and her husband have received counselling ...
The Bill contains no specific requirement for consent by either spouse, but it might be argued that the requirement for compulsory counselling of both spouses could have the practical effect of requiring the husband’s consent. The wording of the clause is such that it leaves the position of an unmarried recipient of AID in some doubt.
17.6 The Queensland Committee made no recommendations on the question whether a husband’s consent to his wife’s AID should be legally required, but it made firm recommendations for such a consent as a prerequisite to his legal paternity. We describe this in more detail below.
3. Our Approach
17.7 Our tentative view coincides with that of the United Kingdom Committee. We see no persuasive reason why the law should prescribe a general requirement for husband’s or partner s consent, and believe that the decision is one that should be made in a clinical context. We agree with the Committee’s opinion that good medical practice requires that both partners should give a consent, preferably in writing, to AID. This 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. The basis of this opinion is that it is in the interests of the AID child that insemination should be a joint decision by the couple seeking treatment and that they should both appreciate the implications of their actions. In addition, since the Artificial Conception Act, 1984 consent has very important consequences for the child because it will determine who (if anyone) is the father.
B. The Paternity Issue
17.8 If a husband or partner consents to his wife’s AID, should he be recognised as the father? In New South Wales and Victoria this question is answered in the affirmative since the coming into operation of the Artificial Conception Act, 1984, and the Status of Children (Amendment) Act 1984 (Vic.) respectively, on 1 August 1984. The Acts provide that the consenting husband shall be the father “for all purposes”.4 Recommendations for the enactment of similar legislation have been made in jurisdictions that do not yet have a statutory statement on this subject.5
17.9 It is appropriate to mention here two circumstances that could support arguments for amendments to the New South Wales and Victorian legislation despite the fact it has been in force for only a short time. The first is the case of a surrogate parenthood arrangement where the surrogate mother is a married woman who received AID using the commissioning “father’s” semen. Provided that her husband knows the facts and consents to the AID, he will under the new legislation become the father of the Al D child, and the biological father will be excluded from paternity. In New South Wales a case that appeared to fall within these circumstances received substantial publicity at and around the date of commencement of the Artificial Conception Act, 1984.6 Our opinion is that amendment to the legislation to accommodate such cases is premature until the entire subject of surrogate parenthood is examined by this Commission in the present reference. The second case that would call for amendment of the New South Wales Act, because of its particular wording is that of posthumous AIH of a widow, which is discussed below in Chapter 20.
C. Form of Consent
17.10 Although our view and that of other official inquiries described in this Chapter is that there is no call for the law to require a husband’s or partner s consent to his wife’s AID, the question arises whether such a consent, if given, should take a particular form For example, should it be put in writing and contain prescribed particulars? It would seem that the Queensland Committee and possibly the Victorian and the United Kingdom Committees would be likely to agree that this should be the case. The Queensland Committee firmly recommended that a consenting husband should be presumed to be the father of his wife’s AID child and that the consent should be “formally given and acknowledged in writing”.7 The Victorian Committee was equally firm in its recommendation for written consent in relation to IVF.8 The United Kingdom Committee believes that written consent is desirable as a matter of “good practice” but should not be legally compulsory.9
17.11 A contrasting approach could favour examination of the husband’s overall conduct as the basis of deciding whether or not he has consented. The examination would obviously take into account any relevant document. The reasons would include the view that a requirement for consent always to be put in writing carries a danger that the child’s legal status could stand or fall on the correct completion of a document. Thus, if the written consent is in some way defective, or does not comply with prescribed requirements, of witnessing or the like, the child’s status and paternity might be permanently altered. This could be considered undesirable and unjust. Other reasons would be that a legal requirement for writing emphasises the artificiality of the conception, and could appear to place the wife under the control of the husband. The approach of the New South Wales and Victorian statutes appears to be the same. Neither contains any requirements for the form of 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.
17.12 We agree with this approach and take the view that a legal requirement for the consent always to be in writing is not necessary. If clinics or the parties require writing, we see no objection. Nor would we see any objection to the suggestion that consent be left to be presumed from conduct, or even the United Kingdom suggestion that would go further (but not so far as to require writing), and presume “that the husband has consented to AID unless the contrary is proved”. The United Kingdom Committee continues:
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
In the interests of the AID child we would be prepared to see the law go further, for example, by allokving 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).
III. CONSENT TO AID BY RECIPIENT
17.13 For completeness we mention the possibility that legislation could require specifically that the female recipient of AID should give consent to the procedure. Such consent could be in writing or evidenced in some other fashion. We see no reasons to suggest a legislative requirement, nor are we aware of such a suggestion from other official Inquiries (the Victorian Committee has recommended written consent by the recipient in IVF as described in paragraph 17.5). The common law principles that govern the relationship between doctor and patient, and impose the necessity to obtain consent to treatment with a “backstop” that includes the principles of assault and battery, should provide adequate protection against the possibility of AID treatment being given to a woman without her consent. There seems no special risk or danger in AID that requires a direct statutory statement. We note that clinics normally follow the practice of obtaining a written consent from AID recipients and their husbands. This is a matter for each clinic and for agreement between the parties.
IV. CONSENT TO SEMEN DONATION
17.14 We are aware of no circumstances that suggest the need for a statutory requirement that either semen donors or their wives should give consent in a particular form. As far as donors are concerned, the same kind of comments may be made as were made in the preceding paragraph about recipients. However, donors are not patients of AID clinics and the relationship of doctor and patient does not normally exist between them. We believe that in New South Wales, clinics normally require donors to sign a form of consent evidencing the conditions applicable to their relationship. This is a matter for the clinic and for agreement between the parties.
17.15 As far as donors’ wives are concerned we are aware that some clinics require their consent to the donation. This is said by some to be a precaution against later disputes between the donor and his wife or between the wife and the clinic or the recipient. We are unable to see any persuasive reason for suggesting a statutory requirement for a wife’s consent. Some of the arguments against spouse’s consent described in paragraph 17.2 would also apply in this case. Our view is that the decision is a clinical one, best made by the medical profession on proper advice.
V. COUNSELLING
A. General
17.16 “Counsel” is defined by the Shorter Oxford English Dictionary in the following terms.
To give or offer counsel or advice to; to advise... To take counsel with others; to deliberate.
Discussion and literature about artificial conception normally make a distinction between counselling and consent. There is no doubt that counselling is regarded today by AID clinics as well as official inquiries in Australia and elsewhere as an activity of primary importance. We will offer evidence of this in the succeeding paragraphs, but first comment that the provision of effective counselling is in our view not so much a matter for legislative statements or law reform as a matter for government policy and planned programs that recognise the need for funding, training and skilled professionals.
B. Approaches of Other Jurisdictions
17.17 The United Kingdom Committee has provided a compendious reference to the elements of counselling and consent.11
Counselling ...
Many of the problems which may arise in the course of treatment, whether this treatment ends in the birth of a child or not, are complex, and they need to be given careful consideration over a period of time. We therefore believe that counselling should be available for infertile couples and for donors. In particular the task of the doctor and the counsellor must be to ensure that couples and donors fully understand the implications of what they are embarking on what rights and duties they may have, and where they may expect to experience difficulties.
The counselling that we envisage is essentially non-directional. It is aimed at helping individuals to understand their situation and to make their own decisions about what steps should be taken next. Counselling need not necessarily take place at the hospital, though this may be the most convenient location It should be carried out in a neutral atmosphere, and involve a skilled, fully trained counsellor. We recommend that counselling should be available to all infertile couples and third parties at any stage of the treatment...12
Consent
We feet it to be very important that time and consideration should be devoted to explaining fully to prospective patients, and, where necessary, to their partners, the details of any infertility treatment they are to undergo. No such treatment should be undertaken without the fully informed consent of the patient...13
17.18 The Victorian Committee places no less importance on counselling and consent, admittedly in relation to IVF. On a number of occasions it expresses the view that counselling and consent are not only important, but essential for IVF programs. It insists upon counselling of couples prior to joining programs,14 counselling of semen donors,15 counselling of all parties if they are acquainted with each other,16 and counselling of egg donors,17 and it insists upon consent by recipients to all medical procedures involving donated gametes,18 consent of donors to the use of donated gametes,19 procedures for withdrawal of donor’s consent,20 consents when all parties know each other21 and special consent by donors to the creation of an IVF embryo from donated gametes.22 As mentioned in paragraph 17.5, the Infertility (Medical Procedures) Bill 1984 provides for compulsory counselling of both spouses in AID.
17.19 The Queensland Committee devoted a substantial chapter to “Counselling and Its Companion Services,23 opening with the statement that “[t]he Committee formed the view that counselling and its companion services were a crucial part of any infertility service”. Eighteen distinct recommendations were made by the Committee in relation to counselling and infertility, ranging over the need to provide trained counsellors, their training and the specific matters on which counselling should be provided to infertile persons, donors and resulting children. Nearly all the recommendations were applicable to AID.
C. Our Approach
17.20 We take the view that counselling is an essential ingredient in the practice of AID. It can be seen from the preceding paragraphs that every party to AID could benefit from counselling and that it is an important prerequisite to the commencement of treatment and to joining a program. AID clinics and practitioners agree on the need for and importance of this kind of advice. The amount of counselling available from a clinic will be governed to a large extent by resources of money and staff. Two critical factors govern the extent and quality of counselling for artificial conception. The first is the amount of public money allocated to hospitals and to training facilities; the second is the calibre of the particular clinic. These in turn will be influenced by public demand for the service. We conclude with the comment that infertility is a significant social problem and its alleviation worthy of the attention of the community for reasons apparent from preceding Chapters. Achieving this object is, we consider, not so much a matter of law reform or legislation as one of organisation, enthusiasm by patients, publicity and the generation of pressure upon governments and parliaments.
VI. ISSUES FOR REFORM
A. Consent
17.21 (1) Should legislation 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?
(2) If the answer to a question in (1) is yes, should the particular consent be given in writing or in some prescribed manner?
(3) If the answer to a question in (1) is no, is it nonetheless desirable that AID clinics and practitioners should, as a matter of good professional practice, obtain a consent in such form and manner as shall be decided on advice?
(4) Is it preferable to leave the obtaining of consents of the kind described in (1), and their form and content, to the clinical judgment of the AID practitioner to be made in the circumstances of each case and in the light of the policy of the clinic?
(5) Is there any need for amendment or refinement of the Artificial Conception Act, 1984 to accommodate cases of the kind described in paragraph 17.9?
B. Counselling
17.22 (1) Should legislation be enacted with a view to making counselling legally compulsory for any party to AID or in relation to any part of the procedure of AID?
(2) If the answer to (1) is yes, should legislation prescribe the nature or content of any counselling? If so, what should be prescribed?
(3) Should legislation be enacted for the purpose of ensuring or regulating the availability and training of counsellors for AID?
Footnotes
1. Report of the Committee of Inquiry into Human Fertilization and Embryology (United Kingdom. 1984), paras.4.23, 4.24.
2. Committee to consider the Social Ethical and Legal Issues Advising from IVF, Report on Donor Gametes in IVF (Victoria, August 1983), para. 3.5.
3. Ibid. The reason why we have a slight doubt is that in it succeeding paragraphs (see paras.3.8, 3.14 and 3.15) the Victorian Committee includes reference to All) and makes recommendations on donors of semen which we describe below.
4. Artificial Conception Act, 1984, s.5; see also paras.3.3-3.5.
5. Report of the Special Committee appointed by the Queensland Government to Enquire into the Laws Relating to Artificial Insemination, IVF and Other Related Matters (March 1984) vol.1, pp.142-143-1 see also note 1 above, para.4.17. Cf. Uniform Parentage Act of 1973 (U.S.A.), s.5.
6. See, e.g., Sun-Herald (Sydney, 5 August 1984, p.2.
7. See note 5 above, pp.142-143.
8. See note 2 above, para.3.5.
9. See note 1 above, para.4.21.
10. Id., para.4.24.
11. Id., paras.3.3-3.5.
12. Id., paras.1.1-1.4.
13.. Id., para.3.5.
14. See note 2 above, paras.3.4
15. Id., paras.3.14, 3.15.
16. Id., paras.3.19-3.22,
17. Id., para.3.25.
18. Id., para.3.5.
19. Id., paras.3.15, 3.25.
20. Id., para. 3.17
21. Id., para.3.22.
22. Id., para.5.8.
23. See note 5 above, ch.7.
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