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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 19 - Legal Liability of Donor and Recipient Couple
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 19 - Legal Liability of Donor and Recipient Couple
I. DONOR
19.1 We have already discussed the possibility of a semen donor deliberately giving false information or failing to disclose facts about his health.1 There is also the question of the donor misrepresenting or failing to tell the truth about his prior donation of semen. The consequence of the first could be injury or damage to the recipient or the resulting child. The consequence of the second could be the unwitting marriage of two of his AID children. The likelihood of any of these events is low under present conditions of AID practice in New South Wales. In fact, our information is that AID practice in Australia results in a rate of abnormality in AID children that is not higher than, and may be lower than, the rate for “natural” conceptions.2
19.2 Legal liability of donor’s for damage or injury caused by behaviour of the kind described in the preceding paragraph could arise under common law concepts such as negligence and misrepresentation. We see no need for new or specific statutory provisions dealing with these concepts. However, we have already raised the question of the desirability of creating a statutory offence that would have direct application to semen donors and would not alter a donor’s civil liability for damages.3
II. RECIPIENT COUPLE
19.3 In Chapter 18 we discussed the growth of claims upon medical practitioners for damages for “wrongful birth” and “wrongful life”. In Australia a count has already confirmed the legal liability of a negligent medical practitioner to a defective child born some eight years after the negligent behaviour.4 However, the principles upon which liability is based may be equally applicable to the behaviour of parents. We are aware of no Australian case in which a child has sued parents for damages resulting from breach of a duty not to cause birth defects. Theoretically, there appears to be no reason why such a claim could not be made, and succeed. We mention this only to raise the question whether consideration should be given to a statutory statement on the subject at present. Our tentative view is that no such statement is warranted. The courts should be free to deal with the question when it arises.
19.4 By the same reasoning it is possible to envisage a claim for damages by an AID child against its parents and the medical personnel involved in its conception, on a ground comparable with “wrongful life” or “dissatisfied life”, namely that they have a legal liability to pay damages because they have caused the child to be born as a kind of social freak. We consider that legislation is not called for since the Artificial Conception Act, 1984 implicitly recognises AID birth as an acceptable event in our society.
III. ISSUES FOR REFORM
19.5 (1) Should legislation impose specific legal liability on semen donors to pay compensation for damage or injury resulting from the supply of false information about their health or from negligent failure to disclose such information or should the matter be left to the courts for Judicial determinations (Note: this question is not related to the question concerning the creation of a statutory offence put in paragraphs 7.16 and 7.20(6)).
(2) Should legislation impose specific legal liability upon parents of AID children to pay compensation for damages or injury resulting from AID or should the matter be left to the courts for judicial determination?
Footnotes
1. See para.7.16.
2. R.J. Pepperell et al. (eds.), The Infertile Couple (1980), p.199; D.N. Joyce, “Artificial Insemination by Donor” (1979) 13(5) International Planned ParenthoodFederation Medical Bulletin 2: J. Leeton and J. Backwell, “A preliminary psychosocial follow-up of parents and their children conceived by Artificial Insemination by donor (AID)” (1982) 1 Clinical Reproduction and Fertility 307, at p.309.
3. See para.7.16: see also para.18.4.
4. Kosky v. The Trustees of the Sisters of Charity [1982] V.R. 961.
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