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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 21 - Confidentiality of AID Information
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 21 - Confidentiality of AID Information
I. DUTY OF CONFIDENTIALITY
A. General
21.1 Certain relationships have been recognised by the common law as imposing a duty upon the parties or one or more of them to keep confidential, information that is acquired in confidence during the relationship. This Paper is not the place for discussion of the extent of this duty of confidentiality which is thoroughly examined by the Australian Law Reform Commission in its report Privacy.1 It may be observed that the law on this subject is in a state of development, and that the relationships in which the duty has been held to exist have been primarily of a commercial nature,2 for example, banker and customer, and employer and employee. However, there is reason to conclude that duties of confidentiality are held by medical practitioners in relation to patients. It may be that the duty would also be held by a court to be owed to a semen donor, but because this is not settled we have earlier favoured the creation of statutory rights and duties in relation to donor information.3
B. The Need for Statutory Intervention
21.2 A statutory duty in relation to semen donors, together with the existing duties flowing from the relationship of doctor and patient, are in our view reasonable protections for the parties to AID. However, a broader question arises of the desirability of creating a statutory duty to preserve anonymity and confidentiality to all AID information, to be imposed upon every person who acquires such information In its report Human Tissue Transplants, the Australian Law Reform Commission recommended that the disclosure by any person of personal information about a donor or recipient of transplanted human tissue or about their families, including identity, should be forbidden by law, with four exceptions.4 The Commission’s recommendations reflected similar restrictions that had been placed in the laws of Canada and South Africa and approved in other countries, and were based on considerations of privacy. A similar question may be put in relation to the parties involved in AID. Should the media be entitled to report all information that it can obtain or are the interests of the parties to AID in maintaining secrecy and confidentiality so substantial that they should prevail? These interests could be said to include the welfare of a semen donors future family and children, the avoidance of distress and emotional damage to an AID child, and the prevention of adverse effects upon AID programmes.
21.3 The Australian Law Reform Commission recommended that the duty of confidentiality should be imposed on all persons unless the subject consents to disclosure, a court gives permission to disclose, or the information is privileged or to be used only for bona fide medical research. The New South Wales Human Tissue Act 1983 accepts some, but not all of these restrictions. It imposes a duty of confidentiality5 only upon medical personnel including hospital staff, and provides similar exceptions.
C. Our Approach
21.4 As mentioned, we have already indicated that we favour the creation of a right to anonymity and confidentiality of personal information in favour of donors against the other parties to AID (including the AID practitioner).6 The reason for this was the fact that the donor is not necessarily a patient. It would be equally possible to create a similar right in favour of the recipient, her husband, and the AID child against the respective other parties to AID. If a more general duty of confidentiality of the kind envisaged in paragraph 21.3 was created, it would not be necessary to create specific rights and duties between the parties. If a more general duty is not created, the question of protection of parties other than the semen donor remains.
21.5 It is our view that it is desirable as a general rule to preserve anonymity between donor and recipient. The donor’s identity should not be supplied to the recipient or her husband and vice versa. Whether this needs to be the subject of a special statutory provision in favour of the recipient and her husband is doubtful. Obviously the information concerned will be in the possession of a third party, namely the AID practitioner, the clinic, the hospital or some other record keeper acting for them or one of them. We tend to the opinion that the normal incidents of the doctor-patient relationship should protect the recipient couple sufficiently. However, as we favour a specific right and duty in relation to the donor, we see no objection to the creation of reciprocal rights and duties in relation to the other parties.7 We have discussed at length the position of the AID child in Chapter 12, and exclude the child from the present discussion.
D. “Known” or “Identified” Donors
21.6 An exception to any rule than anonymity between donor and recipient be preserved will necessarily be made where the recipient requests that the semen of a particular person be used in the insemination process. Both the United Kingdom Committee and the Victorian Committee considered the use of gametes from such “known donors”.8 The Victorian Committee expressed concern that a child born as a result of the use of gametes from a known donor Could be more likely to experience confusion about family relationships and hence, identity. However, in view of the fact that certain social groups would find the use of semen from unknown donors unacceptable, it recommended that use of known donors be permitted where both partners specifically request that it be done. This has been accepted by a specific provision in the Infertility (Medical Procedures) Bill 1984 (Vic.) as enacted.9 Our tentative view is that there can be circumstances in which the semen of a known donor may be justifiably used in AID. If this is to happen, both the donor and recipient couple should give free and comprehending consent. The power of the clinic or practitioner to accept or refuse patients in such cases would remain unfettered. We should add here that we take it for granted that no AID practitioner would inseminate a woman with the semen of a man with whom the woman has a prohibited relationship within the laws relating to marriage (in general terms marriage is forbidden between a person and his or her ancestors or descendants and between a brother and sister whether of the whole blood or half-blood).10 We are presently of the view that a legal requirement to this effect is not necessary because good medical practice could be expected to produce the same result. However, we will be pleased to consider submissions and comments on this question.
II. SUMMARY
21.7 Subject to the preceding paragraph, a general statutory duty of confidentiality may be considered appropriate in relation to every person, including the media, who acquires information about the parties to AID or any of them. If a general duty is considered to be too wide, it could be imposed upon a more restricted group, for example medical personnel, clinic staff and record keepers. If a general or restricted statutory duty is created, it may not be necessary to create specific statutory rights and duties dealing with the privacy and anonymity of semen donors and other parties to AID. If such a duty is not created it is desirable to give specific statutory protection of anonymity to semen donors. Although recipient couples, because of their status as patients, already have some protection of a kind that appears not to be available to donors, it would also be acceptable to give them specific statutory anonymity of the same kind.
III. ISSUES FOR REFORM
21.8 (1) In relation to AID should a duty of confidentiality and non-disclosure of information be imposed at all?
(2) If the answer to (1) is yes, should it relate to all information about AID and the party to be protected, or would it suffice if it related solely to information whereby the identity of the person might become publicly known?
(3) Should all parties to AID receive this protection, namely AID child, recipient and husband (if any) and donor, or only one or more of them?
(4) Should the duty be placed upon all persons (including the media) who receive the information or should it be placed only upon the AID practitioner (including clinics and hospitals concerned), staff and record keepers?
(5) In what situations, if any should use of “known donors” be permitted?
Footnotes
1. Australian Law Reform Commission, Privacy, (ALRC 22, 1983), vol.1, para.827 ff.
2. Id., para.810.
3. See para.18.5.
4. Australian Law Reform Commission, Human Tissue Transplants (ALRC 7, 1977), ch.18.
5. Human Tissue Act, 1983, s.37.
6. See para. 18.4-1 see also Ch.12.
7. See para.18.4; see also Report of the Committee of Inquiry into Human Fertilisation and Embryology (United Kingdom, 1984), para.3.2.
8. Id., para.4.22; see also Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization, Report on Donor Gametes in IVF (Victoria, 1983), paras.3.19-3.22.
9. Cl.16.
10. See Marriage Act 1961, (Cth.) s.23.
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