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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 9 - Commerce in Semen
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 9 - Commerce in Semen
I. SALE OF SEMEN BY DONOR
9.1 The expression “sale by donor” is self-contradictory, but its meaning is clear enough. The word “donor” is the normal description of the man whose sperm is used in AID. An important policy issue is whether or not the law should prohibit or discourage the sale of semen by donors and whether it should take a stance in relation to general commerce in sperm. The two subjects call for separate consideration. It should be remembered that in some countries, for example, the United States, commerce in semen is normal and highly organised both internally and as an export activity. For New South Wales (and other Australian mainland States and Territories) the issue has been largely resolved by recent legislation.
II. PRESENT TRENDS TO PAY DONORS
9.2 Money payments to semen donors are a feature of AID practice in New South Wales. The payments are invariably made as reimbursement of expenses, and the current range is $10 to $15 per ejaculate or “specimen”. We believe that payments of this order are usual throughout Australia and in other Western countries such as England and the United States. We have made a point of asking about payment to donors in all our inquiries of clinics and practitioners. Many medical practitioners have informed us that they regard the payments as a necessary part of AID practice not only because donors are usually put to expense and inconvenience in order to donate, but because they represent a symbolic confirmation to donors that their contribution is valued and appreciated. We have also been informed that many donors refuse to accept the payment. Our general impression is that AID practitioners consider that prohibition of the payments would adversely affect AID programs.
III. PRESENT LEGAL POSITION
9.3 There is little point in discussing the well-recorded moral and practical arguments for and against payment to semen donors,1 and commerce in semen, because of the recent enactment in New South Wales of the model legislation on human tissue transplants presented in 1977 by the Australian Law Reform Commission in its report Human Tissue Transplants.2 The model legislation has now been enacted, with some State-to-State variations, in all Australian mainland States and Territories.3 The Human Tissue Act, 1983 is concerned to regulate, inter alia, the acquisition and use of human tissues for transplantation, therapy and research. It does not, in many of its provisions, deal with reproductive tissues. For example, in Part II which regulates the donation of tissue by living persons, there is a specific exclusion of spermatozoa and ova from the meaning of the word “tissue”.4 However, the provisions regulating trade provide no exclusion or exemption for any tissue. The scheme of the Act5 is to apply a general prohibition of sale or supply of human tissue “for valuable consideration”, whether the tissue comes from the suppliers body or not and whether the person from whom it is derived is dead or not. Criminal sanctions are provided by section 32 (a maximum penalty of $4,000 and six months imprisonment). The prohibition extends to semen. However, section 32(3) allows “the reimbursement of any expenses necessarily incurred in relation to the removal of tissue in accordance with this Act”. The section provides limited additional exemptions including tissues that have been treated or processed for medical or therapeutic use (these may be sold, provided they were originally acquired without breach of the Act), and cases where a specific exemption is conferred by the Minister because of special circumstances. In relation to semen donation the exemption provisions are not entirely clear. However, there is no doubt that commerce in human semen is forbidden by section 32, while at the same time the policy of the section is to permit reimbursement of expenses. For present purposes we suggest that reimbursement of the expenses of a semen donor is probably not forbidden by section 32, although an amendment to section 32(3) may be necessary to put the matter beyond doubt.
9.4 The only remaining question is whether uniform payments of $10 or $15 to donors could cause a problem under section 32. If a donor could demonstrate expense exceeding the amount in question, for example, by way of taxi fares, or by way of use of his motor car, it seems that no problem should arise. We see little point in pursuing this matter in this Paper.
9.5 It can therefore be seen that the policy of the Human Tissue Act, 1983 is to enable special cases to be accommodated while generally prohibiting sale and commerce. This means that commercial sperm banks of the kind that function in the United States, are unlawful in New South Wales, as is other commerce in semen and the contents of semen.
IV. OTHER INQUIRIES
9.6 In passing, we mention the varying views of other inquiries and practices in other countries. A number of Canadian Provincial and Federal Inquiries, perhaps influenced by the tradition of commerce in sperm, blood and other human tissues in the United States, have seen no deep objection in principle to commerce in sperm and commercial sperm banks, and have favoured an approach that envisages controls, appropriate regulations and setting standards of operation.6 The Victorian Committee, on the other hand, “considers that it would be in human to traffic in human tissue”.7 The Queensland Committee contented itself with the comment that “no payment should be permitted for donation of semen”, while approving refund to a donor of travel expenses and lost wages. The Australian Law Reform Commission in its 1977 report8 said that “an almost universal disapproval of the notion [of commerce in human tissues] has been expressed by the Australian public”.9 The United Kingdom Committee has been equivocal on the subject. It appears to have accepted the idea of payments to semen donors in its treatment of AID.10 At a later stage it expresses disapproval of the idea of commercial exploitation of human gametes and embryos whether for “treatment or for research” and recommends that sale or purchase of human gametes be made a criminal offence.11
V. ISSUES FOR REFORM
9.7 We have included this Chapter even though the Human Tissue Act, 1983 suggests that no clear issue for reform now arises in relation to commerce in semen. Our purpose has been to present an analysis of the subject because it is an important feature of the debate on methods of artificial conception and an understanding of its development and legislative treatment in Australia should assist in the formation of balanced conclusions. Accordingly we now pose the issues for reform.
9.8 (1) Should existing legislative policy as expressed through the Human Tissue Act, 1983 be changed in relation-to semen donation for AID?
(2) If not, is there any objection to the amendment of that Act, if amendment is regarded as necessary or desirable, to put beyond doubt the lawfulness of reimbursement of the expenses of donation incurred by semen donors?
Footnotes
1. Law Reform Commission of Saskatchewan, Tentative Proposals for a Human Artificial Insemination Act (Nov. 1981), pp.3-12- 3-14, quoting G.R. Dunstan, “Ethical Aspects of Donor Insemination” (1975-76) 12 Journal of Medical Ethics 42, at p.43; and “Moral and Social Issues Arising from AID” in Ciba Foundation Svmposium 17, Law and Ethics of AID and Embryo Transfer (1973), p.53.
2. Australian Law Reform Commission, Human Tissue Transplants (ALRC 7, 1977), appendix IV.
3. The variations do not relate to commerce in human tissues.
4. Human Tissue Act, 1983, s.6.
5. Id., s. 3 2.
6. See Ninth Report of the Royal Commission on Family and Children’s Law, Artificial Insemination (British Columbia, 1975), ch.7, Report of the Advisory Committee on the Storage and Utilization of Human Sperm (Ottawa, 1981), cl.2: and Law Reform Commission of Saskatchewan Tentative Proposals for a Human Artificial Insemination Act (November 1981), para.3.12.
7. Victorian Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization, Report on Donor Gametes in IVF (August 1983), para.3.10.
8. See note 2 above.
9. Id., para.174.
10. Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology (July 1984), para.4.27.
11. Id., para.13.13.
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