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Where am I now? Lawlink > Law Reform Commission > Publications > Summary
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Summary
The contents of Part I of this Paper are indicated by the Table of Contents. The views and recommendations of the Commission set out in this Paper appear in Part II, and are summarised below. They are tentative and not final.
Chapter 5: Legislative Regulation of AI
If legal regulation of AI is introduced it should affect and control persons who perform AI as a practice, as opposed to persons who perform AI on a private or individual basis. The law should require that the practice of AI be restricted to hospitals and the medical profession. On a private or individual basis the act of AI should remain unregulated by law for a number of good reasons (paras.5.6,5.7).
Chapter 6: Eligibility for AID
The questions of eligibility for All) and acceptance of patients for treatment should be a matter for professional determination by medical experts, possibly within a framework of legislative guidelines. Assistance in decision making may be given to the medical profession by way of principles placed in legislation without creating rigid statutory categories of eligibility and exclusion. Considerations such as the welfare of the child, the special status of marriage, and the notion of AID as a medical treatment for infertility may provide grounds by which unrestricted access to AID programs is not acceptable. The establishment of an official Advisory Committee (see Chapter 23) may provide assistance (paras.6.4,6.7 and 6.8).
Chapter 7: Recruitment, Selection and Screening of Semen Donors
Semen donation for AID is an acceptable act and offers real benefit to infertile couples. Strict legal regulation is not necessary to govern recruitment, selection, screening, and testing of semen donors, but it may be desirable for the law to intervene by way of statutory guidelines. However, there appears to be a basis for creating a specific statutory criminal offence for a person knowingly to give false information or to conceal information about his health in relation to semen donation. A donors withdrawal of consent to the use of his sperm and the related question of dominion over donated sperm may be pre-empted or entirely answered by a well- drawn instrument executed by donor and clinic prior to donation (paras.7.3,7.1 3,7.14, 7.16 and 7.18).
Chapter 8: Semen Screening and Analysis
Semen screening and testing are best left to medical and scientific experts. Legislative intervention appears not to be warranted, but publication of standard guidelines by the medical profession, regulating testing and storage of semen is recommended (paras.8.5-8.6).
Chapter 9: Commerce in Semen
Section 32 of the Human Tissue Act, 1983 prohibits sale and supply of human tissue (including semen) “for valuable consideration”. We agree with the policy expressed in the Act, but suggest that an amendment to s.32 may be desirable in relation to reimbursement of expenses incurred by a semen donor (paras.9.3-9.5).
Chapter 10: “Accidental Incest” Between AID Children
The likelihood of innocent consanguineous mating between AID children in New South Wales is mathematically low. In view of that fact, and the careful procedures already established by the medical profession, our view is that legislative intervention is not needed. However, guidelines on the considerations that should govern decisions about the frequency of use of a donor’s sperm could be useful. We have no concluded view whether the production of guidelines should be left to the medical profession or whether legislation should make some contribution (paras.10.9-10.10).
Chapter 11: Semen Mixing
Donated sperm (and eggs) should not be used with the deliberate purpose of creating on confusion about a child's paternity. However, it should be understood that normal AID practice using fresh sperm may give rise to an inability to be certain of a child's paternity because it involves multiple insemination of the recipient with sperm from different donors. If the law intervenes to compel parties to AID to follow procedures designed to enable the paternity of an AID child to be ascertained with certainty (which cannot be guaranteed in all cases) it is likely to render unlawful normal AID practice using fresh sperm (paras.11.11, 11.12 and 11.14).
Chapter 12: Record Keeping in AID
The compulsory establishment of government registers containing information about the parties to AID is not warranted. However, if such a register is created, there should be a statutory conferring of confidentiality of the records.
Records about donors both identifying and non-identifying should be created and, subject to later comments, kept. Details of children born as a result of successful inseminations should also be kept. There is no need to create special records relating to medical personnel involved in AID. The bulk of recorded information is, and should remain, non-identifying. 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.
There should be a general statutory requirement that AID clinics and practitioners create records about the parties to AID that will enable an appropriate information link to be made between them if necessary. The appointment by statute of an official record keeper should not be required.
The AID child should have access to all non-identifying information that is recorded about the donor. However, no legal right should be created in favour of an AID child or any person for access to identifying information about an AID donor or any other party to AID. Indeed, there may be some justification for destruction of identifying information after an appropriate period (paras. 12.20, 12.23, 12.24, 12.25, 12.28, 12.29, 12.30 and 12.31).
Chapter 13: Duties of AID Record Keepers
The possibility of unexpected disease or defect being inherited by an AID child through donor sperm is for reasons set out in this Chapter, low. Sufficient records and information should be kept for the AI clinic to act in the health interests of the donor and the AID child if necessary.
Legislation to compel a record keeper to pass on, for example, to a donor, information concerning disease or defect in an AID child is not desirable. However, in principle a party at risk should be told. It is undesirable for the law to prescribe a statutory duty to this effect. The matter should be left to the experience and skill of the medical profession (paras.13.3, 13.6 and 13.7).
Chapter 14: Retrospectivity of Record Keeping Legislation
Legislation that confers rights of access to recorded information of a non-identifying nature upon the parties to AID should apply to both existing and future records (paras.14.1, 14.4).
Chapter 15: Registration of Births of AID Children
The Artificial Conception Act, 1984 provides (since 1 August 1984) that the husband of the AID recipient “shall be presumed, for all purposes ... to be the father” of the resulting AID child. The typical AID child will thus be the subject of lawful birth registration that shows social, rather than genetic, paternity. We offer no recommendation for further reform on the issue of registration of birth of AID children (paras.15.9-15.12).
Chapter 16: Sex Selection
No legislative action is required at present If a simple and safe method of sex selection becomes available the desirability of legislation should be considered.
Chapter 17: Consents and Counselling
There should be no statutory provision requiring a spouse's or partner’s consent as a condition of a woman’s right to receive AID, although we believe that good medical practice requires that both partners give consent, preferably in writing. 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. A legal requirement for the consent always to be in writing is not necessary. For the purpose of determining paternity under the Artificial Conception Act, 1984 retrospective consent by a woman’s partner to her insemination should be allowed. Consent could be presumed from conduct. Paternity could be attributed to a partner unless he objected at the time of the insemination or within a specified period after the child's birth provided he had been made aware of the facts.
Legislation requiring specific consent to the AID procedure by the female recipient is not required. Common law principles and sound medical practice should provide adequate protection.
Form and requirement of consent to semen donors by either semen donors or their partners is a matter for the clinic and for agreement between the parties. Statutory intervention is not warranted. Neither is the provision of counselling to the parties to AID a matter for legislative statement although we believe it is an essential ingredient in the practice of AID (paras.17.7, 17.12-17.16 and 17.20).
Chapter 18: Legal Liability and Immunity of Medical Personnel
We have expressed the view in this Paper that a number of statutory obligations and duties should be placed upon AID practitioners. We consider that conversely a practitioner or staff member of an AID clinic who performs a statutory duty in good faith and without negligence should be protected from liability.
Donors are not patients and should be given a legal entitlement to anonymity and confidentiality of personal information. Protection of the same kind for the donor s wife or partner, or the AID child, is not called for (paras.18.4, 18.5).
Chapter 19: Legal Liability of Donor and Recipient Couple
We see no need for new statutory provisions dealing with a donor s civil liability under existing legal principles for damages for misrepresentation or failure to tell the truth about his state of health. In Chapter 7 (see above) we discussed the possibility of creating a statutory offence as ail additional measure. As for a recipient s liability to an AID child, no statutory statement is called for on an AID child's entitlement to sue its parents for damages resulting from breach of an alleged duty relating to birth defects (paras.19.1, 19.2 and 19.3).
Chapter 20: Artificial Insemination by Husband's Sperm (AIH)
The special case of artificial insemination of a woman with her husband's stored sperm after his death (posthumous conception by AIH) raises implications for the laws of inheritance. This is a unique case in which it could be assumed that the donor and the recipient wish biological paternity to be legally recognised. There seems no basis for failing to provide for recognition of paternity in a deceased father. Statutory regulation appears to be necessary to prevent the exclusion of posthumously-conceived AIH children from paternity under recently enacted legislation dealing with the status of AID children. Regarding posthumous inheritance of property, legislation at present appears not to be justified. If legislation is preferred, we favour an approach that would preclude the posthumously-conceived AIH child from entitlement to share in the “father’s” estate unless the “father” made direct testamentary provision on the subject (paras.20.1, 20.3, 20.6, 20.7 and 20.8).
Chapter 21: Confidentiality of AID Information
It is desirable as a general rule to preserve anonymity between donor and recipient. An exception exists where the recipient requests that the semen of a known person be used. A general statutory duty of confidentiality in relation to every person acquiring information about the parties to AID may be appropriate (paras.18.4, 21.5, 21.6 and 21.7).
Chapter 22: Dominion, Control and Ownership of Stored Sperm
Questions relating to dominion or control over stored semen called for specific statutory provisions, regulation or guidelines. It is desirable to bear in mind the need to create a sensible procedure that enables a clinic to conduct its program without interruption. In the case of semen donation the AID clinic or medical practitioner to whom it is given should in general have the power to determine its use and disposal. Exceptions can arise where sperm is supplied for a different purpose, for example, storage for a man about to undergo medical treatment such as chemotherapy whereby he may be rendered infertile (paras.22.1, 22.4, 22.5 and 22.6).
Chapter 23: An Advisory Committee on AI
We have suggested statutory regulation on a number of subjects, the creation of broad statutory guidelines on a number of subjects, and on others have expressed the view that there is no call at present for statutory regulation or guidelines. Our proposals involve substantial reliance on the medical profession, and a deliberate policy of keeping detailed legal rules to a minimum. We are not persuaded that detailed legal regulation, licensing or rules on AI would produce better results than have been produced by the medical profession in New South Wales to date. However, there are circumstances and possibilities which suggest that the community interest would be well served by the existence of a rapid decision making facility. The appropriate body for such purposes could be an advisory committee of limited membership comprising mainly medical experts, possibly with one or two members who could provide needed advice on the law or on government policy. The proposed functions of such a committee, together with the discussion of the possibility of committee of wider membership are discussed in this Chapter (paras.23.1, 23.2, 23.4, 23.5 and 23.6).
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