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Where am I now? Lawlink > Law Reform Commission > Publications > 10. Consents, Counselling and Legal Liability
Discussion Paper 15 (1987) - Artificial Conception: In Vitro Fertilization
10. Consents, Counselling and Legal Liability
I. CONSENTS
A. Introduction
10.1 During the course of IVF treatment, various consents may be sought or given: consent by a woman to receive IVF, consent by her husband, consent by gamete donors and partners of gamete donors.
B. Consent to IVF by the Female Patient
10.2 How should consent to IVF by the female patient be evidenced? Should it be written or is oral consent sufficient? Our inquiries of New South Wales clinics1 showed that all followed the practice of obtaining written consent from IVF recipients but the forms of such consent differed greatly. One clinic outlined a number of the specific risks involved in the procedure on its consent form, while others were more general. However, following an Australia-wide “audit” of IVF clinics by the Medical Research Ethics Committee, there has been movement towards development of standard forms of consent.2
10.3 Other jurisdictions have also considered the nature of consent required of an IVF recipient. In Victoria, legislation provides that an IVF procedure cannot be carried out unless the female patient has consented to the procedure in writing.3 The United Kingdom Committee recommended that formal consent in writing should as a matter of good medical practice be obtained from the recipient before IVF treatment begins.4 However, the Committee did not see a need for that recommendation to be embodied in legislation.
10.4 Our views on this subject were set out in our report on Human Artificial Insemination.5 As a matter of good professional practice, written consents should be obtained from IVF recipients, and the development of standard forms of consent should be encouraged. However, specific legislation is not needed to regulate consent procedures. Consent to medical treatment is adequately governed by common law principles.
C. Consent to IVF by Husband or Partner of Recipient
10.5 In Victoria, the Infertility (Medical Procedures) Act 1984 provides that an IVF procedure may not be carried out without the written consent of the IVF recipient’s husband. 6 The Ontario Law Reform Commission, on the other hand, recommended that the consent of a woman’s husband or partner should be presumed, this presumption being rebuttable.7
10.6 The matter of consent by a man to his partner’s receiving IVF raises two questions. The first is whether a husband’s consent should be required as a condition of his wife receiving IVF. We said in our report Human Artificial Insemination,8 that it may not be acceptable in current social conditions to require a spouse’s consent as a legal condition of a person’s right to pursue a particular course of conduct. Our conclusion was that there should be no general legal requirement for a husband’s consent to his wife’s receiving AI and, in principle, there seems no reason why the same conclusion should not hold for IVF.
10.7 However, the husband’s consent would be relevant to the second question, which concerns the legal paternity of the IVF child when donor semen is used. This case is also analogous to that of AID. Our recommendation in Human Artificial Insemination9 which was preempted to some extent by the provisions of the Artificial Conception Act 1984, was that there should be a rebuttable presumption that the husband of a married woman who has undergone an artificial conception procedure has consented to the procedure, and that a written consent should not be a legal condition of paternity. This was based upon our belief that a person’s legal status and paternity should not depend upon the correct completion of a document. We recommended that consent be provable according to the normal rules of evidence.
10.8 Our current view in relation to IVF is that no legislative reform is necessary. The Artificial Conception Act 1984 provides that in relation to an IVF procedure where the semen used was produced by a man other than the recipient woman’s husband, the husband is presumed to have given his consent to the procedure, although this presumption is rebuttable.10
D. Consent to Gamete Donation
10.9 Legislation in Victoria provides that a gamete donor must give a written consent to the use of his or her gametes in a procedure of IVF.11 The Ontario Law Reform Commission recommended that legislation should expressly require a donor’s “free and adequately informed” consent as a precondition to donation or use of his or her gametes.12 That Commission further recommended that at the time of donation, a donor should be entitled to restrict the use of the donated gametes to a specified purpose. With regard to the revocation of a donor’s consent, the Ontario Commission recognised that allowing a donor to revoke his or her consent could inconvenience the medical practitioner and the potential recipient. However, in view of the nature of the material donated (genetic material) people might be dissuaded from making a donation if donation necessarily entailed a total loss of control over the gametes. The Commission recommended that after donation, but prior to the use of their gametes in a fertilization procedure, donors should be entitled to require their donations either to be “wasted” or returned to them.13
10.10 In our report Human Artificial Insemination, we recommended that no legislative action be taken in relation to procedures or documents for consent to gamete donation by the donor.14 While clinics normally require donors to sign a written consent form, we felt that this was a matter of good medical practice, which should be left to the clinics and to agreement between the parties. As to requiring the consent of a donor’s spouse to his or her donation, again this could be seen as an unwarranted restriction upon personal autonomy.
II. COUNSELLING
10.11 In our inquiries of IVF clinics in New South Wales, all clinics said that counselling is offered to IVF couples. Three of the clinics offer counselling by doctor and social worker to all IVF applicants. The others offer special counselling if this is thought necessary on the particular facts of the particular case.
10.12 In Victoria, the Infertility (Medical Procedures) Act 1984, not yet effective, provides that a procedure of IVF may not be carried out unless the woman and her husband have received counselling from an approved counsellor prior to the procedure, and the medical practitioner performing the procedure is satisfied that an approved counsellor will be available to provide counselling to woman and husband after the procedure is carried out.15
10.13 While we agree that counselling should be an essential part of IVF practice, the Commission believes that counselling is a process which should not be made compulsory by legislation. In the course of our inquiry into the practice of AID we were informed by patient and “consumer” groups that many patients object to the requirement of compulsory counselling before acceptance into an IVF program. They believe that it is unduly paternalistic and a derogation of their autonomy and personal liberty.16 A shortage of qualified counsellors could lead to delays and the inflexibility of statutory compulsion could result in substantial and undesirable difficulties if skilled counsellors were not readily available. The Commission recommended:
Good professional practice should encourage and, if possible, ensure the availability of skilled fully trained counsellors... if needed at any stage of the (artificial conception) procedures involved.17
III. LEGAL LIABILITY OF PARTIES TO IVF
A. General
10.14 In the course of IVF treatment a series of relationships is created between the parties to IVF. Each relationship has its own ebb and flow of duties and obligations. Special relationships exist between doctor and recipient woman, doctor and gamete donor, doctor and IVF child, recipient woman and donor, recipient woman and IVF child, and gamete donor and IVF child. In this Part, we will discuss the issue of legislative provisions to impose statutory duties upon the parties to IVF, beyond those already in existence.
10.15 There are no rules or principles of common law which are specifically directed to the IVF procedure; the practice of IVF is too recent a phenomenon. However, general legal duties, privileges and obligations are equally as applicable to the parties to IVF as they are to other aspects of medical and professional practice. For instance, once a doctor has accepted a person as a patient, duties are owed to that patient. The duties do not depend upon the existence of a contractual relationship or entitlement to remuneration;18 an essential ingredient is the doctor’s willingness to examine, diagnose and treat the patient.19 The IVF practitioner clearly owes a duty of care to the IVF recipient.
10.16 The standard of care required of a medical practitioner is the general professional standard to which a reasonably careful, skilled and informed practitioner would conform.20 The practitioner is not required to possess the highest expert skill; it is sufficient if he or she exercises the ordinary skill of a competent practitioner. In the context of IVF, where new and sophisticated procedures are being employed, the standard of care may be difficult to determine. However, case law suggests that the IVF practitioner will not be in breach of duty to the patient if tic or she has acted in accordance with “a practice of a competent body of professional opinion”.21
10.17 There are some circumstances however, where the existing common law may need some assistance. These are as follows:
- where there is deliberate or negligent provision of false or misleading information by a tissue donor;
- in “wrongful birth” and “wrongful life” actions; and
- in matters involving the relationship between a medical practitioner and a gamete donor.
B. Provision of False or Misleading Information by a Donor
10.18 The likelihood of a gamete donor deliberately or negligently providing false information should not be overstated. In New South Wales, donors have no real financial incentive to give genetic material.22 Potential donors are interviewed prior to donation when a “history” is taken. The interviewing doctor thus has an opportunity to assess a donor’s suitability.
10.19 In the report Human Artificial Insemination we recommended that there be created a specific statutory offence for the supply of false or misleading personal information by a semen donor.23 We believe that the creation of such an offence would offer a measure of legal protection to the IVF recipient and the child.
10.20 The appearance of the AIDS epidemic led to the urgent enactment in 1984 and 1985 of legislation directed specifically to reduce the risks to public health arising from the donation of infected blood and semen.24 The legislation requires the semen donor to give careful consideration to his personal behaviour and health, and that of all his sexual partners over the preceding five years. The donor must provide a written certificate to that effect and faces criminal penalties if he knowingly signs a certificate containing a false or misleading statement of a material kind.
10.21 We also recommended a wider application of the offence created in relation to AIDS, so that a criminal sanction would apply to the provision of false or misleading information by a semen donor in relation to health or personal particulars generally, and not just those particulars relevant to AIDS.25 The purpose of the creation of the offence is not to punish the donor after some injury has been caused to a recipient woman and child. The concern is rather to ensure that the truth about a donor’s health is established at donation, before any damage is done. To this effect, we recommended a warning which directs a potential semen donor’s attention to the fact that statutory penalties are provided for the supply of false information when giving personal particulars at the time of donation.
10.22 The Ontario Law Reform Commission also discussed the issue of concealment and misrepresentation of information by gamete donors, and considered three options:
- that it should be an offence knowingly to conceal or misrepresent information in offering or agreeing to donate gametes for artificial conception purposes;
- that it should be an offence negligently to conceal or misrepresent information in such circumstances; or
- that it should be an offence to provide false or misleading information, whether innocently, negligently or fraudulently.26
That Commission considered the last option “unjustifiably excessive” and the second last unnecessary, since:
the potential for civil liability at the suit of those persons to whom the donor has a legal duty to take reasonable care, and who have been injured by the donor’s negligent conduct, is a sufficient response to this type of conduct.27
The recommendation of the Ontario Law Reform Commission on this issue is the same as our own: that it should be an offence knowingly to conceal or misrepresent information when offering or agreeing to donate gametes for artificial conception purposes.
10.23 Our tentative view is that the offence created in relation to the supply of false or misleading information by a semen donor, should also apply to ovum donors.
C. Wrongful Birth and Wrongful Life
10.24 Actions for wrongful birth and wrongful life have usually arisen out of allegations of negligently performed sterilization or abortions, negligent contraceptive advice or negligent genetic and prenatal diagnosis and counselling.28 A wrongful birth action is normally brought by the parents of an unexpected or unwanted child whose conception or birth was a result of negligent medical advice or a negligently performed procedure. A wrongful life action is brought by the child alleging that it would have been in that child’s interests never to have been born at all.
10.25 Courts have been reluctant to allow such claims which are based on the proposition that some births are “wrongful”. It has been the view of the English courts that the birth of a child is never a “wrong” but should always be counted a blessing.29 However, courts in the United States and Canada have found otherwise30 and it is possible that these types of claims will increase in frequency and that related claims could appear.
10.26 The IVF process aims to assist in conception and not to prevent it. A “wrongful birth” claim would not appear to be an appropriate action in respect of the negligent performance of an IVF procedure. However, it is possible that in the case of an unexpected multiple IVF pregnancy, the parents might bring a wrongful birth action in respect of their “excess” offspring.31 Even if the IVF child has not suffered physical injury as a result of the IVF process, he or she might claim that a person necessarily suffers damage by being born as a result of IVF. It is possible, by means of the same reasoning, to envisage a claim by an IVF child against its parents alleging that it should not have been conceived.
10.27 Although the law in this area is developing, our tentative view is that no legislative initiative is necessary. In our report Human Artificial Insemination we recommended that no action be taken to enact legislation imposing specific legal liability upon medical personnel or parents to pay compensation for damages or injury resulting from AI.32 We felt that the law in this area was best left to the courts for determination. That is also our conclusion here.
D. The Relationship of Doctor and Donor
10.28 At common law, there might be no special legal duty owed by the medical practitioner to a gamete donor. Unlike the infertile couple, the donor is not a “patient” and therefore is not necessarily entitled to the same duties of confidentiality and anonymity as a patient.
10.29 However, because of the circumstances of artificial conception and the sensitive nature of the donation we recommended in our report Human Artificial Insemination that the law should impose upon practitioners and clinics the same obligation to observe confidentiality in relation to semen donors as medical practitioners have to patients, and that tile donor should be treated as though he is a patient for the purpose of record keeping.33 The same principles are, in our opinion, equally applicable to gamete donors in IVF.
IV. ISSUES FOR REFORM
A. Consents
1. Should legislation impose compulsory requirements for consent to be given:
- by a woman to receive IVF;
- by a woman’s partner;
- by a gamete donor prior to donation;
- by the spouse or partner of a gamete donor prior to donation.
2. If so, should the form of consent be statutorily determined or Left to be decided by each IVF clinic?
B. Counselling
3. Should counselling be made compulsory for every party to IVF?
C. Legal Liability of Parties to IVF
4. Should legislation create a specific offence to punish gamete donors who wilfully furnish false or misleading information, or conceal information about their health?
5. Should legislation impose specific legal Liability upon medical practitioners or parents of IVF children to pay compensation for damages or injury resulting from IVF or should the matter be left to the courts for judicial determination.
Footnotes
1. Information supplied by clinics in New South Wales following administration of a questionnaire prepared by New South Wales Law Reform Commission.
2. IVF Audit Report. Recommendation 5, at 6. The recommendation requests the Fertility Society of Australia to encourage the use of standard consent forms in all IVF centres in Australia. The Society has undertaken to encourage such practice.
3. Infertility (Medical Procedures) Act 1984 (Vic) ss 10, 11, 12 and 13. These sections have not yet been proclaimed to commence.
4. United Kingdom Report at para 11.24.
5. AI Report at para 7.2.
6. Note 3.
7. Ontario Report Vol 2 at 178.
8. Note 5 at para 7.3; see further AI Discussion Paper at para 7. 2.
9. Id at para 7.8.
10. Artificial Conception Act 1984 s5(4).
11. Note 3 at ss11(5), 12(5), 13(5) and (6).
12. Note 7 at 165.
13. Id at 167.
14. Note 5 at para 7.9.
15. Note 3.
16. Telephone communication with Dr Barbara Burton, 18 October 1985 and Mr Ken Campbell, 22 October 1985. Dr Burton is President of the Infertility Federation of Australasia. Mr Campbell is President of IVF Friends, Melbourne.
17. Note 5 at para 7.11.
18. See eg Coggs v Bernard (1703) 2 Ld Raym 909, at 919: the confidence y undertaking any service for another is sufficient legal consideration to create a duty in the performance of it. See also Pippin v Sheppard (1822) ER 517; Gladwell v Steggall (1839) ER 1283.
19. B Knight Legal Aspects of Medical Practice (3rd ed 1982) at 50.
20. Furniss v Fitchett [1958] NZLR 396; Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
21. Bolam v Friern Hospital Committee [1959] 2 All ER 118 at 121.
22. In New South Wales, the Human Tissue Act 1983 s32 prohibits, as a general rule, trading in human tissue, including semen and ova. (See, however, the amendments introduced by the Human Tissue (Amendment) Act 1987).
23. Note 5 para 5.18.
24. In New South Wales the Human Tissue (Amendment) Act 1985. Elsewhere, Transplantation and Anatomy Amendment Act 1984 (Qld), Infectious Diseases (Donors) Regulations 1985 made pursuant to Health Act 1958 (Vic), Blood and Tissue (Transmissible Diseases) Regulations 1985 made pursuant to Health Act 1911 (WA) and Blood Donations (Acquired Immune Deficiency Syndrome) Ordinance 1985 (ACT).
25. Note 5 at para 5.18.
26. Note 7 at 191.
27. Ibid.
28. See eg Scuriaga v Powell [1980] CA Transcript 597; Thake v Maurice [1986] 1 All ER 497; Emeh v Kensington and Chelsea and Westminster Area Health Authority [1984] 3 All ER 1044.
29. Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522 at 531.
30. Custodio v Bauer 59 Cal Rptr 463 (Dist. Ct. App. 1967); Rieck v Medical Protective Co 64 Wis 2d 514 (1974).
31. In October 1985 in California, a woman who had been treated with infertility drugs gave birth to seven babies from the same pregnancy, three of whom lived. She and her husband claimed damages of $(Aus)4.5 million from the medical practitioners who prescribed the drugs, alleging negligence and “wrongful death”: “Parents sue over too many babies” Sydney Morning Herald (10 October 1985) at 9. Had all the children survived, perhaps the couple could have brought a “wrongful birth” action, claiming that by reason of the doctor’s negligence more babies had been born than were wanted.
32. Note 5 at para 14. 9.
33. Id at paras 14.10, 8.13.
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