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Where am I now? Lawlink > Law Reform Commission > Publications > 3. The Current State of IVF Regulation
Discussion Paper 15 (1987) - Artificial Conception: In Vitro Fertilization
3. The Current State of IVF Regulation
I. APPLICATION OF PRE-EXISTING LAW TO IVF TECHNOLOGY
A. Introduction
3.1 The birth of children conceived as the result of IVF procedures is a recent phenomenon. As already mentioned, the world’s first IVF baby was born in 1978, and Australia’s first in 1980. Common law principles for determining paternity, maternity and legal personality were formulated long before IVF technology was developed and proceeded from assumptions about conception and parenting which are no longer valid. The application of traditional common law principles to unprecedented circumstances may lead to unintended and unwanted legal consequences.
B. Paternity and Maternity
3.2 In the past, maternity of a child was never in doubt; the woman who bore a child was that child’s genetic parent. Paternity, on the other hand could never be certain. Rules and principles of law were created and developed with these “truths” in mind, but with the advent of IVF technology it is now possible to create circumstances where the “gestational” or “birth” mother of a child may not be that child’s genetic mother. Conversely, fertilization of a particular woman’s ovum using the sperm of a particular man creates absolute certainty concerning a child’s genetic parentage. The application of legal rules and principles mentioned above to procedures of IVF may produce unexpected consequences if for no other reason than the fact that the underlying assumptions on which the rules and principles are based no longer hold true.
3.3 The usual case in which IVF is employed (“the most common situation”1 ) involves a husband and wife supplying their own reproductive tissues (sperm and ova) for the production of conceptuses to be placed in the uterus of the wife in the expectation that implantation and pregnancy will result.2 The legal status of the child born in such a case is the same as that of a child resulting from natural conception. The child is genetically the offspring of both parents, and the fact that technical assistance was necessary for conception is of no legal significance.3
3.4 However, when donated reproductive tissue is used in IVF, problems arise. At common law a child conceived following use of semen produced by someone other than the gestational mother’s husband would be illegitimate.4 Indeed, in some jurisdictions, use of such donor semen has been held to be adultery by the woman involved.5
3.5 The common law rules governing legitimacy of children have been modified in most Australian jurisdictions by legislation. In New South Wales, the Children (Equality of Status) Act 1976 effectively provides that illegitimacy no longer exists. Legal disadvantages associated with being born out of wedlock have been removed. However, ttie f acts of a child’s parentage are still important and significant legal consequences flow from a determination as to parentage.6
3.6 It could be said that at common law a semen donor is the father of a child who is born following the use of his semen and that the “consenting husband” of a woman who carries the donor’s child is not the father. As a result, rights and responsibilities of fatherhood are the donor’s. This would clearly contradict the wishes and intentions of the parties in the typical case.
3.7 A child conceived following use of ova produced by someone other than the gestational mother can have up to three “mothers”:
- a genetic mother who provides the ovum;
- a gestational mother who gives birth to the child; and
- a social mother who cares for the child from birth.
How the common law would deal with such a case is not clear.
C. Legal Status of the Pre-Implantation Embryo
3.8 At common law, a conceptus is considered to be possessed of potential or contingent interests which vest and become enforceable upon “live birth”.7 Traditionally, it is the event of live birth which confers legal personality and the rights associated with being a human person. Statute law reflects the common law in this respect. For example, the statutory offence of murder requires the victim of such a crime to have “breathed and been wholly born into the world”.8 The legislative regulation of abortion is aimed not at protection of the fetus but at safeguarding maternal life and health. The offence of unlawfully attempting to procure a woman’s miscarriage9 is committed whether or not the attempt succeeds, whether or not the fetus the woman is carrying is dead and whether or not the woman is pregnant. At law the pre-implantation embryo is not a person.
D. Ownership and Control of Reproductive Tissues
3.9 The general rule is that there can be no proprietary interest in human tissues and organs10 and the person who possesses tissue controls it. Some statutory modification of common law is found in the Human Tissue Act 1983 which governs the acquisition and donation of human tissues for therapeutic purposes.11
II. AUSTRALIAN STATUTORY RESPONSES TO IVF TECHNOLOGY
A. “Status of Children” Legislation
3.10 The difficulty experienced in identifying the legal parents of the IVF child in certain circumstances has been addressed, at both federal12 and State13 levels, in “status” legislation which creates new notions of maternity and paternity. The thrust of the legislation is that a child born to a “married” woman14 following IVF with donor sperm, though not genetically the child of the woman’s husband, is presumed to be his child if the procedure was carried out with his consent. All Australian jurisdictions which have “status” legislation, apart from New South Wales, also provide that when a woman gives birth to a child following IVF using a donated embryo or ovum, the birth mother is presumed to be the mother of that child.15
B. General Regulation of IVF Procedures
3.11 To date, Victoria has been the only jurisdiction to enact comprehensive legislation aimed directly at regulating IVF procedures. The Infertility (Medical Procedures) Act 1984 (Vic) was enacted in November 1984, but has not yet been allowed fully to commence.16 The Act will provide three means of regulating IVF:
(i) by limiting its practice to approved hospitals and practitioners;
(ii) by limiting those who may have access to it; and
(iii) by requiring the keeping of detailed records and registers by both clinics and governments.
Access to IVF programs will be restricted to legally married women.17 Under provisions already in force, commercial surrogacy arrangements are prohibited on pain of criminal sanction and all surrogacy arrangements whether for payment or not are rendered void.18 Research on the IVF fertilized ovum is also strictly controlled.19
III. NON-LEGISLATIVE REGULATION OF IVF
A. The National Health and Medical Research Council
3.12 In February 1982 the National Health and Medical Research Council (NHMRC), a body created by Order-in-Council of the Australian Government, appointed a Working Party on Ethics in Medical Research. One of the tasks of the Working Party (which subsequently became the Medical Research Ethics Committee (MREC) of the NHMRC), was to investigate and report to the Council on recommended modifications to its “Statement on Human Experimentation” in the light of developments in in vitro fertilization and embryo transfer.20 The Working Party reported in August 1982 and among its recommendations were specific principles or guidelines regulating the practice of IVF in Australia.21 These were adopted by the NHMRC in October 1982 and serve as a point of reference for all Australian IVF clinics. They have been cited with approval by professional and government bodies within Australia, and have also been regarded with favour overseas.22
3.13 In New South Wales, the NHMRC principles for IVF practice, have been endorsed in an official policy statement of the Department of Health. The principles include the following provisions:
- each clinic offering IVF and ET “should have all aspects of the program approved by an institutional ethics committee”23 and registers recording data relating to all attempts at IVF should be kept by the clinic;
- research with ova, sperm and fertilized ova should be allowed, but not continuation of embryonic development in vitro beyond the stage at which implantation usually takes place;
- sperm and ova should be considered to belong to the donors, and the wishes of donors regarding disposal of their gametes should be respected as far as possible; and
- only early “undifferentiated” embryos should be stored, and time limits imposed on the duration of storage.24
The MREC has monitored compliance with these guidelines, which also require the formation of a properly-constituted ethics committee in every institution in Australia that conducts research on humans.25 The MREC visited and audited the operations of all IVF clinics operating in Australia as at 31 December 1985.26 A clinic’s failure to comply with the NHMRC guidelines does not attract legal sanctions but may lead to public cancellation of eligibility for federal government research funds.
B. Statutory Regulation and Professional Self-Regulation
3.14 Australian medical and scientific communities involved in the practice of IVF are subject to professional self-regulation, including ethical oversight by individual institutions and the activities of such bodies as the Fertility Society of Australia and the royal medical colleges. A breach of ethics may expose the medical practitioner to disciplinary proceedings. In New South Wales, the Medical Practitioners Act 1938 provides that a medical practitioner who has been found guilty of “misconduct in a professional respect” may be disqualified from continuing to practice medicine if the breach has been sufficiently serious.27 Other sanctions which may be imposed include reprimands, suspensions from practising medicine and fines.28
3.15 Regular reports containing detailed particulars of all aspects of IVF practice and procedures in Australia and New Zealand have been published by the National Perinatal Statistics Unit. The most recent report entitled In vitro fertilization pregnancies Australia and New Zealand 1979-1985 contains, in 42 tables, information relating to every IVF pregnancy achieved in both countries during the relevant period. Overseas countries have shown a marked interest in these unique reports which perform an invaluable function in describing the successes (and failures) of IVF practice.29
Footnotes
1. See para 2.1.
2. Victorian Report (1982), para 5.5.
3. In the words of Mr Justice Asche of the Family Court of Australia in a paper delivered at conference entitled Ethical Implications in the Use of Donor Sperm, Eggs and Embryos in the Treatment of Human Infertility (Monash University, May 1983) at 1,
... there is no legal prohibition or legal complications arising from IVF where the donor is the husband and the ovum fertilized is that of the wife.
4. There was a strong presumption that a child born to a married woman was the legitimate child of husband and wife. However, this presumption was rebuttable and if rebutted would affect interests and obligations of both child and natural father. For example, the illegitimate child could inherit from its mother, but not its father; custody of an illegitimate child was vested in its mother only. See D Clapshaw “Legal Aspects of Artificial Human Reproduction: Can the Law Afford to Play Ostrich?” (1983) Auckland University Law Review 245 at 259, 261.
5. Orford v Orford (1921) 58 DLR 251 at 258; decision of Ontario Supreme Court:
.... the essence of the offence of adultery consists in the voluntary surrender to another person of the reproductive powers or faculties ...
6. These consequences include the following:
- under maintenance legislation the parent of a child may be ordered to pay maintenance in respect of the child;
- when the parent dies intestate, a child has a right to share in that parent’s estate; and
- when a parent dies testate, the child may make application for a share in the parent’s estate under the testator’s family provision legislation.
See S Mason “Abnormal Conception” (1982) 56 Australian Law Journal 347 at 348-349.
7. Live birth requires the complete extrusion of the fetus from the body of the mother. However, severance of the umbilical cord and separation of the placental tissue and after birth is not necessary: see R v Hutty [1953] VLR 338.
8. Crimes Act 1900 s20.
9. Crimes Act 1900 ss82 and 83.
10. See generally, Russell Scott The Body as Property (1981).
11. Use of human tissue is restricted in the following ways by the Human Tissue Act 1983:
- section 32 specifically forbids commerce in “human tissue”. Human tissue is defined to include both ova and semen (s4(2A)). A possessor of human tissue therefore may not sell it; and
- section 21C provides that where semen has been obtained from a donor for a specific purpose, it must be used for that purpose, unless the donor has signed a certificate relating to its “medical suitability” for a different purpose.
The latter restriction does not extend to use of donated ova.
12. Family Law Act 1975 (Cth) s5A as inserted by Family Law Amendment Act 1983 (Cth) s4; Marriage Act 1961 (Cth) s93 as inserted by Marriage Amendment Act 1985 (Cth) s26.
13. In chronological order, Artificial Conception Act 1984, Status of Children (Amendment) Act 1984 (Vic), Family Relationships Act Amendment Act 1984 (SA), Artificial Conception Act 1985 (WA), Artificial Conception Ordinance 1985 (ACT), Status of Children Amendment Act 1985 (NT), Status of Children Amendment Act 1985 (Tas). As at time of writing, Queensland did not have any equivalent legislation in force.
14. Defined in all legislation to include a woman living with a man as his wife on a genuine domestic basis.
15. The legislation of all State jurisdictions, except for New South Wales, contains presumptions of maternity.
16. To date, only the sections peripheral to IVF practice have been proclaimed to commence.
17. Infertility (Medical Procedures) Act 1984 (Vic) ss10, 11 and 12.
18. Infertility (Medical Procedures) Act 1984 (Vic) s30.
19. Infertility (Medical Procedures) Act 1984 (Vic) s6.
20. National Health and Medical Research Council Ethics in Medical Research (1983) at 2.
21. Id, Supplementary Note 4, at 26.
22. Fertility Society of Australia “Programme standards for in vitro fertilisation units in Australia” (1985) 3(4) Clinical Reproduction and Fertility 349; New South Wales Department of Health Policy Statement: In Vitro Fertilisation (December 1985). Further, more than 20 European national delegations and official observer delegations to the Council of Europe committee meeting on Human Artificial Procreation held in Strasbourg, France in November 1985 specifically asked the Australian delegation to supply them with copies of the published documents comprising the NHMRC system of regulation.
23. Note 21, Supplementary Note 4, at 26.
24. Ibid at 26-27.
25. Ibid, Supplementary Note 1, at 19.
26. The results were published in the IVF Audit Report.
27. Medical Practitioners Act 1938 ss27 and 29.
28. Medical Practitioners Act 1938 s29.
29. For example, at the Council of Europe committee meeting, note 22.
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