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Where am I now? Lawlink > Law Reform Commission > Publications > 6. IVF Services: Availability and Eligibility
Discussion Paper 15 (1987) - Artificial Conception: In Vitro Fertilization
6. IVF Services: Availability and Eligibility
I. OVERVIEW
A. The Question
6.1 In vitro fertilization was originally developed as a response to infertility in marriage. However, it is capable of being made available to any woman, infertile or not. In this Chapter, the matter of access to IVF technology will be discussed. The question for consideration is:
should all women of child-bearing age be regarded as eligible for, or perhaps entitled to, access to IVF technology?
The Commission discussed the question of eligibility of women for AI programs in its project on artificial insemination1 and many similar considerations apply in relation to eligibility for IVF programs.
B. Public Opinion
6.2 A series of eight Morgan Gallup Polls conducted since 1981 has disclosed widespread community approval of IVF as a treatment for infertile married couples.2 The Polls do not indicate the level of approval (or otherwise) of IVF as a treatment for individuals who fall outside the category of “infertile married couples”. However, drawing on the AI experience which disclosed “a powerful community disapproval”3 of the provision of AID services to unmarried women, it is reasonable to suggest that a similar degree of community disapproval of the availability of IVF to unmarried women would exist. Certainly, IVF clinics within Australia which restrict their services to married couples do so on the basis of what they perceive as a definite community disapproval for provision of IVF outside the traditional family relationship.
6.3 Whether community disapproval should be translated into a legislative prohibition upon provision of IVF services to other than infertile married couples is a difficult question. Such a restriction would sit oddly with the widespread community acceptance in Australia of de facto relationships, single parent families and unmarried mothers as evidenced by social welfare legislation and specific statutory recognition of de facto relationships.4 It would also appear to be inconsistent with the spirit, if not the letter, of modern laws which support the principle of equality and prohibit “discrimination” in the supply of services.5
6.4 On the other hand, the principle that the welfare of a child should be the paramount consideration in relation to legal questions concerning upbringing, custody or property of the child, has been consistently expressed in family law and adoption legislation.6 The State has jurisdiction over and responsibility for the welfare of children.7 It could be argued that the state has a direct interest in controlling access to a technology which involves the creation of children, since the state may ultimately be responsible for such children. Further, continuity and security in family relationships are considered necessary to a child’s development, and the law attempts to foster this through stable custody arrangements. Some would contend that only the act of marriage indicates an intention to form a permanent, stable relationship within which a child can be adequately nurtured.
6.5 However, the reality of modern family life in Australia, and the fact that other types of family unit than the traditional heterosexual “married” family exist and are tolerated, should not be overlooked. The birth of a child may, in itself , be considered the creation of a family, even if no person other than the mother is concerned in its upbringing.
C. The Law
6.6 In law, access to medical services is not assured. At common law, t be medical practitioner is free to accept or refuse any person as a patient. There is no general duty to give treatment to the sick or injured. In New South Wales, the common law has been varied by legislation. The Medical Practitioners Act 1938 requires a doctor to attend and treat a person when requested to do so, if there is “reasonable cause to believe such person is in need of urgent attention”.8 As we remarked in our Report Human Artificial Insemination, the requirement of urgency makes it unlikely that this legislative provision would apply to patients requesting artificial conception services.9
6.7 While no legal right exists to compel the provision of medical services, a person who is refused access to such services could appeal against the medical practitioner’s decision if it was based upon reasons of a discriminatory kind. Anti-discrimination legislation is now widespread in Western countries.10 Typically, it provides that, except when acting in compliance with a conflicting statute, a person behaves unlawfully by witholding “services” from another person for “discriminatory” reasons, for example on the grounds of that other person’s marital status, sex, race or handicap.
II. OUR APPROACH
6.8 In the Commission’s report Human Artificial Insemination, certain principles were formulated in order to provide the foundation our subsequent decisions.11 Two of these principles, adapted for the current project, are of particular relevance to the question of eligibility for, and availability of IVF services. These are:
- the paramount consideration in the practice of IVF should be the welfare of the child; and
- personal freedom, and individual autonomy should, so far as possible, be respected.12
We believe that an acceptable solution must involve a balance between these two principles.
6.9 In Human Artificial Insemination we recommended that the question of eligibility for AI services should not be a matter for legislation alone. Instead, we recommended that legislation provide that a person who performs AI should give regard to a number of factors when deciding whether to accept a particular applicant into an AI program. These included considerations of the welfare and interests of any child that might result, the home environment and stability of the household in which the child would live and the physical and mental health and age of the prospective parents. Failure to give regard to all the matters listed could constitute “misconduct in a professional respect” under the Medical Practitioners Act 1938.13
6.10 Our tentative view is that a similar recommendation would be appropriate for eligibility for IVF services. The Ontario Report suggested wide eligibility of persons to be considered for IVF, but restrictions on acceptance of applicants according to their ability to meet standards pertaining to their “suitability for parenthood”. These should not be based solely, or even largely, upon marital status, since:
... any a priori exclusions based simply on membership of a particular group ... would automatically eliminate from consideration single persons or unmarried couples Who by any standard, would make suitable parents.14
6.11 At present IVF is practised as a treatment for infertility. We believe that eligibility to be considered for treatment for infertility should not be restricted, but should be the same as eligibility for any other medical treatment. Hence, a person who is not affected by infertility of the type that can reasonably be treated by IVF, should not be able to compel the provision of IVF any more than a healthy person could compel a doctor to perform a pointless operation. A person who does suffer from infertility should be entitled to be considered for treatment. Subject to the suggestions in the preceding paragraphs, we would leave intact the general right of a medical practitioner to accept or refuse any patient for treatment, to decide programs they are prepared to offer and diseases they are prepared to treat, and to conduct their practices as they see fit. Where a medical practitioner declines to treat a particular patient, the patient should be fully apprised of the reasons for that refusal. It may be that in the future IVF will be offered for reasons other than infertility in the female patient. If IVF is offered as a service to women rather than as a treatment for infertility different considerations may apply and anti-discrimination laws would be applicable.
III. ISSUES FOR REFORM
1. Should any restrictions be placed on the availability of IVF services?
2. If so, what form should the restriction take?
Footnotes
1. AI Discussion Paper, para 6.1
2. The polls were field in July 1981, February 1982, July 1982, April 1983, February 1984, June 1984, February 1986 and March 1987. See also para 4.6
3. Note 1 at para 6.2
4. See De Facto Relationships Act 1984; Children (Equality of Status) Act 1976; see also New South Wales Law Reform Commission De Facto Relationships (LRC 36, 1983).
5. In New South Wales, the Anti-Discrimination Act 1977.
6. Family Law Act 1975 (Cth); Adoption of Children Act 1965.
7. By virtue of its parens patriae power, the state has the ultimate authority to protect the interests of children.
8. Medical Practitioners Act 1938 s27(2)(c).
9. AI Report at para 6.6.
10. Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act 1982 (Can); Human Rights Code, 1981 (Ont). Australian legislation includes Anti-Discrimination Act 1977, Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Sex Discrimination Act 1975 (SA), Equal Opportunity Act 1977 (Vic) and Equal Opportunity (Discrimination Against Disabled Persons) Act 1982 (Vic).
11. AI Report at chs 3, 6.
12. Id at paras 3.4, 3.10-3.15.
13. Note 1 at para 6.14.
14. Ontario Report Vol II at 158.
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