I. INTRODUCTION

7.1 Our inquiries of IVF clinics within New South Wales and interstate disclosed that about one-half of the clinics practise IVF using donated ova or fertilized ova in suitable cases, and a similar proportion of clinics use freezing technology.¹ Nonetheless, the incidence of IVF pregnancies following use of “donor gametes”, “donor embryos”, or “frozen embryos” is small. Of 1510 IVF pregnancies occurring in Australia and New Zealand during the years 1979 to 1985, five pregnancies involved the use of donor ova, one pregnancy involved the use of a donor embryo and 18 pregnancies the use of frozen and thawed embryos. The use of donor sperm was more frequent, being involved in 97 of the pregnancies achieved.² However, as the technology develops, it is likely that more use will be made of donated and stored reproductive tissues.

7.2 While the use of donated and stored gametes or embryos is of little statistical significance in the context of the current overall practice of IVF, the social and legal consequences of such use are considerable. In this Chapter, these consequences will be examined.

II. MATERNITY, PATERNITY AND REGISTRATION OF BIRTH

7.3 In Chapter 3, we discussed some of the legal problems that can arise in relation to maternity and paternity of IVF children when donated gametes are used. To reiterate, under recently-enacted legislation in New South Wales a child born to a “married” woman³ following IVF with donor sperm, although not genetically the child of the woman’s husband, is presumed to be his child if the procedure was carried out with his consent.⁴ No legislative equivalent exists in New South Wales in relation to maternity when donor ova are used in a procedure of IVF, although this has been the subject of recent legislation in all other Australian states and territories except Queensland.

7.4 It is therefore not clear who is the mother of a child born following IVF with a donor ovum. Statutory resolution of the question will depend on policy considerations. If it is considered that the genetic link should be determinative, then the ovum donor will be regarded as the legal mother. At common law, the genetic link was vital for paternity⁵ but until the advent of IVF, maternity necessarily involved gestation. It is possible that the courts would consider the woman who gives birth to a child to be the mother as is the case under the Australian legislation mentioned above. On the other hand, if the ovum donor was considered the legal mother, then the gestational mother would have to adopt the child to become its legal mother.⁶

7.5 The Artificial Conception Act 1984 and concomitant legislation in other Australian jurisdictions provide that a sperm donor has no legal relationship to a resulting child, and the (consenting) social father is presumed to be the child’s legal father. In the interests of the child, the relationship with social parents is regularized and the sperm donor, who is a stranger to the family relationship, is expressly excluded from parental rights or duties.

7.6 We believe that legislation should remove any uncertainty about maternity. A woman who bears a child by means of artificial conception and who intends to raise the child should be conclusively presumed to be the mother. This result would be consistent with the resolution of the paternity issue. It would also be consistent with the “status” legislation existing in other Australian jurisdictions.

7.7 The names of the persons presumed by law to be the parents would then be recorded in the Register of Births, Deaths and Marriages. The suggestion has been made that official birth records should also refer to biological or genetic parents.⁷ However, we noted in our Report Human Artificial Insemination, the birth register is not, nor is it intended to be, necessarily a source of biologically or genetically accurate information. This is demonstrated by the fact that over the years, the births of large numbers of children have been officially registered “without paternity”, and by the existence of a general legal presumption that a child born to a married woman is the child of her husband.⁸

III. INHERITANCE AND SUCCESSION

A. Introduction

7.8 The law has traditionally assumed that no man’s child can be born more than nine to ten months after his death,⁹ and that no woman’s child can be born after her death. The development of cryopreservation techniques in relation to IVF means that stored gametes and conceptuses can be used to create a pregnancy at any time in the future, even after the man and woman who provided the gametes are dead. This raises complex problems for the law of inheritance and succession.

B. Posthumous Use of Stored Gametes

7.9 In our Report Human Artificial Insemination, we dealt with the question of the posthumous use of a man’s semen to inseminate his widow. In this exceptional case, we recommended that the deceased husband be recognised as the father of the child born as a result of the procedure, provided his widow remains unmarried at the time of insemination and birth.¹⁰ A majority of the Commissioners decided that such a child should have a right to make a claim upon the father’s estate under the Family Provision Act 1982. Two Commissioners dissented. On the other hand it was decided unanimously that, in view of the practical difficulties in administration of estates, the child should not be regarded as the child of the father for the purposes of inheritance or succession to property except to the extent that the father has made specific provision in his will.

7.10 The posthumous use of a woman’s stored ovum for reproduction is not equivalent to posthumous use of sperm, since the widower would need to seek the services of a surrogate to give birth to his dead wife’s baby. Such a case need not be dealt with here, but will fall within the ambit of our project on surrogate motherhood.

C. Posthumous Use of Stored Embryos

7.11 In the case of a frozen and stored conceptus, how should the law interpret the will of the man who supplied the sperm or the woman who supplied the ovum, if the will leaves property to “my children” or to “the heirs of my body”? Alternatively, if the man or woman dies intestate (that is, without leaving a will) would the stored conceptus be considered a “child” of the genetic parents for the purposes of inheritance under the Wills, Probate and Administration Act 1898?

7.12 In the first case described in the preceding paragraph, the law has traditionally held that a child in its mother’s womb at the date of death of a testator could benefit from a gift to the testator’s “children”. In other words, in order to benefit from a gift to “my children”, it was not necessary for a child to have been born, but merely conceived. Perhaps a stored conceptus, on such terms, could be considered a child of the deceased man or woman. If so, the estate of the testator or testatrix could not be fully distributed while any stored conceptus remained in storage, until the expiry of the statutory perpetuity period of 80 years.¹¹

7.13 In the second case in paragaph 7.11, the Wills, Probate and Administration Act 1898 provides that a reference to a “child” living at the date of the death of the intestate includes reference to any child or issue “who has been conceived and not born at that date but who is subsequently born alive.”¹² In common parlance, “conception” refers to the act of becoming pregnant, and on this basis an IVF child would not be “conceived” until implantation has occurred in the womb. However, it is arguable that “conception” may refer to the completion of fertilization¹³ in which case the IVF embryo has already been “conceived”, and if subsequently born alive, is eligible to share in the estate of the deceased parent under the rules of distribution on intestacy.

7.14 In view of the Legal uncertainty it would be desirable for a testator or testatrix to consider making direct testamentary reference to stored conceptuses. It would seem reasonable for the law to provide that a stored conceptus should not be regarded as the child of a testator or testatrix for the purposes of inheritance unless specific provision about it is made in a will. Another alternative would be for the law to exclude completely from inheritance a child born from a concepts that was stored at the date of death of either of its parents.

7.15 Whether or not it is decided that the child born from a stored conceptus can share in a deceased estate under ordinary principles of inheritance, it would be possible to allow, as the majority in our report Human Artificial Insemination recommended, that the child born to a widow of a deceased husband could bring a claim upon the husband’s estate under the Family Provision Act 1982. One difficulty with this approach is that it is not equally applicable when it is the female “parent” who has died. The fact that a surrogate must be employed to bear the “child” of the deceased wife adds even more complications, and legislation to resolve the issue could be considered unwarranted because of the rarity of the circumstances.

IV. DOMINION, OWNERSHIP AND CONTROL

A. Property in Human Tissue

7.16 As we mentioned earlier, the law does not recognise general property rights in human bodies and human tissues (see Chapter 3). Control of human tissues remains with the possessor, and once tissues or organs are removed from a person, that person has no legal right of ownership or recovery over them.¹⁴

B. Control or Dominion Over Human Tissue

7.17 In a typical IVF procedure, the woman is it “super-ovulated” and may produce more ova than should be replaced on a single ET. The excess ova may be frozen (or fertilized and frozen) and stored. At common law, the woman and her partner (if any) have no rights of property or ownership over the ova or conceptuses. Theoretically, a clinic would not be obliged to keep ova or embryos for a particular couple, but could use them for research purposes in the absence of legislation on the subject or donate them to another couple. It may be that, in the event of a dispute, the courts would recognize an implicit agreement between the couple and the clinic that the gametes be kept for the couple’s own use. However, this could not be predicted with confidence and we believe that legal regulation is desirable.

7.18 In our report Human Artificial Insemination we expressed the opinion that if a man donates semen unconditionally for use in AID, there is no basis for him to assert control over its subsequent use.¹⁵ We recommended the enactment of legislation to the effect that the clinic should have the power to determine use, storage and disposal of semen donated to it for AID.¹⁶ We see no reason for distinguishing between an unconditional semen donation and an unconditional ovum donation. However, this would not alter the fact that a woman, or a man and a woman, should be free to make an agreement setting out the terms applicable to their gamete donation, and they should also be free to make an agreement for the storage of their gametes for their own subsequent use.

C. Storage and Disposal of Gametes

7.19 Whatever the initial purpose of storage, the question arises whether there should be some specific limits upon the period of storage and some provision made for disposal of the stored tissues in the event of the closure of the storage facility or the death, divorce or disagreement of the couple who put their gametes into storage.

7.20 How should these matters be regulated? Should they be left to agreement between the storage provider and the other parties? Should there be overriding time limits and overriding powers on the part of the storage Organisation in the event of death or disagreement? The national guidelines of the NHMRC addressed these problems,¹⁷ as did the United Kingdom Report,¹⁸ by fixing time limits and the power to bring storage to an end on the part of the storage Organisation.

7.21 Our view is that rules should be created that will enable dominion to be exercised and storage to be brought to an end when it is sensible to do so. It would be undesirable for such matters to remain incapable of reasonably prompt resolution. We see no reason to set a limit upon the period of storage. At the same time, a clinic should not be obliged to store gametes indefinitely.

7.22 Our tentative conclusion is that the clinic should have power to discontinue storage of gametes which have been donated unconditionally, and dispose of them if it so decides. Where an agreement has been made regulating the terms under which the gametes are to be stored, then, subject to the terms of the agreement, the clinic should be obliged to contact the depositor and provide a reasonable opportunity for alternative arrangements to be made. If the depositor dies or cannot be traced, the clinic should have power to dispose of the gametes but in all cases the clinic should be obliged to treat the gametes with efficiency and respect.

D. Storage and Disposal of Conceptuses

7.23 Some different considerations apply in relation to the storage and disposal of IVF conceptuses. Whereas a “gamete producer” might be expected to make decisions relating to his or her own gametes, the matter of legal control of an IVF conceptus is complicated by the fact that the conceptus is genetically different from the sperm and ovum used to produce it. Who should have power to make decisions about continued storage and disposal of the conceptus in the event of disagreement between the couple who produced the gametes? Perhaps in such a situation the right to determine use and disposal should pass to the storage facility. This was the view of the United Kingdom Committee,¹⁹ and was adopted by the Ontario Law Reform Commission.²⁰ It was also recommended by the United Kingdom Committee that on the death of one member of the couple, the right to decide use and disposal of a conceptus stored by that couple should pass to the survivor.

7.24A further question is whether there should be time limits on storage of conceptuses. The United Kingdom Committee suggested a time limit

... both because of the current ignorance of the possible effects of long storage and because of the legal and ethical complications that might arise over disposal of embryos whose parents have died or divorced ... ²¹

... account should be taken both of the wishes of the donors and of a set upper limit, which would be of the order of ten years, but which should not be beyond the time of conventional reproductive need or competence of the female donor.²⁴

(a) of the dead “father” for the purposes of inheritance of the “father’s” estate?
(b) of the dead “mother” for the purposes of inheritance of the “mother’s” estate?

(a) the dead “father’s” estate?
(b) the dead “mother’s” estate?

(i) gametes?
(ii) conceptuses?

(i) the two “gamete producers” disagree?
(ii) one of the couple dies?
(iii) both members of the couple die?