I. INTRODUCTION

A. The Reference

1.1 On 5 October 1983 the then Attorney General, the Hon D P Landa, MP, referred to this Commission a number of matters that the Commission has collectively entitled Artificial Conception. The terms of reference are set out in the preliminary pages to this report.¹ The reference arose out of previous work done by the New South Wales Advisor; Committee on Human Artificial Insemination,² and the Commission decided to divide its subject matter into three parts:

• human artificial insemination;
• in vitro fertilization; and
• surrogate motherhood.³

1.2 The first project, human artificial insemination (AI), has been completed. The report Human Artificial Insemination ⁴ was presented to the Attorney General in June 1986 and was preceded by a substantial discussion paper published in December 1984.⁵ The report was published by the Commission with the consent of the Attorney General in July 1986 and tabled by him in Parliament on 28 May 1987. It was accompanied by draft legislation. The surrogate motherhood project is still in progress. In May 1987 the Commission published a research report on Australian public opinion on surrogate motherhood.⁶ A discussion paper on the matter is due to be released in late July 1988.

1.3 In July 1987 the Commission published a substantial discussion paper entitled In Vitro Fertilization.⁷ The paper provided background information relating to the medical practice of IVF, outlined legislative and non-legislative responses to IVF in Australia, reviewed the moral, ethical and social arguments for and against and presented in detail issues for law reform. The paper sought submissions from the public.

1.4 The Commission’s policy in the inquiry into in vitro fertilization has been to integrate three major events, namely publication of the discussion paper, the consultation period which was formally concluded by a public hearing and this report. Accordingly, there is extensive reference in this report to the IVF discussion paper and an attempt has been made to keep repetition of material to a minimum.

B. Principles of Reference

1.5 The principles on which the Commission has conducted the reference were settled in the report on Artificial Conception.⁸ Those principles continue to guide our work. They are:

• It is desirable, where possible, to alleviate the consequences of infertility through practices such as Al and IVF.
• The paramount consideration in the practice of AI and IVF shall be the welfare of the child.
• The formation of stable families is socially desirable and necessary.
• Personal freedom and individual autonomy should, so far as possible, be respected.⁹

C. Membership of the Commission

1.6 The members of the Artificial Conception Division of the New South Wales Law Reform Commission who have produced this report are:

• Ms Helen Gamble, Chairman of the Commission and Commissioner-in-charge of the Artificial Conception reference.
• Dr Susan Fleming, Obstetrician and Gynaecologist.
• Eva Learner, Social Worker.
• Mr Keith Mason QC, Solicitor General for New South Wales.

1.7 Mr Russell Scott resigned as Deputy Chairman of the Commission on 17 June 1989 in order to take up a consultancy in the private legal profession. He was Commissioner-in-charge of the Artificial Conception reference from its inception in October 1983 until the date of his resignation. He presided over the Human Artificial Insemination project (now completed) and had a considerable influence on the direction and content of the IVF project.

1.8 Mr Scott was a member of the Commission when most of the recommendations in this report were formulated. Where recommendations have been altered or added after Mr Scott’s departure, this is indicated in the report. Otherwise, the recommendations are reported as having come from the Division as it was constituted at 17 June 1988. As the writing of the this report had not been completed before Mr Scott left the Commission, the reasons given for the recommendations do not necessarily represent his views.

1.9 The Hon Justice Peter Nygh was a member of the Division until his resignation on 12 November 1986 upon his appointment as Chairman of the Family Law Council.

II. PUBLIC CONSULTATION

1.10 Copies of the IVF Discussion Paper were distributed in July 1987. A public hearing was conducted by the Commission at the Assembly Hall, University of Sydney Law School on 15 April 1988. The hearing was well publicized and attended by members of the public and interested groups. Twenty five oral submissions were delivered and a full transcript of the proceedings was made. The public hearing provided a forum in which members of the public could express views and make a direct contribution to the process of law reform. The Commission has carefully considered the views expressed both at the hearing and in the written submissions and is grateful for the efforts of and interest shown by those individuals and interested groups who made submissions.

III. THE RESEARCH PROGRAM

1.11 In formulating its opinions, the Commission has also sought to inform itself from several additional sources including:

• Literature Search: We have collected and examined a large amount of written material from Australian and overseas sources, ranging from scholarly and scientific publications to press reports which have been systematically accumulated and recorded. A select bibliography of this material appears in Appendix C.
• IVF Questionnaire: In order to obtain up-to-date information on the incidence and practice of IVF, the Commission distributed questionnaires to IVF clinics in both NSW and interstate.
• Observation Visits: Apart from the direct acquisition of Information by letter and telephone, we also visited a number of prominent IVF clinics and interviewed the principals and staff involved in the program.
• Examination of Existing Laws: We have collected Information about legislation on IVF enacted in Australia and overseas and have made comparative studies. This comparative work has also involved examination of reports the of a number of official and government Inquiries into IVF conducted in Australia, North America, Europe and the United Kingdom.

IV. THE PRACTICE OF IVF

1.12 In vitro fertilization is a medical procedure, whereby a human ovum is surgically recovered from a woman’s ovary and fertilized by human sperm in a laboratory dish. The resultant fertilized ovum is then transferred to the woman’s uterus in the expectation that it will thereafter implant and develop as in a normal pregnancy. The procedure and its techniques depend for success upon many factors including careful monitoring of the patient’s hormonal levels, and the timing both of the ovum removal and its transfer after fertilization.

1.13 The practice of IVF often involves a husband and wife supplying their own reproductive tissues. The fertilized ovum (embryo) will be transferred to the uterus of the wife in the expectation that she will become pregnant. Variations may occur such as the use of donated gametes or the involvement of unmarried couples or individuals.¹⁰ Recently techniques have been developed in which fertilized eggs or early embryos are transferred to the fallopian tubes instead of to the uterus. These procedures have been called ZIFT (zygoyte intra fallopian transfer), PROST (pro-nuclear stage ovum transfer), TEST (tubal embryo stage transfer) and FET (fallopian embryo transfer). A related technique, GIFT (gamete intra fallopian transfer) involves transfer of the gametes to the fallopian tube prior to fertilization. It is therefore different from IVF in that fertilization does not occur in vitro but similar in that it utilizes related technlogy.

1. Above xv-xvi.

2. See particularly NSW Advisory Committee on Human Artificial Insemination, Australian Attitudes to Human Artificial Insemination prepared by G Rawson (NSW Govt Printer 1984).

3. New South Wales Law Reform Commission Human Artificial Insemination: Discussion Paper 1. (DP 11 1984) at V.

4. New South Wales Law Reform Commission Human Artificial Insemination (LRC 49 1986).

5. New South Wales Law Reform Commission Human Artificial Insemination (DP 11 1984).

6. New South Wales Law Reform Commission Surrogate Motherhood: Australian Public Opinion (RR 2, 1987).

7. (DP 15 1987).

8. Note 4 at 18.

9. For fuller discussion see para 3.32 below.

10. For a more detailed account see Chapter 2, DP 15, 1987.