Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Background Paper No. 06/1998 by Rachel Simpson
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- Interest in assisted reproductive technologies (ART) has grown
with events such as the birth of the cloned sheep Dolly (see Part 7, page 63)
and a court in Victoria allowing a doctor to remove sperm from a woman's
deceased husband for the purposes of artificial insemination (see Part 4.7,
page 32) ensuring the issues remain in the media. The NSW Health Department
produced a discussion paper in October 1997 which addressed the need for
legislation on the subject in NSW. The technologies available to infertile
couples are constantly increasing. From when the world's first IVF baby was
born in England in 1978, procedures such as Gamete IntraFallopian Transfer,
IntraCytoplasmic Sperm Injection and Cryopreservation of sperm, embryos and
ovum have become commonplace. It is estimated that approximately one per cent
of all live births in Australia are as a result of assisted reproductive
technologies. The technologies most commonly employed are discussed in Parts
3.1-3.9 (pp 4-10).
- There are many ethical questions surrounding assisted
reproductive technology. The most fundamental question concerns access to the
technology (Part 4.1, p 11). For example, in Victoria and Western Australia,
access is restricted to married or de facto heterosexual couples. In South
Australia, the legislation has not been interpreted so restrictively, enabling
single women and lesbian women who are medically infertile to gain access to
the technologies. Controversy centres around members of same sex couples,
single women and women who have passed their natural child-bearing age. Other
ethical issues include parentage of children born as a result of assisted
reproductive technologies, and consequent rights and responsibilities towards
the child (Part 4.2, p 16), record keeping and disclosure of identifying
information about donors (Part 4.3, p 18) and storage of embryos, eggs and
sperm (Part 4.4, p 26). Questions relating to embryo experimentation are
examined in Part 4.5 (p 28) and posthumous use in Part 4.7 (p 32). The issue of
the costs associated with assisted reproductive technology, and particularly
whether or not the community (Medicare) or individuals seeking treatment should
pay for the procedures is looked at in Part 4.6 (p 31). As an indication of the
costs involved, Schedule 2 contains a table of indicative costs of ART
procedures from one private Sydney clinic. The issues of surrogacy and human
cloning are particularly controversial, and are discussed in Parts 6 and 7 (pp
58 and 70).
- As in any area of rapidly developing technology, the law has
been slow in catching up with scientific developments. In Australia, Victoria,
Western Australia and South Australia are the only states which have legislated
in this area (Parts 5.2-5.4). The other states, including NSW, rely on a
combination of common law principles and the application of the National Health
and Medical Research Council Ethical Guidelines on Assisted Reproductive
Technologies (Part 5.1.2, p 38). These comprehensive guidelines do not have
the force of legislation, and a failure to comply with them will not result in
any penalty being imposed. In NSW, the Human Tissue Act 1983 also
applies (Part 5.1.1, p 36). This Act regulates the supply of semen by requiring
authorisation of businesses engaged in the collection and supply of semen, and
requiring certification from semen donors pertaining to the potential
contamination of the semen. The options for regulation are many, and vary
across the States as well as internationally. The most common approaches focus
on licensing practitioners and clinics, and the prohibition of certain
practices, such as mixing human and non-human gametes, surrogacy or human
cloning. A comparison of legislative and other regulation in all Australian
states is included in Part 5.5 (p 49). The regulatory schemes of the United
Kingdom, Canada, New Zealand and Spain are discussed in Part 5.6 (p 54).
