3.1 In Chapter 2 we noted the inability of the common law to deal adequately with the consequences of the development of new reproductive technology. The number of public Inquiries is evidence of the concern felt within our own and other communities about AI. Because AI is a means of human reproduction, attitudes to it are influenced by the moral, ethical and religious views of members of the community to sexual behaviour, family formation and the bearing and raising of children. Hence, the Commission believes that acceptance of its recommendations for law reform in this area will be governed to a significant extent by the acceptance and credibility of the principles underlying them. In this Chapter, we attempt to outline our main principles and indicate our answers to some frequent objections to AI.

3.2 An important factor to which the Commission has paid regard is public opinion. Because of the nature of AI and the depth of feeling it arouses in some sections of the community, the Commission felt that it had a duty to ascertain public opinion. In Chapter I we outlined measures we took to do this, including our program of public consultation and studying closely the Advisory Committee Report on attitudes to AID. However, the Commission’s recommendations are not intended to be an unqualified reflection of majority “public opinion”. Considerable differences of opinion exist within the community, and such differences were apparent in submissions made to us. The Commission has made recommendations that provide a balance between the often strongly-held views of individuals and groups within the community, within the framework of its own underlying principles.

3.3 The members of the Division bring with them a diversity of professional expertise and personal views, and like the members of the community from which they are drawn, have different views on some questions. As has been stated by the National Health and Medical Research Council:

Ethics as a subject is not an exact science; there are many issues to which the question “right or wrong?” cannot be given a simple answer; and there are some matters that cannot be settled by consensus. When a judgment is made that a procedure is ethically acceptable, that will often mean not that the procedure is clearly right, rather that it is ethically defensible but may still legitimately be controverted. Judgements in these matters must always permit dissent (and the exercise of conscientious objection); they are always subject to revision in the light of new evidence, further thought, or both.¹

II. DISCUSSION

A. Underlying Principles

3.4 In the course of making its recommendations, the Commission formulated some basic principles. These were as follows:

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

B. Acceptability of AI

3.5 While accepting that some individuals and families will choose to live a life without children, the majority of women have children at some stage in their reproductive lives. In the 1981 Census, at least 64 per cent of women 15 years or over in New South Wales had children.² To be thwarted in this choice by involuntary infertility is a cause of great distress to many people. Further it is generally considered in our community that people should be able to control their own fertility. We do not address the vexed question of the manner or extent of exercising this control. However, the ability where possible, to alleviate infertility or its consequences would seem to be a necessary corollary to this premise. The social desirability of the alleviation and the prevention of involuntary infertility also relates to the special value attributed to children. Community opinions, as ascertained in the Advisory Committee Report, indicate a wide acceptance of the availability of AI, at least to certain groups. For example, the approval rate of AID for helping married couples who cannot have children because of the husband’s infertility was 70 per cent while disapproval was 17 per cent.³ There was no significant variation in male and female responses. In the survey of Opinion Leaders the overall approval rate was 60 per cent and disapproval 29 per cent.⁴

C. Some Objections to AI

3.6 As we have already indicated, there is widespread community approval of AI as a means of alleviating the consequences of involuntary infertility. Nevertheless, a number of objections or concerns about the practice of AI have been raised in submissions to us and elsewhere. We address some of these briefly here.

3.7 AI improperly separates human procreation from bodily sexual love.⁵ In the typical case, the couple seeking to have a child cannot achieve pregnancy through normal sexual intercourse. AI is not performed to replace the sexual act but to give couples, whose normal sexual activity does not result in conception, another means whereby the woman may achieve pregnancy and bear a child.

3.8 The intrusion of technology into the creation of a human life is unnatural and therefore wrong.⁶ Every medical intervention could be described as unnatural because it interferes with the natural course of disease or disability. Few people would limit or even question the obligation of medical practitioners to treat properly any disease or health abnormality by such means as are available and approved by the patient, including technological treatments. On the basis that infertility is a defect in the reproductive process, the use of technology to treat the defect is acceptable. It is also necessary to note that the labelling of actions as “natural” or “unnatural” frequently proceeds from some fundamental moral or religious belief held by the person making the description and, as such, may not be acceptable to others. AI is arguably a more “natural” form of reproduction than some other means of artificial conception. The physical procedure of AI, unlike IVF, bears comparison with reproduction by sexual intercourse. Indeed, in the past, some United States courts held AID to be adultery.⁷ The semen is placed in a similar location to that occurring in normal sexual intercourse, and if conception results, it does so as it would have done with such intercourse.

3.9 AI involves a waste of public funds. Proponents of this view often say that funds should be diverted to ascertaining the causes of infertility and treating them, rather than in practising AI. While the investigation of the causes of infertility is an important matter, it will not alleviate the involuntary infertility of couples in the interim, nor will it assist those whose infertility could have been prevented but was not. The allocation of resources between one area of health research and practice and another is a matter of balancing many factors and, in the end, applying value judgments. We have received no indication that public moneys directed to AI are excessive or misdirected or that the money involved would produce better results for those currently suffering from involuntary infertility if it were spent elsewhere.⁸

D. The Paramount Welfare of the Child and Family Formation

3.10 The laws of New South Wales and Australia have long reflected a commitment to the principle that the welfare of children should be the first and paramount consideration in relation to legal questions concerning their upbringing, custody and property. Statutory expressions of this principle, which comes from Australia’s British legal heritage, may be found in family law and adoption legislation.⁹ The interpretation of the principle has changed as notions of parenthood have changed. In the past, family law courts tended to accept the proposition that, up to a certain age, children automatically needed their mother’s care rather than that of their father. The custody of children of tender years was therefore normally given to the mother. As the rigid roles previously assigned by society to mothers and fathers have become more flexible, and it has been acknowledged in principle that each parent, and indeed others, could reasonably be entrusted with a child’s upbringing, this practice is no longer so strictly followed.

3.11 Interpretation of the principle will undoubtedly continue to reflect social changes. However, this does not detract from the principle itself. Whatever may be the best understanding of the welfare of the child at a particular time and in a particular case, may be given effect by appropriate laws relating to children, including those born as a result of AI.¹⁰

3.12 Traditionally, a precursor to the birth of children has been the formation of a new family unit, either within an extended family group or as a separate “nuclear family”. In Western society (and others) this new family formation is symbolise(i by the marriage of a man and a woman. The act of marriage itself has been considered by the community as an indicator of an intention to form a permanent, stable relationship, within which children can be cared for and grow. However, there have always been other types of households and families. It may be said that the birth of a child is itself the creation of a family, even if there is no other person than the mother concerned in its upbringing.

3.13 Stable family formation whether in marriage, a de facto relationship, an extended family or some other household has generally been considered by the community as necessary to provide a child with the best conditions in which to grow up. Even with divorce and family breakdown the law attempts to foster continuity and security in the child’s life through stable custody arrangements. It is therefore appropriate that the Commission pay due regard to the desirable goal of stable family formation and encourage this so far as possible. It is, however, equally important that the Commission’s recommendation acknowledge the reality of modern family life in Australia. There are diverse kinds of households bringing up children currently in Australia. This is partly a result of family change and reformation, partly from the growing diversity of the Australian population because of cultural, racial and religious differences, and partly because of increased tolerance within the Community.

3.14 For example, single parent families and de facto relationships are not only established features of the Australian community today but have achieved recognition and acceptance by the community and by legislatures. Social welfare support is available to single parents with children, and the New South Wales parliament has recently enacted extensive legislation regulating de facto relationships¹¹ pursuant to this Commission’s Report on De Facto Relationships of 1983.¹² It is also significant that current birth statistics show that 27.5 per cent of children born in Australia to women under 25 are ex-nuptial.¹³ The Commission’s recommendations which are designed to reflect the importance of stable family formation also attempt to accommodate this diversity.

E. Personal Freedom and Individual Autonomy

3.15 There are and should be limits to the law’s intervention in human affairs. This is a simple recognition of the extent of the cultural, social and religious differences of individuals, the need to respect personal liberty and the impossibility of the State completely controlling private human conduct. Whilst people may debate the extent to which the law should enforce morality, it is we believe generally accepted that some areas must be left to private conscience not only as a matter of principle but in order to prevent the law falling into disrepute because of the impossibility of its enforcement.

1. R P S Jansen and J D McCaughey, “A Background Paper on In Vitro Fertilization and Embryo Transfer” in National Health and Medical Research Council, Ethics In Medical Research (October 1982) at 31.

2. A significant proportion (11 per cent) of women 15 years or over did not reply to this question. The figure of 64 per cent may therefore be an under-estimate: Australian Bureau of Statistics, Cross-Classified Characteristics of Persons and Dwellings 1981 (ABS Cat No 2444.0) at 104-106 (table 63). At least 79 per cent of women aged 45 or more had children at the date of the Census.

3. Advisory Committee Report at 9 (table 2. 1).

4. Id at 13 (table 2.1 1).

5. Note 1 at 32.

6. Ibid.

7. See eg Doornbos v Doornbos 23 USLW 2303 (Super Ct I1 1 1954). An appeal was taken but dismissed in an appellate court (1956) 12 III App 2d 473; 139 NE 2d 844. See also the Canadian case of Orford v Orford (1921) 58 DLR 251; Lord Dunedin’s comments that “fecundation ab extra..... is adultery” in Russell v Russell [1924] AC 687 at 721.

8. For a general discussion on allocation of medical resources see W Walters and P Singer (eds), Test Tube Babies (1982) at 134-137.

9. See eg Family Law Act 1975 (Cth) s64 and Adoption of Children Act 1965 s 1 7. For references to judicial expressions of the principle see sources cited in Halsbury’s Laws of England (4th ed) Vol 24, paras 511, 520 and 534.

10. CommissionerEvaLearnerhaspreparedthefollowingobservationsonthissubject:

(i) Currently, the principle that the child’s interests are to be protected and promoted is widely accepted. That principle is of comparatively recent origin, having been introduced in the late 19th and early 20th Centuries, displacing an earlier proposition that legitimate children were the sole responsibility of their fathers and illegitimate children the responsibility of their mothers.

(ii) Certain abuses of children were proscribed and became the subject of statutory prohibition in England under the Offences Against The Person Act 1861.

(iii) As late as the middle of the 20th Century the prevailing view was that men were incapable of rearing young children. However, experience has shown that there are circumstances in which men can satisfactorily rear young children with assistance from family, friends and the welfare system.

(iv) The interests of the child cannot be disassociated entirely from the interests of those who beget and nurture the child. In a situation where these interests conflict, protection of the child’s interests must be given priority.

11. De Facto Relationships Act 1984, proclaimed 1 July 1985.

12. LRC 36, 1983.

13. Australian Bureau of Statistics, Australia’s Youth Population 1984 (ABS Cat No 4111.0) at 15 (table 1.13).