4.1 The question whether insemination of women by artificial means is acceptable to the New South Wales community is no longer in issue. The enactment in recent years of state and Commonwealth statutes clarifying the status of AI children carries an implicit acceptance of the practice of human artificial insemination.¹ In addition, the results of public surveys conducted by the New South Wales Advisory Committee on Human Artificial Insemination provide explicit support for the same conclusion.

4.2 The first question to be answered in this Report is whether the law should regulate AI at all. If AI is seen only as a treatment for the infertility of a couple there may be little justification for specific legal regulation. Seen in this way it could be classified as a proper subject of medical practice and hence would not require specific legal regulation any more than treatments for other conditions or diseases that are proper subjects of medical practice. However, in the Commission’s view AI should be seen primarily as a technological procedure for enabling a woman to become pregnant and providing her with a child.² Classification of AI as procedure for enabling a woman to have a child, raises the question of the welfare of the resulting child, which in turn justifies consideration of legal regulation of AI. Of course, AI may also be seen as a treatment for the infertility of a couple and a proper subject of medical practice. This was discussed in more detail in the Discussion Paper.³

4.3 Another more practical reason for our view that legal regulation of AI is justified, is that neither common law nor the existing statute law provides satisfactory answers to the questions raised by AI technology. As has already been discussed in Chapter 2 (paragraphs 2.1 and 2.2), unexpected and often unwanted results are likely to be caused by the application of traditional legal principles to the practice of AI. Direct legislative clarification is necessary, and has begun in Australia with the legislation referred to in paragraphs 2.6 to 2.14.

4.4 Neither AI itself nor its classification as a proper subject of medical practice calls, in the Commission’s view, for legislative restrictions on eligibility of women for treatment for infertility. On the other hand, it does not follow that a woman will have an entitlement or right to receive AI as part of the treatment. The normal right of a medical practitioner and a clinic to accept or refuse a patient should apply. We deal with the eligibility of patients in Chapter 6.

II. AI AS A PRACTICE AND AI AS AN ACT

4.5 In Australia, AI as a systematic procedure has been developed by the medical profession.⁴ AI as an act is easy to perform without medical management. However, the treatment of infertility in marriage usually requires medical knowledge and AI is now regarded as one aspect of such treatment, to be used in appropriate cases. We have reached the conclusion that AI may be accepted as a proper part of medical practice without the necessary consequence that it must always be seen as the practice of medicine.⁵

4.6 Our last-mentioned conclusion led us to distinguish AI carried out as a continuing practice from AI carried out as an act by private persons.⁶ We believe that in the former case the public interest calls for legal regulation. In the latter there is, in our opinion, insufficient reason in favour of regulation and good practical reasons against it. The lack of supporting reason may be illustrated by a number of propositions that are widely advocated, namely that neither the law nor the parliament should presume to regulate the private sexual behaviour of mature, competent persons, that the principles of personal freedom and autonomy should apply so far as possible, and that if a woman chooses or a man and a woman choose, to achieve pregnancy by AI that is no concern of the State. Any woman may achieve pregnancy by heterosexual intercourse in such manner as she decides, without legal restriction, and AI is not so different as to warrant legislative interference. The practical reasons against legal control of AI as an act are based on our view that it is unlikely to be effective. Regulation could not be policed or monitored and would be likely to be ignored, creating the risk of bringing the law into contempt. As mentioned earlier there should be limits to legal intervention in private human affairs.⁷ We therefore recommend that legal regulation of AI should apply when it is practised publicly or for reward or by a person who holds himself or herself out as prepared to perform it.

4.7 We further recommend that the practice of AI be restricted to registered medical practitioners. Such a restriction would not prevent the administration of AI by recognised institutions such as family planning centres and skilled persons such as qualified nurses, provided that professional medical control or supervision is present. This recommendation has two bases, both essentially practical. The first is that the public practice of AI in New South Wales has been carried on by the medical profession, and in the last decade has developed rapidly, in the main in specialised clinics in public hospitals.⁸ Our direct visits and inquiries have satisfied us that high professional standards are maintained by the clinics, that satisfactory success rates are achieved and that abnormality rates in resulting children are not higher (and may even be lower) than in children born as a result of normal sexual intercourse. Further, the surveys conducted for the Advisory Committee showed a high degree of public confidence in the public hospital system for the practice of AI.⁹ We believe that there is not another group in the community with the aggregation of skills and training that presently justify permission to practise AI.

4.8 The second liasis is that a regulatory system for AI, which envisages the practice outside the medical profession, would involve considerable expenditure of public money. It would be necessary to make provision for a separate scheme of licensing, and for inspection and supervision whereas the professionals who have developed AI to date are already controlled by legislation and by professional and ethical standards of behaviour.

III. SUMMARY OF RECOMMENDATIONS

(1) Legal regulation of AI should be imposed on persons (including institutions) who practise AI publicly or for reward or who hold themselves out as prepared to perform AI.

(2) The law should restrict the practice of AI to registered medical practitioners and institutions where AI will be under the responsible supervision of the medical profession.

1. See Artificial Conception Act 1984, Infertility (Medical Procedures) Act 1984 (Vic) and other legislation described in paras 2.6-2.13 above.

2. This opinion and statement is intended to be descriptive of the procedure and is not to be interpreted as a comment on the eligibility of a woman for treatment Eligibility is referred to in para 4.4 and dealt with in Ch 6 below.

3. Discussion Paper, paras 5.3,5.4.

4. Id, para 5.2.

5. Id, paras 5.3,5.4.

6. Id, paras 5.5-5.7.

7. Para 3.15 above.

8. Discussion Paper, paras 1.14, 2.4 and 2.5.

9. Advisory Committee Report at 42 (table 5.2).