A. Semen Shortage

5.1 In the Discussion Paper we drew attention to the fact that shortage of semen is a feature of AID practice in New South Wales.¹ This traditional problem became much more serious during 1985 following official action taken to deal with the epidemic disease known as “acquired immune deficiency syndrome” or “AIDS”.

5.2 Details of the official action taken will be discussed later in this Chapter (paragraphs 5.16-5.18). In summary, new legislation in New South Wales, the Human Tissue (Amendment) Act 1985, forbids a person to donate semen for an AID program unless he has first made a prescribed declaration in writing. The declaration provides the AID program with a quantity of personal information concerning the donor. AI clinics will carry out screening and testing procedures at the time of semen donation and if the semen appears not to be “healthy” will reject it. However, even if the semen appears to be “healthy” it will be frozen and stored and will not be used immediately in a program. This is because the blood of a person exposed to the AIDS virus will not show a positive antibody response using current scientific tests until enough time has passed from exposure to the virus for antibody development. The antibody test of a recently-infected person whose semen was collected shortly after exposure to the virus could be negative.² Generally after the expiry of not less than three months from the time of semen donation a donor will return to a clinic for further blood testing. If this proves to be “AIDS negative”, the semen taken at least three months earlier may safely be used. These requirements and procedures are likely to reduce the quantity of semen that is available and suitable for use for AID. We understand that this has in fact happened, and that at present the shortage in New South Wales is acute.

B. Methods of Recruitment

5.3 The existence of acute shortage following years of chronic shortage of semen makes this a suitable time to review the methods of recruitment of semen donors in New South Wales. If semen donation is to be encouraged, changes in the methods of recruitment may be needed.

5.4 Our investigations in New South Wales have shown that semen donors are actively sought by AI clinics, and are usually carefully and thoroughly interviewed before acceptance. With some clinics, notably those in public hospitals, donors are normally medical students working in the Obstetrics and Gynaecology department of the hospital for one year of their studies. The main categories of semen donors according to our information are:

• medical students and hospital workers;
• husbands of gynaccology or obstetrics patients who have been successfully treated for other problems; and
• persons responding to advertisements or appeals in the press, the clinic or institution itself or to word-of-mouth request.³

No reliable records are available, but our information suggests that the first category provides the majority of donors. Donations by persons in those categories tend to follow direct, informal oral requests by clinic personnel. This method of recruitment appears to us to be ill-suited to cope with the more formal, lengthy and complex procedures required directly and indirectly by the new legislation. However, not all clinics experience acute shortage. Some appear to have been able to devise systems and procedures that continue to satisfy their demand for suitable semen.⁴

C. A New Approach to Recruitment

5.5 Speaking generally, what should be done in order to obtain suitable semen in greater quantities? One answer is that the net should be more broadly and more systematically cast and that a much wider public or segment of the public be approached. We have been advised by Dr Bridgett Mason of London, a recognised expert in AI, that in France approximately one-third of’ all donors are actively recruited by the couples receiving AID treatment and their friends and relatives, that one-third are pre-vasectomy patients who are approached before sterilization, and that donors are, as a general rule, married men of proven fertility.⁵ Regulation of AID through an organization known as the Centre d’etude et de conservation du sperrrie hurriaine (CECOS), requires that clinics use as donors only married men having at least one healthy child.⁶

5.6 It has been suggested to us that a substantial supply of’ suitable semen donors is to be found among the husbands and partners of female patients under treatment for infertility. Such patients may be more likely to sympathise with the plight of women Suitable for AID and may be prepared to encourage their husbands to become donors. We are aware that one clinic has obtained many donors in this fashion over a long time. On the other hand, another clinic expressed strong reservations, stating that undesirable pressure could be placed on patients and the impression given that treatment for infertility is conditional upon semen donation by husband or partner. It is apparent that much would depend on the timing and method of making a request. It should not be difficult to make the request in such a way as to preclude any suggestion of pressure. for example, in a pamphlet handed to the patient. Alternatively, the request could be made long after treatment began or even at or near its termination.

5.7 Another proposal that uses a wider community approach has been suggested by the Director of the AID clinic of the Royal Newcastle Hospital, Dr Max Brinsmead. This involves placing a large advertisement in a number of popular publications such as New Parent and Parent and Children Magazine. The advertisement could highlight the need for semen donors⁷ and draw attention to the protective provisions of the new “status” legislation.⁸

5.8 We approve of any procedure that places the question squarely before the community. In our opinion such an approach carries the possibility of reflecting in due course the community’s willingness or unwillingness to participate in AID both in numbers of donors and in the quantity of semen to be made available. If potential donors could be reached and could make donations with proper knowledge of the consequences (legal and otherwise) the acquisition of semen for AID could become an acceptable and recognised step in public health procedures, comparable in some respects with blood donation and the donation of other tissues, including organs.

D. The Value of Semen Donation

5.9 In view of the widespread community acceptance of AID, the Commission believes that semen donation for AID should be regarded by the law in New South Wales as acceptable and as offering real benefits to infertile couples. We believe that the donation of semen for the purpose of assisting infertile couples to have children may be considered an act of significant social value.⁹ It follows that we approve of procedures designed to obtain an adequate supply of semen, which are well organised, frank and directed to potential donors who are likely to understand not only the benefit that their donation can confer, but the reasons for caution that may be exhibited on the part of the clinic and the inconvenience they may experience under current legal regulations. Unless some recognition of the social value of semen donation is extended to a semen donor we can see little under present conditions that will balance the inconvenience and sanctions that he must accept. We recommend that procedures and approaches to semen collection and donation referred to above should be developed and should receive official encouragement.

II. SCREENING

A. The Purpose of Screening Donors

5.10 Why should the law impose regulation on semen donors and their semen? Before answering this question it is relevant to consider the following:

• Any disease or defect that can be transmitted by artificially placed semen can be transmitted by sexual intercourse.
• The law does not presume to regulate sexual intercourse between mentally competent and consenting men and women.

Despite these considerations we believe that the recipient of AID and the resulting child should be protected from avoidable disease and harm that could be caused by diseased or defective semen. This justifies regulation.

5.11 Assuming the AID recipient to be entitled to protection from the possibility of receiving diseased semen or chromosomally defective sperm that might transmit a hereditary disease,¹⁰ how much protection should be given, and to what extent should the law be involved? We believe that the AID patient who deals with a medical practitioner has a measure of “built in” protection arising from the duty of’ care that the common law imposes upon the practitioner¹¹ as well as the statutory controls and professional standards that apply to the practice of medicine in New South Wales.¹² In addition, we believe that an AID patient and her husband should take some initiative to acquire enough information about the normal possibilities and risks of the treatment to enable them to make a careful and responsible decision. However, there still remain the procedures of screening including taking a medical history of the donor, interviews, physical examination and other steps that should be taken under the heading of “good practice”.

5.12 The Commission recommends that the medical profession in New South Wales should prescribe standard guidelines or rules for the selection and screening of semen donors for AI programs. Uniformity of such guidelines and rules throughout Australia is desirable. In our view, legislation and legal regulation are not justified to prescribe those guidelines for the following reasons:

• Medical judgment would be replaced by legal rigidity. Thus, if medical practice changed or technical advances were introduced, existing criteria could become outmoded with the result that the law should be changed. However, there can be no guarantee that statutes or regulations will be amended as needed, or at all. The result could be that obsolete procedures would remain compulsory.
• New South Wales clinics do not all follow identical procedures or use identical criteria for donor selection. Some are more concerned than others to “match” physical and other characteristics of donor and recipient couple. Some are little concerned about a donor’s social or emotional background. Others collect detailed particulars such as schooling, artistic interests, sporting activities and intelligence. A;; seem agreed on the need to record basic physical detail such as height, weight, complexion, hair and eye colour, and racial origin. Again, some recipients have strong requirements related to religion, nationality and other matters which a clinic will wish to satisfy, if possible. There appears to be general agreement that some basic matching is necessary, but opinions on the extent of matching vary widely.¹³ In our view, there is no useful role for the law to play on this subject.
• Without exception, the AID practitioners and clinics in New South Wales with whom we have communicated follow the practice of taking a thorough personal and family medical history of donors by direct interview. The experienced practitioner is able, from the above, to acquire much of the information needed to decide on a donor’s suitability. If the medical history indicates a risk of inherited defects by reason of personal or family illness or disease, the donor may be rejected at that stage. Sometimes further testing is carried out, and the decision whether to use the donor’s semen postponed.

5.13 At this point we should refer to the fact that semen is capable of transmitting many diseases and defects. These include venereal or sexually transmitted diseases (STD), hepatitis, allergies, inherited disorders such as cystic fibrosis, haemophilia and Huntington’s disease, and those diseases that afflict particular social groups such as thalassaemia, sickle cell anaemia and Tay-Sachs disease. It has been written that every human being carries “single..... genes for 5 or 10 different serious recessively inherited conditions”.¹⁴ That fact alone suggests that it would not be surprising if substantial numbers of defective children were born as a result of normal sexual intercourse, but this does not happen.¹⁵ The incidence of abnormality and disease in children at birth is low¹⁶ and our community has never regarded it as necessary for citizens to undergo health testing as a condition of marriage or procreation. In view of these matters and in the light of the practices described in paragraph 5.12, we have concluded that, subject to the discussion in the succeeding paragraphs, established medical procedures now used in New South Wales to recruit and screen semen donors offer enough protection to outweigh the benefits and detriments that could flow from statutory prescription of procedures.

B. Transmission of Disease or Defect by Semen

5.14 There are two circumstances in which established medical procedures are not, in our opinion, able to give protection to the AID recipient and her child from avoidable disease. The first is the case of the semen donor who deliberately or negligently provides false or misleading information about his health. The second is the case where a semen donor is unaware that he carries a particular disease or defect that can be transmitted through his semen, where there exists no established procedure that will disclose its existence and where there is no reason to cause an experienced medical interviewer to have reservations. In each case the question arises whether the law should provide specific regulation. In the Discussion Paper we expressed the opinion that the likelihood of a donor deliberately or negligently providing false information should not be overstated.¹⁷ Other reason was (and is) that under New South Wales procedures, donors have no real financial incentive to give semen, no other material advantage accrues to them, and the interviewing doctor usually has a strong chance of discovering unsuitability during the personal history interview. Even so, we came to the conclusion that a basis existed for the creation of a specific statutory criminal offence for the supply of false or misleading information.¹⁸ The reason for our conclusion was our belief that, the recipient and any resulting child should have legal protection. Since that time legislation creating such an offence and offering other protection has been enacted in New South Wales following widespread public concern about the disease called AIDS.¹⁹

5.15 In the second case a donor may be unaware that he carries a disease or defect capable of transmission by his semen, no test will disclose its presence, and the “interviewer’s is not likely to be alerted when taking the medical history. It may be thought that such cases would be rare, and we agree that they would be. By way of example, it is possible that a person who has been orphaned or adopted could be ignorant of a personal family history that will result in Huntington’s disease. There is also the possibility that the sperm of a donor with a recessive gene could unwittingly be used to inseminate a woman with a similar recessive gene, resulting in a child with a condition such as phenylketonuria or cystic fibrosis. However, the same possibility attends reproduction by sexual intercourse and we have already alluded to the favourable comparison between abnormality rates in children born following that normal activity and those born following AID. It is for this reason, in our opinion, that legal regulation has not been considered to be required to deal with such rare cases. However, the appearance of the AIDS epidemic in Australia has given this kind of case a different dimension in the public mind. Despite the low per capita incidence of AIDS, public and official concern forced the urgent enactment in 1984 and 1985 of legislation directed specifically to the reduction of public health risks from the donation of semen and blood.²⁰ The legislation compels every donor of semen, under pain of criminal penalties, to give careful thought to his personal behaviour and health, and that of his spouse and all sexual partners, over the preceding five years. The donor must provide a written certificate on the subject, and faces a heavy fine, or gaol or both if he knowingly signs a certificate that contains a false or misleading statement of a material kind.

C. Acquired Immune Deficiency Syndrome (AIDS)

5.16 Our understanding of AIDS disease is that the first case in Australia was positively identified in 1983.²¹ Since then it has increased rapidly in incidence and at the time of writing the number of persons diagnosed as having the syndrome is over 100. The number of persons estimated to carry AIDS antibodies is substantial, and at least one study has suggested that in Sydney there could be up to 50,000 homosexual male carriers of the AIDS virus.²² It is believed that the principal means of spreading the AIDS virus in Western countries to date has been, and remains, male homosexual “high risk” practices.²³ Transmission through sexual contact is predominantly genital.²⁴ Other substantial means of transmission have been blood transfusion with infected blood and blood products, and the sharing of contaminated needles by intravenous drug users.²⁵

5.17 In our Discussion Paper we suggested the creation of a statutory offence for semen donors deliberately giving false information or concealing information about their health and possibly causing a diseased or defective child to be born.²⁶ At the same time a great deal of attention was given nationally in Australia to the spread of AIDS. Federal and State parliaments acted rapidly in response to public concern, setting up official committees, creating guidelines and enacting legislation.²⁷ The New South Wales parliament enacted the Human Tissue (Amendment) Act 1985 in May 1985, specifically to deal with AIDS. The Act was proclaimed to commence on 19 July 1985 and regulations for its practical application were gazetted to commence on the same day. The penalties for the knowing supply of false or misleading information are substantial.

5.18 The question arises whether there should be wider application of this new offence, so that criminal sanctions would apply to the provision of false or misleading information by a donor in relation to his health or personal particulars generally and not just to those relevant to AIDS. We believe that there should be a wider application so as to afford the kind of protection to the AID recipient and child mentioned earlier. We are of the view that a provision of the kind appearing in the Victorian legislation²⁸ would be desirable and would achieve our objective. We do not, however, wish to pre-empt the draftsman’s discretion. Our reference to the Victorian legislation is made because it addresses the subject of semen donation for AI. We have also studied the Human Tissue Act 1983 and find the scheme of sections 21C and 21D to be both relevant and clear. We recommend the creation of a specific statutory offence for the supply by a semen donor of false or misleading personal information when providing medical or other personal particulars. Such a step would create uniformity of law between New South Wales and Victoria both on the general subject of the transmission of disease and defect through donated semen and on the specific subject of AIDS. Our principal concern on this subject is to ensure, if possible, that the truth about a semen donor’s health is obtained at. donation rather than to place emphasis on punishment after the damage has been done. We therefore recommend that a warning which directs the donor’s attention to the fact that statutory penalties are provided for the supply of false information when giving personal particulars, be placed at the head of the certificate to be signed by semen donors under section 21C of the Human Tissue Act 1983.

III. SOME RELATED QUESTIONS

5.19 There are a number of questions that have been asked in relation to semen donation to which our answer is that legislative intervention is not justifiable. We believe that the answers should be given by the particular clinic as cases arise. The questions are:

(1) Should the law require that donors of semen be proven fathers of healthy children? While this qualification for donors would be both welcome and comforting to clinics and recipients, it is an ideal that is not attainable in New South Wales under present conditions. If it was practicable, we believe that the clinics themselves would pursue it. We can see no justification for legislative intrusion.

(2) Should the law require that semen donors be married? Some clinics prefer married men as donors, just as some prefer donors to be proven fathers. However, this is not a universal requirement and is not demonstrably the only way to obtain healthy, effective semen. We can see no justification for legislative intrusion.

(3) If a donor is married, should the law require his wife to consent to his giving semen? The reasons for our negative answer to this question are given in Chapter 7 which deals with consent as a discrete matter.

IV. SUMMARY OF RECOMMENDATIONS

(1) Procedures and approaches to semen collection and donor recruitment, discussed in paragraphs 5.5 to 5.8, should be developed and should receive official encouragement.

(2) In the interests of public health and good medical practice the medical profession in New South Wales should prescribe standard guidelines or rules for the selection and screening of semen donors for AI programs. Uniformity of such guidelines and rules throughout Australia should be sought. Legislation and legal regulation are not justified to prescribe qualifications for semen donors or procedures or criteria for recruitment of donors or for screening and testing donors.

(3) A specific statutory offence for the supply by a semen donor of false or misleading personal information when providing medical or other personal particulars should be created. The section creating the offence should be included in legislation regulating AID pursuant to this Report.

(4) A statement or warning should be placed at the head of the prescribed form of’ certificate under section 21C of the Human Tissue Act 1983 to the effect that statutory penalties are provided for the supply of any false or misleading personal information when giving medical or other personal particulars in relation to semen donation.

1. Discussion Paper, para 7.1.

2. G J Stewart et at, “‘Transmission of Human T-Cell Lymphotropic Virus Type III (HTLV-III) By Artificial Insemination by Donor” (1985) 2 The Lancet 581 at 583.

3. Discussion Paper, para 10.7.

4. Communication with Dr R Jansen in July 1985 indicated that King George V Hospital had no shortage of semen at that time.

5. B Mason, submission to Advisory Committee, February 1983.

6. Family Law Council Report, para 4.13.2.

7. Letter from Dr M Brinsmead, 18 July 1985:

Message to Fathers-We Need your Help

Not everyone can father a child. About 10% of couples have difficulty. In a substantial number this is due to sperm problems. Mostly such sperm problems are untreatable. For genetic reasons some other men should not conceive.

This means that without a sperm bank a lot of parents can’t be!

At present we have several hundred couples on waiting lists for donor sperm at artificial insemination clinics.

Sperm Donors are Urgently Required

Legislation in NSW declares that the child conceived by artificial insemination is the legal child of the couple who accept this treatment. Semen banking, like blood banking, is performed anonymously. If you would like further information please contact: Sister Sue Porter, Royal Newcastle Hospital, phone 26-6403.

8. Artificial Conception Act 1984, ss5, 6.

9. Comment on this subject was made in a number of written submissions to the Commission.

10. See generally L A Alexander, “Liability in Tort for the Sexual Transmission of Disease: Genital Herpes and the Law” (1984) 70 Cornell Law Review 101.

11. See Furniss v Fitchett [1958] NZLR 396; Botam v Friern Hospital Management Committee [1957] 2 All ER I 1 8: Sidaway u Bethlem Royal Hospital Governors and others [1985] 1 All ER 643.

12. See generally Medical Practitioners Act 1938; Public Hospitals Act 1929: Australian Medical Association, Code of Ethics (1984 ed).

13. See eg S L Corson et at, “Donor Insemination” (1983) 12 Obstetrics and Gynaecology Annual 283 at 289: Ciba Foundation Symposium 17, Law and Ethics of AID and Embryo Transfer (1973) at 30; Victorian Report (1983), paras 3.8,3.9.

14. C Wood et al (eds), Artificial Insemination By Donor (1980) at 97, 98.

15. Discussion Paper, para 7.8.

16. Note 14 at 101.

17. Discussion Paper, para 7.11.

18. Discussion Paper. para 7.16.

19. The Human Tissue (Amendment) Act 1985 and Regulations came into force on 19 July 1985.

20. Ibid: see also Transplantation and Anatomy Amendment Act 1984 (Qld), Infectious Diseases (Donors) Regulations 1985 made pursuant to Health Act 1958 (Vic), Blood and Tissue (Transmissible Diseases) Regulations 1985 made pursuant to Health Act 1911 (WA) and Blood Donations (Acquired Immune Deficiency Syndrome) Ordinance 1985 (ACT).

21. A B Hill et at, “AIDS and Related Conditions” (1984) 141 Medical Journal of Australia 573.

22. Sydney AIDS Study Group, “The Sydney AIDS Project” (1984) 141 Medical Journal of Australia 569: “Where AIDS goes from here” Sydney Morning Herald, 2 August 1985 at 9.

23. Communication with Dr D A Cooper, 6 November 1985. Dr Cooper is Staff Specialist in Immunology at the Centre for Immunology, St Vincent’s Hospital Sydney and Project Co-ordinator of the Sydney AIDS Study Group. He is an Honorary Consultant to this Commission.

24. Ibid.

25. D G Penington, “The AIDS Epidemic and Some Problems it Poses” (1985) 18 The Australian Journal of Forensic Sciences 13 at 17-22. The AIDS virus may be transmitted from an infected mother to her infant during pregnancy or parturition, and possibly after birth through her breast milk: J B Ziegler, “Postnatal Transmission of the AIDS-Associated Retrovirus from Mother to Infant” (1985) 1 The Lancet 896. In New South Wales, there has been an instance of AIDS virus being transmitted through an artificial insemination procedure. A female patient in an AID program who was inseminated in 1982 with cryopreserved semen from a symptom-free carrier of the AIDS virus subsequently developed generalised, persistent lymphadenopathy. Neither the patient nor her husband (who was “AIDS antibody negative”) had “known” risk factors for acquisition of the virus. Of the eight women who were inseminated with this semen, four have been found to be “AIDS antibody positive”, and three of these women have remained symptom-free for three years after insemination. This is the first reported evidence of transmission from a symptom-free carrier. A low risk of female-to-mate transmission is suggested by the fact that all four husbands have remained “antibody negative” despite regular sexual intercourse without the use of condoms for Lip to three years. Three of the four women found to be “antibody positive” have subsequently become pregnant by AID and their children (now all over one year of age) do not have AIDS antibodies. These cases appear to confirm the role of semen in heterosexual transmission of the AIDS virus and to indicate that transmission can occur by semen implanted in the vagina without trauma and other bodily contact. Further, in women with the antibodies, pregnancy and subsequent breast feeding does not necessarily lead to infection of an infant. See note 2 at 581-584.

26. Discussion Paper, para 7.16.

27. See eg AIDS Task Force, Infection Control Guidelines-AIDS and Related Conditions (March 1985).

28. Infertility (Medical Procedures) Act 1984 (Vic) s27: for details see para 2.1 1 above.