A. Background

8.1 Our recommendations in this Chapter support the reasonable expectations of parties to AI and AID to anonymity and the maintenance of confidentiality concerning information acquired in confidence. Legislation should, in our view, be enacted for these purposes because existing law appears to be capable of producing different consequences for the respective relationships and parties involved. In Chapter 14 we examine the relationships between doctor and recipient couple, doctor and semen donor, and doctor and AID child.

8.2 The United Kingdom Report and the Ontario Report supported the maintenance of anonymity in the strongest terms. We quote from these reports in paragraphs 13.13 and 13.14 below. Our own opinion is that it is desirable as a general rule to preserve anonymity between donor and recipient. To be more specific, we believe that anonymity between semen donor and recipient as well as between semen donor and AID child should be ensured, except as otherwise provided by Chapter 13. However, it is plain that some exceptions to a rule requiring anonymity are necessary. These exceptions, foreshadowed by the Human Tissue Act 1983, are:

• where the person to whom the information relates gives consent;
• where a judge or a magistrate makes an order, but subject to the conditions, if any, in the order;
• where the disclosure of information is necessary for the administration or execution of legislation pursuant to this Report;
• when the information is to be used for hospital or clinic administration or medical research.¹

We recommend that legislation be enacted whereby certain persons are forbidden to disclose to any person, information whereby the identity of a party to AID may become publicly known. The persons to be forbidden or placed under the duty or obligation are AI and AID practitioners, clinics, hospitals in which AI and AID are practised, staff and keepers of relevant records. The majority of the Commissioners believe that the legislation should be framed so as to provide for all the exceptions set out above. However, Justice Peter Nygh takes the view that the anonymity of the donor should be more stringently protected. In his view, disclosure of identifying information should only be allowed:

(a) with the consent of the person to whom the information relates; or

(b) where a judge makes an order, but subject to the conditions, if any, in the order.

B. The “Known Donor”

8.3 In some cases of AID, the semen recipient requests that the insemination be performed with the semen of a particular person. Certain social groups find the use of semen from unknown donors unacceptable, and occasionally donation is privately arranged. Both the Victorian Committee and the United Kingdom Report considered the question,² the Victorian Committee’s views resulting in a specific statutory provision enabling the use of “known donors”.³ While the United Kingdom Report recognised that “known donors” are used, it made no recommendation for legal control, preferring to leave the entire question of anonymity to “good practice”⁴ and stating that “such..... arrangements, however, fall outside any general regulation.⁵ The Ontario Report contains no discussion of the issues raised by the “known donor”.

8.4 We believe that in some circumstances the semen of a “known donor” may be justifiably used in AID.⁶ No specific exception to the legislation requiring anonymity (recommended in paragraph 8.2) would be necessary in such a case, since each party has implicitly consented to his or her identity being disclosed to the other parties. Further, in our opinion, outside the immediate circle of participants in AID with “known donor” sperm, the general legislative prohibition on disclosure of identifying information should be preserved.

II. SECRECY

8.5 The United Kingdom Report strongly supported the maintenance of anonymity in relation to the parties to AID.⁷ However, that Report drew a distinction between anonymity and the tendency, which it identified, for AID “to be surrounded with secrecy.”⁸ It went on to say:

This secrecy amounts to more than a desire for confidentiality and privacy, for the couple may deceive their family and friends, and often the child as well.⁹

We find this a useful observation because it shows that entitlement to confidentiality and anonymity may be misused. Our view is that this possibility of misuse or deceit (toes not amount, of itself, to a justification for regulatory legislation. It points more to the need for education and good counselling. In the words of the United Kingdom Report: [W]hile we agree that it is wrong to deceive children about their origins, we regard this as an argument against current attitudes, not against AID in itself.¹⁰ Although anonymity is a form of secrecy, namely the reservation of information about a person’s name, we believe that it is both justifiable and desirable in AID.

III. CONFIDENTIALITY

8.6 In our Discussion Paper we discussed the recognition by the common law that certain relationships are seen to impose a duty upon the parties, or one or more of them, to keep confidential, information that is acquired in confidence during those relationships.¹¹ We expressed the opinion that there is reason to conclude that such a duty is owed by medical practitioners to patients but not necessarily to all semen donors. On the other hand, we can see no reason why such a duty should not relate to semen donors,¹² and to AID children. We take the view that the law should specifically extend support to the maintenance of the confidentiality of personal information that is supplied in the practice of AI and AID by recipient couples and semen donors to the medical profession. Anonymity is a separate but related matter.

8.7 The reposing of confidence in a person, and the corresponding duty of confidentiality, are seen by the Commission as an important social and moral transaction. It is clear that a medical practitioner owes a duty of confidentiality to his or her patients. This is an ethical obligation¹³ as well as a legal one. The precise definition of the legal obligation of confidence has been stated as a duty not to disclose voluntarily, without the consent of the patient, information which the doctor has gained in his or her professional capacity.¹⁴ The obligation is enforceable by an injunction and by an action for damages. As is the case with all obligations of confidence, the doctor’s duty is not absolute but subject to the requirement of disclosure under compulsion of law¹⁵ and a limited right to make disclosure in the public interest.¹⁶ The precise circumstances when it will be in the public interest for otherwise confidential information to be divulged cannot be defined in advance. One example relevant to doctors, which is cited in the leading authority on the topic, is where a doctor treats a murderer who is still manic and who would be a menace to society.¹⁷ The obligation of course may be released with the express or implied consent of the patient.

8.8 We do not recommend any statutory underpinning or modification of these well-recognised principles. They are, we believe, clear and flexible enough to accommodate any issues likely to arise concerning the confidentiality of information passing between a medical practitioner and the couple or woman whom he or she is treating for infertility. In particular these principles would operate to secure those parties from having their identity revealed by the medical practitioner to the donor or any other third party.

8.9 However the child born of a successful artificial insemination will, as such, not be a patient of the doctor. Furthermore it is far from clear whether the donor in the normal AID situation is a patient of the doctor or hospital whose clinic makes the arrangement to receive the semen intended for use in an AI program.¹⁸ Is there need to provide for the confidentiality of records containing information about these parties?

8.10 The juristic basis of a doctor’s legal obligation of confidence towards his or her patients is an implied condition in the contract of services entered into by the treating doctor. There may or may not be a contractual relationship between the doctor or clinic on the one hand and the donor in AID on the other. The concept of gift implicit in the term “donor” is not itself inconsistent with a contractual relationship existing since the “gift” is directed towards the recipient woman or couple. The common arrangement whereby a donor is paid his expenses in consideration of attending and providing semen suggests that there would be a contract. However this would not invariably be the case with donors, and as we have already noted, it would never be the case with a child whose only relationship with a doctor is that he or she was born to a woman who was the doctor’s patient.

8.11 An obligation of confidentiality can however arise between parties who are not in any contractual relationship. Thus, information imparted in confidence by one member of a family to another can give rise to an equitable obligation not to break that confidence. Similarly, where a person imparts secret information about an invention to a would-be investor and negotiations to form a contract do not come to fruition the recipient of the information is not free to disregard the implied obligation of confidence arising out of the circumstances in which the information was provided. These principles which are not dependent on a contractual relationship also operate to place legal obligations of confidence on the staff of the medical practitioner who might have access to confidential records. Like a contractual obligation of confidence, this equitable obligation may be overridden by compulsion of law or in the public interest.

8.12 Thus, whether arising as an implied term of a contract or as an obligation enforceable in equity, an obligation of confidentiality will arise if information which by its nature is confidential is imparted in circumstances where it was clearly understood and intended by the parties that such information would not be divulged to a third party without the consent of the party who first provided it.

8.13 The difference between the position of the patient on the one hand and the donor or child on the other is that in the former case the legal obligation of confidentiality is clearly and automatically recognised, whereas in the latter its basis is dependent upon a close examination of a particular factual context. To the extent that the law confers anonymity and confidentiality upon donors and children who are born by an AI procedure it would, in our view, be desirable that their position should be equated with that of a patient. We recommend that legislation be enacted so as to impose upon AI and AID practitioners, clinics, hospitals in which AI and AID are practised, staff and keepers of the relevant records, the same duty and obligation to maintain confidentiality in relation to information obtained by them or any of them about any person who is a party to AI or AID (including a recipient woman, her husband or male partner, a semen donor and each resulting AID child) as medical practitioners have in relation to information obtained by them about their patients.

IV. SUMMARY OF RECOMMENDATIONS

(1) Legislation should be enacted whereby certain persons are forbidden to disclose or give, or otherwise placed under a duty or obligation to refrain from disclosing or giving, to any other person any information or document whereby the identity of a person who is a party to AI or AID (including a recipient woman, her husband or male partner, the semen donor and each AI or AID child) may become publicly known. The persons to be forbidden or placed under the duty or obligation are AI and AID practitioners, clinics, hospitals in which AI and AID are practised, staff and keepers of relevant records.

(2) The legislation should be framed so as to provide for the exceptions set out in paragraph 8.2 above.

(3) Legislation should be enacted so as to impose upon AI and AID practitioners, clinics, hospitals in which AI and AID are practised, staff and keepers of the relevant records, the same duty and obligation to maintain confidentiality in relation to information obtained by them or any of them about any person who is a party to AI or AID (including a recipient woman, her husband or male partner, a semen donor and each AI or AID child) as medical practitioners have in relation to information obtained by them about their patients.

1. Human Tissue Act 1983 s37(3). See also Australian Law Reform Commission, Human Tissue Transplants (ALRC 7, 1977), paras 216, 217.

2. Victorian Report (1983), paras 3.19-3.22; United Kingdom Report, para 4.22.

3. Infertility (Medical Procedures) Act 1984 (Vic) s16.

4. United Kingdom Report, para 3.2.

5. Id, para 4.22.

6. Discussion Paper, para 21.6.

7. United Kingdom Report, paras 3.2, 4.22.

8. Id, para 4.12.

9. Ibid.

10. Ibid.

11. Discussion Paper, ch 21.

12. See para 14.10 below.

13. Australian Medical Association, Code of Ethics (I 984 ed), para 6.11.

14. Hunter v Mann [1974] 1 QB 767 at 772.

15. For example, the doctor will be required to produce relevant medical records to the court in answer to a subpoena. Statute may also override the obligation as is the case with legislation requiring the doctor to report a shotgun wound or child abuse.

16. See F Gurry, Breach of Confidence (1984) at 148, 149.

17. Hunter v Mann [1974] 1 QB 767 at 772.

18. See also Ontario Report at 83, 185.