A. Fresh and Frozen Semen

9.1 Semen used for AI may be “fresh” or “frozen”. Our direct inquiries in 1984 indicated that six of the eight substantial clinics and practitioners in New South Wales used frozen semen for their AID programs while two used fresh. Fresh semen refers to semen produced by a donor and used within a few hours. Frozen semen refers to semen that has been frozen after donation and thawed prior to use.¹

9.2 The respective usage of fresh and frozen semen varies from place to place. In Victoria, all AID clinics use frozen semen.² On the other hand a 1978 report of the Royal College of Obstetricians and Gynaecologists, London indicated a substantial usage of fresh semen in the United Kingdom.³ The report described insemination procedures in 22 AI clinics throughout England, Scotland and Northern Ireland stating that six clinics used fresh semen only, five used frozen only and 11 used both types.

9.3 There are advantages and disadvantages in the use of each type of semen. The principal advantage of fresh semen is that it has a good (perhaps better) fertilization capacity. The use of frozen sperm requires more technology, more technicians and more care with security and records but it also gives more time to match physical characteristics between donor and recipient’s husband and a higher prospect of ensuring the donor’s anonymity. Further, “there is no evidence that freezing introduces a risk of abnormal progeny”.⁴

9.4 Although more AI clinics in Australia prefer to use frozen semen than fresh semen for AID, AI using fresh semen is the original method and it is still used. However, the time needed to complete semen-testing procedures introduced in 1985 in response to the appearance of AIDS in Australia is likely to lead to diminution, if not the elimination of fresh semen in AID programs.

B. Semen Testing

9.5 In semen the primary characteristic sought for the purpose of fertilization is a high sperm count, namely a high number of healthy, active sperm cells. The standard sought by most clinics is described by Mr Ian Johnston, one of Australia’s most prominent medical experts in human fertility,⁵ as “at least” 80 million sperm per millilitre of semen.⁶

9.6 In New South Wales all clinics conduct a routine analysis of donated semen in order to ascertain sperm count and “motility”, or the capacity of the sperm to move actively. Semen analysis will also produce information about abnormalities in the sperm cells and the general suitability of the sperm cells to achieve fertilization. Clinics that use frozen sperm normally perform additional tests including semen tests for STD (sexually transmissible disease), AIDS and blood tests to determine blood group, Rh status and the presence of hepatitis B. Tests and semen analyses are also normally carried out at regular intervals on stored semen.⁷

C. Semen Storage

9.7 AID clinics which use frozen semen must have the facilities and equipment for freezing and storing it.⁸ The expression “cryopreservation” is often used to describe this activity. The duration of storage will be a policy matter for the particular clinic concerned. Some experts prefer to envisage a time limit.⁹ In practice the question of storage duration does not present a problem in New South Wales because of the general shortage of semen for AID and the fact that it tends to be used rapidly.

D. AIH

9.8 In New South Wales, artificial insemination of a woman with her husband’s sperm does not normally involve storage. Tests will be conducted in order to acquire as much information as possible about the husband’s fertility. Insemination of the wife will normally be performed with the husband’s fresh sperm because of its greater fertilizing capacity and his ready availability. To summarise, the purpose of testing in AIH is different from AID because the circumstances are different, and the need for storage will not normally arise.

E. Storage of Sperm under an Agreement or Arrangement

9.9 There could be a number of reasons, both medical and personal, that might impel a man to arrange for his sperm to be stored. For example, he may be about to undergo chemotherapy, radiation or some other medical treatment that could reduce his fertility. We are not aware of any widespread practice in Australia whereby sperm is stored to await the future instructions of a man or a couple, but we believe that it has happened on occasions in New South Wales when a clinic has agreed that good medical reason exists for storage. We do not consider that legislation should be enacted to regulate such storage.

F. Legal Regulation of Testing and Storage of Semen

9.10 The standards of practice observed by the medical profession in New South Wales in AI are of a high order. We believe that these extend to semen analysis and testing, and that public confidence in the medical and scientific standards employed is therefore justiced. Obviously, not every practitioner and clinic will always observe the highest standards and it is clear that mistakes will be made. The question however remains whether direct legal regulation of- standards of practice will give better results and whether the law should involve itself in this part of AI. Our inquiries at the time of our Discussion Paper had produced no complaints on the subject nor any evidence of harm or prejudice to recipients or children arising from the quality of donated sperm. Since that time we have become aware of some cases where disease has been transmitted by AID, but there was no suggestion that carelessness or inadequate standards of practice were the cause.¹⁰ Further, none of the submissions received by the Commission has suggested inadequate standards or the need for legislative control. Of the seven written Submissions to the Commission that dealt with semen testing, only two stated that testing is desirable (one of them suggesting the introduction of guidelines for testing), one advocated that the continuation of storage ot’ semen should be reviewed after five years, three took the view that stored semen should be destroyed on the death of the donor and one made general comment without specific recommendations.

G. Conclusions

9.11 In view of the information and reasons set out above and the response of the New South Wales Department of Health and the medical profession to the problems presented by AIDS we have concluded that semen testing and storage is best left to the medical and scientific professions and we recommend that no legislative regulation be introduced. The civil law of negligence and contract is applicable and imposes duties upon practitioners and donors, thus affording protection in appropriate cases. In addition there is the question of professional guidelines. We recommend that the medical profession should prepare guidelines for testing and storing semen for use in AI. Precedents exist in England and the United States for rules of this kind¹¹ and we are of the opinion that the early promulgation of Australian guidelines would engender public confidence. Bodies such as the Royal Australian Colleges of Medicine and the Australian Fertility Society have this capacity.

II. LIMITS ON USE OF SEMEN FROM ONE DONOR

A. “Accidental Incest”

9.12 We have already described Australian and overseas literature and public discussion on the possibility that two AID children conceived from the sperm of one donor might, without knowledge of their relationship, marry and have children.¹² They would be hall brother and half sister. Some expressions comnionly used to describe the possibility are “consanguineous marriage”, “innocent consanguineous marriage”, “accidental Incest”, “half-sib mating” and “inadvertent inbreeding”.

9.13 Our inquiries into AID practice in New South Wales showed that clinics, almost without exception, controlled very carefully the number of inseminations performed with the semen of one donor. The limits of usage are usually expressed not so much by restricting the absolute number of inseminations as by monitoring the number of pregnancies or live births resulting from one donor. Control is maintained by imposing a temporary limit upon the number of women inseminated with a donor’s sperm, and then suspending usage of his sperm pending results. If pregnancies do not result, further usage may be recommended. if pregnancies do result, usage may remain suspended until the outcome of the pregnancies is known.¹³

B. Conclusions

9.14 The likelihood of innocent consanguineous mating in New South Wales between AID children is mathematically low.¹⁴ As Professor David Danks, a leading Australian geneticist, has noted this likelihood is affected by the size of the “breeding pool” in a particular population. In his words:

It is clearly important to look at [the] problem realistically when dealing with different ethnic groups and to have a flexible policy rather than just one fixed policy for all groups in the population. It would be undesirable to allow more than one AID offspring per donor in a very small ethnic group: however, considerable numbers might be allowed in the Anglo-Saxon Australian population. The more socially and geographically mobile the donor and recipients the less the risk.¹⁵

9.15 Our view is that legal intervention is unnecessary and is unlikely to achieve a better result than has already been achieved by the medical profession acting within its own ethical and practical standards. We recommend that no action be taken to enact legislation limiting the quantity of semen from one donor used in AI. No case of consanguineous marriage of the type under discussion has been reported to us, nor have we seen reference to such a case in tile literature on AID. Once more, however, we believe that this is all area where guidelines Would be desirable. We recommend that the medical profession should produce guidelines that provide clear pointers to the considerations that should govern decisions on the recurrent use of a donor’s semen, and provide general directions requiring AID practitioners to have regard to the possibility of innocent consanguineous mating before inseminating a patient.

III. THE USE OF MIXED SEMEN IN AID

A. Semen Mixing

9.16 In the Discussion Paper we described the extensive references by writers, medical experts, scientists and law makers to the possibility that semen from two or more donors will be mixed together and used in one act of insemination.¹⁶ The Victorian Committee was sufficiently concerned about this possibility to make a recommendation which has since been translated into law by the Victorian parliament. Section 26 of the Infertility (Medical Procedures) Act 1984 of Victoria provides:

A person shall not carry out a procedure of artificial insemination of a woman..... where the semen used..... was produced by more than one man.

Penalty: 50 penalty units or imprisonment for two years.

9.17 The Commission had difficulty in reconciling the extensive discussion and concern about semen mixing with the fact that its own research and inquiries suggested that it was a rare practice. We have been unable to find any evidence that semen mixing is either practised or approved by AI clinics or medical practitioners specialising in AI in New South Wales.

9.18 Semen mixing has taken two forms in the past. In the first instance, the semen of two or more donors is mixed together and then used for insemination. The object of this practice was to contuse paternity and to obviate the possibility of any particular donor being held to be the legal father with the consequent duties and rights of paternity. This no longer has any point in New South Wales since the Artificial Conception Act 1984 has clarified the paternity question in favour of a consenting husband and has relieved the donor of legal paternity.¹⁷ The second circumstance of semen mixing occurred when the donor’s semen was mixed with that of the husband prior to insemination. The purpose of this practice was to engender some doubt about paternity and foster a belief by the husband that he may, after all, be the genetic father. Our inquiries indicate that current practice in New South Wales rejects this form of semen mixing on the grounds that it is fosters the husband’s self-deceit and that a husband who requests it may not have accepted or come to terms with his own infertility and therefore may not be able to exhibit a balanced parental attitude to the AID child.¹⁸

B. AID Using Fresh Semen

9.19 In considering lawmaking on the subject of semen mixing it is desirable also to examine the practice of AID using fresh semen. While this practice does not ordinarily involve the mixing together of semen from different donors or from a donor with that of a husband, it typically does involve insemination with the semen of a single but different donor at daily or two-day intervals on a number of occasions during the recipient’s menstrual cycle. This has the same effect as semen mixing in that it results in confusion over paternity. The Victorian legislation referred to in paragraph 9.16 may make AID with fresh semen, in the manner just described, a criminal offence. The Act makes no direct reference to mixing but rather proscribes the use of semen “produced by more than one man” in a procedure of artificial insemination”. If “a procedure of artificial insemination” is interpreted ,is referring to a single treatment cycle of AI, then an offence will be committed since a single treatment cycle will involve multiple inseminations using fresh semen of single but different donors. Hence, the semen used in “a procedure” will have been “produced by more than one man”. It is therefore arguable that in New South Wales, a statutory provision in the same terms as the Victorian Act would have the effect of converting into a criminal offence punishable by imprisonment, not only semen mixing, but AID practice with fresh semen.

C. Considerations for Lawmaking on the Subject

9.20 In view of the matters outlined above, the introduction in New South Wales of a statutory prohibition of semen mixing requires justification both in principle and on the basis of community need or protection. This is particularly so if the prohibition is to be sustained by criminal penalties. The principle that underlies the Victorian statutory prohibition is described in the Victorian Committee’s report ot 1982 in the following words:

Because of the great importance the Committee accords to the interests of the child and its parents in honesty and integrity in the family, the Committee recommends that it shall be unlawful to use donor gametes in IVF in such a way as to confuse those concerned about the genetic background of any child born. This means that procedures such as the mixing of donor sperm..... should be prohibited.¹⁹

It thus appears that the Victorian Committee based its recommendations on the proposition that accurate information about a child’s genetic background should be available. We draw attention to tile fact that the recommendations related to in vitro fertilization, although the subsequent legislation included AI. The Victorian Committee’s report did not specifically consider the practice of AID, particularly using fresh semen, no doubt because this was not included in its terms of reference.

9.21 If the purpose of legislative intervention is to assist the AID child by ensuring that accurate information about paternity is ascertainable, the question arises whether this can be achieved realistically by the prohibition of semen mixing. We are not persuaded that this aim can be achieved for a number of reasons. A woman inseminated by AID may have sexual intercourse with her husband or another man before or shortly after the insemination. The pregnancy resulting from such intercourse could achieve the very confusion that a legal prohibition of semen mixing would seek to remove. It is unrealistic to expect that sexual intercourse of this kind would or could be effectively prohibited by law. For a legislative prohibition to have a real prospect of success it should have the capacity to prohibit and police semen mixing, successive use of semen of different single donors, and sexual intercourse by the recipient for a particular period. This would clearly be impossible to police and difficult to prove. On the face of it, modern blood testing techniques offer a solution to the problem. However, although blood tests have a high capacity to prove paternity, particularly when the number of candidates is small, they could need the assistance of legal compulsion in the context of AID. We believe that compulsory blood testing is not feasible as execution of such a requirement would involve force and bodily invasion.

9.22 We have formed the opinion that the notion of certainty of paternity in relation to AID children, and even in the community at large, is based on assumptions that may not always be justified.²⁰ In some cases, for example married persons, the law assists the determination of paternity by making presumptions ²¹ but these are no more than presumptions and do not alter the genetic truth. It could therefore be argued that the desire for certainty of paternity and the desire to help AID children should not be permitted to found criminal laws unless the hypotheses on which they rest can be proved to be true.

9.23 We list briefly a number of conclusions and factors that have influenced our consideration of lawmaking on this subject:

• The deliberate use of donated gametes to cause confusion about a child’s paternity is an unacceptable practice.
• The reality of AID practice in New South Wales lends little, if any, support to the argument that a statutory prohibition of semen mixing supported by criminal law sanctions is necessary.
• We are not persuaded that an effective prohibition of AID using fresh sperm is justifiable on the basis that the prohibition will ensure certainty in attributing paternity.
• We have seen no evidence of practice or approval of semen mixing in New South Wales and no evidence of semen mixing in Australia in any of the reports of official Inquiries.
• Certainty about parentage cannot be ensured to all AID children because of the nature of AID practice and for other reasons. Certainty about biological parentage cannot be ensured to non-AID children, although the law assists in the case of married persons by making legal presumptions of paternity.
• Among overseas reports neither the United Kingdom Report nor the Ontario Report made recommendations on the subject. The United Kingdom Report did not discuss semen mixing, although it discussed and made a recommendation on the frequency of use of the semen of a single donor. The Ontario Report stated that semen mixing, “is rarely used” in Ontario,²² but did not pursue the matter in its law reform discussion.

9.24 Our conclusion is that no persuasive case has been made for legislative intervention in New South Wales, whether or not supported by criminal law sanctions aimed to proscribe semen mixing or successive use of semen from different single donors in AID or both. However, we do not approve of semen mixing or any action aimed to cause confusion about a child’s parentage. We regard both as falling outside the bounds of good medical practice. We see this unintended confusion of paternity as a disadvantage to the practice of AID with fresh semen. The question is whether the disapproval of a practice justifies the introduction of legislation and the use of parliamentary time and government resources to create a statutory offence. We have decided that they would be neither justified nor certain of successful enforcement. We recommend that no action be taken to enact legislation regarding the use of mixed semen from two or more semen donors or the use during one menstrual cycle of a woman of multiple or successive single donations of semen produced by one man. However, the use of mixed semen and any action in AID by a medical practitioner or by medical personnel aimed to cause confusion about a child’s parentage, should be regarded as falling outside the bounds of good medical practice.

IV. SUMMARY OF RECOMMENDATIONS

Testing and Storing Semen

(1) legislative regulation is not called for in relation to testing and storing semen for use in AI.

(2) The medical profession should prepare guidelines for testing and storing sei-nen for use in AI. Bodies such as the Royal Australian Colleges of Medicine and the Australian Fertility Society have the capacity for this.

Limits to Quantity of Semen from One Donor

(3) Legislative regulation is not called for in relation to limiting the quantity of semen from one donor to be used in AI.

(4) The medical profession should prepare guidelines for limiting the quantity of semen from one donor to be used in AI, see (2) above.

(5) AID practitioners should have regard to the risk of innocent consanguineous mating between half siblings born as a result of AID and should accordingly limit the usage of the semen of a semen donor.

The Use of Mixed Semen in AID

(6) Legislative regulation is not called for in relation to the use of mixed semen from two or more semen donors or the use during one menstrual cycle of a woman of multiple or successive single donations of semen produced by one man.

(7) The use of mixed semen as described in (6) above and any action in AID by a medical practitioner or by medical personnel aimed to cause confusion about a child’s parentage, should be regarded as falling outside the bounds of good medical practice.

FOOTNOTES

1. See Discussion Paper, ch 8.

2. Information supplied by Professor Louis Waller, Chairman Victorian Law Reform Commission, at New South Wales Law Reform Commission Artificial Conception Division Meeting (30 July 1985).

3. Royal College of Obstetricians and Gynaecologists, Confidential Enquiry into Extent to which Artificial Insemination by a Donor (AID) is practised in the United Kingdom (up to the end of 1977) (1978) at 4.11.

4. S L Corson et at, “Donor Insemination” (1983) 12 Obstetrics and Gynaecology Annual 283 at 292.

5. Chairman Royal Women’s Hospital Reproductive Biology Unit (Victoria).

6. C Wood et at (eds), Artificial Insemination by Donor (1980) at 15. In the United States practitioners have employed standards of analysis called “the rule of 60s” described as follows: The rule of 60s has served well as a general index to seminal quality; at least 60 million per ml of semen, 60 percent good motility, and 60 percent with normal morphology.(See note 4 at 289).

7. C Wood et at (eds), note 6 at 14-16.

8. Id at 19-32.

9. United Kingdom Report, para 10.8.

10. 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; “AIDS: woman infected by artificial insemination”, Sydney Morning Herald, 25 July 1985 at 1. A confidential communication to the Commissioner-in-charge of the Artificial Conception Reference has indicated that one AID child has been born in New South Wales with cystic fibrosis.

11. See Royal College of Obstetricians and Gynaecologists, Recommendations for Centres Planning to set-up and AID Service (London, June 1983) and Artificial Insemination (London, March 1979). See also American Fertility Society, Report of the Ad Hoc Committee on Artificial Insemination (Alabama, November 1980).

12. Discussion Paper, ch 10.

13. Id, paras 10.6-10.8.

14. Id, paras 10.9.

15. C Wood et al (eds), note 6 at 102.

16. Id, ch 11.

17. See paras 2.7, 2.8 above.

18. Discussion Paper, para 11.6.

19. Victorian Report (1983). para 3.37.

20. Discussion Paper, paras 11.11, 11.12; M Curie-Cohen et al, “Current Practice of Artificial Insemination by Donor in the United States” (1979) 300 New England Journal of Medicine 585 at 589; Ciba Foundation Symposium 17, Law and Ethics of AID and Embryo Transfer (1973) at 63, 66.

21. See eg Children (Equity of Status) Act 1976 ss10, 18.

22. Ontario Report at 17.