Recommendation 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. (Para 4.6)

Recommendation 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. (Para 4.7)

CHAPTER 5: THE SEMEN DONOR

Recruitment

Recommendation 3: New approaches to donor recruitment and semen collection which highlight the significant social value of semen donation should be developed and should receive official encouragement. (Para 5.9)

Screening

Recommendation 4: 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. (Para 5.12)

Recommendation 5: The supply by a semen donor of false or misleading personal information when providing medical or other personal particulars should be a specific statutory offence. A section creating the offence should be included in legislation regulating AID pursuant to this Report. (Para 5.18)

Recommendation 6: 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. (Para 5.18)

CHAPTER 6: ELIGIBILITY TO RECEIVE AID

Recommendation 7: Legislation should be enacted to provide that a person who performs AI as part of medical practice shall not administer AID to a woman until the person has given due consideration to the following matters:

• whether the woman is a member of a couple who are infertile or who have (one or both) a genetic or other abnormality that is likely to affect their children;
• the welfare and interests of a child that might result;
• the home environment and stability of the household in which the child would live;
• whether or not counselling is desirable;
• the physical and mental health, and age, of the prospective parent or parents and their emotional reaction to artificial conception. (Para 6.14)

Recommendation 8: Breach of the duty imposed by legislation in accordance with Recommendation 7 should be capable of being found to be "misconduct in a professional respect" either within section 27(2) of the Medical Practitioners Act 1938, or by a comparable provision. (Para 6.14)

CHAPTER 7: CONSENTS AND COUNSELLING

Consents

Recommendation 9: As a matter of good medical practice, consents should be obtained from each of the parties to AI or AID. The development of standard forms of consent is desirable. (Para 7.1)

Recommendation 10: There is no present need in New South Wales for legislation to impose compulsory requirements for consent to be given:

• by a woman to receive AID (Para 7.2);
• by the husband (or partner) of a woman before she may receive AID (Para 7.5);
• by a semen donor before donation; or
• by the wife of semen donor to his donation (Para 7.9).

Recommendation 11: There is no present need for further lawmaking or law reform in relation to a husband's consent insofar as paternity and the status of the AID child are concerned. (Para 7.8)

Counselling

Recommendation 12: No action should be taken to enact legislation with a view to making counselling compulsory for any party to AID or in relation to any part of the procedure of AID, or for the training or availability of counsellors. (Para 7.1 1)

Recommendation 13: Good professional practice should encourage and, if possible, ensure the availability of skilled, fully-trained counsellors to all parties to AI and AID if needed at any stage of the procedures involved. (Para 7.1 1)

CHAPTER 8: ANONYMITY, SECRECY AND CONFIDENTIALITY OF INFORMATION

Anonymity

Recommendation 14: 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. (Para 8.2)

Recommendation 15: The legislation proposed in Recommendation 14 should be framed so as to provide for the following exceptions:

• 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 the legislation outlined in Recommendation 14:
• when the information is to be used for hospital or clinic administration or medical research. (Para 8.2)

Confidentiality

Recommendation 16: 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. (Para 8.13)

CHAPTER 9: SEMEN - TESTING, STORING, LIMITS ON USE

Testing and Storing Semen

Recommendation 17: Legislative regulation is not called for in relation to testing and storing semen for use in AI. (Para 9.11)

Recommendation 18: The medical profession should prepare guidelines for testing and storing semen for use in AI. Bodies such as the Royal Australian Colleges of Medicine and the Australian Fertility Society have the capacity for this. (Para 9.11)

Limits to Quantity of Semen from One Donor

Recommendation 19: Legislative regulation is not called for in relation to limiting the quantity of semen from one donor to be used in AI. (Para 9.15)

Recommendation 20: The medical profession should prepare guidelines for limiting the quantity of semen from one donor to be used in AI. (Para 9.15)

Recommendation 21: 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. (Para 9.15)

The Use of Mixed Semen in AID

Recommendation 22: 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. (Para 9.24)

Recommendation 23: 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. (Para 9.24)

CHAPTER 10: SEMEN - COMMERCE AND OWNERSHIP

Commerce

Recommendation 24: The reimbursement of any expenses necessarily or reasonably incurred by a semen donor in relation to the lawful donation of his semen for AID should be allowed and legislation enacted to ensure that such reimbursement is lawful. (Para 10.9)

Recommendation 25: The Minister should give consideration to setting from time to time a standard fee under section 32 (4) of the Human Tissue Act 1983 for payment to semen donors as well as permitting further reimbursement of expenses to the extent that they exceed the standard fee in a particular case. (Para 10.9)

Recommendation 26: Legislation should make provision to the following effect:

(a) As a general rule the AI clinic should have the power to determine whether, and in what manner, semen donated to it for AID will be used, stored and disposed of. (Para 10.13)

(b) The power in (a) should be subject to any agreement made by the donor and the clinic setting out the terms applicable to his semen donation for AID. (Para 10.18)

(c) If a man and a clinic make an agreement for the storage of his semen for his or his wife's or partner's subsequent use, the clinic should, subject to the terms of the agreement, have power to discontinue storage and to dispose of the semen only after first giving the depositor a reasonable opportunity to make alternative arrangements. The clinic's power of disposal will also be exercisable if the donor or depositor dies, cannot be traced by the clinic or fails to respond. (Para 10.18)

CHAPTER 12: AIH AND POSTHUMOUS USE OF SEMEN IN AI

Recommendation 27: Direct legislative regulation of the practice of AIH is not necessary. (Para 12.1)

Recommendation 28: The law should recognise the deceased husband as the father of a child born as a result of AIH, provided that the woman is his widow and unmarried at the time of insemination and birth. (Para 12.4)

Recommendation 29: The law should allow the register of births to record the deceased husband's paternity in the case of AIH using the deceased husband's sperm, provided that the woman is his widow and unmarried at the time of insemination and birth. (Para 12.4)

Recommendation 30: No action should be taken to enact legislation to regulate directly or prohibit directly AIH where a widow wishes to use that procedure to become pregnant by her late husband's stored sperm. (Para 12.5)

Recommendation 31: Legislation should provide that, for the purposes of inheritance or succession to property whether on the testacy or intestacy of the father, the child is not to be regarded as the child of the father, except to the extent that the father has made specific provision for the child in his will. Otherwise, that child should have the right or power to make a claim under the Family Provision Act 1982. (Para 12.11)

CHAPTER 13: RECORD KEEPING

Access to AI Records

Recommendation 32: No person should have a legal right of access to information that may identify a party to AID and no record keeper should divulge such information, unless the person who is the subject of the information formally consents. (Para 13.23)

Recommendation 33: Information about any party to AI or AID that does not identify a person may be made available "for good cause" by a record keeper. In the event that agreement cannot be reached on "good cause" the matter should be determined by a person or body nominated by the Minister for Health. "Good cause" should be defined or indicated by legislation and should be based, in principle, on the health and welfare of a party to AI or AID. (Para 13.23)

Recommendation 34: The supply of information should not necessarily confer a right of access to or inspection of the records themselves. (Para 13.23)

Creating and Keeping Records

Recommendation 35: AIl clinical records relating to AI and AID and to the parties to AI and AID shall be retained. (Para 13.28)

Recommendation 36: The extent of the records, and their contents and the methods to be used to assist in preserving confidentiality and anonymity, are matters for good medical practice and should not be prescribed in a statute. (Para 13.28)

Who Should Keep Records

Recommendation 37: Records should be created and kept by AI clinics and practitioners. There should be no establishment of an official or other central register. (Para 13.30)

Duration of Record Retention

Recommendation 38: There should be no fixed time limit for retention of records, but a procedure should be provided whereby a record keeper may apply for permission or authority to dispose of records or transfer them to an acceptable custodian.

Record Keeper's Duty to Inform a Person at Risk

Recommendation 39: No action should be taken to create or impose by legislation an obligation or duty on the part of the record keeper to seek out and advise parties to AI whose health is found to be at risk. (Para 13.33)

Retrospectivity of Legislation

Recommendation 40: Legislation pursuant to Recommendations 32 and 33 above, conferring rights of access to recorded information, should apply to existing records.(Para 13.35)

CHAPTER 14: LEGAL LIABILITY OF MEDICAL PERSONNEL, DONORS AND RECIPIENTS

Recommendation 41: No action should be taken to enact legislation to impose specific legal liability upon medical personnel, semen donors or parents to pay compensation for damages or injury resulting from AI or AID. (Para 14.9)

Recommendation 42: No action should be taken to enact legislation to confer exemption from liability upon medical personnel who act in good faith and without negligence when performing an act or duty imposed by legislation in relation to AI or AID. (Para 14.11)