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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 11 - The Use of Mixed Semen in AID
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 11 - The Use of Mixed Semen in AID
I. CONCERN ABOUT SEMEN MIXING
11.1 The possibility that semen from two or more donors will be mixed together and used in one act of insemination has attracted close attention and comment from writers, scientists, medical experts and law makers. The reason for this is obscure because there is no evidence from current literature or from our empirical inquiries of such a practice in New South Wales or Australia and virtually none in relation to overseas countries. There is some suggestion that the practice was followed years ago by some practitioners in the United States.1 In paragraph 3.11 we first referred to this subject and its outlawing by the Infertility (Medical Procedures) Bill of Victoria.
11.2 The following quotations provide support for the statements made in the preceding paragraph:
- Some practitioners of AID, particularly in the U.S.A., use a mixture of semen, in which case there would be no possibility of knowing who the donor was (Dr. Anne McLaren, Department of Genetics, Institute of Animal Genetics, University of Edinburgh - 1973).2
- The use of mixed semen in AID must complicate the two situations we have considered: fantasies with respect to parenthood entertained by the progeny of those unions and the scientific determination of their genetic heredity (Emeritus Professor Fielding, Department of Moral Theology Trinity College, Toronto, Canada - 1973).3
- At some stage, an AID child who derives in part from a mixed sperm bank, may be told ... The idea of being made or manufactured’ may be present(Professor Himmelwelt- Department of Psychology, The London School of Economics and Political Science - 1973).4
- I agree that it is extremely irresponsible to mix the semen from donors since this would deny us access to any information, including the capacity of a donor to produce normal children (Professor Edwards, Department of Human Genetics, Birmingham Maternity Hospital, England - 1973).5
- I do not know anybody who is mixing semen in England (Dr. Bridgett A. Mason, Clinical Assistant, Infertility Unit, Royal Free Hospital, London - 1973).6
- In... “confused” or” combined” artificial insemination (CAI), a married woman is inseminated with a mixture of her husband’s and a donor’s sperm. This procedure ... is much less popular today than it was a decade or two ago (Professor Wadlington, Department of Law, University of Virginia, United States - 1983).7
- ... Only two doctors in our sample (of 379) mixed donor semen with the husband’s semen (Dr. M. Curie-Cohen and others, Laboratory of Genetics, University of Wisconsin - Madison, United States - 1979).8
- The use of a mixture of semen from different donors should not be permitted (Queensland Special Committee - 1984).9
- 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 (Victorian Committee - 1983).10
- 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 (Infertility (Medical Procedures) Bill 1984 (Vic.)).11
11.3 This evidence of concern with mixing semen, culminating in Victorian legislation imposing criminal penalties should, in our view, be considered in the light of local AID practice in order to enable a fair conclusion as to the need or desirability of legal intervention. First, however, it is essential to examine the meaning of the expression “mixed semen” because the proposed Victorian provision makes no direct reference to “mixing”. Instead it proscribes the use of semen “produced by more than one man”. As we shall see, this proscription may have a wider effect on AID practice than appears at first sight.
II. CURRENT PRACTICE
11.4 For the performance of AID either fresh or frozen sperm may be used, as mentioned in the opening paragraphs of this Chapter. If it was desired to mix semen for AID, the mixture could take a variety of forms, for example, the semen of a donor and the husband could be mixed, or the mixture Could be comprised of the semen of two or more donors, or two or more of the husband and a number of donors. However, the practical requirements of AID with fresh sperm are different from those of AID with frozen sperm. It can be expected that during the most suitable period of the recipient’s menstrual cycle, insemination maybe made at daily or two-day intervals on two, three or four occasions. Normal procedure in semen collection in Australia has been described in the following words: “donors are asked to abstain from ejaculation for three days prior to providing the sample. Semen quality, particularly sperm concentration, ....is improved by a short period of abstinence”.12 For this reason insemination with fresh sperm will be typically performed with the sperm of a single but different donor on each successive occasion in the recipients cycle. There are additional reasons, one being inconvenience for a donor of attending daily or two-daily three or four times. It can therefore be seen that normal AID practice with fresh sperm will involve multiple inseminations from different donors. The same thing could, and does, happen with frozen sperm, if the supply of semen from one donor runs out during the successive inseminations. This aspect of AID practice does not involve mixing semen but can achieve the same result biologically, namely the practical impossibility of attributing paternity to one man (unless all relevant persons could be identified and then compelled by law to submit to blood testing).
11.5 As far as New South Wales is concerned, no practitioner with whom we have communicated uses in AID the mixed semen of two or more men, or approves of its use. Indeed, without exception every practitioner with whom we have spoken expressed disapproval of such a procedure. The varying reasons are discussed in Chapter 3. On the other hand most practitioners said that they had heard or read of the practice of mixing having occurred in the past, although no-one was able to refer us to a person who had done it. Our conclusion is that mixing semen in this fashion would be regarded as contrary to good standards of practice in New South Wales, and Our impression, derived from discussion with leading AID practitioners in other States, is that a similar attitude Could be expected in other parts of Australia.
III. AUSTRALIAN TRENDS
A. New South Wales Disapproval
11.6 Why has mixing occurred at all? According to Wadlington, whose observations are confined to the United States:
AID presents the problem of determining who bears the paternity obligation - the sperm donor or the female’s husband - and the concomitant difficulty of identifying the sperm donor. In fact, these concerns spurred the development of the [combined artificial insemination] CAI procedure. One basis for CAI contemplates a possible psychological benefit to a sterile husband who might rationalize that he, rather than the sperm donor, had fathered the child conceived by his wife. This structured opportunity for fantasy disturbed some who feared that persons in need of such support would be poor AID candidates. A more telling reason for CAI was the hope that it might obviate an undesired legal result in paternity suits following artificial insemination. A court which otherwise might hold that the donor was the father could use CAI to support a finding that the husband was the biological father. The concern that a court might designate the donor the biological father precipitated certain Al practices. For example, it is widespread practice to use semen from, different donors when multiple inseminations are performed during one AID cycle to make actual donor identification difficult.
What Wadlington is saying is that these practices were carried out so as to confuse paternity, and that confusion might afford some benefit to the recipient s husband. This suggestion of a deliberate intention to cause confusion is reflected in the words of the Victorian Committee quoted in paragraph 11.2. However, current New South Wales practice firmly rejects semen mixing and accepts successive inseminations from different donors as we have seen Its reasons are different from those of Wadlington and the Victorian Committee and, as to mixing, it rests its disapproval upon the possibility of immunological interaction13 or upon the proposition that a husband who contemplates mixing is unsuitable for involvement in an AID program.14 AID practice using fresh sperm employs more than one donor for reasons explained in paragraph 11.4.
B. Victorian Legislation
11.7 Undesirable results could flow, and in view of the provisions of clause 26 of the Victorian Bill15 may already have flowed, from these differing reasons for rejecting or disapproving semen mixing. One undesirable result is that a prohibition in the terms of clause 26 could have the effect of converting normal AID practice with fresh sperm into a criminal offence punishable by imprisonment Whether clause 26 was intended to have such an effect is not clear. However, this appears to be the result of its wording, which does not refer to mixing semen but instead proscribes the use of semen produced by more than one man “in a procedure of artificial insemination”. An argument can obviously be made that these words are ambiguous when considered in the context of AID using fresh sperm as described earlier and in the light of the comments of the Victorian Committee quoted in paragraph 11.2. The question is whether” a procedure of insemination” refers to one act of insemination or the course of successive inseminations employed in one monthly cycle of the patient It would be ironic if the clause was aimed at a practice that does not occur at least in New South Wales, and had the effect of making unlawful the practice of AID with fresh semen, as well as rendering the practice of AID with frozen semen a criminal offence in some circumstances (see paragraph 11.4).
11.8 We therefore believe that before legal or statutory intervention is made in relation to the following subjects it is important for the facts of AID practice in New South Wales to be comprehended along with the implications of such intervention:
- mixing the semen of two men for the purpose of AID;
- use of semen of different single donors for successive inseminations during one menstrual cycle of the recipient.
11.9 If the purpose of legal intervention is to assist the AID child by ensuring that paternity is ascertainable, further consideration will be necessary to determine whether that object can realistically be ensured by a prohibition of semen mixing whether expressed in the language of the Victorian Bill, or otherwise. There is reason for doubt, for the following reasons.
- There are no means of being certain that a woman inseminated by AID will not have sexual intercourse with her husband (if she is married) or with another man either shortly before or shortly after the insemination. Such intercourse could achieve the very confusion that clause 26 of the Victorian Bill seeks to remove.16
- Presumably nobody would suggest that it be made an offence. Of course, if the husband is completely sterile (azoospermic) the uncertainty would be reduced. However, we understand that azoospermia is less frequent than oligospermia.
- For a legal intervention to have a substantial prospect of success it should prohibit mixing semen, multiple use of the semen of single donors (which clause 26 arguably does) and sexual intercourse by the recipient for a relevant period.
- There is no means of being certain that the AID child will ever be told the truth about its genetic origin. Our inquiries of AID practitioners in New South Wales have produced information to the effect that AID “parents” rarely tell an AID child of its origins. Whether this should be the case is a separate question discussed in the following Chapter. The Victorian Committee displayed an awareness of this in their recommended procedures for recording information:
... the Committee realises that the child’s parents cannot be compelled to provide this information, or even tell the child anything which will prompt a search for it.17
11.10 Modern blood-testing techniques have a much higher capacity to prove paternity than was the case in the past, particularly when the number of candidates is small. On such an assumption the prospects of ascertaining paternity must increase, provided that the tests can be carried out. This theoretically provides some justification for the idea of a legal prohibition against semen mixing. If blood-testing techniques now have a greater capacity to prove paternity, there arises an argument that legislative policy should move in the direction of bringing about such tests as the procedure to be adopted, rather than prohibiting semen mixing under criminal penalties. However, propositions for compulsory blood- testing could raise other difficulties and objections of principle.
IV. CONSIDERATION IN LAW-MAKING
11.11 A law that intervenes in reproduction with the object of enforcing biological certainty may, as shown by the Victorian Bill, be enforced by criminal sanctions. The apparent harshness of such a law must, in our view, be balanced against the benefits it seeks to achieve. To make such a balance, it is necessary not only to consider factors such as those listed in the preceding paragraph but the question whether there exists any certainty of knowing biological paternity in the community at large. The literature on AID provides numerous examples of the difficulties in the way of such certainty.18
11.12 The literature cited in the preceding paragraph suggests that the notion of certainty of paternity in the community at large, as distinct from Al D children, is based on an assumption that may not always be justified. The law assists the determination of paternity by making presumptions, for example, in relation to the children of married persons,19 but these are no more than presumptions and do- not alter the genetic truth, whatever it may be. it could therefore be argued that the desire for certainty of paternity and the desire to help AID children as worthy as they ate, should not be permitted to for criminal laws unless the hypotheses on which they rest can be proved to be true.
11.13 A further observation should be made on the recommendation of the Victorian Committee, and the resulting legislation. The Committee’s recommendation, quoted more fully above in paragraph 11.2, included the following words:
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 ... 20
The words of clause 26 of the Infertility (Medical Procedures) Bill 1984 (Vic.) extend beyond IVF and specifically include “a procedure of” AID. We have already drawn attention to the fact that clause 26 appears to be based on assumed facts of professional behaviour(semen mixing) that are not as far as New South Wales is concerned, sustained by empirical inquiry. In addition, to the extent that the clause applies to AID (which was not recommended by the Committee), it could have the effect of tendering unlawful AID with fresh semen.
V. OUR APPROACH
11.14 We summarise our views on this subject as follows:
- The object of recommending legal intervention to prohibit the deliberate use of donated gametes aimed to cause confusion about a child’s paternity is a worthy one.
- Recommendations in pursuit of that object, which advise legal intervention to prohibit mixing of semen, are not related to the reality of AID practice in New South Wales. The recommendations of the Queensland and Victorian Committees are not supported by any evidence of semen mixing in Australia. Our inquiries indicate that semen mixing is not practised in New South Wales.
- Legal intervention of the kind in clause 26 of the Infertility (Medical Procedures) Bill 1984 (Vic.) may not achieve its object in New South Wales. In addition it may make unlawful normal AID practice using fresh sperm.
- Recommended legal controls for IVF will not necessarily be suitable or justified for AID.
- Certainty about parentage cannot be ensured to all AID children, because of the nature of AID practice itself, and for other reasons.
- Certainty about parentage cannot always be ensured to non-AID children. However, the law assists in the case of married persons by making legal presumptions of paternity.
- Normal AID practice is likely on occasions to carry as a by-product, though not as a purpose, uncertainty of paternity. This is known both to the medical profession and to patients.
11.15 Our tentative Conclusion is that no persuasive case has been made out for legal intervention in New South Wales aimed to ensure certain of paternity of AID children by proscribing semen mixing and the use of multiple single donors in AID.
VI. ISSUES FOR REFORM
11.16 (1) Is there a need for the law of New South Wales to make unlawful the use of mixed semen from two or more donors in AID?
(2) Should the use of AID during one menstrual cycle of a woman, of multiple single donations of semen produced by more than one man be made unlawful?
(3) Should the law intervene with provisions and criminal sanctions aimed to compel the parties to AID to follow procedures designed to ensure that paternity of an AID child can be ascertained with certainty?
(4) If the answer to (3) is yes, should the law intervene even if AID using fresh sperm thereby becomes unlawful and effectively prohibited?
(5) If certainty of paternity cannot be ensured by normal AID practice, and if there are doubts whether legal intervention can ensure the certainty of ascertaining paternity, should the decisions whether or not to give and receive AID be left to the medical profession and their patients?
Footnotes
1. M. Curie-Cohen et al., “Current Practice of Artificial insemination by Donor in the United States” (1979) 300 (11) New England Journal of Medicine 585, at p.587.
2. Ciba Foundation Symposium 17, Law and Ethics of AID and Embryo Transfer (1973), p.29.
3. Id., pp.34-35.
4. Id., p.60.
5. Id., pp.62-63.
6. Id., p.35.
7. W. Wadlington, “Artificial Conception: The Challenge for Family Law” (1983) 69 Virginia Law Review 465, at p.469.
8. See note 1 above, p.587.
9. Report of the Special Committee Appointed by the Queensland Government to Enquire into the Laws Relating to Artificial Insemination. In Vitro Fertilization and Other Related Matters (March 1984), vol.1 p.110: their recommendation was made without a preceding discussion of mixing semen.
10. Committee to Consider the Social, Ethical and Legal Issues arising from In Vitro Fertilization, Interim Report (September 1982), para.3.37.
11. Cl.23, see also paras.3.11, 3.14.
12. C. Wood et al., (eds.), Artificial Insemination by Donor (1982), p.24.
13. Id., p.71.
14. See paras.3.12, 3.13.
15. Infertility (Medical Procedures) Bill 1984 (Vic.).
16. If the husband is azoospermic (has no sperm), this confusion will not exist as far as he is concerned. However, if he is oligospermic (has less than normal numbers of sperm in his semen) the doubt may exist
17. See note 10 above, para.3.29.
18. See note 1 above, p.589; also note 2 above, pp.63,66.
19. See, e.g., Children (Equality of Status) Act, 1976, ss.10, 18.
20. See note 10 above, para.3.37.
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