|
|
 |
Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 15 - Registration of Births of AID Children
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 15 - Registration of Births of AID Children
I. THE PATERNITY ISSUE
15.1 This subject has largely lost its significance since the enactment of the Artificial Conception Act, 1984 which provides that when a married woman has received AID with her husband’s consent and gives birth to a child as a result “the husband shall be presumed, for all purposes...to be the father”.1 The Act further provides that when a woman, married or not, receives AID and gives birth to a child as a result, the donor of the sperm, “shall, for all purposes, be presumed...not to be the father”.2 The Act is concerned solely with paternity and its policy is to create paternity on the basis of a social relationship and to reject biological or genetic paternity. Legislation with the same effect has also been enacted in Victoria, as we saw in Chapter 3. Both statutes reflect decisions of the Standing Committee of Attorneys-General, and are consistent with international approaches to the problem of the legal status of the AID child. In the United States the Uniform Parentage Act of 1973 contained the pioneering legislative provision, with its statement that a consenting husband should be treated as the natural father and the donor legally excluded from paternity. The latest examination of the issue in Britain was by the United Kingdom Committee in June 1984. That Committee recommended that the consenting husband “rather than the donor should, for all legal purposes, be regarded as the father of a child conceived by AID”.3
15.2 So plain is the policy of the New South Wales and Victorian statutes that it could be said to constitute of itself a major obstacle to the proposition that accurate biological or genetic information should be an entitlement of AID children that should be underwritten by legislation and supported by such procedures as the official registers discussed in Chapter 12 and by criminal penalties.
15.3 There remain however, valid reasons for considering the registration of particulars of the birth of the AID child. Should the register refer in some way to the biological facts? In the case where a husband has not consented to his wife receiving AID the Artificial Conception Act 1984 has nothing to say on that subject, but a cognate Act, the Children (Equality of Status) Amendment Act, 1984 preserves the husband’s right of disputation. It may therefore be worthwhile sketching the arguments that have been put to support the desirability of including correct biological details and examining the provisions of the law in relation to birth registration and the procedures normally followed in New South Wales.
II. ETHICS AND MORALITY IN BIRTH REGISTRATION
15.4 Discussion of the ethical and moral issues related to birth registration usually involves consideration of the value of truth. A useful analysis was offered in 1976 by an English theologian Professor G.R. Dunstan at a seminar of the Royal College of Obstetricians and Gynaecologists. Professor Dunstan expressed the view that a deliberately false declaration of paternity was an offence at law; and it solves no problem. The child is now deceived as to his ancestry, his identity, so is society:4 He made the following further comments:
Falsehood in registration is, in fat, an injustice to society ... it erodes our common interest in truth in public relations and therefore in the conditions of trust - that essential bond without which a people becomes a prey to anarchy or to bureaucratic tyranny. In particular, the falsehood threatens a vital interest in medical science, particularly in genetics ... the area of uncertainty is widened ... credibility is reduced... relationships are less secure; a science which could prove of great benefit is denied its basis of trust.
It is not enough to follow the example of some North American State jurisdictions and extend the concept of legitimacy to cover the AID child, by statute or by judgment; that is simply to make words meaningless; and it will not touch the real issue. The real issue is one of truth, and of men’s right to know their true identity, only a register of genetic identity, maintained alongside of the register of social identity, will serve... Some may see in such a register a threat to civil liberties - another advance towards the computerised tyrant state where all is known and all recorded. Others will see in it a threat to the donor... So be it. We must choose.5
It is plain that the State of New South Wales has “chosen”.
III. STATUTORY PROVISIONS
A. General
15.5 The Registration of Births Deaths and Marriages Act, 1973 provides that within one month following the birth of a child in New South Wales “a parent of the child” shall register that birth.6 If the child is “exnuptial” the father is not obliged to effect registration.7 Section 11(3) provides that the “parentage of’ the child shall be recorded. The prescribed document that should be completed contains a section headed “Father” and requires details of the father s name, occupation age and place of birth. However, the Act contains special provisions relating to exnuptial children8 which as a general rule prohibit the recording of any details of a man as a father unless he is agreeable or unless a court has ordered it. Statutory provisions exist for the referral to courts of paternity claims by women and men. There also exist statutory provisions making it a criminal offence to furnish wilfully false information with respect to a birth certificate.9 Similar statutory provisions can be found in other Australian states and overseas.
B. Unlawful practices
15.6 In relation to AID children it has been widely believed for sometime that consenting husbands have often registered themselves as fathers of their wives’ AID children. The typical AID child in New South Wales (and elsewhere) will be born to a married woman whose husband has consented to the procedure. The implicit official recognition of a practice that could be in some cases, unlawful (until the Artificial Conception Act, 1984) can be illustrated by the following advice included in a 1979 booklet distributed publicly in England by the Royal College of Obstetricians and Gynaecologists. The College described itself as “grateful to the Department of Health and Social Security for funding the printing costs of this booklet”.
There is at present no legal guide for the registration of the AID baby. Strictly speaking, a baby conceived by AID should be registered as “father unknown” and since it would then be illegitimate, the parents should adopt it However, babies born within a marriage are presumed to be legitimate and provided you do not abstain from intercourse during the period in which AID was carried out there can be no certainty that any child conceived is not your husband’s.10
The reluctance of AID parents to place on public record the facts of their resort to AID maybe readily imagined, including their concern for the child’s own feelings and privacy. As a result, it is not difficult to conclude that over the years numbers of honest citizens, their medical advisers and even government instrumentalities may have consciously broken the law or encouraged its breach, in relation to registering the birth of AID children.
15.7 In an attempt to place in perspective the conflict between principle and practice demonstrated by paragraphs 15.4, 15.5 and 15.6 we now return to the question whether “truth” or certainty can be guaranteed in relation to the biological origin of AID children. We have discussed this in previous Chapters.
IV. STATISTICAL INFORMATION - NEW SOUTH WALES
15.8 We have been supplied by the New South Wales Registry of Births, Deaths and Marriages with statistics relating to births in the calendar years 1981, 1982 and 1983, with particular reference to registrations that make no disclosure of paternity, ie. name no person as father. It should be borne in mind that this information relates to the initial registration There may be cases (number not available) in which claims of paternity will be made by and against men that could lead to the addition of their names to birth registrations. Despite this, it is plain that large numbers of births are registered without details of paternity. This means that genetic certainty is not available from the register.
| | Total Births in New South Wales | Total Registered Without Paternity | Total Registered As Exnuptial |
| | | | |
| 1981 | 82,530 | 3,910 | 10,898 |
| 1982 | 83,489 | 4,019 | Approx. 12,000 • |
| 1983 | 82, 739 | 3,811 | Approx. 12,000 • |
• number not confirmed
The most that can be said for the birth registry in the present context is that it provides a record of events and is not nor is it intended to be, necessarily a source of biologically or genetically accurate information If paternity is mistakenly attributed or deliberately misstated, the register will be inaccurate.
V. EFFECT OF RECENT AID LEGISLATION
15.9 Speaking statistically or numerically, the impact upon the register of the Artificial Conception Act, 1984 remains to be seen. In view of the small numbers of AID children born (see Chapter 2) relative to total births, it is unlikely to be marked. However, it is now undeniable that because of the words quoted in paragraph 15.1, “the husband shall be presumed, for all purposes...to be the father”, the typical AID child will be the subject of a lawful birth registration that shows social rather than genetic paternity. To this extent official records will be less rather than more scientifically accurate. There is no prospect or intention so far as we are aware, on the part of the New South Wales Government to establish a special register for accurate biological information as suggested by Dunstan in paragraph 15.4. The Victorian Committee and the Victorian Bill discussed in Chapters 11 and 12 proceed on the assumption that detailed recording of information about the parties to AID will result in the availability of accurate genetic information. We hive already expressed our reservations about this approach.
15.10 It could be argued that the Artificial Conception Act- 1984 has clarified the law and improved it. It will allow AID couples to proceed with birth registration free from the fear of breaking the law and committing an offence and clarifies the legal status of the typical AID child. However, it achieves these results only for children born to married women whose husbands have consented to AID, and women in established de facto relationships whose partners have consented. For any other woman who bears an AID child the likely result will be that the child will be legally fatherless because the Act specifically provides that in all cases of AID the donor is not the legal father.11 For such children there can never be completion of birth registration particulars showing anything under the heading “father”.
15.11 We have no tentative view or recommendation for reform to offer on this subject. The reform achieved by the Artificial Conception Act, 1984 appears to be sufficient at least until events disclose a need or requirement for further reform. For further assurance we envisage consideration, in due course, of the question whether a specific clarifying provision may be desirable for inclusion in the Registration of Births Deaths and Marriages Act, 1973.
15.12 We have not in this Chapter addressed the question of registration of the birth of an AID child from a woman inseminated with her (deceased) husband’s sperm after his death. We deal with this in Chapter 20.
VI. ISSUE FOR REFORM
15.13 Should the law relating to the registration of births be amended or reformed in relation to children born to women as a result of AID?
Footnotes
1. Artificial Conception Act, 1984, s.5(2).
2. Id., s.6(i).
3. Report of the Committee of Inquiry into Human Fertilization and Embryology (United Kingdom, 1984), para.4.17.
4. Royal College of Obstetricians and Gynaecologists, Artificial Insemination (Fourth Study Group, 1976), p. 186.
5. Id., p.186.
6. Registration of Births Deaths and Marriages Act 1973, s.12.
7. Id., s. 14.
8. Id., s.42A.
9. Id., ss.57, 58 and 59: see also Crimes Act, 1900, ss.337, 547A.
10. Royal College of Obstetricians and Gynaecologists, Artificial Insemination (London, March 1979).
11. Separate analysis of the case of a married woman whose husband does not consent to AID is not needed for the purposes of this Chapter.
|
