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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 2 - AI and the Number of AI Children
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 2 - AI and the Number of AI Children
I. INTRODUCTION
2.1 The well-known lack of reliable factual information about AI has prompted visits to all known clinics in New South Wales by a member of the Commission, usually accompanied by one of our research staff.1 We have also made direct written communication with all known clinics and AI practitioners in the other Australian states,2 as well as enlisting the assistance of a number of medical colleges and societies.3 At our request the colleges and societies have made direct appeals to members in their normal journals and newsletters asking that practitioners of AI communicate directly with the Commission.
2.2 We emphasise two facts. The first is that no systematic collection of data about AI on a state or national basis has ever been done. The reasons no doubt include the traditional secrecy and confidentiality that have marked medical practice in this field. We believe that the same lack of information is to be found in other Western nations. The information in this Paper is likely to be as accurate as any available because it has been gathered in recent months for the purposes of this reference and under arrangements for confidentiality.
2.3 The second is that available in formation on “numbers” relates largely to AID rather than AIH. Although AIH is practised widely, our inquiries have shown that clinics do not normally accumulate separate information on the success rates of that process. One of the reasons is that AIH is often part of a lengthy process that involves other forms of medical treatment than AI, all aimed at alleviating the infertility of a particular couple. The accumulation of separate information is usually confined to AID.
2.4 The information in this Chapter relating to current AI practice in New South Wales has been gathered from six public hospitals, and two substantial private clinics.4 We are satisfied that these eight sources account for most, if not all, AID children born in the state in 1983 to women who resorted to the medical profession for assistance. Each of the six hospitals operates a fertility clinic in which AI is practised. Their respective commencement dates for this practice were 1974, 1976, 1978 (two clinics) and 1982. The privately-conducted clinics opened in 1963 and 1981.
2.5 After attending each clinic and practitioner in early 1984 and obtaining information in direct discussion, we submitted a written record for verification and return to us. All records were duly returned. We asked our informants for the names And addresses of any medical practitioners known to them as possibly performing AI. We were given a number of names and sent a letter of inquiry in each case. Most of these practitioners advised us that they now refer AI candidates to one of the established public hospital clinics. A small number in country areas advised that they occasionally administer AI.
2.6 Our information does not and cannot, shed any light on the extent of the incidence of AI in New South Wales by private persons who may carry it out on a “do-it-yourself” basis. The Advisory Committee was informed by some of its medically-qualified members that patients had sometimes told them of co-operation in administering AI between neighbours and within family groups. This kind of second-hand information was also given to its by the medical staff of some of the clinics we visited. There is obviously no systematic way to verify the existence of AI practice “between consenting adults in private”, or, if it occurs at all, to measure its incidence in New South Wales. We therefore confine our attention to AI as practised by the medical profession and organisations that have a recognised medical connection with the subject. We should say here that no direct knowledge is held either by the Advisory Committee or by this Commission of the non-medical practice of AI in New South Wales or of any concern or complaint relating to such activity.
II. AID CHILDREN BORN IN 1983
2.7 In the 1983 calendar year some 500 women were accepted in New South Wales as new patients for AID. In the same year there were delivered in the state some 250 live children born as a result of the practice of AID. Of course, not all the pregnancies were achieved in 1983.
2.8 Information Supplied directly to the Commission from other Australian states accounts for the live birth of some 678 AID children in 1983, the largest single number from one state being 421 in Victoria. The identities of interstate AI clinics and practitioners had been established in 1982 by the Advisory Committee on Human Artificial Insemination (see paragraph 1.18). The Commission in 1984 sent to them by post a written questionnaire and in all cases received written replies.
2.9 An acceptable estimate of the total number of live AID births in Australia in 1983 is, in our opinion, 1,000.
2.10 We see little point in attempting to average the numbers of AID births over the past 10 or 15 years because of the lack of reliable information and the different commencement dates of practice of the clinics. However, we are satisfied that all numbers are increasing, that is to say, the numbers of women accepted as patient, the numbers of AID pregnancies and the numbers of live children born.
III. LACK OF RELIABLE INFORMATION
2.11 The difficulty of obtaining reliable information may be illustrated by reference to selected public statements in recent years. For example, in 1968 Professor Linus Pauling wrote that he had seen estimates of the number of AID children born in the United States “as high as one million”.5 More conservative authorities have suggested numbers “between 6,000 and 10,000” annually6 and “the total number ... as being 250,000 - with yearly estimates ranging from 10,000 to 20,000...”7
2.12 The United Kingdom has some 50 AI centres recognised by its National Health Service. In Europe, AI is widely practised in many countries including Belgium, Finland, France, Scandinavia and Switzerland.8 It has been reported that AID has a low incidence in West Germany because of substantial legal liabilities placed upon medical practitioners if a resulting child is abnormal.9 The Council of Europe produced in 1979 a draft model code for the legal regulation of AI under the title “Draft Recommendation on Artificial Insemination of Human Beings and Explanatory Report”.10 This code has not yet been approved by a majority of the member states.11
2.13 In 1980 the then New South Wales Attorney General gave the figure of 10,000 children born in Australia as a result of AID.12 No supporting evidence was offered. In the same year a well-known Australian gynaecologist estimated that about 600 couples were being treated annually by AID.13 In 1977, two other experts had suggested that “between 50 and 75 women receive AID each week in Australia.14 Empirical research conducted by the Advisory Committee on Human Artificial Insemination suggested a minimum annual Australian AID birth rate of about 450 by 1982.15 However, there was reason to conclude that the true numbers were substantially higher because more than one-third of the clinicians and centres to whom written inquiries had been addressed by the Committee had failed to respond.16
IV. LEGISLATION AND LAW REFORM
2.14 Assuming the estimates of the numbers of AID children born in New South Wales and Australia in 1983 to be realistic some fundamental questions arise. These include:
- Should the procedure of AI (whether AIH or AID, or both) be regulated by legislation. Is AI worth parliamentary and government time, and employment of valuable community resources?
- Given that the practice of AI in New South Wales for the purpose of alleviating the infertility of couples is acceptable to the community, is it to be encouraged?
2.15 At the present stage of our inquiry we believe (as we said in paragraph 1.26) that both groups of questions may be answered in the affirmative, or substantially so. Our opinion is based first on the fact of the enactment and introduction of the new statutes and Bills described above in paragraphs 1.25-1.26 and below in Chapter 3. Australian parliaments themselves have already given an answer. Secondly, the Advisory Committee on Human Artificial Insemination in 1983 commissioned surveys of Australian public opinion that demonstrate in the clearest fashion approval by the Australian community of the practice of AI. There are limits to the approval and these limits, together with the surveys are discussed in Chapter 4.
2.16 The final reason for our opinion is that we believe that AI has assumed a different aspect and significance since the birth in 1978 in England of the world’s first baby resulting from the procedure of in vitro fertilization (IVF). IVF represents an historic change in the means of conceiving human beings. The entire conception takes place outside the human body. Creation of human embryos has now been truly separated from the act of sexual intercourse.
2.17 Until the appearance of IVF it could have been said that AI was little removed from sexual intercourse, particularly when fresh, not frozen, semen was used. indeed, some United States courts held AID to be adultery.17 The procedure attracted ecclesiastical disapproval stemming more from distastes and aesthetic and biblical rejection of masturbation and the means of placement of the semen, than moral and theological objections of the depth that have characterised the IVF debate. This was demonstrated by official inquiries into AI in England after World War II.18
2.18 However, the success of IVF has focussed closer attention upon conception by artificial methods. AI can now be seen in a different perspective, as another form of artificial conception, and not just as a step away from sexual intercourse. In addition, the new technological procedures for freezing, storage, thawing and the future use of sperm and embryos have shown another dimension of the subject.
2.19 It could be said that the birth in 1983 of 250 AID children in New South Wales, and 1,000 Australia-wide, is of little significance when compared with the total number of births in the Australian community (242,000).19 Such a statement would, in our opinion, ignore or distort the true significance of AID because it would not take into account the changed and changing social and scientific context in which these births took place, or all the considerations referred to above.
2.20 Our conclusions in paragraph 2.15 have been reached in the knowledge that there is nothing by way of reproduction that can be done or produced by AID that cannot be done or produced naturally and that there appears to be no support for the proscription of heterosexual relationships between adults. We accept that a view may be put that if AI is seen as a “treatment” for infertility it should not receive special statutory attention making it different from other medical treatment. It could also be said that since the new statutes referred to in paragraph 2.15 have settled the question of the legal status of AID children the most significant remaining issue is whether the medical profession and the state through its public hospital system should provide these services, and if so, how? Part II of this Paper provides a basis for answering these questions.
Footnotes
1. The Royal North Shore Hospital, St. Leonards; The Royal Hospital for Women, Paddington; The Westmead Centre; The Royal Prince Alfred Hospital, Camperdown; The Royal Newcastle Hospital; Private Practitioners who conduct extensive AI practices in the city of Sydney, the Eastern Suburbs, and the St. George area. Other practitioners contacted who offer an AI service on a smaller scale are located in the greater Newcastle area, Dubbo, Armidale, Port Macquarie and Albury-Wodonga.
2. Victoria: almost all the AI is carried out at one of the clinics run by the large teaching hospitals in Melbourne. They are the Royal Women’s Hospital, Prince Henry’s Hospital and the Melbourne Family Medical Centre (run by the Monash University Department of Obstetrics and Gynaecology). The Commission is aware that two private practitioners offer an AID service, one in Melbourne and one in Wangaratta.
Queensland: The Queensland Fertility Group comprising a group of specialists based in Brisbane carries out most of the AID in that State. The Reproductive Biology Group of the Department of Veterinary Anatomy, University of Queensland undertakes the freezing procedures of semen for the Group, who then in turn supply semen samples to other gynaecologists throughout the State. Private Practitioners who perform AID in Queensland are located in Bundaberg, Ipswich, Cairns, Mackay, Gold Coast, Rockhampton, Toowoomba, Townsville.
South Australia: AID clinics operate at the Queen Elizabeth Hospital and the Flinders Medical Centre, and a number of private practitioners also offer an AID service.
Western Australia: The Sir Charles Gairdner Hospital offers a frozen sperm service throughout the Reproductive Medical Research Centre to over 40 private practitioners throughout the State. One or two private practitioners run their own services in Perth.
Tasmania: Private practitioners run services in Hobart, Launceston and other centres.
4. See note 1 above-
5. L. Pauling, “Reflections on the new Biology” (1968) 15 ULCA Law Review 267, at p.270.
6. M. Curie-Cohen et al., “Current Practice of Artificial Insemination in the United States” (1979) 300 New England Journal of Medicine 585, p.588.
7. G.P. Smith II, “The Razor’s Edge of Human Bonding: Artificial Fathers and Surrogate Mothers” (1983) 5 Western New England Law Review 639, p.639.
8. W.J. Finegold, Artificial Insemination (2nd ed. 1976), p.57; D.W. Joyce, “Artificial Insemination by Donor” (1979) 13(5) International Planned Parenthood Federation Medical Bulletin.
9. International Planned Parenthood Federation Medical Bulletin, see note 8 above.
10. Council of Europe, Draft Recommendation on Artificial Insemination of Human Beings, Ref: Dir. Jur (79) 2, produced 5 March 1979.
11. Letter from Mr Ferdinando Albanese, Deputy Director, Legal Affairs Branch, Secretariat General, Council of Europe to Advisory Committee, (1982) dated 29 March 1983.
12. News Release from the Attorney General of New South Wales, “Legal Rights of Children”, 3 July 1980.
13. C. Wood et al. (eds.). Artificial Insemination by Donor (1980), p.63.
14. J. Kraus and P.E. Quinn, “Human Artificial Insemination - Some Social and Legal Issues” (1977) 1 Medical Journal of Australia (New South Wales, Sept. 1982), Paper 1.
15. Advisory Committee on Human Artificial Insemination, Table of Artificial Insemination Centres in Australia (New South Wales, Sept. 1982), Paper 1.
16. Ibid.
17. See, eg. Doornbos v. Doornbos (1956) 12 I11. App.2d 473; 139 N.E. 2d 844. See also Lord Dunedin’s comments that “recundation ab extra .... is adultery” in Russell v. Russell [1942] A.C. 687, at p.688.
18. In December 1945 an ecclesiastical commission, the Archbishop Commission of the Church of England, was appointed to investigate artificial insemination, and this culminated in a House of Lords debate in February 1959. From St. John-Stevas, Life, Death and the Law (1961), quoting The Times, 17 February 1958. The Government appointed a departmental committee to inquire into the practice of AID, which was chaired by Lord Feversham (Feversham Report). It presented its report in July 1960.
19. Australian Bureau of Statistics, Australian Demographic Statistics December Quarter 1983 Cat.No.3101.O, p.12, table B.
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