|
|
 |
Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 20 - Artificial Insemination by Husbands Sperm
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 20 - Artificial Insemination by Husbands Sperm
I. GENERAL
20.1 In our opinion AIH raises few issues for law reform. The reason is that the purpose of the procedure is to cause the pregnancy of a married woman with her husband’s sperm. A resulting child will be a true child of the marriage. While disapproval of AIH could be Justified on specific ethical moral or religious grounds, we are not persuaded that there exists any good ground for general social or legal regulation. The high community approval of AID described in Chapter 4 by reference to the surveys there discussed, provides in our view a basis for supposing that community approval is even higher for AIH. We believe that there is justification for the opinion that AIH is clearly comparable to natural reproduction. One aspect of AIH, however, does raise issues for law reform, and that is the insemination of a woman by her husband’s sperm after his death. This possibility has clear implications for the laws of inheritance or succession, and raises questions about registration of birth. The birth registration questions have achieved a particular significance because of the provisions of the new legislation on the legal status of AID children (in New South Wales, the Artificial Conception Act 1984).
II. BIRTH REGISTRATION AND PATERNITY
A. The Present Law
20.2 The Artificial Conception Act, 1984 provides that where a woman becomes pregnant by means of AI:
...any man (not being, in the case of a married woman her husband) who produced semen used for the artificial insemination... shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy.1
If a widow is made pregnant by her late husband’s sperm by means of AI and bears a child as a result, the effect of this provision appears to be to exclude the deceased from fatherhood and to render the child fatherless. It may be that a court would accept an argument that the section is not intended to affect such circumstances and is aimed only at cases where all the parties to the insemination are alive at the time. However, the words of the section provide support for the argument that the woman cannot be regarded as “a married woman”, since she plainly does not have a husband at the time of insemination that the section is concerned to regulate cases by reference to the circumstances at the time of insemination, and that the deceased husband is specifically excluded from being the father of the child. It is likely that such special and rare cases were not considered by the legislative draftsman. We have heard of only two cases of this kind, both arising in Europe. One resulted in a refusal by the French government to allow insemination to proceed with subsequent legal proceedings by the widow to overrule the refusal.2
20.3 Two questions arise. The first is whether the law should make specific provision to recognise paternity in the deceased husband. The second is to determine what kind of information should be placed on the birth register, if such recognition is given. The first question may not be as easy to answer as may appear at first sight. Involved is the meaning of the words “father” and “fatherhood”. Is it possible or desirable to attribute both conception and paternity to a person who was dead when each event (conception and birth) occurred? The truth is that he does (or did) not exist at either time. Following the same approach it could be said that we are not dealing with AIH, but rather with AID, because the widow has no husband. However, we consider the unusual circumstances capable of justifying the use of the expression AIH in this Chapter. Is the word “father” capable of having a meaning in such a case? Perhaps it is, on the basis that the sperm is real enough, and the paternity is correctly attributed despite the legal, temporal, logical and philosophical arguments that may be brought to demonstrate its inappropriateness. Next, assuming that attribution of paternity to a dead person is acceptable, should the law provide for the truth to be indicated on the birth register? There seems to be no basis for failing or refusing to do so. Although section 5 of the Artificial Conception Act, 1984 creates a statutory fiction about paternity, there are defensible reasons for this, not least of which is that it is the desire of all involved parties. However, if a widow deliberately receives AI with her deceased husband’s sperm, notation of the true facts on the birth register seems essential. There appears to be no other way of creating a credible record that does not contradict itself.
B. The Inheritance Issue
20.4 We do not intend to undertake an analysis of the present law in order to determine whether it provides an answer to the question of the rights, if any, of a man’s posthumously conceived AIH child to share in his estate. It is reasonable, in Our view to take the attitude that the law and the courts have never considered the question and have hitherto proceeded on the basis that no man’s child can be born more than nine to 10 months after his death,3 and that no woman’s child can be born after her death. We are speaking generally, in relation to these times, and realise that natural pregnancy can on occasions extend beyond the normal period, and that it is now possible in rare cases for a child to be born alive from a dead mother whose bodily functions have been maintained by artificial means such as a respirator or a ventilator. If a case of posthumous AIH arose for determination by the courts, we have no doubt that it would be carefully decided. However, we believe that there is little useful purpose in conjecture about what the courts might say of posthumous AIH, if a case ever arose for decision. It is more practical to ask whether specific legislative provisions should be enacted to deal directly with the question.
20.5 Should a posthumously conceived AIH child be entitled to share in the estate of the deceased “father”? The view could be taken that such a child should be considered a product of AID and should not be recognised as a child of the “ father” for inheritance purposes. The child would thus be precluded from inheritance rights on the ground that a line must be drawn in relation to conception and the best place to draw it is the time of the father’s death meaning that in order for the child to qualify, conception must have taken place prior to death. On the other hand it would be possible for the law to provide that the posthumously conceived AIH child should be entitled, because of the biological connection to share in the estate of the “father” as his child, to the extent that it remains undistributed. Participation in property already distributed would be neither just nor feasible. An additional requirement could be a time limit requiring the birth to occur within a specified period after the father’s death. However, a natural time limit is imposed upon the widow herself as far as reproductive competence is concerned. A compromise solution could confer inheritance rights, but only when the “father” makes specific provision in his will. This approach would involve the proposition that a man must know if he has produced sperm and arranged its storage, and should therefore be obliged to make direct provision for a post humously conceived AIH child if that child is to share in his estate. The child would be precluded from sharing unless the father makes provision- A time limit on the date of birth could also be imposed in cases of this kind. A final possibility is for the legislature to remain silent and leave the matter to the courts to apply or adapt existing law if and when cases arise. A justification for this approach could be found in the knowledge that cases of posthumously conceived AIH children are likely to be so rare that the resources and time of legislatures should not be devoted to them, at least until they occur with sufficient frequency or present sufficiently important issues to warrant parliamentary attention.
20.6 We incline to the view at present that there is not sufficient reason to justify legislation in New South Wales on this question of inheritance. If our view is not acceptable, and it is decided that a legislative provision is suitable and desirable we favour an approach that would preclude the posthumously conceived AIH child from entitlement to share in the “ father’s” estate unless the “father” has made direct testamentary provision including the child. In that case the “father” wishes should take effect.
C. Further Issues
20.7 We should not leave this subject without further reference to the consequences of the death of a man whose semen is stored for his AI child posthumously conceived. In paragraph 20.2 we examined the effect of the Artificial Conception Act, 1984 in relation to AIH. However, it is also possible for the sperm of an “unrelated” dead donor to be used for AID. Does the Act apply to that case? We think not. If a married woman is inseminated with the sperm of such a donor, the paternity of a resulting child will be determined under the statute by the husband’s consent. If the husband’s consent is given, paternity is his, and the donor is excluded from paternity. The death of the donor is irrelevant to the statutory presumptions. As far as sperm donors are concerned, if a married or an unmarried woman receives AID, the effect of the Act is to exclude the donor from paternity, including the case where the husband has not consented. Once again, the donor’s death is irrelevant to the exclusion- Posthumous conception by AIH is a unique case in which it can be assumed that the donor and the recipient both wished biological paternity to be legally recognised. The woman was formerly married but at the time of conception was unmarried, and because of this both she and the resulting child are affected by the Act in a particular, and probably unintended way.
D. Our Approach
20.8 We therefore take the view that an amendment to the Artificial Conception Act, 1984 is warranted so as to remove the exclusion of posthumously conceived AIH children from paternity. Despite the rarity which we have assumed in the incidence of such cases, our view stems from the fact that the Artificial Conception Act, 1984 was deliberately enacted to clarify the status of AI children. There is reason for the view that the draftsman did not take into account the circumstances discussed in this Chapter. Accordingly, amendment is, we think, justifiable to enable biological paternity to be acknowledged by the law and recorded in the register of births, because this is the wish of the parties.
III. ISSUES FOR REFORM
20.9 (1) Should the law regulate or prohibit Al H where a widow wishes to use that procedure to become pregnant by her late husband’s stored sperm?
(2) If the law permits AIH of this kind to take place should the law recognise the deceased husband as the father of a resulting child (Note: the answer to this question should be given bearing in mind that the (probably unintended) effect of the Artificial Conception Act, 1984, is to exclude the deceased husband from being recognised as the father and to render the child fatherless).
(3) Should the registration of the birth of the child disclose the true biological facts? (Note: registration need not necessarily disclose all the facts).
(4) Should a posthumously-conceived AIH child be recognised as a child of the “father” for the purposes of inheritance of the” father’s” estate?
(5) If so, should the right of inheritance be limited to such part of the estate as remains undistributed at the time of the child’s birth with (or without) a requirement that the birth must occur within a specified period after the father s death?
(6) If the answer to (4) is yes, should the right of inheritance be limited, not as envisaged in (5), but by providing that the child will only have inheritance rights when the “father” has made specific provision to that effect in his will? In cases of this kind should a time limit be imposed upon the date of birth?
(7) If the answer to (4) is no, should the law specifically exclude the child from inheritance rights, or should it remain silent and leave the matter to the courts to determine if and when cases arise?
Footnotes
1. Section 6(1) - our emphasis.
2. Sydney Morning Herald, 3 August 1984, p.7: Sydney Morning Herald, 4 August 1984, p.8.
3. See Children (Equality of Status) Act- 1976, s.10(1)(b) for reference to 10 months.
|
