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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 22 - Dominion, Control and Ownership of Stored Sperm
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 22 - Dominion, Control and Ownership of Stored Sperm
I. PROPERTY IN HUMAN TISSUE
A. General
22.1 The question of ownership of human tissues is a difficult one. There is good authority for the general proposition that the common law does not recognise or accept proprietary rights or interests in human tissues.1 We see no point in pursuing this much discussed and complex question here, because our concern is with only one kind of tissue, that is donated and stored semen. Further, we believe that the issues of dominion or control of this tissue in the context of AID can be resolved satisfactorily only by specific legislation or guidelines and are not likely to be clearly resolved by leaving them to the processes of litigation and judicial determination.
B. The Issue in Relation to AI
22.2 What ever may be the law in relation to proprietary rights in human body materials, it is our opinion that important issues must be resolved in relation to the power to control use and disposal of human reproductive tissues in the processes of artificial conception. We are here concerned only with semen in the context of AID, and accept that while the issues are probably the same in principle with both semen and ova, they may not be as significant or sensitive as those relating to fertilized ova (embryos) in the context of IVF.
II. PROPERTY IN HUMAN SEMEN
A. General
22.3 Human semen is, as we have seen, frozen and stored for future use as a routine matter. We are aware of no time limit that must be imposed from a medical point of view. However, as we have seen in Chapter 20, difficult problems not of a medical nature can arise from prolonged storage, for example, if the semen donor dies during storage. We are also aware that as time passes the effectiveness of stored sperm for fertilization declines.
B. Control of Donated Semen
22.4 If semen is donated by a man for use in AID there appears in general to be no basis for him to assert any right or power over its subsequent disposition. This is implicit in the Artificial Conception Act, 1984, which also implicitly recognises the converse, namely that the donor should be subject to no duties or obligations in relation to a resulting child. There are obvious exceptions that should be made, for example, when the semen is donated for a special purpose or when the donor misrepresents the state of his health. However, in the normal case of semen donation for AID our view is that the clinic or medical practitioner to whom it is given should have the power to determine its use, storage and disposal without further reference to the donor. This power should be subject to some exceptions or conditions, for example, the clinic should be obliged to treat the tissue with efficiency, respect, and, if a special use is stipulated, to use it for the purpose for which it is donated (although the clinic may refuse to accept the semen in the first place). Further, we can see no reason why a donor should not have the right to be informed at any time whether his semen has been used in AID and what was the result. Nor can we see any reason why a donor should not be able to withdraw his tissue or require its destruction at any time. We are not dealing with property concepts so much as a reasonable modus operandi which should be contained within written statutory provisions, or within regulations or guidelines to be created pursuant to a statutory prescribing the procedure in general terms.
C. Disposal of Stored Semen
22.5 In the preceding paragraph we expressed the view that the donor should have the power to withdraw his unused semen and require its disposal at any time. We were talking of semen donated for AID. However, if a man and a clinic reach an agreement for the storage of his semen for his or his wife’s subsequent use (for example, in a case where he is about to undergo surgery or chemotherapy, or has a medical condition that might render him infertile) that is a different matter. It should be regulated by a specific arrangement between parties.
22.6 Whatever the purpose of storage, the question arises whether a limit should be put on the length of time for which the tissue may be stored. Conversely it may be asked whether a clinic could reasonably be expected to store the material indefinitely. The Australian guidelines of the National Health and Medical Research Council of October 1982 expressly provided for stored human embryos by setting an overall time limit of 10 years or the period of conventional reproductive need or competence of the female donor.2 As far as semen for AID is concerned, we see no reason to set a limit on the period of storage. At the same time we see no reason to oblige a clinic to store semen indefinitely. If a clinic decided to cease storage or close its storage facility it should be free to do so. What is needed is a procedure that sensibly gives power to the clinic to conduct its program, sensibly reserves rights and powers to donors, and sensibly allows the termination of storage without injustice.
22.7 The United Kingdom Committee made practical suggestions in relation to the duration of storage of both semen and eggs. It suggested a system of periodic review by the clinic. The intervals are to be five years. The person or Organisation providing the storage would be obliged to ascertain the wishes of the donor or depositor for continued storage, destruction or donation. If the donor would die or cannot be traced or fails to give instructions then the appropriate power of use or disposal would pass to the storage provider.3 The Committee made no recommendation to cover the question of a clinic deciding to discontinue storage. We believe that in such a case the clinic should be free to do so and to take whatever steps it decides in relation to stored semen, subject to an obligation first to communicate with the donor or depositor and provide a reasonable opportunity for alternative arrangements to be made.
III. ISSUES FOR REFORM
22.8 (1) Is the question of dominion or control over donated and stored semen sufficiently important to warrant legislative attention?
(2) In the normal case of semen donation for AID, should the clinic have as a general rule the power to determine use, storage and disposal?
(3) (a) If so, should this general power be subject to conditions such as the donor’s right to be given information whether his semen has been used, and how successfully?
(b) Should the donor have the power to withdraw semen and to require destruction of his donated but unused semen?
(4) Should the person or organisation providing storage be put under a legal obligation to treat donated semen with efficiency and respect and to restrict its use in accordance with restrictions imposed by the donor at the time of donation?
(5) Should an overall time limit be placed upon semen storage?
(6) (a) Should a clinic accepting donated or deposited semen be legally obliged to store it indefinitely?
(b) If not, should it have the power to discontinue the storage either at will or if it decides to close the storage facility?
(7) If a clinic has power to discontinue storage, should it have a corresponding obligation first to give the donor or depositor a reasonable opportunity to make alternative storage arrangement?
(8) Is the suggestion of a compulsory periodic review (e.g. five-yearly) by storage providers a good practicable means of resolving the various interests involved in relation to stored semen, on the basis that such a review would enable effective decisions to be made on the continuation of storage or the destruction of the tissue?
(9) Should the storage provider have power to make effective decisions about continued storage, donation and destruction of stored semen in the following cases:
(i) if the donor or depositor dies?
(ii) if the donor or depositor cannot be traced or fails to respond at the periodic review (see (8) above)?
(iii) if it decides to discontinue or close the storage facility (see 6(b) and 7 above)?
Footnotes
1. Australian Law Reform Commission, Human Tissue Transplants (ALRC 7, 1977), paras.13,168.
2. National Health and Medical Research Council, Ethics in Medical Research (Working Party of Ethics in Medical Research, October 1982), p.27.
3. Report of the Committee of Inquiry into Human Fertilization and Embryology (United Kingdom, 1984),
paras.10.7-10.8.
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