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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 23 - An Advisory Committee on AI
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 23 - An Advisory Committee on AI
I. OUR APPROACH TO REGULATION
23.1 Our present approach to the regulation of Al, and in particular AID, is disclosed by Chapters 5 to 22. Those Chapters and our tentative views show that while we envisage a substantial amount of statutory regulation1 we also put forward contrasting suggestions for broad statutory guidelines or statements of principle on a number of important subjects2 and suggestions that on many issues there should be no statutory regulation at all.3 Our proposals involve considerable reliance upon the medical profession and a deliberate intention to keep detailed legal rules and traditional criminal sanctions and penalties to a minimum.
23.2 We now set out some of the reasons for our approach:
- Over the past decade AI has developed rapidly in New South Wales as a means of alleviating infertility in marriage, practised by the medical profession largely in specialised clinics in public hospitals. As mentioned earlier we have made it our business to visit each clinic and inquire into its methods and results. We are satisfied that high professional standards are maintained by the clinics, that satisfactory success rates are achieved and that abnormality rates in resulting children are not higher, and may be lower than with children born as a result of normal sexual intercourse.
- We are not aware of any practices or activities in relation to Al on the part of hospitals or the medical profession that could be considered to be unacceptable to the community at large.
- The surveys conducted for the Advisory Committee on Human Artificial Insemination, described in Chapter 4, suggest community approval of AID as a treatment for infertility in marriage and community confidence in the practice of AI by the medical profession, particularly in public hospitals.
- Medical practice of AI and properly conducted medical research on Al offers future benefits to the community and the possibility of improvements in the treatment of infertility.
- There is no reason at present to conclude that detailed legal regulation, in particular licensing, rules regulating Al practice, sanctions and punishments, or any of them, are called for in New South Wales, or if introduced would produce. any better results in Al than have been produced by the medical profession itself. In general, with a few exceptions, we see no reason why AI should be Subjected to detailed legal control any more than any other normal aspect of medical practice.
- We are unable to suggest any benefit to New South Wales that would balance the cost of creating and policing a system of detailed regulation.
- Most public hospitals offering AI have ethics committees capable of advising on ethical questions affecting medical practice within the hospital.
II. THE NEED FOR AN ADVISORY COMMITTEE
A. Flexibility of Regulation
23.3 There are, however, aspects to Al that are unusual. One is that the procedure is not therapeutic in the normal sense but is aimed to produce the conception of a child. The tissue involved (semen) has the capacity of procreation. Another is that public feelings and opinions on the subject are sensitive. Further it has occurred to us that medical practitioners might sometimes welcome assistance in difficult decisions on the subjects which we recommended should be left to them. For example, we have expressed the view in Chapter 6 that eligibility for and exclusion from an AID program are best left to the medical profession, perhaps under guidelines. In Chapter 7 (paragraphs 7.13 and 7.14) and Chapter 8, we make comparable comments in relation to semen donors and semen screening and testing. Chapters 8, 10 and 17 afford similar examples. There is also the possibility that circumstances could change on topics that at present call for no legal regulation, for example, semen mixing or sex predetermination. These considerations suggest to us that our scheme of regulation of Al could be aided, or strengthened, by the creation of an official Advisory Committee.
B. Expedition of Decision-Making
23.4 In relation to the practice of human artificial insemination, there are circumstances and possibilities which suggest that the community interest would be well served by the existence of a rapid decision-making facility and continuous monitoring of events, developments and changes. These include:
- assisting clinics with difficult decisions on subjects of the kind referred to in the preceding paragraph;
- preparation and publication of guidelines on good practice in AI and the treatment of infertility;
- monitoring AI practice including collection of information about its incidence and growth;
- monitoring of changes in AI practice that might call for guidelines or regulation;
- providing the government with accurate up-to-date factual information and regular reporting; and
- changes or developments that might make it desirable to introduce legal regulation or guidelines urgently.
23.5 Some if not all of these functions could be performed by an advisory committee of limited membership, comprising mainly medical experts, possibly with one or two members who could provide needed advice on the law or on government policy. A responsive group, able to work readily and promptly with the practising profession could assist clinics to interpret and apply the broad statutory provisions and tentative views discussed in paragraphs 6.6, 7.13-7.16, 8.6, 10.10, 17.7 and 17.20. In addition it could produce or recommend guidelines and collect accurate information about Al in New South Wales.
23.6 On the other hand the Committee could have a more general brief including all the functions referred to in paragraph 23.4. If the committee was of this kind, it should in our view have a wider, interdisciplinary membership, so that more community constituencies are represented. Committees with monitoring, advisory and licensing functions have been recommended by recent Australian Inquiries, and by the United Kingdom Committee. They are intended to supervise all aspects of artificial conception, including IVF and activities such as embryo freezing. We ourselves may eventually recommend such an Organisation for New South Wales when we deal with IVF and surrogate motherhood in this present reference, but we do not wish to pre-empt our future opinions in this Paper. Our concern here is Al and our tentative view is that there is much to commend the establishment of an Advisory Committee of limited membership as mentioned in paragraph 23.5. However, others may prefer to see at this stage a body with wider membership and wider functions. We will therefore welcome all submissions, and to assist the formation of opinion we will set out in the following paragraph a summary of some of the recommendations and legislation recently made and enacted on this subject.
III. OTHER ADVISORY BODIES
23.7 The idea of bodies or organisations to stand between legislation (which in this field must necessarily be experimental) and the public (including the government) is not new. Commencing in 19814 public advocacy of an Australian national monitoring committee on biomedical developments has gathered momentum. It has been widely supported in recent months. The Queensland Committee recommended in its 1984 report the establishment of a Queensland State Bioethics Advisory Committee to monitor practice and developments in artificial conception among other things.5 The United Kingdom Committee recommended the establishment of a statutory licensing authority “to regulate both research and those infertility services which we have recommended should be subject to control.”6 The Victorian Parliament in the Infertility (Medical Procedures) Bill 1984, created a Standing Review and Advisory Committee with wide interdisciplinary membership. The functions of the committee include power to control experiments and research on embryos, the duty to advise the government on infertility and procedures for alleviating infertility, and the duty to provide an annual report on IVF programs.7
IV. ISSUE FOR REFORM
23.8 Is it desirable to establish an official Advisory Committee with purposes and functions of the kind envisaged in paragraphs 23.3 and 23.4?
Footnotes
1. See Chs.5 and 22 passim; also paras.7.16, 9.3, 12.28, 12.29, 12.31, 13.7, 18.4, 18.5, 20.3, 20.6, 20.8, 21.5 and 21.6.
2. See Chs.6, 8 and 14 passim: also paras.7.13, 7.14 and 10.10.
3. See Chs.6, 9, 11, 12, 15, 16, 17 and 19 passim; see also paras.7.13, 10.9, 12.23,13.7, 18.8 and 20.6.
4. The Australian, 4 August 1981, p.3; see also Russell Scott. “Legal Implications of In Vitro Fertilization and Embryo Transfer”, paper delivered at ANZAAS Congress (Sydney, May 1982).
5. 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), pp.46-49.
6. Report of the Committee of Inquiry into Human Fertilization and Embryology (United Kingdom, 1984), para.13.3.
7. Infertility (Medical Procedures) Bill No.2 (Vic.), cl.29.
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