|
|
 |
Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 5 - Regulation of AI
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 5 - Regulation of AI
I. OBSERVATIONS
5.1 The question “should AI be regulated by legislation?”, is of primary importance. If it is answered in the affirmative, the next question must be “how?”, and the answer to that question is even more important If translated into law, that answer will determine the future of Al practice and the treatment of much male infertility in New South Wales.
5.2 We indicated in paragraphs 1.11 to 1.15, and in Chapter 2, that Al as a part of medical practice is both well- established and widespread in New South Wales. We said in paragraph 2.6 that we have little knowledge of the existence or extent of Al as a non- medical practice or as a “do-it-yourself” activity. However, we have no doubt that AI is sometimes performed in that way.
5.3 Consideration of AI as the practice of medicine leads directly to other questions. Is AI truly the practice of medicine? Would a person who publicly practised AI for reward be holding himself or herself out as willing to practice medicine and liable to criminal penalties if not a registered medical practitioner? The fact is that the performance of AI is neither difficult nor dangerous if done sensibly and hygienically and may easily be carried out without medical management. However, the treatment and alleviation of infertility in marriage does appear to be a matter that usually requires medical knowledge. As mentioned earlier, AIH and AID as systematic procedures, have been developed in Australia by medical practitioners.
5.4 AI can be accepted as a form of medical practice, without the necessary consequence that it must always be seen as the practice of medicine. Why then would a government or a community wish to outlaw AI if performed (as opposed to being systematically practised) by a person other than a medical practitioner? Reasons have been given by eminent authorities.1 The reasons include the possibilities that an unqualified person may not assess “all the factors” including the risks that pregnancy may bring, may not keep records, may resort to blackmail, may not inquire into the female’s genetic background, and may be prepared to perform the insemination without adequate psychological examination.2 Others have emphasised the importance of medical testing and appropriate counselling.3 This reasoning encounters one major difficulty. The fact is that the same argument may be put in relation to “natural insemination” and achieving pregnancy by sexual intercourse, which persons may perform as they wish. The likelihood of legal regulation of heterosexual intercourse between adults being accepted or observed by the community may in our view be discounted. Is AI so different that it demands legal prohibitions and criminal sanctions? If mature, competent married persons decide to carry out AI using their own gametes, why should the law interfere? We discussed this question in paragraphs 3.23 and 3.24. The question also arises whether each activity by private persons could justify the time and expense of creating and attempting to enforce criminal prohibitions.
5.5 The idea of legally restricting the performance of Al to medical practitioners is not new. We have already described its appearance in official documents (see paragraphs 3.19, 3.22 and 4.11). Victoria and a number of states in America4 have done it in statutory form, but as far as we know it has not yet been embedded in the law of any other country. Further, we are not aware of any official attempt to make the distinction that we make in the following paragraphs, namely the distinction between AI when done as a continuing practice, and AI when done as an act by private persons.
II. OUR APPROACH
5.6 Our present view is that limited regulation of Al in the manner that we now describe, would serve the community interest. We consider that legal regulation should apply to any person who practises AI publicly or for reward or who holds himself or herself out as prepared to perform AI. The way in which AI has developed in New South Wales leads us to the belief that its public practice should be restricted to the medical profession. The restriction should not be so narrow as to prevent its performance by recognised institutions such as family planning centres, and skilled persons such as qualified nurses, provided that medical supervision is present. If the law confined its attention to AI in this way it would in our opinion not be necessary to attempt to regulate or prohibit its performance when self-administered or when done by “consenting adults in private”. We also believe that such regulation is unlikely to be effective. It could not be policed or monitored, and would be likely to be ignored. It would carry the risk of bringing the law into contempt.
5.7 Legal regulation limited as envisaged in the preceding paragraph would still leave substantial room for operation of the ideal of personal freedom and autonomy, while directing the continuing, practice of this means of human conception into procedures designed to foster public health. AI as a practice would be confined to the medical profession. AI as an act would not. As we see it, medical practitioners and hospitals should be free to practise AI or not and to accept or not accept patients as part of their normal professional activities. Our recommendation also seeks to maintain a fair balance in relation to the overriding problem of the welfare of the AI child. The welfare of the AI child is normally a central consideration with hospitals and practitioners. This is reflected in established counselling procedures for prospective patients. Therefore, although statutory regulation of AI will carry implicit approval of its performance, the regulated area will be one in which the welfare of the AI child is carefully considered. In the unregulated area of private behaviour there are cogent reasons already described, for the law not to interfere. The basis is the same as that which would apply to any attempt by the law to control mating and reproduction by citizens in general. It is not accepted in our society that any person or organisation, in the name of children’s welfare, has or should have the power to judge who may and may not have children AI on a private, individual basis does not appear, to be sufficiently different from normal reproduction to warrant such interference. AI as a practice is different and attracts different considerations.
III. ISSUES FOR REFORM
5.8 The performance of AI, including AIH and AID in New South Wales is not unlawful. On the assumption that AIH and AID are not to be prohibited, the following issues arise for determination:
(1) Should AI (including AIH and AID) or any part of AI be regulated by the law?
(2) If the answer to (1) is yes, what should be regulated, what kind of regulation should be introduced, and what limitations if any should be placed upon regulation?
(3) Is there any kind of AI or any part of AI that should not be legally regulated? If so, what kind and what part?
Footnotes
1. Report of the Special Committee Appointed by the Queensland Government to Enquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters (March 1984) vol.1, pp.105-110.
2. Id., p.107.
3. Discussed further in ch.17.
4. B.J. Jensen, “Artificial Insemination and the Law” (1982) Brigham Young University Law Review 935, at p.955, see also Infertility (Medical Procedures) Bill (No.2) 1984 (Vic.), cl.17.
|
