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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 6 - Availability of AID
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 6 - Availability of AID
I. OBSERVATIONS
6.1 Are all women of childbearing age to be regarded as eligible for, or perhaps entitled to, AID when lawfully practised pursuant to Chapter 5? Statutory acceptance of the practice of AI by medical practitioners and hospitals does not of itself signify official approval of the unrestricted availability of AID. Indeed, the imposition of legal controls on the practice of AI ought suggest to some that there should be corresponding restrictions on its availability. The modern practice of AID has developed in Australia as a treatment of infertility in marriage. It may be that the community would expect pioneering legislation on the subject to make the same emphasis.
6.2 There are further issues that warrant consideration, in particular the following:
- As shown in paragraph 4.6 the surveys conducted by the Advisory Committee disclose not only a powerful community disapproval of the availability of AID to unmarried women, but a low proportion of persons prepared to give positive approval to that availability.
- At the same time, support for the availability of AID to unmarried women has been put by some on the basis of the spirit (or letter) of anti-discrimination and equal opportunity laws.1
- There is always the necessity to balance community opinion in relation to the provision of AI services (and also the welfare of the AI child) against a woman’s claim to autonomy and her desire to achieve pregnancy.
- Unmarried or single women are not by law forbidden to become pregnant.
6.3 A difficult question is whether the community disapproval disclosed by the surveys should be translated into statutory prohibition. We hesitate to make such a recommendation and note that the Queensland Committee has recommended that this subject be dealt with by ethical guidelines rather than legislation.2 The view of the Queensland Committee is “that AID should normally only be a dministered in cases where the mother is married or is living in a stable de facto relationship with a man who consents to the AID”.3 We interpret the Queensland Committee’s view as envisaging that there could be circumstances in which the restriction against unmarried women could be relaxed. If so, we agree with it.
6.4 We also believe that legislation alone is not the only way of resolving the issue. There is no reason to suppose that the law and lawyers are the only institutions capable of interpreting community opinion. In a case such as the present, the medical profession may be the best group to deal with acceptance for treatment, as part of the initial discussions and counselling. A balance should therefore be sought between what appear to be strong community opinions and the ideal of fairness in individual cases. This could be achieved by resort to the skills of experienced medical personnel within a framework of legislative “guidelines”. Assistance in decision-making may be given to the medical profession by means of principles which, for convenience, could be placed in the relevant legislation without creating rigid statutory categories of eligibility and exclusion and thus the possibility of injustice in particular cases.
6.5 On one view, much benefit is to be gained from the creation of a framework of principles to guide decisions on eligibility for, and termination of, AID treatment. The principles could be embodied in legislation. The legislation would then specify the factors that must be borne in mind before a decision is made, and provide for the right of the medical profession to make an effective decision (provided proper consideration has been given to these factors) whether or not to accept or continue to treat a particular patient.
6.6 These objects could be attained if the legislation provided that a person who lawfully performs Al as a medical practice shall not administer AID to a woman or accept her as a patient or a member of a program until the person has given due consideration to the following:
- the welfare and interests of a child that might result, including the prospects for the child being raised in a stable household; and
- the domestic circumstances of the woman including whether she is married or at least lives in a stable domestic relationship into which the child would be welcomed.
Admittedly such a provision would rely heavily on the integrity of the medical profession because of the difficulty of policing and enforcing it.
6.7 Some may not be persuaded by the propositions outlined in paragraphs 6.5 and 6.6, and may believe that they offer insufficient opportunity for supervision or leave too much opportunity to the medical profession to ignore prescribed guidelines. Our suggestions for the establishment of an Official Advisory Committee in Chapter 23 may well offer an appropriate “stiffening” and provide a suitable incentive for clinics to perform their duties conscientiously.
II. THE PRESENT LAW
6.8 A further comment is called for, and that is to draw attention to the view that has been publicly expressed that anti-discrimination or equal opportunity legislation as currently in force, may confer a right to AID services upon all women.4 On this view, a single woman may be able to force a hospital to accept her as an AID patient. Without debating the matter, we observe that the view has little validity if AID is seen as a proper part of medical practice. It should be remembered that in this context AID would normally be used to alleviate or treat infertility of a couple where the problems stem from the male. As mentioned in paragraph 1.8, AI has been seen as a treatment for couples. Therefore, if a woman was unable to demonstrate infertility of the kind that can be reasonably treated by AID she would have no more right to demand AID from the medical profession than a healthy person would have to demand that a surgeon amputate a limb or perform an appendectomy. Subject to the suggestions in the preceding paragraphs, we see no basis for suggesting that the legal right of any medical practitioner to accept or not accept a patient should not prevail In any event, consideration such as the welfare of the child and the special status of marriage could make it difficult in many cases to sustain an anti-discrimination argument.
III. ISSUES FOR REFORM
6.9 (1) Should AID be made available to both married and unmarried women?
(2) Should AID be made available to unmarried women only if living with a man in a stable domestic relationship?
(3) Should any other restriction be placed on the availability of AI, AIH and AID?
(4) Should the law remain silent on the question of availability of AID to women?
(5) Should the law (or any other agency) lay down guidelines for availability of AID and leave the final decision to the medical profession in each case?
Footnotes
1. S. Mason, “Abnormal Conception” (1982) 56 Australian Law Journal 347, at p.352.
2. 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.108-109, 145.
3. Id., p.109.
4. See note 1 above, p.355: refers to the practice in some centres of allowing only married women to participate in the IVF program.
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