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Where am I now? Lawlink > Law Reform Commission > Publications > Chapter 7 - Recruitment, Selection and Screening of Semen Donors
Discussion Paper 11 (1984) - Artificial Conception: Human Artificial Insemination
Chapter 7 - Recruitment, Selection and Screening of Semen Donors
I. DONATION OF SEMEN
A. Sperm Shortage
7.1 Sperm donation is the essential pre-requisite of AID. Shortage of donors willing to donate sperm typifies the experience of AID practitioners in New South Wales, although a small number of the hospital clinics and private practitioners said to us that they experience no shortage. Some hospital clinics said that sperm shortages prevent expansion of their AID programs, some that the demand for AID is not sufficient to warrant the conclusion that an increase in sperm availability would lead to a prompt increase in demand, and some that they urgently need increased donation of sperm.
B. Encouragement of Semen Donation
7.2 A question arises whether the law should be reformed by the introduction of measures aimed to increase the availability of AI, for example, statutory provisions to facilitate the establishment of registers of donors and to encourage semen donation, by public education and media promotion emphasising the benefits that donation may confer on infertile couples. If the community saw the donation of sperm as a desirable “good” of the same order as blood donation or the donation of tissues for surgical transplantation, there could be justification in the law underwriting steps to encourage sperm donation. Our current view is that there are no compelling arguments for the law to promote it actively. On the other hand, we see no reason for the law actively to discourage donation.
7.3 We proceed on the basis that semen donation for AID should be regarded by the law in New South Wales as acceptable and as offering real benefits to infertile couples. This leads to consideration of the recruitment and selection of donors, their health and the quality of their semen, screening and testing of semen and the duties if any, that should be imposed upon them and upon AID practitioners.
C. Procedures for Donor Selection
7.4 New South Wales clinics do not follow identical procedures or use identical criteria for donor selection and testing. Some clinics are little concerned to record information about a donor’s social, economic or emotional background. Others collect detailed particulars such as schooling, occupation intelligence, artistic interests, sporting activities, temperament and personality. However, it seems that all clinics make a point of recording basic physical details such as height, weight, complexion, hair and eye colour, and racial origin. Physical and socio-economic information is considered to be relevant in “matching” donor and recipient couple but opinions differ widely in the medical profession on the extent to which attempts to match should go. Some doctors firmly believe that a person’s characteristics and even appearances are greatly influenced by upbringing and family context. Others believe that they should try to match as many characteristics as possible. Whatever is correct, there is general agreement that some basic matching is necessary, such as colouring, race and the desirability of avoiding donors with marked physical abnormalities. Again, some recipients have strong requirements related to religion, nationality and other matters which clinics will often wish to satisfy if possible. Apart from information of the kind already mentioned, clinics normally give close attention to other factors, including semen characteristics, personal and family medical history, the transmission of disease and defects, marital status and reasons for being a donor.
II. PROTECTING RECIPIENT AND CHILD
A. General
7.5 One conclusion is plainly justified. The potential recipient of AID and the child to be born should be protected against avoidable disease and injury that can be caused by defective sperm.
7.6 In order to reach a decision whether this claim to protection should be supported by specific legal regulation, it’s vital to have some understanding of the kinds of disease or defect that can be transmitted by sperm. At the same time it is important to remember that whatever disease may be transmitted by artificially placed sperm may be equally transmitted by sexual intercourse. As we have said, the law does not presume to regulate sexual intercourse as such between mentally competent and consenting men and women. Why then should the law regulate the sperm that is used in AID? The answer is to protect the recipient and the resulting child from avoidable harm. The typical recipient of AID envisaged by this Paper is a married woman whose marriage is infertile and whose husband consents to the insemination. She is not in equivalent circumstances to a woman, married or unmarried, who has, as she is entitled to do, sexual intercourse with any man or men of her choice.
7.7 Accepting that the AID recipient is entitled to protection from the consequences of defective sperm how far should the community go by way of legal or other protection Our present answer is that the community should provide protection, but a number of factors should be borne in mind.
- If the woman deals with a medical practitioner, particularly one who specialises in this subject, protection is already “built in”. First, the practitioner is under a legal duty of care to her. Secondly, she is entitled to expect competent and efficient advice and treatment as does any other medical patient.
- The patient herself should take steps to learn about the procedures and to seek information about normal risks and possibilities, and should be expected to make a careful and responsible decision. The practitioner should make the information readily available.
- If the law prescribed detailed screening and testing criteria, medical judgment could be supplanted by legal rigidity. A consequence would be the need to alter the law if medical practice changed or advances caused criteria to become outmoded. There can be no guarantee that statutes or regulations would be amended as needed, or at all.
B. Inheritance of Defects from Sperm
7.8 As well as physical characteristics, sperm is capable of transmitting many diseases and defects of varying degrees of seriousness. Included in the serious ones are venereal or sexually transmitted diseases (STD), hepatitis, allergies, inherited conditions such as cystic fibrosis, and Huntington’s Chorea, and diseases that afflict particular social groups such as thalassaemia and Tay-Sachs disease. There is little point in continuing such a list for the reason that it would be virtually endless, and in any event it is the case that every human being carries single ... genes for 5 to 10 serious recessively inherited conditions.”1 Any person carrying a “serious” recessive gene who marries somebody carrying the same “serious” recessive gene, could produce a child with a serious disease or abnormality. That fact alone suggests that it would not be surprising if substantial numbers of defective children could be born as a result of normal sexual intercourse, but this does not happen. The incidence of abnormal or diseased children is low,2 and our community has never regarded it as necessary for citizens to undergo health testing as a condition of marriage or procreation.
7.9 In order to gauge the likelihood of inheritance of genetic or other diseases, the medical profession has developed sound procedures of checking, testing and screening. Without exception the AID practitioners and clinics operating in New South Wales with whom we have communicated, follow the practice of taking a thorough personal and family medical history from donors by direct interview. The experienced practitioner is able, from this alone, to acquire much of the information needed to decide on a donor’s suitability. In addition, he clinics that use frozen sperm all perform scientific tests and blood tests for STD and hepatitis. The minority who use fresh sperm use other means of satisfying themselves on these subjects.
7.10 If the medical history indicates a risk of inherited defects by reason of personal or family Illness or disease, the donor may be rejected at that stage. However, it may be decided that further testing should be performed, and the decision whether to use the donor’s semen postponed.
C. Donor Providing False Information
7.11 It is also possible that a donor may deliberately or negligently falsify or conceal the truth. While the possibility must be accepted, the risk should not be overstated. The reasons are that under New South Wales procedures donors have no real financial incentive to give semen, no other material advantage accrues to them, and the interviewing doctor usually has a strong chance of discovering unsuitability during the personal history interview. A further reason is present when a clinic draws its donors from a carefully identified group, such as medical students.
7.12 The medical literature on AID abounds with discussion on the selection and testing of donors. It is apparent that high skills are involved, including an understanding of genetics and the biological ramifications of facts disclosed by interview and by scientific testing. Some medical writers advocate the desirability of prescribing guidelines for selection and testing. For example, Corson and others, in their 1983 article “Donor Insemination”3 recommended a “Code of Ethical Professional Conduct” that lists detailed procedures for screening donors and their semen. The Royal College of Obstetricians and Gynaecologists in England have for some years published a document entitled Recommendations for Centres Planning to Set- up an AID Service. This document prescribes criteria for recruitment of donors and testing semen.4 Australian medical and scientific writers have also discussed in detail desirable procedures to be followed by AID.5
III. LEGAL REGULATION
A. Our Approach
7.13 Our present view is that the community should be reluctant to introduce detailed regulation of the practice of AID. If AID is classified as a medical practice in the sense discussed in Chapter 5, the community will have a system of safeguards that will be responsibly administered by the medical profession. It may also be desirable for the medical profession in New South Wales to consider prescribing standard guidelines for selection and testing of donors, as suggested in the preceding paragraph. Organisations such as the Royal Australian College of Obstetricians and Gynaecologists and the Fertility Society of Australia might be appropriate bodies to undertake or arrange this. Such action could reduce the risk of misadventure and increase confidence in AID practice.
7.14 This view, that detailed legal rules may not be called for to govern the recruitment, screening and testing of semen donors, is not intended to suggest that the law does not have a part to play in these procedures or has no interest in them. In fact, the procedures raise a number of legal questions that require consideration We now direct attention to them.
B. Capacity of Donor and Wife’s Consent
7.15 Some donors will be married and some not Some donors will have already fathered healthy children. Should the law require that donors be married-P Should the law require that donors be proven fathers of healthy children. If married, should the law require a donor’s wife to consent to his giving semen. In our view, there are many arguments for leaving these matters to the medical profession. However, in order to eradicate any impression that they are always susceptible of only one answer, we comment that some clinics require the written consent of wives, some prefer married men as donors, and some prefer donors to be proven fathers. A decision is best made in each individual case.
C. Wilful Supply of False Information
7.16 We have noted the possibility that a donor may deliberately give false or misleading information about his health, may deliberately conceal information or may carelessly or negligently fall to give correct information. If a donor “slips through the net”, either intentionally or negligently, and as a result, a defective or diseased child is born, should the law provide for him to bear responsibility, and in suitable cases to face punishment. We first comment that such a donor may face claims for payment of damages under normal principle s of civil law, for harm suffered by the child or its parents. This kind of liability, which is capable of attaching also to medical personnel, is discussed separately in Chapters 17 and 18. As for criminal proceedings where the burden of proof is heavier than in civil litigation there is no clearly applicable criminal offence. The kind of criminal offence that is brought to mind is the infliction of grievous bodily harm. However, because of the “remoteness” of the significant events from each other, and for other reasons, we would anticipate severe problems of proof and evidence in establishing beyond reasonable doubt a criminal link between the supply of information to a doctor, and the development of a defect in a child born long afterwards.6 One necessary ingredient in a successful prosecution is likely to be evidence of the mother’s sexual behaviour so as to eliminate the possibility that the child was conceived as the result of sexual intercourse with another man. Accordingly, there may be a basis for the creation of a specific statutory criminal offence. We bear in mind a precedent for this approach, which directly concerns the supply of false information about the informant’s state of health. Section 7 of the Motor Traffic Act, 1909, provides that an offence under that Act is committed by any person who “wilfully furnishes false or misleading information with regard to particulars required... to be furnished in relation to a (driver’s) licence”.7 Section 10 of that Act provides, in addition to a maximum monetary penalty of $500, that the Court may impose additional sanctions upon a convicted person, for example, suspension of a licence or disqualification for holding a licence. On the analogy of this legislation, it is possible to envisage the creation of a specific statutory offence for a person knowingly to give false information, or to conceal information about his health in relation to semen donation. Such an offence could be created as an addition to existing criminal and civil law. We note that the Victorian Infertility (Medical Procedures) Bill (No.2) 1984 contains a provision to this effect, under the heading “False or Misleading Statements”. Clause 26(1) of the Bill provides:
A person who gives gametes that may be used... in a procedure of artificial insemination carried out in an approved hospital shall not, in connexion with providing medical or other particulars in relation to the giving of the gametes, make a statement that is false or misleading by reason of the inclusion in the statement of false or misleading matter or of the omission from the statement of any material matter.
D. Confidentiality and Secrecy
7.17 Questions also come to mind concerning the protection that should be extended to a donor by way of confidentiality or secrecy in relation to his identity and personal particulars. Should a donor’s privacy be respected? Should he be entitled to the maintenance of secrecy and confidentiality? If the answer is yes, are there claims to information about the donor that should override his contrary claims? These and related questions are addressed in Chapters 12,17 and 21.
E. Donor’s Withdrawal of Consent
7.18 A donor may give sperm and later wish to withdraw consent to its use. Such a change of mind may or may not be capricious. It may be based on changed circumstances, for example, the donor marrying and wishing to confine his fatherhood to children by his wife, or the storage of his sperm for a lengthy period. Withdrawal of consent should raise a number of difficult questions, for example, the question of ownership of the donated sperm. There is reason to take the view that semen, like other human tissues, is not capable of being owned under Australian or British law except in rare circumstances. The general rule appears to be that the law does not recognise rights or interests of a proprietary nature in human bodies and body parts. Assuming this to be the case, there still remains in the present context the important question of dominion or control over donated and stored semen. Who should have this power, the donor or the clinic? To a large extent, this question and others raised in this Chapter may be pre-empted or entirely answered by a thorough and well- drawn instrument executed by donor and clinic prior to donation However, if this has not happened the question remains who should have the power of disposition over donated sperm. Further discussion and our tentative views on this subject are set out in Chapter 22.
F. Other Questions
7.19 Other questions that arguably relate to the subject matter of this Chapter are discussed in other Chapters, for example, trade and commerce in semen (Chapter 9), testing and analysing semen (Chapter 8), subsequent discovery of a defect in semen or of a defect in the donor (Chapters 8 and 13), the supply of information to a donor concerning the use and “success” of his semen (Chapter 12), and the frequency of use of the semen of one donor (Chapter 10).
IV. ISSUES FOR REFORM
7.20 (1) Should the law provide for active steps to be taken to promote or encourage semen donation for AID, for example, by public education and emphasis on the benefits that it may confer on infertile couples? (see paragraph 7.2).
(2) Is a female recipient of AID and is a child born as a result of AID entitled to protection from avoidable disease or injury that can be caused by defective sperm (see paragraph 7.5).
(3) If so, should the entitlement be supported by specific legal regulation or are there other acceptable means of supporting the entitlement, for example, reliance upon the medical profession and the expectation that a recipient will take reasonable steps to acquire advice to enable responsible decision making? (see paragraphs 7.6 and 7.7).
(4) Do established medical procedures now used in New South Wales to recruit and screen semen donors offer enough protection to outweigh the benefits and detriment’s that would flow from statutory prescription of detailed procedures and testing criteria. (see paragraphs 7.6-7.12).
(5) If established medical procedures offer reasonable protection, is it desirable to reinforce the protection by asking the medical profession to prescribe standard guidelines for selecting and testing donors? (see paragraphs 7.10 and 7.12).
(6) Is it desirable to add some legal protection, for example, by making it a specific offence for a semen donor wilfully to furnish false or misleading information, or to conceal information about his health? (see paragraph 7.16).
(7) Should the law concern itself with such questions as the need for semen donors to be married, or to be proven fathers, or if married, to produce their wives’ consents to donation, or are such questions best left to the medical professions (see paragraphs 7.13 and 7.14).
(8) Should the answers given to all the foregoing questions or issues be regarded as presupposing that the conduct of AID as a practice is restricted by law to the medical profession as envisaged by Chapter 5?
Footnotes
1. C. Wood et al. (eds.), Artificial Insemination by Donor (1980), pp.97-98.
2. Id., p.101.
3. S.L Corson et al., “Donor Insemination” (1983) 12 Obstetrics and Gynaecological Annual 283, at p.304.
4. Royal College of Obstetricians and Gynaecologists, Recommendations for Centres Planning to Set up an AID Service. The College is located at 27 Sussex Place, Regents Park London NWI 4R9.
5. C.D. Matthews et al., “Screening of Karyotype and semen quality in an artificial insemination program: acceptance and rejection criteria” (1983) 40 Fertility and Sterility 648.
6. Apart from considerations mentioned in the text, there is another doubt related to the crime of “inflicting grievous bodily harm”, which arises from judicial decisions suggesting that a necessary ingredient is the application of force or violence to the victim. In R. v. Clarence (1888) 22 QBD 23 it was held that a husband who infected his wife with a venereal disease had not” inflicted” grievous bodilv harm upon her. See also authorities cited in A.N. Khan “Grievous Bodily Harm” (1984) 81(9) Law Society’s Gazette 671.
7. Motor Traffic Act 1909, s.7(a).
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