Commencing at 9.30 a.m.

Assembly Hall, University of Sydney Law School

Ground Floor, Corner of Elizabeth,

King and Phillip Streets,

Sydney

1. INTRODUCTION

The New South Wales Law Reform Commission announces that it will hold a public hearing on the subject of In Vitro Fertilization (IVF). The hearing is to be held on Friday 15th April, 1988 from 9.30 a.m. to 5.00 p.m. at the Assembly Hall, University of Sydney Law School, Ground Floor, corner of Elizabeth, King and Phillip streets, Sydney.

Background

The inquiry into IVF is the second of three projects in the Commission's major reference called Artificial Conception. The other two projects are:

• human artificial insemination.
• surrogate motherhood.

The first project, human artificial insemination (AI), has been completed. A report on this subject was presented to the Attorney General in June 1986. A discussion paper on IVF was published in July 1987 and the Commission has already received many written submissions in response to it (see below). In May 1987 the Commission published a research report on Australian public opinion on surrogate motherhood. A discussion paper on surrogate motherhood is to be released soon.

Nature and Role of the Public Hearing

The public hearing will conclude the consultative phase of the Commission's inquiry into the need for law to regulate IVF. The object is to provide a forum in which members of the public can express views and make a direct contribution to the process of law reform.

The hearing will be open to all members of the public and considered submissions and suggestions for law reform on the issues raised in the Discussion Paper will be accepted whether written or given orally. The hearing is confined to IVF and submissions on surrogate motherhood are not sought at this stage. The Commission reserves the right to reject any submission and to refuse to take any evidence or comment if in its judgment it is not directly related to issues concerning IVF or is not relevant to law reform.

The Commission has already had the benefit of reading the many thoughtful submissions sent in response to the IVF Discussion Paper. As these submissions have received careful consideration by the Commission, it is not necessary for the authors of those submissions to make further written or oral representations on this subject. They are, of course, welcome to attend and participate in the public hearing should they wish to do so.

Following the public hearing, the Commission will prepare a report containing its final recommendations. This report will be presented to the Attorney General for tabling in State Parliament.

IVF Discussion Paper and Underlying Principles

The IVF Discussion Paper identifies significant questions concerning the regulation of IVF and invites community response. The 11 chapters of the paper encompass medical, ethical, social and legal aspects of IVF and associated research. The main principles underlying the tentative views expressed in the Discussion Paper are referred to in its foreword, and are set out in detail in Chapter 3 of the report Human Artificial Insemination.

A summary of the views and tentative recommendations of the Commission on IVF as set out in the Discussion Paper appears on the following pages.

2. ISSUES FOR REFORM

Without suggesting that any particular issue is more important than others we now set out some of the key questions that must be answered by lawmakers:

• How should the law regulate IVF? Should IVF be prohibited or need it be regulated at all?
• Should restrictions be placed on the availability of IVF services or should all women of childbearing age be regarded as eligible?
• What should the law say about the posthumous use of stored gametes (sperm and ova) and stored embryos in the IVF procedure? What should the law say about the birth certificates and inheritance rights of a posthumously conceived IVF child?
• What should the law say about dominion over stored gametes and stored embryos?
• Should research on the human ovum fertilized in vitro be prohibited? If not, should it be legally regulated and how? Should there be a time limit on permissible research? Should the fertilization of ova in vitro for the purpose of research be permissible?
• Should counselling be made compulsory for the parties to IVF? Should the law impose requirements for consent to be given by the parties to IVF?
• Should an advisory (consultative) committee be established as part of a system of regulation of IVF? What should be the powers and functions of such a committee?

3. IVF DISCUSSION PAPER: A SUMMARY

The views and tentative proposals of the Commission set out in the IVF Discussion Paper are summarised below. They are tentative and not final. The paragraph numbers following each summary refer to detailed examination in the Discussion Paper.

Regulation of the Practice of IVF (Chapter 5)

Legislation should not be the sole means by which IVF is regulated. There already exists a non-legislative system of official and professional guidelines which, apart from some aspects of IVF which call for special regulation, will provide effective regulation of IVF and associated research, provided the practice is confined to the medical profession. Those aspects of IVF which may require special regulation include freezing and storage of gametes and conceptuses (fertilized ova), dominion or ownership of stored gametes and conceptuses, and research on the IVF conceptus (paras 5.15-5.19).

Eligibility for IVF Services (Chapter 6)

Legislation should provide that the person who provides IVF services should have regard to certain factors in determining eligibility. These include considerations of the welfare and interests of any child that might result, the home environment and stability of the household in which the child would live and the physical and mental health and age of the prospective parents. Failure to have regard to such factors would constitute misconduct under the Medical Practitioners Act (paras 6.8-6.11).

Donation and Storage (Chapter 7)

Maternity, Paternity and Registration of Births

Consistent with the paternity provisions in the Artificial Conception Act 1984, legislation should provide that a woman who bears a child by means of IVF with a donor ovum and who intends to raise the child should be conclusively presumed to be the mother. The names of the persons presumed by law to be the parents should then be recorded in the Register of Births, Deaths and Marriages (paras 7.6, 7.7).

Inheritance and Succession

The law should provide that a stored conceptus should not be regarded as the child of a testator or testatrix for the purposes of inheritance unless specific provision is made about it in a will. Alternatively, the law could exclude completely from inheritance a posthumously conceived IVF child born from a conceptus that was stored when either parent died (para 7.14).

Dominion, Ownership and Control

A clinic should have the power to determine use, storage and disposal of gametes donated to it for the purposes of IVF. This would be subject, however, to any agreement between the donor and the clinic setting out the terms applicable to the gamete donation (paras 7.18, 7,22).

In the case of storage and disposal of IVF conceptuses, the right to decide the use and disposal of a conceptus should pass to the survivor if one member of the couple dies. In the event of a dispute between the couple, the right to determine use and disposal should pass to the storage facility or clinic (paras 7.23).

Research, Experimentation and IVF (Chapter 8)

For reasons set out in this chapter the Commission is not persuaded that research on the IVF fertilized ovum should be substantially or wholly prohibited by legislation. The public interest requires that medical research in general, and in relation to IVF in particular, should take place under reasonable conditions that will balance scientific freedom -against regulation and accountability. Properly conducted research on ova fertilized in vitro may be conducted under conditions that include, but are not necessarily restricted to, the following:

(i) Registration or licensing of the research institute

(ii) An overall time limit on experimentation fixed by reference to implantation

(iii) Proper and reasonable supervision and review

(iv) Record keeping

(v) Accountability through a reporting process

(vi) Reasonable limits on the purpose of the research (paras 8.37-8.51, 8.56-8.58).

Creating and Keeping IVF Records (Chapter 9)

Access to IVF Records

Access to recorded non-identifying information about the parties to IVF should be available to persons showing "good cause" for such access. Openness and honesty in family relationships are desirable, but this proposition does not of itself justify the enactment of legislation that gives a legal right of access to recorded identifying information about the parties to IVF. Other factors must be considered (paras 9.2-9.13).

Record Keeping in IVF

The principal purpose of creating and keeping IVF records is to secure the good health and welfare of parties to IVF. We have no concluded view on whether it is necessary to impose a legal duty to create and retain IVF records or whether the non-legislative requirements already in force (for example, the National Health and Medical Research Council's guidelines) are adequate to ensure that the duty is respected (paras 9.16-9.19).

The compulsory establishment of a central government register containing information about the parties to IVF is not warranted (paras 9.21, 9.22).

There should be no fixed time limit for retention of records. Recorded information should be kept indefinitely, but a procedure should be created for the record keeper to apply to dispose of or transfer the records (para 9.23).

A record keeper should not be under a legal obligation to supply to a person information that suggests that person's health is at risk (para 9.25).

Legislation that confers rights of access to recorded information of a non-identifying nature upon the parties to IVF should apply to both existing and future records (para 9.26).

Consents, Counselling and Legal Liability (Chapter 10)

Consents

As a matter of good professional practice, written consents should be obtained from IVF recipients, and the development of standard forms of consent should be encouraged. However, specific legislation is not needed to regulate consent procedures (paras 10.8, 10.10).

Counselling

Counselling should not be made compulsory by legislation. Good professional practice, however, should encourage and ensure the availability of skilled counsellors (para 10.13).

Legal Liability of Parties to IVF

The supply of false or misleading personal information by a semen or ovum donor should be a criminal offence. Potential donors should be warned of such sanctions when giving their personal particulars (paras 10.18, 10.19 and 10.23).

No legislation is necessary to impose specific legal liability upon medical personnel or parents of IVF children to pay compensation for damages or injury resulting from IVF. The law in this area is best left to the courts for determination (para 10.27).

The law should impose upon practitioners and clinics the same obligation to observe confidentiality in relation to gamete donors as medical practitioners have to patients (para 10.29).

An Advisory Committee (Chapter 11)

The ethical, moral and technological issues involved in research into human reproduction are matters of public concern which go beyond the exclusive jurisdiction of the scientific and medical communities. A state advisory committee with multidisciplinary membership should be created, its primary purpose being to inform the public and to assist IVF practitioners and researchers in decisions relating to the acceptability of their practices and proposals. The committee would have no executive powers. It should have the power to expose practices and research proposals to public scrutiny. The brief of the proposed committee would be wider than IVF and the new birth technologies and would encompass all biomedical developments (paras 11.16-11.26).

Further Information:

NSW Law Reform Commission

ADC Building, Level 12

189 Kent Street

Sydney

Phone: (02) 228 7213

Contact: John McMillian (Secretary)

Ian Collie (Research Officer)