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Friday, 6 December 1985
Page: 3205

Senator TATE —On behalf of the Senate Standing Committee on Constitutional and Legal Affairs, I present a report on in vitro fertilisation and the legal status of children.

Ordered that the report be printed.

Senator TATE —by leave-I move:

That the Senate take note of the report.

Along with Senator Colston, I reluctantly seek leave to incorporate my speech in Hansard.

Leave granted.

The speech read as follows-

On behalf of the Senate Standing Committee on Constitutional and Legal Affairs, I present the report entitled IVF and the Status of Children, sub-titled `National Uniformity in Laws Relating to the Status of Children Born through the Use of In Vitro Fertilization'.

If the issues dealt with in this report are fairly narrow and specific the Committee nonetheless believes that they are important issues. The number of children born through in vitro fertilization whose legal status requires specific legislative provision is as yet small. It is only where donated genetic material is used that such provision is required. The most recent statistics show that from the birth in 1980 of the first child as a result of IVF in Australia until September 1985 almost 500 children have been born as a result of IVF in Australia. of these only two children have been born through IVF using donor ova and 27 using donor sperm. But the Committee is firmly of the view that legal problems will arise unless legislative action is taken now to bring about uniformity.

The Committee is strongly in view that a child's legal status should not vary from one part of Australia to another, depending upon where its parents happen to have been domiciled at the time the child was born. There should be uniformity both in substance and in wording of all legislation addressing the status of children born through the use of IVF procedures. Therefore the Committee regards the present position as unsatisfactory.

`Status' refers to the question of who in law are the mother and father of a child and the related question of whether or not the child is a child of a marriage.

It is important to know whom the law regards as the parents of a child because the law attaches a range of consequences to child-parent status. For example questions of nationality, citizenship, domicile, inheritance, succession, custody, obligations to support a child, entitlement to social security benefits and the law of incest and marriage within prohibited degrees, may depend on whom the law regards as the child's mother and father.

The long term goal should be uniformity in consolidated legislation dealing with the status of all children, whether born through the application of reproductive technology or entirely naturally. Such a move could assist in preventing any stigma from attaching to children born through applications of reproductive technology.

Any departure from nationwide uniformity in status law-whether at the level of substance or at the level of wording and/or structure-frustrates the principle of simplicity and clarity and increases the prospect of children finding themselves entangled in complex litigation to determine familiar status.

Once the preconditions in the legislation are met, all the IVF status Acts operate to make the social father the father for all purposes of law. There is some variation in the wording used to achieve this: irrebuttably `presumed' to be the father for all purposes; `shall' for all purposes, be conclusively presumed to be the father of the State; or, in Commonwealth legislation, is `deemed' to be the father for the purposes of the legislation.

All these forms of wording arguably establish a `fiction' that the social father is the genetic father. In contrast the Status of Children Act 1974 (Tas) s. 10C (1) requires that for legal purposes the social father shall `be treated as if he were the father'. This makes it clearer that the relationship being established for legal purposes is not necessarily the true genetic relationship.

There are also a number of points upon which uniformity does not exist. There are three major causes of this.

First there is the absence of specific IVF status legislation in Queensland and the External Territories. This results in the sperm donor, not the social father, being the legal father. It is unclear whether the law in Queensland and the External Territories would regard the ova donor or the woman who gives birth as the legal mother.

Second, the Artificial Conception Act 1984 (NSW) does not create any presumptions of paternity or maternity where donor ova are used. The Family Law Act 1975 (Cth) s. 5A and the Australian Citizenship Act 1948 (Cth) s. 5 (6) do not create presumptions of maternity where donor ova are used. This has serious consequences. A child born through IVF using donor ova to a married couple with the husband's consent will be the child of that couple under the law of all States and Territories except New South Wales, Queensland and the External Territories. But the child will not be treated as a child of the marriage for Family Law Act purposes nor a child of its social mother for citizenship purposes unless the presently unclear position at common law is resolved in favour of treating the woman who gives birth, not the ova donor, as the legal mother. The Committee regards this lack of uniformity as both serious and unacceptable.

The third major point upon which uniformity is lacking arises because the Status of Children Act 1974 (Tas), the Family Law Act 1975 (Cth) s. 5A and the Australian Citizenship Act 1948 (Cth) s. 5 (6) do not treat de facto couples as married couples for the purposes of the IVF provisions in the respective Acts.

The legal status of a child is determined by the law of the place where its parents are domiciled at the time of its birth. The lack of uniformity on status law within Australia may give rise to difficult choice of law problems where, for example; a couple domiciled in one State enter an IVF program in another State using donor sperm and ova.

Even if these problems can be avoided and application of choice of law rules gives a clear result the result may not be appropriate. For example, if a couple domiciled in Queensland enter an IVF program in Victoria involving the use of donor ova and sperm, the status of a child born as a result will be determined under Queensland law. At present under this law the sperm donor, not the social father, will be the legal father. It is not clear if the legal mother will be the mother or a donor or the woman who gives birth. Yet presumably the couple entering the program would have wanted to be the legal parents, as they would have been if Victorian law applied.

Clearly there would be much to be said for a choice of law rule that selected as the relevant law for the determination of status and law of the place where the IVF procedure occurred rather than the law of the domicile of origin. For the policy of those directing IVF programs is to permit donor gametes to be used, de facto couples to enter the program, etc., only where the local law makes adequate and appropriate provision for the status of any resulting child. However this is not the choice of law rule which operates in Australia at present.

The Committee is united in the view that the question of the collection of and acess to information on gamete donors is one which needs to be addressed. It is a central issue if a workable legal regime for artificial reproduction using donor gametes is to be developed.

The Committee accepts that it is desirable to keep information on donors in case such information is needed in the future to assist with diagnosis and/or treatment of medical problems of the donors' genetic children. Full information should be accessible to medical practitioners.

But apart from situations of medical need there is a difference of views within the Committee on the more general question of whether, and if so under what conditions, a child should have access to information and whether that information should include information which would identify the gamete donor.

Some members of the Committee hold the view that a person has a right to the fullest information about his or her genetic ancestry. If there is thought to be a conflict between the interests of donors, social parents and children born through a process involving the use of donated genetic material, the rights of a party who gave no consent to the process ought to prevail over the rights of those who by agreement contrived to bring the child into the world. On this view the child should be recognised as an independent human being who should not ultimately and forever be subjected to such constraints on knowledge of his or her origins as may be determined in the interests of others.

Other members of the Committee think that release of donor information could be extremely upsetting and disruptive, not only for the social parents but also for the donor and his/her family.

These members of the Committee do not agree that the right of a child to access to information concerning its genetic ancestry should prevail over the decision of the gamete donors and social parents to keep such ancestry a secret. These members agree with the policy, central to nearly all the recent IVF status legislation, that informed and consenting donors and social parents should be able to participate in an IVF program without having to reveal the identity of the donor(s) to any child born as a result.

The recommendations of the report are:


1. The long term goal should be uniformity in consolidated legislation dealing with the status of all children, whether born through the application of reproductive technology or entirely naturally (paragraph 1.27).

2. It is highly desirable that there be uniformity, both in substance and in wording and/or legal structures, in the law relating to the status of children born through the application of IVF procedures (paragraph 2.10).

3. The Attorney-General should give consideration to the possibility of enacting uniform choice of law rules under s. 51 (xxv) of the Constitution (paragraph 6.46).

4. The basic uniform rule should be that a consenting married couple entering an IVF program involving donor gametes should be the legal parents for all purposes of any child born as a result (paragraph 7.5).

5. Consideration should be given to whether legal links with the genetic parents should be retained for the limited purposes of the criminal law on incest and for the prohibition of marriage within the prohibited relationships (paragraph 7.10).

6. Subject to constitutional constraints on the Commonwealth all legislation dealing with the status of children born through IVF should treat an unmarried man and woman living together on a genuine domestic basis on the same footing as a married couple for the purpose of determining status (paragraph 7.14).

7. Appropriate steps should be taken to ensure that the status of children born through all methods of artificial reproduction involving donor genetic material is resolved in a unform way by legislation (paragraph 7.17).

8. In order to avoid status legislation being overtaken by scientific developments such legislation should focus on status issues arising out of the use of donor genetic material, independently of any specific method of achieving artificial reproduction (paragraph 7.20).

9. It should be uniformly provided explicitly that in all cases the woman who gives birth to a child is its legal mother (paragraph 7.24).

10. The Commonwealth should seek to obtain from the States the power to enact legislation to deal with all issues of the status of children in law (paragraph 7.35).

11. As an interim solution the Attorney-General should attempt to secure, as a matter of priority, to SCAGS the functions of monitoring the impact on status law of scientific developments and of attempting to achieve a greater degree of uniformity in that law (paragraph 7.40).

12. As part of an interim solution the Commonwealth should:

(a) enact legislation for the External Territories to deal with status issues arising from artificial reproduction;

(b) amend the Family Law Act 1975 (Cth) s. 5A and the Australian Citizenship Act 1948 (Cth) s. 5 (6)-(8) so as to deal with maternity issues where donor female genetic material has been used; and

(c) amend these same two provisions so that the consent of a husband to his wife's participation in an artificial reproduction program is rebut- tably presumed to have been given, in the same way as is done in all State and Territory IVF status legislation (paragraph 7.42).

13. Pending the possible establishment of a permanent monitoring body such as the proposed National Council on Reproductive Technology, the Standing Committee of Attorneys-General should consider the question of record keeping and access to information relating to the donors of gametes, and should monitor the operation of any regime adopted (paragraph 8.18).

Senator TATE —I seek leave to continue my remarks later.

Leave granted; debate adjourned.