New Birth Technology

One of the greatest challenges to the effectiveness of law reform over the past thirty years has been the technology advances. Especially in the area of birth technology, that raises a lot of moral and ethical questions.

Nowadays children can be born from various means of conception, including:
IUI- intra-uterine insemination
GIFT- gamete intra-Fallopian transfer
IVF- in vitro fertilization
IVF with sperm donor
IVF with egg donor
IVF with egg and sperm donor
ICSI- intracytoplasmic sperm injection
surrogacy- using any combination of the above

And recent development allows us to:

Laws in this matter are for state governments, although many argue that there should be uniform laws across Australia.

Some of the moral and legal questions that arise with new birth technologies include :

    Is it moral?
    This sort of technology can be seen as 'playing god' or that women’s bodies are being exploited.

    Women's Rights
    Some feminist groups argue that it abuses the rights of women, because they are being treated as 'living laboratories', used as experimental purposes, given dangerous medical treatments and drugs. They argue that the risks far outweigh the possible benefits.

    Rights of access to the technology:
    Not all people have the same access to new technologies.
    Factors include:-Cost, which is very high, so becomes a privilege for the wealthy. -And family arrangements, In NSW, ART (artifical reproduction technology) committees generally allow the treatment of heterosexual couples in long-term de facto relationships. However, in March 1997, the Human Rights and Equal Opportunity Commission (Cth) found that three women had been denied access to ART because they were not married. They had been discriminated against and were awarded $30 000 in damages. The rights of lesbian women gaining access to sperm banks has become an issue. It hasn't been tested, but it is likely that denying a lesbian access to fertility services would be illegal under NSW's anti-discrimination laws.

    Death of a spouse
    In Australia, the National Health and Medical Research Council guidelines state that it is unacceptable to use eggs, sperm or embryo harvested from dead people. In Victoria, the use of eggs or sperm from after death is illegal. In NSW it is legal to inseminate a woman with her dead husband’s sperm if there was no indication that the husband or family was against it.

    Effect on the resulting children Many people feel that such children have a right to know their genetic inheritance. However, the rights of the donor’s privacy needs to be protected.

    Embryo status and experimentation
    A by-product of the IVF program is that more embryos are created than are implanted. The question arises as to what to do with the excess embryos. Doctors argue that they should be able to experiment on them. Others argue that embryos are human life and should not be tampered with. In 1996, a Tasmanian court held that two embryos belonging to a women and her dead husband could inherit from the husband’s estate if a child was born from them.

    Legal liability of donors
    Who should be held responsible if the child is born with birth defects? Medical staff involved in the creation and implantation of the embryos in an IVF program? Or the donor of the egg or sperm? Or if its a surrogacy case, the surrogate mother?

Under Australian common law, the mother of a child is the woman who gives birth, and the father is her husband (or de facto father) or person who acknowledges being the father.

The Artificial Conception Act 1984 (NSW)- gave these children the same status as children conceived naturally. It also states that if the husband of the woman who is using the donor sperm consents to the use, then the husband is the father of the resulting child. The act did not extend to include those children conceived by donor egg, and the woman who gave birth is still the mother. The Artificial Conception Act was replaced by the Status of Children Act 1996 (NSW) which included the donated ova.

The Adoption Information Act 1990(NSW) states that adopted children have the right to try and make contact with their parents.

In the case of donated sperm or ova, the question arises to which adults should assume responsibility for care and control of the child. The Marriage Act 1961 (Cth) and the Family Law Act 1975 (Cth) both state that a child born as a result of birth technology has as parents the woman who gave birth and her husband or partner. The origin of the sperm or ova does not alter this. The Family Law Act 1975 (Cth) legitimises a child conceived by either artificial insemination or in vitro fertilization.

The Adoption Act 2000 (NSW) states that commercial surrogacy is illegal. But altruistic surrogacy is permitted, and the birth mother has to relinquish the child to be adopted by the sperm donor’s wife.

Points for and against surrogacy:

  • people have a right to form a family in the way that they wish
  • a woman has the right to use and control her body as she wishes
  • surrogacy may be the only option for some childless couples
  • private surrogacy arrangements are impossible to prevent. Thus they should be legalised so that counselling and advice is available.
  • forbidding surrogacy will lead to a black market trade for babies
  • some surrogacy arrangements are morally commendable. For example, a woman having a baby for her sister.

  • a child can be treated as an item for sale
  • surrogate mother used as a baby-producing machine
  • can lead to exploitation of poor people
  • the surrogate mother and childless couple will suffer if the surrogate mother changes her mind
  • the child can be harmed because of confusion about family relationships.

The Australian law still hasn't quite caught up with technology. People are still being discriminated against, and different ways of doing things have still not been taken into account.

Information from Heinemaan Legal Studies textbook. By Michael Brogan, Wayne Gleeson, Tony Foley, Veronica Siow and Threrese Ejsak.