Test-tube babies and the law

Press, 13 December 1985, Page 17

Test-tube babies and the law

By

VERNON WILKINSON.

This article was

chosen to take the first prize of $3OO in the 1985 newspaper feature writing competition held by “The Press” and the South Island Writers’ Association; the results were announced this week.

During the great homosexual debate the remark was. often passed that legislation has no place in the bedroom. It is likely that we will soon hear that test tubes should not be there either.

A commission to inquire into the legal aspects of recent developments in human genetic engineering has been set up and is expected to report to Parliament later in 1986. Meanwhile, in the interests of informed debate, the Law Reform Division of the Department of Justice has published an “Issues Paper” which discusses the options open to New Zealanders in dealing with the legal implications of such treatment. The commission hopes that by encouraging public comment it will be able to hammer out a generally accepted policy. The paper concentrates on A.1.D., A.1.H., 1.V.F., and surrogacy. The first two acronyms stand for artificial insemination by donor or husband, whereby male semen is obtained by masturbation and placed in the female uterus by means other than the normal act of sex. If the husband cannot physically perform sexual intercourse, or his semen is infertile, then the couple must have recourse to a donor.

With 1.V.F., “in vitro” (in a glass or dish) fertilisation, conception occurs outside the wife’s body. The female ovum (egg) is extracted from the wife by surgery at ovulation and, if successfully fertilised by sperm from the husband or donor, the resulting embryo is placed in the uterus. If the wife cannot produce an ovum another woman can act as donor. The operation is expensive, not without danger, and with a success rate of only 15 to 20 per cent. Finally, if the wife for medical or other reasons wishes to avoid a pregnancy, the couple can employ a surrogate mother to bear the child, which is surrendered to the commissioning couple at birth. The ovum could have come from the wife, a donor, or the surrogate herself.

Two developments have helped create the demand for genetic engineering to produce children. One is the increase in infertility — in the United States one couple in six is believed to be infertile. This in turn is blamed on promiscuity, especially among women who relied on contraceptive methods which did not prevent genital contact The result has been the spread of contagious diseases like chlamydia. While their symptoms can be deceptively mild, they can damage the fallopian tubes and block the passage of the ovum.

The other factor is the diminishing number of babies available for adoption, which once alleviated childlessness. This shortage has been caused partly by the greater willingness of today’s unmarried mother to retain her child, and partly by the more widespread use of abortion.

The number of couples receiving A.1.D.-A.I.H. treatment since 1960 is about one million (159 in New Zealand). Since the first successful I.V.F. operation in 1977, there have been about 1000 altogether, although only two were local. No cases of surrogacy have been officially reported here.

These low figures for I.V.F. and surrogacy give our legislators a chance to start from scratch instead of coping with a quantity of faits accomplis. They can also draw on overseas experience in a search for the pain-killers which can cure the legal headaches caused by the new birth technologies.

Unfortunately, various commissions and conferences have not been able to agree on uniform answers to many questions. For example, a conference of E.E.C. Ministers of Justice met for two days and broke up in despair at its inability to do more than pick at the Gordian knot. One fact of life remains unaltered: a child receives its genetic matter direct from two

people only. If all the permutations of parents, donors and surrogates arising from AID., 1.V.F., and surrogacy are examined, it is still obvious that genetic material must derive from both the child’s nominal (legal) parents, one only, or neither.

With donated sperm and ovum and using a surrogate, a child could , claim to have both a nominal and biological father, and three mothers — nominal, biological, and child-bearing or surrogate. The important matter of inheritance and paternal rights and re-

sponsibilities must be determined if a donor is involved. The Warnock (United Kingdom) and other committees recommended that if the treatment was done with the consent of the husband, he and not the donor was to be regarded as the legal father. This would relieve donors of any worry about maintenance costs or family complications.

Similarly, the same committees believed that the legal mother should be the woman who gave birth to the child, not the donor of the ovum or the commissioning

woman. The latter would be bound by the same laws as an adopting mother. As these forbid the sale of children, no arrangement involving the payment of a surrogate is enforceable in the courts. The lawmakers are wary of countenancing anything which smacks of prostitution or adultery.

Other complications could crop up through the death or defection of a commissioning parent, a surrogate’s impulse to retain her child, or the refusal of a commissioning parent to accept it.

Also controversial is the preferred marital status of recipients. Some believe that I.V.F. should be available only to women in a stable marriage situation, but others argue that if de facto couples and single women can legally adopt children, they should not be denied I.V.F. treatment. The demand of a donor for anonymity, and the bond of confid-

ence between him and the doctor,, conflict with the child’s right to knowledge about his biological parents, as expressed in the Hunt Adoption Act, and the medical profession’s need to monitor the' progress of its research by reference to a donor’s medical history.

Other legal embarrassments arise from the existence and disposal of surplus frozen semen and embryos. In Melbourne, a decision had to be reached about the fate of several embryos whose “parents” were killed in an air-crash; in France, a widow was impregnated with her husband’s semen long after his death. Here, a legal principle was suggested that only offspring in utero at the time bf the father’s death should possess inheritance rights. . ' So far the medical profession has handled A.I.D. and I.V.F. respons-' ibly and with discretion by careful screening of donors, counselling, and maintaining high standards in the actual treatment. It can no longer be expected to make all the legal, moral, and medical decisions on its own. The Department of Justice has not failed to face up to the fact that legal decisions are only.'ji reflection of moral attitudes, and-it will be impossible to prevent public controversy from boiling over into the religious and ethical compartments. Some will welcome the new technologies as offering hope to the childless; others will wonder where it is all going to end antf voice fears about cloning and. hybridisation. Optimists will point out possibilities of effecting genetic improvements in the human species, but the more cautious, worried now that science has flivaded the hitherto sacrosanct field of human procreation, will harp their doubts about man’s abilityXo “play God” as well as the original star. One thing for sure — it will not be settled overnight