DIALOGUE: Proposed Changes to the Human Assisted Reproductive Technology Act (2004)

Introductory remarksIn Marge Piercy's novel Women on the edge of time, she portrays a world where each child has five parents. The reason for this is that she regards child rearing as such a complex and demanding role that it needs to be shared by a group with multiple talents and skills. Piercy was concerned about the physical, intellectual and emotional development of a child. Some time ago, when I was employed by the Centre for Continuing Education at the University of Waikato, I attended a public lecture by Dr Fisher of Fertility Associates. In this lecture, he described how a child could have five physical and legal parents: An egg donor, a sperm donor, a gestational mother, and social or contracting mothers and fathers. At that time there was considerable discussion about the Baby M case in the United States (where a contracting gestational mother did not wish to hand over the child to contracting parents after the birth) and Geoffrey Palmer (now Sir) introduced a bill into Parliament to ensure, as a result of this case, that the gestational or birth mother of a child born in New Zealand was the legal mother. One of the outcomes of the Fisher lecture was that I saw the need for further legislation in New Zealand to protect the rights of all parties involved in new and emerging 'birth technologies' - to try to get the best possible outcomes for all parties, particularly the child, who is unable to speak for him or herself.The United Nations Declaration of Human Rights states that one has the right to found a family. For those readers of a philosophical bent, you will note that it doesn't define a right, or a family. Also, it does not say if an individual, or couple, or unit/group can demand of the system that it provide them with a family - assuming we mean children. It can be argued, however, that birth technologies are just a form of medical treatment curing infertility rather than creating families, but there are differences and new life is created. In the case of body part transplants, most times, the donor is dead (not necessarily with kidney transplants) and the donated body part is sustaining the life of an existing human. There are, however, issues over body transplants; also, as we have been made aware, of a black market in some countries, illegal operations, and prisoners used as donors, etc. There have been cases where sperm is taken from a dead man and there are ethical issues around this too. Did the donor give consent before death (as with body parts)? There are also legal issues connected with this. Would the child of a dead sperm donor inherit the donor's estate? Could this be a motive? We would like to assume that a woman may wish to have a child by her deceased spouse and preserve his genes and memories, but there could be other motives.In 1994 I introduced my Human Assisted Reproductive Technology Bill into Parliament. This bill was very much a cut and paste version of the United Kingdom Act, although I was influenced by a Canadian Royal Commission on the topic. The bill was very much changed through the select committee stage and greater emphasis and power was given to ethics committees and the discretion of the Minister of Health. As a Member of Parliament I learnt to be somewhat wary of a couple of issues around legislation. Firstly, there is the Act of Parliament which sets out the basic tenet of the law. Secondly, Acts often contain the words 'by Order in Council', which means that an issue within the law is left up to the Minister and Cabinet to sort out - sometimes through an appointed agency. Thirdly, there are regulations which state how the law is to be implemented. These regulations are checked by a select committee that tests if they are consistent with the intention of the Act. This process is usually monitored by organisations concerned with implementing a law, but does not receive as much publicity or scrutiny as the original Act. The devil may be in the detail in some cases. …

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