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Fong, Lisa --- "Balancing Rights and Interets in Access to Infertitily Treatment" [2003] AukULawRw 4; (2003) 9(4) Auckland U L Rev 1181

Balancing Rights and Interests in Access to Infertility Treatment

Lisa Fong[∗]

I. Introduction

Infertility is an age-old phenomenon, with accounts of the grief and distress that the inability to produce children has caused sufferers dating from at least biblical times. Many infertile people feel distanced from their own family or incomplete as members of society, such is the value of children and the force of community assumptions concerning families. The effects of childlessness linger long past the childbearing years,[1] especially as people come to contemplate their own mortality.

While adoption, surrogacy and simplistic forms of donor insemination (“DI”) have been known for millennia, modern technology now allows the most improbable cases of infertility to be successfully overcome. In vitro fertilisation (“IVF”) is the most widely publicised form of medical treatment for infertility, involving implantation in the womb of an embryo conceived outside the parents’ bodies.[2]

Around the developed world, changes in lifestyle beginning in the 1970s have begun to affect the number of people seeking assistance to have children.[3] Known factors include delayed childbearing by women, increased prevalence of sexually transmitted diseases and smoking habits. Awareness of medical services and a reduction in adoptions also contribute to the 3500 new referrals New Zealand infertility clinics receive a year.[4] More controversially, the demand also includes single women, lesbians (who may overtake heterosexual couples in demand for DI),[5] single and gay men seeking surrogacy, post-menopausal women and disabled couples.

Assisted reproductive technology (“ART”) has thus not only brought with it relief for the paradigmatic infertile married couple, but has also opened up new opportunities for a much wider group. Some would not previously have been considered infertile, even if they had strongly desired and felt the loss of a child they were unable to conceive. Society is faced with challenges to traditional notions of the family and to the definition of infertility itself, due to the ends to which ART can be put into service. Inevitably there is dispute over who should be able to receive treatment and what limits on access to ART are desirable. This issue is the focus of this article, with attention to the rights of those seeking treatment.

A brief excursion initially looks for rights in the law to procreate and, by extension, to seek infertility treatment. The absence of duties on the state indicates that bald rights are inadequate for a fully developed discussion involving the interests of the parties, namely the resulting child and wider society. The challenge is to protect the welfare of the future child without infringing human rights protections, not simply subsume the rights or interests of either party. It is proposed that human rights legislation may be interpreted to accommodate the interests of the child and reconcile these interests with the rights of parents to not be discriminated against. To ensure the legitimacy of selection procedures, however, the State has a responsibility to legislate for the production of access guidelines. The creation and exercise of the guidelines, which are designed to gauge the harm to the interests of the child, requires sensitivity and integrity. The interests of wider society come to the fore in the creation of the guidelines, but especially so in relation to publicly funded treatment. Finally, a review of current legislative action evaluates New Zealand’s approach in light of the foregoing discussion.

II. Rights and Infertility Treatment

Concern for the welfare of the child and by association the characteristics of the prospective parents are a critical consideration in access to infertility treatment. Presently, it suffices to say that concern is raised by hopeful parents that the criteria for access to infertility treatment can be biased toward the traditional family structure. For those who perceive themselves to be discriminated against in access to ART, the most direct means of obtaining access to infertility treatment would be to rely upon a right that placed the state under a duty to provide ART services. This would theoretically side step any debate over infertility treatment access by overriding the competing interest of the child. There is difficulty in locating any such right in international treaties, domestic legislation or case law, however. It is apparent from the context of ART that rights talk is only one facet of a discussion on access. It is insufficient to protect the interests of all those involved in the treatment process.

1. Rights defined

A “right” refers to positive or claim rights, when another owes a legal duty to the right-claimant.[6] The most useful formulation for prospective parents is a claim-right to infertility treatment that obligates the State to ensure access to treatment to all who are eligible to claim it. Remedy will be available for the breach of the duty.[7] There also exists a “liberty”, which is characterised as the absence of a legal duty to do or not do an activity.[8] A strict definition of liberty means that interference in the exercise of the activity will be lawful. Thus a prospective parent seeking infertility treatment may be prevented from receiving it by stringent access criteria, since there is no duty to not interfere. The government need not assist the liberty claimant to exercise the liberty. Generally, however, a liberty will be supported by a duty on others to not interfere with the liberty.[9] This does not generate a claim right to infertility treatment as the duty on others to not interfere is derived from other general rights, such as the right to be free from assault.[10] Using the right and liberty concepts, it is possible to analyse the law to discover the position of the prospective parent in New Zealand.

(a) Procreative Rights

From the generality of the provisions, the procreative rights which are recognised in three of the main conventions are undoubtedly of the liberty form. The relevant provision in the Universal Declaration of Human Rights (“UNDR”) in article 16(3) states that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the state”. The UNDR qualifies the liberty in the preceding provision of article 16(1), which states that “[m]en and women of full age, without any limitation due to race, nationality of religion, have the right to marry and to found a family”. Both the International Covenant for Civil and Political Rights (“ICCPR”)[11] and the International Covenant for Economic, Social and Civil Rights (“ICESCR”)[12] express similar sentiments. If the conventions are interpreted broadly, treating them as living agreements[13] able to accommodate scientific advances, one can at most imply from this a liberty to seek infertility treatment. By definition, this liberty could not be used to demand assistance from the State, only a general duty of non-interference.

(b) Interpretation under the Bill of Rights

Even without the limitations described, the ICCPR has only been affirmed by, not incorporated into, in the New Zealand Bill of Rights Act 1990 (“NZBORA”). Using the ICCPR to interpret the NZBORA,[14] the liberty to procreate may be brought within the right not to be deprived of life,[15] if procreation is considered in legal terms an essential element of life.[16] Under this analysis procreation still remains a liberty with no specific duties on the State and as such creates weak positive claims for assistance. Similarly, as a disability under the Human Rights Act 1993 (“HRA”), physiological infertility generates no rights to assistance, since, apart from applying to the Government in only limited circumstances,[17] s 52 relates to service provision, not remedy of the disability itself and s 73(1)(a) saves affirmative actions, but does not provide a right to such assistance. The sociologically infertile who would most benefit from a right to infertility treatment would still be excluded.

Although infertility treatment is accepted in New Zealand as part of the core health services budget, health care rights are of limited support. Aside from their unincorporated status, international treaty law provisions relating to health rights are too general to be valuable to a prospective parent. The right to health is not an individual one, but held by society collectively[18] and this is reflected in both international and domestic law. A prospective parent will not have a claim against the State for health care let alone infertility treatment specifically as New Zealand legislation contains no obligation to provide treatment.

2. Comparative Jurisdictions’ Approaches to Procreative Rights

In the United States, Skinner v Oklahoma[19] states that procreation is a fundamental liberty under their Bill of Rights, while Roe v Wade[20] finds protection for freedom to terminate a pregnancy and freedom from unwarranted governmental interference is part of an individual’s right to privacy in procreation. These liberties, accompanied by duties of non-interference on the part of the State, are also found in Canadian case law. R v Mortgentaler[21] establishes that a liberty to procreate and broad protections against governmental interference are part of s7 of the Canadian Charter of Fundamental Rights and Freedoms.[22] By extension, the Baby M[23] case reasons that “if one has a right to procreate coitally, then one has a right to reproduce non-coitally”.[24] By contrast, in New Zealand the right to life is unentrenched. In the absence of statutory duties on the State, the Ministerial Committee on Assisted Reproductive Technology (“MCART”), a committee heading New Zealand’s most comprehensive inquiry into ART which presented its findings in 1994, adopts the view of the majority of submissions that “it is the choice to procreate or not that should be a human right”.[25]

The overwhelming message is that there exists only a liberty to seek ART with a duty of non-interference on the part of the state. The state is not required to provide applicants with ART or financial assistance to procure those services, as demonstrated in Harris v McRae, a United States Supreme Court judgment, which noted that:[26]

[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices....[A]lthough a government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation.

The extent of the duty of non-interference on the state is limited. Since the liberty to seek ART is not absolute, it may legally be restricted where its exercise would cause harm to another, for instance the potential child or society. This was recognised by the Canadian Royal Commission on New Reproductive Technologies (“Royal Commission”), via a s1 justification under the Charter.[27] The report of the Ontario Law Reform Commission also notes that a right to infertility treatment in s7 of the Canadian Charter[28] might only amount to a guarantee of procedural, not substantive, due process from the State. If ART were banned altogether, it might not be open to the court to determine the reasonableness of the ban.[29]

In a society where the State has a responsibility to balance the rights of the individual and the wider interests of the community, rights talk in relation to infertility treatment access is inadequate and uninformative. The rights model focuses on the parents and draws attention away from the other participants in the process of ART, such as the child, the doctor, and the community. It shuts out the inherent detriment to society that the exercise of the right may cause and precludes questions over the legitimacy of investment of society’s time, energy and resources, factors noted by the Royal Commission.[30] MCART supports the Royal Commission’s stance that individual liberties can be limited when the aim is to protect important societal interests.[31] The State has legitimate concerns that children will be well cared for.[32]

III. Human Rights Legislation

The complex task lies in setting guidelines for access where there is concern for the welfare of the potential child that relates to a prohibited ground of discrimination. The central concern when defining the limits on access to infertility treatment is to ensure the appropriate balance between the right of the infertile to be free from discrimination and the adequate representation of the interests of the potential child. The first concern can arise from overanxious protection of the second, yet the child’s lack of voice makes this advocacy important.

1. Discrimination against Prospective Parents

The married heterosexual couple is still the default family form in official circles. The Warnock Report, which led to the enactment of the Human Fertilisation and Embryology Act (“HFEA”) in England, remained convinced that the traditional family structure was best for a child.[33] MCART expressly considered the HRA, yet was uncomfortable with assistance to single women.[34]

The bias of clinics is noted by the MCART report, which records the provision of ART to people with physiological infertility only in some clinics, while others apply an age limit.[35] There is thus reasonable desire on the part of applicants for full effect to be given to human rights legislation.

The challenges to the normative family structure are not limited to concern for children born out of wedlock. Disputed cases demonstrate the range of people implicated in the access issue. In 1994 the Human Rights Commission ruled in favour of a single woman refused treatment by a private Auckland clinic on the basis of marital status discrimination. In the same year, the same clinic was found to have acted discriminatorily on the grounds of race and ethnic origins by denying donor insemination of a Maori woman with a white partner using sperm from a Samoan friend.[36] The Human Rights Commission has since noted, however, that whilst denying access to donor gametes on the basis of race will be illegal, more research has yet to be done into the effect of parents of a different ethnic group(s) on a child, and what interests the child has to grow up in an environment of its own ethnicity.[37]

More recently in 1997, a severely disabled couple took a claim to the Human Rights Commission for the refusal to treat with donor IVF. The clinic argued that the couple’s specially adapted house was a hazard for a child, while the couple insisted that the clinic was discriminating on the basis of their disabilities and had ignored the support network they had to care for the potential child. The couple dropped the claim when a public clinic accepted them for treatment.[38] Additional concerns relate to age discrimination in the treatment of post-menopausal women,[39] and in this case the Royal Commission recommended that IVF not be offered to such applicants.[40] New Zealand has not yet faced a request by a post-menopausal woman for treatment. Male surrogacy arrangements are also untested in regards to ethical approval. New Zealand practitioners appear more liberal in respect of access for lesbian couples than overseas colleagues.[41]

2. Application of Human Rights Legislation

Clinics in New Zealand have long called for guidelines in respect of access to ART, so that they may adjust their practices to reflect appropriate standards.[42] At present, human rights legislation provides some of the only standards available. However, since 2001 it has been uncertain whether the HRA or the NZBORA will apply to health services.

Part 1A of the Human Rights Act establishes that an act or an omission by a person or body governed by s3 of the NZBORA, which is inconsistent with the right to freedom from discrimination set out in s19 of the NZBORA, is to be tested against the standard set out in s5 of the NZBORA,[43] to the exclusion of Part 2 of the HRA.[44] There are express exceptions in relation to employment,[45] sexual harassment,[46] racial harassment,[47] racial disharmony[48] and victimisation of complainants.[49] The rationale is to preserve the distinction between the two statutes and thus the distinction between the role of the Government and private actors. While the HRA regulates the relationship between private actors and accepts discrimination in only limited circumstances, the NZBORA preserves the policy-making function of Government, which is the backdrop to its provision of goods and services. The nature of governmental provision of goods and services means such provision is appropriately assessed against a balancing standard, s5.[50]

(a) Application of the Human Rights Act

It is necessary to consider whether the HRA applies to the provision of health services, first via s 3(a) of the NZBORA. As the public health sector has undergone considerable reorganisation, District Health Boards (“DHBs”) have inherited the role of the overarching Health Funding Authority (whose assets and personnel went to the Crown)[51] in deciding the services to be provided in their districts, but also regain ownership of public hospitals within their district. The DHBs remain subject to Ministerial oversight, with up to four members appointed by the Minister sitting alongside the other seven members.[52] The Minister remains responsible to the House of Representatives for the activities of the DHBs.[53] Combined, these factors and functions suggest that the DHBs act on behalf of Government.

(i) Public Hospitals

Public hospitals also differ structurally from their earlier counterparts, the Crown Health Enterprises. However there is no reason to suggest that they will now be subject to s3(a) of the NZBORA. Despite this closer association with government, both the lack of control of day-to-day activities by the Minister[54] and lack of special powers or monopoly vested in the hospitals[55] indicate that public hospitals are not performing acts as agents of the Crown.[56] This is supported by the Canadian Supreme Court decision Stoffman v Vancouver General Hospital, which established that mere supervisory powers of the Government did not make the hospital a public body.[57]

Part 1A of the HRA may still apply to public and private health services if the provision of such care can be considered a public function, power or duty pursuant to law under s3(b) of the NZBORA. Ultimately, whether a body performs a public function is a reflection of what activities society perceives should be controlled by the State,[58] however it is possible to refine this further. It is suggested that indicators of public function include, but are not limited to public funding through taxation, statutory control, and the exercise of a public good or collective service.[59] In Eldridge v British Columbia (Attorney-General)[60] the Supreme Court of Canada determined that public health services were a public function subject to the Charter when rendered by a hospital under statutory obligation and funded publicly through taxes. The same analysis can be applied to public hospitals in New Zealand, which provide tax-funded collective services in concert with statutory oversight. It is tendered that public health services do fulfil a public function.

(ii) Private Hospitals

The s 3(b) analysis becomes more difficult with respect to private hospitals. These are incorporated companies subject to the general regulatory framework for all health care providers,[61] but under no obligation to provide taxpayer funded health services. There are two possible approaches to take. The first looks beyond solely the function to the body performing the action, following Alexander v Police.[62] This view holds that if the contractual provision of a publicly funded health service by a private hospital is to be considered the performance of a public function, then every instance of health care provision will by definition be a public service.[63] The second approach posits that, as is apparent from the judgments in Lawson v Housing NZ,[64] Federated Farmers of NZ Inc v NZ Post Ltd[65] and TV3 Network Ltd v Eveready New Zealand Ltd,[66] the application of s3(b) is not determined by the private nature of a body, but through its performance of a public function.[67] Consequently, in relation to some services, private hospitals are capable of being brought within the NZBORA.

The second approach goes some way to responding to MCART’s concern that public and private providers not be held to different standards of service,[68] and also serves to reduce any anomaly that might occur in the outsourcing of a public ART contract to a private clinic.[69] Some functions of private clinics will remain amenable to the goods and services provision of the HRA when providing private infertility treatment, but in the performance of public outsourcing contracts the clinic is undertaking a public function. Taking the second approach creates the opportunity for a broad analysis of infertility treatment access under both the HRA and NZBORA.

3. The Welfare of the Child

The resulting child is the other significant party in access to infertility treatment. The “welfare” of the child is used to describe the bundle of concerns associated with the child to be born. The interests of the child are invoked because a child to be conceived has no legally recognised rights,[70] yet its needs require protection. In relation to screening ART access, the welfare of the child refers broadly to the good care and wellbeing of the future child as it matures, including the provision of education and emotional and physical safety. These interests go beyond existing legal standards of protection;[71] however identification of more precise factors for assessing patients’ parenting ability has not yet been attempted. The Convention on the Rights of the Child (ratified by New Zealand) provides minimum guiding standards, including a general right of a child to be cared for by his and her parents[72] and due regard to his or her ethnic, religious, cultural and linguistic background when the child cannot be with its (genetic) parents.[73]

(a) Reconciling the Child’s Interests with the Liberty of the Parent

The interests of the child and the liberty of the parent are not incompatible. The liberty to receive ART is subject to a limited duty of non-interference. Where the welfare of the future child appears endangered, the State may prevent the exercise of the liberty through the denial of treatment. However, it is argued by what will be referred to as child advocates that legal mechanisms and political will to enforce this are lacking. This lack of protection, which could define the interests of the child more specifically, is compounded by the fact the HRA has allowed the child welfare concerns to be overridden by the interests of the parent.

(b) Discrimination Claims

To date, all discrimination claims in relation to infertility treatment have been brought under the HRA, rather than the NZBORA. The concerns of child advocates have thus been aimed at the 1993 discrimination legislation, which they believe is unable to accommodate the interests of the future child. This is gauged from the fact that the interests of the parents have been protected by the Human Rights Commission, which has facilitated access to treatment in the few cases citing the interests of the child. There is already concern that the unregulated industry is avoiding judging the suitability of paying applicants, although given the cost of defending an HRA claim at the Commission, they accept this is to some extent inevitable.[74] The primacy of the HRA is seen as supported in official reviews of ART by MCART and the corresponding Officials’ Committee, who recommended that there was no need to alter the HRA to allow ART to be treated differently from the rest of the community.[75] Without some form of legislative protection, the concern is that people potentially unable to care for and ensure the welfare of a child will be entitled through the HRA to receive infertility treatment, if their incapacity to parent arises from a prohibited ground of discrimination. However, the HRA appears to be able to accommodate the welfare of the child in infertility treatment if there are balanced procedures for assessing the welfare of the child.

(c) Discrimination Claims under the HRA

Although privately funded infertility treatment is only one aspect of the debate, it is governed by the HRA, under which considerable analysis of discrimination in the provision of health care has occurred. This knowledge developed from the HRA is valuable, and can inform the approach to be taken with respect to publicly funded infertility treatment by public and private clinics under the NZBORA. Section 44 of the HRA is useful in balancing the welfare of the child and the rights of the parents to be free from discrimination. Looking to the words of the provision, denial of service is illegal if it is “by reason of” one of the prohibited grounds in s21. According to Human Rights Commission v Eric Sides Motor Co Ltd[76] “by reason of” requires the prohibited ground to be a “substantial reason in the totality of reasons” or a “substantial and operative” factor in the decision. This seems at times to create too fine a distinction. A purposive interpretation is helpful in distinguishing between where one draws the line between denying a 63 year-old post-menopausal woman treatment by reason of her future inability to care for a child, and discrimination on the basis of her age?

To refuse a woman treatment because of her age alone would be discriminatory, if evidence does not support the decision that this would be harmful to the child. It would have to be shown through other factors that there was reason for believing harm to the child could occur because of the patient’s age. Other indicators could include poor family medical history and lack of availability of a support network, such as an ageing husband. When a doctor refuses treatment out of concern for the welfare of the potential child, this is then legitimately advanced as the operative reason for the decision, not the discriminatory ground itself. Children do not deserve less protection merely because their parent(s) should not be distinguished on the basis of their disability or characteristics.[77] Thus, the HRA is flexible enough to accommodate the welfare of the child, if there is wide ranging evidence of concern for the child’s welfare. This supports calls for guidelines to be developed on factors for assessing eligibility to treatment. This approach is equally useful in assessing the existence of discrimination under s 19 of the NZBORA.

(i) Refusals

Refusals on the ground of the welfare of the child based on a parent’s disability require additional consideration. Disability must be accommodated under s52 of the HRA, unless this could not be reasonably expected of the service provider. If the section applies to access decisions relating to the ability to parent, in circumstances such as the case of the disabled couple mentioned above it could be argued that to ensure the welfare of the child after birth so as to facilitate access is too onerous on the clinic.

(ii) Exceptions

Two exceptions are contained in s65 and s97 of the HRA. The first requires that a defendant establish “good reason” for any indirect discrimination. An indirectly discriminatory exclusion from infertility treatment might be a non-smoking requirement for the benefit of the child while pregnant. Given the proportionately high number of female Maori smokers, this could act as an indirect discrimination of this demographic. The welfare of the child may well count as a good reason for retaining the non-smoking requirement.

The other exemption in s97 of the HRA stipulates that there must be a “genuine justification” for any apparently discriminatory action. This acts as a “final backstop”[78] when a decision to not treat is found to be discriminatory under s44 of the HRA. This justification is to be used in “exceptional cases only”[79] as too liberal a construction might lead to the erosion of the HRA. With a deficit of case law, it is unclear what amounts to an exceptional circumstance; it may be that the welfare of the child is at such risk from a person’s extreme mental instability that it is imperative that infertility treatment be denied. Uncertainty over how the provision will work lends weight to the view of child advocates that the section will not be able to protect the welfare of the child as a relevant concern. With the enactment of the Human Rights Amendment Act 2001, which more clearly differentiates the application of the HRA and the NZBORA, the same need exists now as before the amendment for a substantive defence to off-set the blanket prohibitions and limited exceptions in the HRA in circumstances that were not anticipated by the Act, which justifies a continued broad view of s 97. Ministry of Transport v Noort[80] was the first New Zealand decision to interpret the “reasonable limits prescribed by law as may be demonstrably justified in a free and democratic society” using the Canadian Oakes test, which sets a three step process for balancing competing concerns:[81]

(a) The objective must warrant overriding a right.

(b) There must be a rational connection between the measures taken and the objectives they are to serve.

(c) The measures should be proportional:

(i)They must impair the right or freedom as little as possible.

(ii)The deleterious effects of the measures must be proportional in light of the objective they are to serve.

The harm to the future child would have to constitute an “exceptional” objective[82] in the circumstances. The refusal to treat would have to be shown by a clinic to be a rational and proportional response to the prohibited ground’s effect on the interests of the child. In the instance of the smoking candidate refusal of treatment might not be a proportional response where the woman was a light smoker, if there were medical evidence of minimised risk of harm to the child in the womb. From the analysis of s 44 already made, s 97 will rarely need to be invoked where prohibited grounds of discrimination are not irrelevant distinctions but informed determinants of the welfare of the child. There is room through any of the three sections, if need be, to accommodate the interests of the child.

The s 5 analysis under the NZBORA will differ in respect of publicly funded provision of infertility treatment, with the overriding objective under the Oakes test likely to focus on the resource constraints necessitating the use of facially discriminatory priority criteria. In these circumstances, it may be demonstrably justified in a free and democratic society to refuse treatment to a smoker, which the criteria do in fact do.

Those concerned for the interests of the child would be able to overcome perceived limitations in the HRA or the NZBORA. The suggestion that either should be subsumed by legislation requiring guidelines to preserve the paramountcy of the child[83] is therefore unwarranted as the interests of the child can be legislated for without requiring their paramountcy.

(iii) Paramountcy View

The paramountcy view looks to the Convention on the Rights of the Child[84] and current adoption legislation. In Social Welfare v L[85] the Court of Appeal determined that the Adoption Act 1955, through its link to guardianship, should adhere to the paramountcy of the child formula used in the Guardianship Act 1968. Thus, in adoptions the interests of the child are the paramount consideration.[86] The rationale is that legal intervention may disrupt relationships a child has formed, limit contact with one side of the family unnecessarily, or artificially attempt to replace existing parental figures.[87] Such considerations do not apply to children born from ART.[88] Donor ART children have been catered for under the Status of Children Amendment Act 1987 and are precluded from multiple parent problems, since they are made the legal children of their ART parents from birth. It has been recognised that children may want links to their biological parents and this is provided for in both proposed bills through centralised information databases. However the intention of donation is to not continue links with biological parents as family. At least in this respect, a paramountcy provision is unnecessary.

While the welfare of the child is a legitimate concern, the Human Rights Commission notes that it is often used as a smokescreen for discriminatory assumptions about the suitability of people with certain characteristics as parents.[89] Prospective parents express concern that systemic discrimination could slip through as relevant indicators of the welfare of the child under s 44 of the HRA, s 19 of the NZBRA, or in the exemption sections.[90] There is thus concern that any guidelines created pursuant to a statutory protection of the welfare of the child make legitimate evaluations of the ability to parent.

IV. Guidelines on Access

Access to infertility treatment lacks coherent guidelines. Presently, regulation of ART is fragmented into disparate articles of legislation, none of which relates directly to ART.[91] Infertility clinics lack overarching structures of accountability. In place of this professional self-regulation is supplemented by clinics voluntarily using the Reproductive Technology of Australia Council (RTAC) guidelines. These do not set procedures for determining access to infertility treatment. As a result, professional capture has occurred in the industry, leading to control of provision without associated responsibilities to ensure it is exercised in a balanced manner.[92] While the Royal New Zealand College of Obstetricians and Gynaecologists has issued general ethical guidelines for ART, these presume heterosexuality and ignore difficulties in determining who to provide to outside the norm. The guidelines assume impliedly that the doctor is the best judge.[93]

1. Government Involvement

The lack of guidelines for access is the result of considerable reluctance by successive Governments and Parliament to become involved with any part of ART regulation. The government has been inclined to leave the difficult issues surrounding access, among other concerns, to the industry. It has been aided in this by MCART, which advocated little substantial change. Significantly, it indicated there was no need to provide separate New Zealand licensing from RTAC and that providers should adhere to the HRA, using s 97 as an exception clause, without more definitive guidance as to access issues.[94] The Government was happy to accede, although balked at a national council, at least on a statutory basis, which might have developed guidelines on access to ART.[95] The Official Commentary paper suggests that refusals to treat, arising from medical risks or in the interests of the potential offspring, be determined according to their merits. It suggests that the Human Rights Commission develop relevant guidelines, which it has not so done.[96] One writer suggests that Parliament’s faith in medical practitioners is stronger than its desire to commit the issue of access to paper, given its lack of response to the Birth Technologies issues paper before in 1985.[97]

Despite its noncommittal attitude the state retains responsibilities to minimise the risk to any child,[98] which may result in denial of infertility treatment for some applicants. Harm to either the parent or the child has repercussions for society, and Government has a responsibility to ensure that limits are within the tolerance of society’s resources to cope.[99] This may seem incongruous with the fact that the State does not interfere in the natural creation of children born to alternative family structures, and with the fact that informal ART is not vetted. One possible response to this argument is that natural procreation is a private matter, whilst infertility treatment invokes the use of a doctor to assist in the creation of another being,[100] which entails special responsibilities for those in a position to ensure the safety of the process.

(a) Legislation

In forthcoming ART legislation the initial step in the state’s responsibilities in access should be to enact the statutory protection of the welfare of the child. Providers of infertility treatments must be required to take account of the interests of the child when considering to whom to grant access. This is consistent with the ethical responsibilities of doctors to the third party in the form of the child,[101] consistent with the state assuming responsibility to prevent harm to children where possible and consistent with the state’s ability to limit the liberty to procreate where the exercise of the liberty would harm others.

The current formulation of the bill provides broadly for guidelines to be established by an advisory committee. Although proposed reforms for adoption law recommend legislation of factors to be considered when assessing the welfare of the child, this is for the benefit of the Family Court.[102] In ART, a dedicated regulatory body will have more expertise and flexibility in deciding appropriate criteria and will be able to investigate public opinion itself. This is preferable to the legislature enshrining one particular moral ethical viewpoint.[103] However, in the construction of legitimate guidelines to gauge the welfare of the child, the statutory body will have to avoid sanctioning irrelevant factors that might slip through s 44 under the guise of the interests of the child or the welfare of the child.

(b) Alternative Family Structures

In the creation of legislation and the subsequent construction of guidelines, the State and regulatory body are obliged to consider the growing bank of research indicating that alternative structures to the conventional two-parent family are not inherently harmful to the child. In the three Australian states that have legislated on ART,[104] the two-parent family is a proxy for the welfare of the child,[105] with legislation specifying protection for the welfare of the child and then allowing only married and/or heterosexual de facto couples access to infertility treatment.[106] In contrast, the Canadian Royal Commission found that families formed by single or lesbian women are neither better nor worse for children than families formed by heterosexual couples. Other factors, such as time invested, nurturing and emotional commitment to the child are most important,[107] while family discord and poverty are more likely to be associated with children experiencing emotional and behavioural problems.[108] This is borne out by the growing number of children naturally born and successfully raised within alternative structure families, or to a conventional family structure, which then changes.[109] Under stimulation is a problem noted with children of intellectually handicapped parents, but is not a significant problem for children of physically handicapped parents[110] and can be ameliorated by looking to support networks and family.[111] It must remain in mind also that the decision to undertake infertility treatment is not undertaken lightly and the child will, on the whole, be treasured.[112] The approach of MCART on state limitations is to support the open availability of ART, but to restrict it on a case-by-case basis where, on the individual evidence, it appears that a person will be unable to provide care for the child. It is submitted that this is preferable to the Australian approach.

(c) Preventing Access

The level of harm that will prevent access must be set sensitively. MCART recommends open access with restrictions only in certain cases, phrasing the issue cautiously as:[113]

[A] clinic which wishes to assure itself that the...person is able to provide care for the child and thus wishes to minimise the risk to any subsequent child would not be in breach of the Act if it denied services where there was doubt.

These two standards of care represent the difficulty in actually determining the cut off point for access. It is unclear what degree and likelihood of harm the child must be at risk from. However to be free from discriminatory exploitation, it will probably need to be higher than a mere “doubt” of harm to the child, as MCART proposes. The guidelines would have to be careful not to expect to reduce all risk, a standard no parent could hope to achieve. They should also tolerate differences, accepting that a wide range of successful parents and parenting styles exists in the community. Inevitably, however, there will be some people in society who feel their view has been left out.

(d) Overseas Approaches

In considering specific factors for consideration, New Zealand can look to its adoption laws and the approaches of other jurisdictions for inspiration. In R v Ethical Committee of St. Mary’s Hospital, ex parte Harriott, the English Courts approved the use of adoption criteria in access to infertility treatment.[114] The Law Commission Report “Adoption and its Alternatives” recently released recommended factors that should be included in a non-exhaustive list designed to make the best interests of the child more transparent. While many are inappropriate to ART access guidelines, some give a sense of the approach that should be taken. The Law Commission suggests legislation for the consideration of the personal, family and cultural identity that the child will receive,[115] and the preservation of the cultural and linguistic heritage of the child,[116] which hark back to the issue of interracial gamete donation. As well, there is the need for the parents to be suitable and capable to provide for the needs of the child, and to have the appropriate character and attitudes to the proposed child and the responsibilities of parenthood.[117]

Further elaboration on the actual qualities parents are to possess, and the factors to be taken into account, can be found in the British model. The Code of Practice established by the Human Fertilisation and Embryology Authority focuses on the importance of a stable and supportive environment for the child.[118] Other factors considered are the parent’s commitment to having and bringing up a child; their medical histories and age; their (financial) ability to meet the needs of any child who may result; the risk of harm to the child through hereditary orders, problems during pregnancy and neglect and abuse; lack of a father; the parents’ social histories and the opinion of their usual general practitioner.[119] These wide ranging criteria are still not ideal, with evidence suggesting that doctors are still making uninformed spot judgements as to who will receive treatment,[120] especially concerning single women, elder applicants and same-sex couples.[121] This perpetuates the protection of discriminatory assumptions under the guise of s 13(5) child welfare.[122] While more detailed guidance from the HFE Authority is recommended,[123] the UK approach is favoured by the Office of the Commissioner for Children.[124]

(e) Additional Concerns

Worry is also expressed over who is making the assessments, and on what information sources these are based. Doctors are skilled in clinical judgements, but are unequipped to assess social criteria and the counsellors’ dual roles of assessing and counselling are also felt to be inappropriate from Victorian experience.[125] These factors are of special concern when people are being turned away upon unsubstantiated grounds. Access under New Zealand adoption law is assessed by a panel of advisers from the Department for Social Welfare and must be approved by the Family Court.[126] Although this is not the approach required when there is no existing child and thousands more infertility procedures are performed than adoptions each year,[127] it indicates the type of wide ranging investigation that is required to support a denial of treatment. Specialised involvement is likely to reduce the advent of spot decisions and admission of stereotypes into judgments. If an overarching ART body were to design and implement the system, it could also ensure a means of review over a decision made, perhaps to a specialised ART complaints committee. Recourse to the Human Rights Commission would follow for complaints based on the HRA. The interpretation of the HRA proffered above could then be used.

(f) Public Involvement

One aspect of the access debate that does generate consensus is the desirability of public involvement in the creation of such guidelines as part of an infertility treatment framework.[128] It is believed that public debate on selection issues will mean that criteria will be more transparent and ensure the accountability of practitioners. These are essential in an area in which has “major elements of control and power”.[129] This will also allow the framework of access to be based on moral beliefs widely shared in a pluralistic society and on ethical principles that the majority would be very reluctant to modify.[130] Shortland v Northland Health Ltd[131] provides a useful guide as to what constitutes appropriate practice in guidelines for assessment for treatment according to the Court of Appeal. Opinions included the views of doctors, medical ethicists, lawyers, patient group representatives, nurses and iwi on matters such as patients’ best interests, medical practice, medical ethics and human rights.[132] Additional groups would be relevant in the case of the welfare of the child, which is equally a social as it is a medical issue. The least that can be hoped for, in the likely event that the procedures will not be agreed on by everyone, is legitimacy in process by which the access guidelines are formulated and applied.

V. Priority Criteria for Infertility Treatment

The issues raised in relation to access guidelines to infertility treatment become especially significant when seeking public funding for a procedure. As one of the core health services, infertility treatment funding is applied via priority criteria. The criteria are designed to optimise the use of health resources by bestowing public treatment on those with the least chance of conceiving without treatment, but with the best chance of success using ART.

Annual state funding of infertility treatment has recently increased to six million dollars, around half of the total expenditure on infertility treatment in New Zealand per annum.[133] As demand far outstrips supply, priority criteria restrict access for those who are unable to otherwise afford treatment. Treatment is expensive, with one cycle for the simplest of donor inseminations costing $470,[134] not including the diagnoses, specialist consultations and drug therapy to stimulate ovulation and sperm development. Complex treatments can cost up to $4995.[135] With chances of a live birth through DI and IVF around 20[136] and 15 percent[137] respectively (the natural rate of pregnancy is 25 percent), this effectively pushes up the cost of treatment if patients are willing to try more than one round. The shortfalls of the priority criteria relating to infertility treatment are therefore of special concern.

(a) Criteria for Funding

Contributors to the development of the criteria are not representative. The criteria are derived from the responses of 19 consumers, 26 health professionals and 3 health administrators, using only 4 central factors out of a possible 10. This falls short of the standard set by Shortland v Northland Health Ltd requiring that guidelines used to deny access must be soundly informed by a representative range of interested parties in order to align with the natural justice requirement in s 27(1) of the NZBORA.

The factors used to rate applicants appear to lack consideration of their potentially discriminatory impact. Most pertinent is the first of the four heads of criteria that looks to factors that exclude applicants from treatment if they compromise the safety of the couple or the child. The National Health Committee states that the HRA and NZBORA are not to be breached when making evaluations for exclusions, and notes the difficulty in assessing the inability to parent or the risk to the child. It suggests that wide public and professional consultation to create a consistent and reliable assessment procedure is necessary, although leaves application of the guidelines to the doctor involved.[138] The Human Rights Commission has advanced its concern on this section and has offered its services to the National Health Committee to assist in the drafting of exclusion factors.[139]

Exclusion on the grounds of the welfare of the child and ability to parent is the type of situation for which the guidelines outlined above are contemplated and could be applied under this first head of the priority criteria. However, MCART states that policy grounds may make it inappropriate for the State to “actively encourage” parenthood in some instances. It notes, for example, that it is undesirable for the State to condone financially the creation of children with a high potential of being orphaned by elderly parents and left without support.[140] Similar factors include the inability of prospective parents to raise a child without social welfare.[141] These are political considerations beyond the public funding of infertility treatment itself and beyond the assessment of the welfare of the child, which stray into questions of social welfare dependency. They, prima facie, attract the application of anti-discrimination legislation, and would have to demonstrate an important objective, rationality and proportionality, if they were to ever be implemented. A concern more general to discrimination law is what form of equality access to infertility treatment espouses. For instance, if the guidelines look to equality of opportunity[142] treatment might be denied where applicants are or were fertile, for instance where infertility is a result of earlier lifestyle choices,[143] such as through delayed childbearing or sexually transmitted diseases, or where a woman or couple already have a child. Access to public funding for single and lesbian women is already restricted,[144] although, when drafted, the priority criteria expressly included such women.[145]

(b) Public Consultation

MCART ultimately recommends resolution of these policy issues through wide public consultation as to what the community sees as an appropriate command of public resources, with open access to infertility treatment in the meantime.[146] In the future therefore, the same guidelines as to the welfare of the child and ability to parent may be applied for access to public and private treatments, but public priority criteria may supplement this with additional social criteria. The legitimacy of these considerations is well established, as shown in the analysis of the remaining factors in the priority criteria.

(c) Social and Clinical Criteria

The three remaining grounds for assessment are based on clinical and social criteria. Each raises potential issues of discrimination, yet the Human Rights Commission has given its approval to the criteria. The main objection is to the use of age as a factor reducing the likelihood of access to infertility treatment. MCART “recognises that with publicly funded treatment there will need to be some reasonable limits placed on the age of people receiving treatment”. This is consistent with the earlier discussion of rights to healthcare, and follows precedent, deferring to the funding decisions made by authorities. In R v Sheffield Health Authority, ex parte Seale,[147] the local health authority was found to have acted reasonably by applying an upper age limit of 35 years in order to regulate funding allocation.[148] In Cameron v Nova Scotia[149] the Canadian province’s decision to not fund infertility treatment at all was considered by the majority to be discrimination on the basis of disability. The government was given latitude in light of limited resources, however, which amounted to a justifiable limitation under s 1 of the Charter. In Shortland v Northland Health Ltd the New Zealand Court of Appeal upholds the High Court’s decision to defer to resource limits placed on rights, as long as the criteria do not fetter individual assessment.[150]

Publicly funded infertility treatment will be prone to stringent cut off points based on broad generalisations. In relation to public health resources, need and the ability to benefit will be legitimate primary considerations according to the majority of evidence. The wider public policy questions intimated have yet to be considered, however, and belong to the domain of public debate. Until then, and apart from those policy concerns, the guidelines for publicly funded infertility treatment are intended to reflect the same values as for private treatment.

V. Pending Legislation

Currently before the Health Select Committee are two bills relating to ART, which have the potential to impact upon access to infertility services. The two central issues in relation to access explored here are the limitations on access imposed by the bills and the availability of an appropriate body to develop guidelines under the bills.

The legislative history of the bills demonstrates the reticence to take decisive steps toward legislating the ART issue. The select committee is considering both a private member’s bill, the Human Assisted Reproductive Technologies Bill 1996 (“HARTB”), amended by Supplementary Order Paper No 80, and the former National Government sponsored Assisted Human Reproduction Bill 1998 (“AHRB”). The report is due 14 February 2004, following multiple postponements. The time taken for the two bills to reach and move through the select committee demonstrates the lack of impetus within Parliament and the Government on the issue, which means that both bills are likely to need updating on evolving ART issues.[151] Overlap of subject matter will also mean they are likely to be combined.[152]

1. The Assisted Human Reproduction Bill

The National Bill has three main threads. It bans unethical ART activities,[153] provides for access by children and donors to information about each other[154] and re-establishes the National Ethics Committee on Assisted Human Reproduction (“NECAHR”) on statutory grounds.[155] The issue of access is not dealt with directly, although the NECAHR is to develop guidelines for procedures and techniques,[156] which could be interpreted to include access guidelines. This avoids creating a national council on ART, abdicating the responsibility for licensing of clinics to RTAC and more worryingly leaving policy development in the control of a narrowly oriented ethics body.[157] NECAHR is equipped to review new reproductive technologies to ensure their ethical aspects are considered before application of the technology.[158] This role is reaffirmed under clause 7(a), which states that the Committee is to review ART proposals for compatibility with peoples’ rights.[159] NECAHR provides advice on ART issues to the Minister of Health and the National Advisory Committee on Health and Disability Services Ethics, and ethical guidelines to regional ethical bodies. It has limited resources, meeting only quarterly, and is unable to publish reports or make media statements without Ministry of Health approval.[160] This lack of autonomy, coupled with its ethics focus means it will be stretched beyond its appropriate function if it is to deal with access guidelines.

If NECAHR were unable to produce guidelines for access, the effect would be to continue with the status quo, or professional self-regulation, the inadequacies of which have already been touched on. Alternatively the Human Rights Commission or the courts could be left to create policy, which is also inappropriate. The Law Commission Report on adoption is already reconsidering the viability of the Family Court developing its own policies on adoption access and suggests the legislation of guidelines to remedy this.[161] Lack of statutory protection of the child could affect Human Rights Commission decisions when determining access. Essentially, the National bill refuses to take up the challenge to provide a cohesive approach to the HRA and the welfare of the child. Neither of the parties’ interests and rights are supported in the bill’s concern to avoid tackling the contentious subject of access.

2. The Human Assisted Reproductive Technologies Bill

In contrast, HARTB provides an opening for the regulation of access and declares a pervasively child-oriented stance. The bill covers roughly the same terrain as the 1998 Bill in regards to an information register and banning some ART, such as human cloning. It also establishes a central administrative body in the Advisory Committee on Assisted Reproductive Procedures and Human Reproductive Research in cl 31. The Advisory Committee is to formulate guidelines on any matter relating to ART, [162] which implies the ability to create access guidelines. It would be appropriate for this function to be stated explicitly, although it is difficult to imagine access not being addressed, since it is one of the central features to affect a child and overarching the 1996 Bill is concern for the paramountcy of the child. The primary principle which must guide all persons exercising powers or performing functions under the bill is that the “health and well-being of children born as a result of the performance of an assisted reproductive procedure should be paramount in all decisions about the procedure”.[163] The prima facie effect of the term “paramountcy” is to override the application of the HRA and NZBRA, leaving the human rights they contain expressly subject to the interests of the child. The earlier clause 7 which stated that “nothing in this Act shall derogate from any of the provisions” of the human rights legislation has been removed.

Any guidelines will be within the reach of the NZBORA since the Advisory Committee is a branch of the executive under the NZBORA s 3(a). The Committee is established by the Minister of Health and its members are appointed by the Minister of Health after consultation with the Minister of Women’s Affairs.[164] Public and arguably private hospitals perform a public function under s 3(b) of the NZBORA when providing public treatment, which may be reinforced by the application of public access guidelines. Section 6 requires an interpretation of the paramountcy provision consistent with s 19 non-discrimination to be preferred. As a result, the ability to parent and care for the interests of the child will still have to be defined in the careful manner suggested earlier in order to reduce discriminatory assumptions about the ideal parent. Blanket discrimination and irrelevancies will not be condoned merely because of the paramountcy provision.

The paramountcy provision and human rights legislation are reconcilable only to a certain point and the effect of the clause will be felt when there is a doubt over the welfare of the child. Paramountcy of the child sets a high tariff for prospective parents. Although some level of risk must exist to provide a cut off point for access, the paramountcy of the child does not contribute sensitively to the debate that must proceed before that point is set. It may act to favour unrealistic standards, viewing some characteristics with less tolerance than trusted conventional family formations. Paramountcy of the child could also preclude balancing tests of rationality and proportionality under ss 64 and 97 of the HRA, or s 5 of the NZBORA,[165] by acting as an overriding consideration without need for proof of a good reason or genuine justification for breach of a prohibited ground of discrimination. It is difficult to see the justification for such stringent measures when debate continues over the legitimate way to define an appropriate child-raising environment or any concrete evidence in the particular case. While the paramountcy phrase is used in adoptions, the underlying rationale is not relevant in ART access decisions.[166]

The paramountcy consideration is potentially relevant to a donor information database and experimentation on embryos and foetuses; however, access to ART itself should not be made subject to the paramountcy provision. It is recommended here that protection of the child’s interests be legislated in the final version of an ART statute, but that paramountcy in relation to access is unnecessary and impacts too restrictively upon the right to be free from discrimination under the HRA and NZBORA. The enactment of an express child paramountcy provision may merely confirm that ART access was intended to be restricted.

While neither Bill outrages the NZBORA, there is still the danger that a well thought out access provision could fall by the legislative wayside. To avoid this, legislation needs to establish the means for a suitable body to create access guidelines by appropriate means. There should be statutory protection of the interests of the child, but not phrased in terms of paramountcy. Equivalent affirmation of the application of human rights legislation would also help strengthen the intention to balance the interests of parents and children, although this would apply in any event through an advisory committee on ART or through the hospitals’ application of access guidelines and general service delivery. The legislative enterprise is in fact not the difficult part of the access issue – this falls to the body creating an accommodative approach in the guidelines themselves. The statutory framework must be there, however, to guide the body’s attempt at the reconciliation of children’s interests and parents’ rights.

VII. Conclusion

Treatment for infertility is not the purely medical issue that it has generally been treated as. It is a social, political, economic and legal concern that impacts on the personal lives of patients and on the way we view ourselves as a community. Access guidelines and decisions under those guidelines deserve close scrutiny to ensure their legitimacy and should strive to accord with the rights of the parents and the interests of the children as far as practicable.

In order to do this, the state must not shy away from the measures that this will involve. Rather than ignoring the access issue, or attempting to solve it by emphasising the interests of certain parties, there should be open acknowledgement of the difficulties that ART presents New Zealand as a society. These should inform the legislation and guidelines that will soon be put to use. In this way, wide public consultation especially in relation to social priority criteria can proceed and the debate can really begin.

The NZBORA and the HRA are capable of supporting these efforts. They do not have to be seen as an impediment, but as facilitative mechanisms capable of balancing weighty interests and rights. Combined with incisive legislation and guidelines, a legitimate framework for access can be ensured, as best is possible, to respond to the diverse claims that will be made upon it.

[∗] BA/LLB(Hons). Thank you to my parents for your support, your unconditional love is returned in full.

[1] Royal Commission on New Reproductive Technologies (Royal Commission), Proceed with Care (1993) 171.

[2] Also commonly used is gamete intra fallopian transfer, similar to IVF, but that the conception occurs in the fallopian tubes once the woman’s egg and man’s sperm have been extracted. Zygote intra fallopian transfer occurs when a fertilised egg is placed in the fallopians, rather than the uterus as in IVF. Intracytoplasmic sperm injection, used for poorly mobile sperm, involves the injection of sperm into the egg directly.

[3] Although physiological infertility has remained constant over the past three decades: Gillett, Peek & Lilford , Costs and Effectiveness of Infertility Services in New Zealand: A Decision Analysis (1996) 9.

[4] Ibid 9.

[5] “Lesbians’ high demand for fertility treatment”, Sunday News, Auckland, New Zealand, 12 January 1997, 12.

[6] Evans, “What Does it Mean to Say Someone Has a Right?” [1998] OtaLawRw 8; (1998) 9 Otago LR 301, 304.

[7] Ibid 302.

[8] Williams , “The Concept of a Legal Liberty” in Summers (ed), Essays in Legal Philosophy (1968) 128-129.

[9] Shanner L, “The Right to Procreate: When Rights Claims Have Gone Wrong” (1995) 40 McGill LJ 839.

[10] Williams, supra note 8, 139.

[11] Article 23(1).

[12] Article 10(1).

[13] Eriksson MK, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law (2000) 195.

[14] Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA).

[15] NZBORA 1990, s8.

[16] In the United States infertility is understood as impairment of a major life activity under the Americans with Disabilities Act 1990, Title VII of the Civil Rights Act 1964, s 4 in Bragdon v Abbott, [1998] USSC 77; 524 US 624 (1998).

[17] HRA 1993, s21A.

[18] Feldman, Civil Liberties and Human Rights in England and Wales (1993) 901.

[19] [1942] USSC 129; 316 US 535 (1942).

[20] [1973] USSC 43; 410 US 113 (1973).

[21] (1984) 47 OR (2d) 353, 394-395.

[22] The section reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[23] (1987) 525 A. 2d 1128.

[24] Ibid 1164.

[25] New Zealand Ministerial Committee on Assisted Reproductive Technologies (MCART), Assisted Human Reproduction: Navigating Our Future (1994) 29.

[26] [1980] USSC 174; 448 US 297 (1980) 316, per Stewart J.

[27] Royal Commission, supra note 1, 456-457.

[28] The right to life, liberty and security of person.

[29] Ontario Law Report Commission, Report on Human Artificial Reproduction and Related Matters (1985) 43.

[30] Royal Commission, supra note 1, 62-63.

[31] MCART, supra note 25, 30.

[32] Shanner, supra note 9, 873.

[33] Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Warnock Report) Cmnd 9314 (1984) para 2.11.

[34] MCART, supra note 25, 55-56

[35] MCART, supra note 25, 54, 56-57.

[36] Coney, “Assisted Reproductive Technologies Timeline” in Coney & and Else (eds), Protecting our Future: The Case for Greater Regulation of Assisted Reproductive Technology (1999) 7.

[37] MCART, supra note 25, Appendix F 4-5.

[38] Coney, “The Rights and Interests of the Child” in Coney & Else, supra note 36, 42.

[39] De Wert, “The Post-Menopause: Playground for Reproductive Technology? Some Ethical Reflections” in Harris & Holm (eds), The Future of Human Reproduction: Ethics, Choice and Regulation (1998) 221.

[40] Royal Commission, supra note 1, 569.

[41] Tyler, supra note 5.

[42] A survey of obstetricians and gynaecologists in 1986 in relation to IVF showed that 86% indicated they would prefer oversight of the area: cited in Daniels, “Assisted Reproductive Technology Policy in New Zealand: Needs, Rights and Responsibilities” (1994) 17(3) Public Sector 24.

[43] HRA 1993 s20I.

[44] Ibid s 20J.

[45] Ibid ss 22 & 23.

[46] Ibid s 62.

[47] Ibid s 61.

[48] Ibid s 63.

[49] Ibid s 66.

[50] For fuller consideration of these changes see Cooper, Hunt, McLean & Mansfield Re-evaluation of Human Rights Protections in New Zealand, Ministry of Justice, Wellington, (May 2001).

[51] New Zealand Public Health and Disability Act 2000, s 5(9).

[52] Ibid s 29(1).

[53] Ibid s 8(5).

[54] Ibid s 39.

[55] Townsville Hospitals Board v City of Townsville [1982] HCA 48; (1982) 149 CLR 282, 291.

[56] Paterson & Rishworth, Priority Criteria and the Human Rights Act: An Interpretation (1996) 41-53.

[57] [1990] 3 SCR 483.

[58] Rishworth, “When the Bill of Rights Applies” in Rishworth et al (eds) The New Zealand Bill of Rights, (2003) 86, 89.

[59] De Smith,Woolf & Jowell Judicial Review of Administrative Action (5th ed, 1995) para 3.024.

[60] [1997] 3 SCR 624.

[61] Section 79 ensures that Part 1A of the HRA does not just cover private activities that are specifically required or authorised by statute.

[62] (1998) 4 HRNZ 632 (CA).

[63] Rishworth , supra note 58, 92.

[64] [1996] NZHC 1528; [1997] 2 NZLR 474 (HC).

[65] [1992] NZHC 3003; [1992] 3 NZBORR 339 (HC).

[66] [1993] NZCA 362; [1993] 3 NZLR 435 (CA).

[67] Butler “Is This a Public Law Case?” (2000) 31 VUWLR 747, 764-770.

[68] MCART, supra note 25, 58-59.

[69] Fertility Associates has held contracts to provide public fertility treatment since 1996 in both Auckland and Hamilton.

[70] Shanner, supra note 9, 844-845; Coney, supra note 38, 46.

[71] For instance the duty to provide the necessaries of life, Crimes Act 1961, s151 and protection from abuse under the Children Young Persons and their Families Act 1989

[72] Convention on the Rights of the Child, Article 7(1).

[73] Ibid Article 20(3).

[74] Coney, supra note 38, 41, 43.

[75] Department of Justice, Assisted Human Reproduction: A Commentary (1995) 12.

[76] Using the identical phrase in the Human Rights Commission Act 1977. (1981) 2 NZAR 447 (Equal Opportunities Tribunal).

[77] Sandberg, “Child Protection Law and Fundamental Values: Mentally Retarded Parents” in Eekelar & Sarcevic (eds), Parenthood in Modern Society (1993) 481.

[78] Paterson & Rishworth, supra note 56, 15.

[79] Avis Rent-A-Car Ltd v The Human Rights Commission, 15 October 1998, Complaints Review Tribunal 28/97.

[80] [1992] NZCA 51; [1992] 3 NZLR 260, 283 (CA).

[81] R v Oakes [1986] 1 SCR 103 (SCC).

[82] Avis Rent-A-Car v Human Rights Commission, supra note 79.

[83] See Coney, “The Rights and Interests of the Child” supra note 38, 41.

[84] Convention on the Rights of the Child, Article 3(1). In s 11(b) of the Adoption Act 1955, welfare of the child is interpreted in light of the Guardianship Act 1968, s6 paramountcy provision.

[85] [1989] NZCA 130; [1989] 2 NZLR 314.

[86] Guardianship Act 1968, s 23.

[87] Henaghan M, “Legally Rearranging Families” in Henaghan M & Atkin B (eds), Family Law Policy in New Zealand (1992) 146-147.

[88] Or in fact adoptions from birth.

[89] Hamed, “Human Rights and Assisted Reproduction” (1994) Tirohia 4.

[90] Paterson , “Access to Health and Disability Services and the Human Rights Act” (1995) Human Rights Law & Practice 5.

[91] Including: Consumer Guarantees Act 1993, Status of Children (Amendment) Act 1987, Human Tissue Act 1964 and Adoption Act 1955.

[92] Henaghan “New Zealand: Regulating Human Reproduction” in McLean (ed), Law Reform and Human Reproduction (1992) 172.

[93] Ibid 189.

[94] Department of Justice, supra note 75, 7, 12.

[95] Ibid 7-8.

[96] Ibid 10-12, 14.

[97] Department of Justice, New Birth Technologies – An Issue Paper on AID, IVF and Surrogate Motherhood (1985) in Henaghan, supra note 92, 171.

[98] MCART, supra note 25, 56.

[99] Daniels and Taylor “Formulating selection policies for assisted reproduction” (1993) 37(12) Soc Sci Med 1471, 1473.

[100] Coney, supra note 38, 44.

[101] De Wert, supra note 39, 231.

[102] Law Commission Adoption and Its Alternatives (2000) 70-71.

[103] Caldwell & Daniels “Assisted Reproduction and the Law: Implications for Social Policy” in Henaghan & Atkin (eds), supra note 87, 290.

[104] South Australia, Western Australia and Victoria.

[105] Tarrant, “Western Australia’s Persistent Enforcement of an Invalid Law: s23(c) of the Human Reproductive Technology Acct 1991 (WA)” (2000) 8 Jnl Law and Medicine 98-105.

[106] Human Reproductive Technology Act 1991 (WA), s23(c)&(e); Reproductive Technology Act 1988 (SA), s13; Infertility Technology Act 1998 (Vic), s8(1).

[107] Royal Commission, supra note 1, 457.

[108] Liu, Artificial Reproduction and Reproductive Rights (1991) 57-58.

[109] Royal Commission, supra note 1, 42-43.

[110] Sandberg, supra note 77, 479-481.

[111] Royal Commission, supra note 1, 43.

[112] Ibid 457.

[113] [Emphasis added] MCART, supra note 25, 56.

[114] R v Ethical Committee of St. Mary’s Hospital, ex parte Harriott, The Times, 27 October, 1987, cited in Grubb, “Access to IVF Treatment – Professional Judgement or Judicial Control?” (1988) Cambridge LJ 168-169.

[115] Law Commission, supra note 102, 70.

[116] Ibid 71.

[117] Ibid 71.

[118] HFEA, Code of Practice, part 3.

[119] Ibid para 3.11 - 3.25.

[120] Douglas, “Assisted Reproduction and the Welfare of the Child” (1993) 46 Current Legal Problems 62-69.

[121] Ibid, 64.

[122] Ibid, 55.

[123] Ibid, 71.

[124] Coffey-Noall, “Human Assisted Reproduction Technology Bill” (1997) 24 Children 12.

[125] ITA News, August 2000, (last modified 22 July 2001). Douglas, supra note 120, 66.

[126] Caldwell & Daniels, supra note 100, 279.

[127] Compare 3500 new referrals to ART each year with the 518 adoptions 1998-1999: Ministry of Social Policy, Statistics Report 1999, (last modified 31 August 2001).

[128] Caldwell & Daniels, supra note 103, 258.

[129] Daniels & Taylor, supra note 99, 1476.

[130] Ibid, 1478.

[131] [1998] 1 NZLR 433.

[132] Ibid 437.

[133] “Funding boost for infertility treatment” The Dominion, Wellington, New Zealand, 9 August 2000.

[134] Gillett, Peek & Lilford, supra note 3, 36.

[135] Ibid.

[136] (UK) Liu, supra note 108, 14.

[137] Gillett, Peek & Lilford, supra note 3, 18.

[138] Gillett & Peek, Access to Infertility Services: Development of Priority Criteria, (1997) 20.

[139] Human Rights Commission, Submission to Access to Infertility Services: Development of Priority Criteria, (last modified 23 April 2001).

[140] MCART, supra note 25, 56.

[141] Ibid 55-56.

[142] McLean J, “Equality and Anti-discrimination Law: Are they the Same?” in Huscroft & Rishworth (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (1995) 269-270.

[143] Daniels & Taylor, supra note 99, 1477.

[144] The guidelines and notes on CPAC scoring for publicly funded treatment state that single and lesbian women are eligible for scoring if a clear biological cause of infertility exists, or at least 12 cycles of DI have been attempted without pregnancy, of which 6 must be within an RTAC accredited unit.

[145] Gillett & Peek, supra note 138, 26-28.

[146] MCART, supra note 25, 56-57.

[147] (1994) 25 BMLR 1, in The Times, 18 October 1994, cited in Elliston & Britton, “Is Infertility an Illness?” (1994) New LJ 1552.

[148] The case has been criticised for allowing the use age as the only factor in the authority’s discretion, but this is not a problem with the broader considerations used in priority criteria.

[149] (1999) 177 DLR (4th) 611 (Nova Scotia CA).

[150] This approach is consistent with the Code of Rights under the Health and Disability Commissioner Act 1994, which protects the right to be free from discrimination (Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Right 2). The previous exemption if the provider took actions reasonable in the circumstances, which was defined as including the provider’s resource constraints, has now gone under the new legislation.

[151] “Cloning bills outdated says PM” New Zealand Herald, Auckland, New Zealand, 13 March 2001, A7.

[152] Beston, “Human clones: down the road of no return” New Zealand Herald, Auckland, New Zealand, 13 March 2001, A11.

[153] Assisted Human Reproduction Bill 1998, cl 4 & 5.

[154] Ibid cl 9–28.

[155] Ibid cl 6.

[156] Ibid cl 7(b).

[157] Daniels & Hargreaves “The Policy and Ethics of Surrogacy in New Zealand: Who is Left Holding the Baby?” (1997) 6(2) Otago Bioethics Report 4.

[158] Paterson, “Rationing Health Care and Human Rights: the Northland Health Case” (1998) 3 NZLR 580.

[159] Assisted Human Reproduction Bill 1998.

[160] Coney, “The Current Situation in New Zealand” in Coney & Else, supra note 36, 22-23.

[161] Law Commission, supra note 102, 70-71.

[162] Human Assisted Reproduction Bill 1996, Supplementary Order Paper No 80, cl 34(1)(b).

[163] Ibid cl 4(a).

[164] Ibid cl 33(1).

[165] In the unlikely event a claim of breach is brought under the NZBORA against a hospital or the Authority itself.

[166] Adoptions from birth have declined in recent decades, but the same issues apply there too. Henaghan, “Legally Rearranging Families”, supra note 87, 146.

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