pp. 183- 187 in Bioethics in Asia

Editors: Norio Fujiki and Darryl R. J. Macer, Ph.D.
Eubios Ethics Institute

Copyright 2000, Eubios Ethics Institute All commercial rights reserved. This publication may be reproduced for limited educational or academic use, however please enquire with the author.

5.3. Assisted Human Reproduction in New Zealand: The Contribution of Ethics

Ken R. Daniels.

University of Canterbury, Christchurch, New Zealand

Introduction

Developments in the field of assisted human reproduction (AHR), particularly those utilizing scientific and medical techniques have aroused a great deal of interest, not only from those who benefit from such developments but also from the public and from the ethics community. These developments have challenged governments in many countries to consider if and how they should respond. Most have set up committees or commissions to investigate and advise on appropriate actions to be taken (Walters, 1987, Knoppers and LeBris, 1991). Ethicists have played an important part in these considerations and therefore in the process of policy formation. The 'ethical voice' and contribution has been considered alongside those of medicine, law, science, sociology and the social sciences in general and most importantly, the 'public' voice.

This paper outlines the way in which ethics has and is contributing to the field of AHR in New Zealand. It will begin with a descriptive account of these developments and then provide analytical comment. New Zealand is a country that in some areas, most notably trade and tourism, is moving from a European to an Asian orientation. Having said that, it needs to be recognized that in this area of policy development the predominant emphasis has been, and some would say still is, European. A more significant development, however, is the move towards bi-culturalism within the country. The New Zealand Government is increasingly developing a partnership model between the indigenous people, the Maori, and the settlers of more recent origin. This partnership is based on the Treaty of Waitangi which was the agreement signed by Maori and the new settlers. The National Standards for Ethics Committees in New Zealand reflects this partnership, when it states "The principles of the Treaty of Waitangi must be incorporated in the proceedings and processes of Ethics Committees, particularly the principles of equity and partnership. These principles of partnership and sharing, implicit in the Treaty of Waitangi, will be respected by all parties involved in health and disability research and service delivery Research, innovative treatments, and services must be undertaken in a culturally sensitive and appropriate manner in full discussion and partnership with research participants or health and disability support services consumers and the results of any research appropriately disseminated in a full and frank manner. The access rights of research participants and health and disability support services consumers with regard to personal data must be respected, according to agreed principles of guardianship" (NACHDSE 1996: p.6 -7). Such thinking is now permeating all aspects of policy in New Zealand with important implications for the way that the different peoples relate to each other. There is an increasing recognition of different values and how these are manifested in day to day living. Maori values differ in some important ways from European values and, while there is not time to address these in this particular paper, it is important to recognize that in all ethical and policy matters in New Zealand both sets of values are now considered, if not always acted on. The major reason for acknowledging this is that the traditional European focus is being challenged in relation to its appropriateness for a bi-cultural nation. As New Zealand moves closer to Asia it seems likely that there will be further challenges and influences on the traditional European focus.

New Zealand Developments

It is not known when donor insemination (DI) first began in New Zealand - this reflecting the secrecy that has, until recently, been associated with the practice. In vitro fertilization (IVF), on the other hand, began with a burst of publicity, the first child being born in 1983. Soon after this event a very influential group representing the Royal Society of New Zealand, the New Zealand Law Society, the Medical Council of New Zealand and the New Zealand Medical Association issued a statement which concluded with a request to the government to appoint a standing committee to consider the legal, moral and social issues arising from IVF, artificial insemination and related problems in biotechnology (Royal Society of New Zealand, 1985). This powerful group of organizations had come together because of widespread concern about developments in AHR believing that there needed to be some review and monitoring process in place. To this writer's knowledge, these groups had not previously united in presenting a statement such as this.

The New Zealand Law Society addressed AHR issues at its 1981, 1984 and 1987 conferences, with the Minister of Justice discussing the matter at length in his address to the 1984 conference. (McLay 1984). It is not surprising, therefore, that in the next year, the Law Reform Division of the Justice Department published an issues paper entitled New Birth Technologies (Justice Dept. 1985). It is important to note the title of the paper with its emphasis on "birth" rather than conception. Equally it is important to note the emphasis on "new", when it includes surrogacy which was anything but new.

The Justice Department document was intended to promote and inform public debate. No options for action were put forward, but rather the public was encouraged to decide for themselves and respond with submissions. One hundred and sixty-four submissions were made and of particular interest, from this paper's point of view, almost one quarter referred to the need for some form of 'watchdog committee' as overseer of AHR in New Zealand. A survey (Daniels, 1990) of 1400 readers of a women's magazine found that 81% of respondents felt New Zealand needed some kind of legislation/rules to control developments in relation to IVF.

The government's response to the growing calls for a body to take some responsibility for developments in AHR was to set up an Interdepartmental Monitoring Committee, (IMCART) with representatives from several government departments. It was to act as a repository for information and to advise ministers as appropriate - essentially adopting a reactive stance.

In 1990, some service providers' growing concern at the lack of a government-instituted system of accountability in this area led them to invite the Reproductive Technology Accreditation Committee of Australia (RTAC) to become the accreditation body for their clinics (Daniels and Hargreaves, 1997), thus ensuring a monitoring system was put in place.

Two important events took place in 1993, the first being the establishment, by the Department of Health, of the Interim National Ethics Committee on Assisted Reproductive Technology (INECART). Regional ethics committees had been concerned about the consistency and uniformity of decision making in the AHR field and believed that this area should be managed on a national basis. The second event was the establishment of the Ministerial Committee on Assisted Human Reproduction by the Justice Department. In its report (Atkin and Reid, 1994) this committee recommended that a Council for Assisted Human Reproduction be established, its major functions being advisory and monitoring. The proposed council was to have a clear policy focus. The government decided not to establish such a council, taking advice from an Officials' Committee which had suggested that some of the tasks that were envisioned for the Council could be undertaken by the Ethics Committee, thus moving the Ethics Committee into a policy and ethics role. No action has been taken on this latter issue. In 1995 the Interim National Ethics Committee lost its 'interim' status and became the National Ethics Committee Assisted Human Reproduction (NECAHR).

The Ethical Review System In Assisted Human Reproduction

Ethical guidelines for research using human participants, based on the Declaration of Helsinki 1964, were first formally adopted in New Zealand in 1968. These guidelines were later upgraded and modified to incorporate elements relating to informed consent, vulnerable research participants, social, community and health service research.

The ethical review system in health matters, in New Zealand, changed dramatically in 1988 with the publication of the Report of the Cartwright Inquiry (Cartwright 1988). The Inquiry, which was set up by the Minister of Health, followed allegations made in a magazine article, that women with cervical carcinoma in situ had not been adequately treated and that a research programme had been carried out which raised serious ethical and professional concerns. In a discussion of the Report (Daniels 1989 ) I suggested that some of the dominant themes in the Report were accountability, patients' rights, self-determination, professional power, cultural sensitivity and informed consent. As a result of the Report the Health Department established draft ethical standards which were to be followed by newly formed health board ethics committees. National standards were adopted in 1991. In 1994 the National Advisory Committee on Health and Disability Services Ethics (NACHDSE) was established and one of its tasks is the review of the National Standards for Ethics Committees. This committee produced an interim National Standard as a discussion document in 1994 and as a result of consultations the current National Standard for Ethics Committees was promulgated in July 1996 (NACHDSE 1996).

As mentioned earlier, regional ethics committees began to express concern about developments in the ethical consideration of AHR treatment and research. One of the concerns was for uniformity in decision making between the committees. As a result, a new committee was established - The Interim National Ethics Committee on Assisted Reproductive Technology - made up of persons nominated from each of the regional committees. This Committee became the National Ethics Committee on Assisted Human Reproduction (NECAHR) in 1995. The committee's terms of reference are:-

- to review new or untried or innovative assisted human reproductive

proposals of national importance to ensure that:

- ethical aspects are considered;

- rights of patients, donors and any resulting children and participants

of research are protected.

- to develop protocols and guidelines to assist regional ethics

committees to review assisted reproductive proposals;

- to provide the Ministry of Health and National Advisory Committee

on Health and Disability Service Ethics with advice on issues

relating to assisted human reproduction.

NECAHR is therefore responsible for ethical review in the field of AHR in New Zealand, operating under the Health and Disability Services Act 1993. The committee is established by and accountable to the Minister of Health.

This brief and therefore obviously limited overview raises some interesting issues for analysis and these now follow.

Analytical Comments

Each country has to determine its policies in relation to AHR and writers such as Blank (1990) and Bonnicksen (1992) have been to the fore in outlining the models that are available for consideration. New Zealand can best be described as having developed a policy, in so far as there is a clearly formulated policy, in an 'ad - hoc' way (Daniels and Hargreaves 1997). One of the major reasons for this is that there is no body or individual who has been designated as having responsibility for this area. The fact that at the government level there are two Departments concerned with this matter - Justice, with its concern for law reform and more lately policy development ; and Health with its concern for ethical matters - does not make for a coherent approach. When Interdepartmental Committees or Officials Committees have been utilized, these have brought together all relevant government departments thus providing for more coherence. However, in the most significant issue that has been considered, the Officials Committees advised against accepting the recommendations of the Ministerial Committee that had been appointed to advise the government on policy development.

An interesting example of the dilemmas arising from the lack of a policy body has occurred in relation to what has been referred to as IVF surrogacy. The Interim National Ethics Committee considered a request for this treatment to be made available, and as a result of its decision - on ethical grounds - it had the effect, as Moore and Mulgan (1996) have said, of becoming the defacto policy maker in this area in New Zealand. I would argue that ethical considerations should play a major part in the development of policy in AHR, but there are also other considerations that need to be taken into account . In analyzing the contribution of ethics to AHR, in New Zealand, it could be said that in the field of IVF surrogacy, it has been extremely influential. Where there is a policy void, I would suggest, the ethical considerations or professional practice decisions are likely to dominate. This means that a battle may emerge between these two groups, as has happened in part in relation to IVF surrogacy in New Zealand.

Caldwell and Daniels (1992) in reviewing policy development in New Zealand concluded that, "The process that has been adopted in New Zealand is unique, and is most unlikely to lead to coherent policy and legislation"(p.290).

Ethical thinking has been very influential in relation to clinic policies and practices surrounding the sharing of information when third party gametes have been utilized. New Zealand has the most open system of information sharing in the world and this has been brought about in the main, because of arguments concerning the rights and needs of the children so conceived (Daniels and Taylor. 1993 and Daniels and Lewis 1996). It is interesting to note that these changes occurred as the result of the work of individuals, rather than as a result of committees and organizations. The changes also pre-dated the establishment of the ethics committee. As noted earlier however, the terms of reference of NECAHR require it to take account of the rights of any children resulting from AHR procedures. The emphasis on the child and her/his right to information about his genetic heritage is very important to Maori, it being seen as part of a child's birthright and crucial to the development of tribal identity (Daniels and Taylor, 1993).

Another factor of note is that the body responsible for accrediting clinics (RTAC), states that any new treatment must have the approval of the appropriate ethics committee. This ensures that new treatments are subject to ethical review. It could be envisioned that in such a situation, ethical considerations placed a 'break' on medical developments, and were therefore seen as a hindrance by doctors and scientists. On the other hand, it was the clear intention of the Minister of Health that the establishment of a specialist ethics committee was intended to ensure that ethical considerations had a significant impact on the development of assisted human reproduction in New Zealand.

Bibliography

Atkin, B. and Reid. P. 1994 Navigating our Future Report of the Ministerial Committee on Assisted Reproductive Technologies Tribunals Division, Department of Justice, Wellington.

Blank, Robert H. 1990 Regulating Reproduction Columbia University Press,

New York.

Bonnicksen, A.L. 1992 Human Embryos and Genetic Testing: A Private Policy Model Politics and the Life Sciences Vol.11. no.1. 53 - 62.

Caldwell, J. and Daniels, K.R. 1992 Assisted Reproduction and the Law. Implications for Social Policy in Family Law Policy in New Zealand (eds) Mark Henaghan and Bill Atkin. Oxford University Press. Auckland.

Cartwright, S. 1988 The Report of the Cervical Cancer Inquiry, Government Printing Office, Auckland.

Daniels, K.R. 1989 The Cartwright Report and its Implications for Social Work Social Work Review Vol.2. no.4. 8 - 13.

Daniels, K.R. 1990 Attitudes to donor insemination and in vitro fertilisation - a community perspective. Social Work Review vol.1. no.1. 4 - 10.

Daniels, K.R. and Hargreaves, K. 1997. The Policy and Ethics of Surrogacy in New Zealand: Who is Left Holding the Baby? Otago Bioethics Report. Vol. 6. no.2. 1 - 9.

Daniels, K.R. and Lewis, G. 1996 Openness of Information in the Use of Donor Gametes: Developments in New Zealand. Journal of Reproductive and Infant Psychology V14. 57 - 68.

Daniels, K.R. and Taylor, K. 1993 Secrecy and Openness in Donor Insemination Politics and the Life Sciences Vol.12. no.2. 155-170.

Justice, Department of (Law Reform Division) 1985. New Birth Technologies. An Issues Paper on AID, IVF, and Surrogate Motherhood. Wellington. Department of Justice.

Knoppers, B.M. and Le Bris, S. 1991 Recent Advances in Medically Assisted Conception: Legal, Ethical and Social Issues. American Journal of Law and Medicine Vol.18. no.4. 329 - 61.

McLay, Hon. J. (Attorney-General of New Zealand and Minister of Justice) 1984 Law Conference 1984 - The Legislature and bioethical problems. New Zealand Law Journal July.

Moore, A. & Mulgan, T. 1996 Non-commercial IVF surrogacy and harm to the child. Otago Bioethics Report, Vol.5 no.3.

National Advisory Committee on Health and Disability Services Ethics 1996 National Standard for Ethics Committees.

Royal Society of New Zealand 1985 Issues arising from in vitro fertilisation, artificial insemination by donor and related problems in biotechnology. New Zealand Medical Journal 22 May. 396 - 398.

Walters. LeRoy. 1987. Ethics and New Reproductive Technologies: An International Review of Committee Statements. The Hastings Center Report. June pp.3 -9.


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