Review of the New Zealand Government Report into Assisted Human Reproduction (AHR)

- Ken Daniels,

- Senior Lecturer in Social Work, University of Canterbury, Private Bag 4800, Christchurch, New Zealand.

Eubios Ethics Institute Newsletter 4 (September, 1994) 58-59.

New Zealand was the last country in the Western world to have an independent committee appointed by government to review and advise on developments in assisted human reproduction. The first calls for such a committee had been made in 1984, but it was not until 9 years later that the Minister of Justice appointed a two-person Ministerial Advisory Committee. An academic lawyer and a health researcher were given the demanding task of reporting - within a year - on the options that the Government should consider. The length of time taken to appoint a committee, its limited membership, budget and time frame all point to the low priority accorded to the matter by the Government. Despite the limitations, the recently released report - Assisted Human Reproduction Navigating our Future - does provide an important contribution to the continuing debate on the topic. It is worth noting that the Committee was not asked to make recommendations but rather to present options, and it is to these options that the Minister of Justice has to now respond.

The report begins with a useful summary of what is happening in New Zealand in the AHR field. Of particular interest in this chapter is the review of current regulations showing a mixture of general statutory provisions, professional self-regulation, health service controls and market forces operating. One chapter also provides an overview - albeit brief and rather limited - of international developments.

The Committee prior to presenting policy options sought to establish principles against which such options could be evaluated. Heavy use was made of the work and views presented in reports by other countries, particularly that of the recently released Canadian Royal Commission. The Committee established eight principles: respect for human life and dignity, autonomy, the Treaty of Waitangi/Te Tiriti o Waitangi (the document incorporating partnership between the indigenous people of New Zealand - the Maori, and the European settlers), justice, the best interests of the offspring, the right to know genetic origins, accessibility, and quality services and accountability. The committee has succeeded in using these principles as its guiding force, although it does recognise that in a pluralistic society agreement on both principles and the policies emerging from them is likely to be elusive.

At a structural level the Committee believes that the present New Zealand system needs only relatively minor modification. The Committee feels that while the system for accrediting AHR clinics in New Zealand - which is conducted by the Australian Reproductive Technologies Accreditation Committee (RTAC) - is working well, that legislation is needed to make it a criminal offence for clinics to operate without such accreditation. The Committee also recommends that a new body - the Council on Assisted Human Reproduction - needs to be established to liaise between the already satisfactorily operating National Ethics Committee on Artificial Reproductive Technologies (NECART), RTAC, and other interested groups. This new Council would also: respond to requests from the Ministers of Justice and Health, promote education, foster research and help establish appropriate standards for the accreditation of services. The advisory and overseeing functions of the Council would also allow for legitimate public interest to be provided for. While the Committee feels that New Zealand's existing system works well it believes that this new Council is a piece that is necessary in the current framework, " a piece which will service the public interest in a practical and flexible way.". Concern has been raised, however, that the proposed tripartite system is likely to create many liaison and responsibility difficulties. The existence of three separate organisations all working in the same field seems to be potentially clumsy, and wasteful of scarce resources.

New Zealand in 1993 introduced the Human Rights Act, which amongst other things, built on earlier legislation and made it unlawful to discriminate on the grounds of disability, sexual orientation and family status. Age and race, had been added at an earlier stage. The implications of this new legislation for AHR in New Zealand are reviewed and the Committee concludes that it must form the basis of any guidelines, ethical decisions or policy advice. Professionals working in the field have expressed considerable concern that they are not allowed to withhold treatment from, for example, a lesbian couple, a single person, or a 16 or 55 year old person. The Report accepts that the Human Rights Act determines these issues, whereas what would have been helpful would have been an informed discussion of these issues in their own right.

Debate around this issue has been more pronounced than on any other matter in the report. The Committee does say that professionals may withhold treatment when they believe, for example, that the welfare of the potential child may be at risk. However, no discussion of this appears except the recognition that guidelines need to be drawn up.

The longest chapter in the Report is devoted to the very interesting topic of information sharing. The Report highlights the fact that New Zealand almost certainly leads the world in its moves towards openness regarding the exchange of information between the parties involved in AHR. There is wide acceptance of the fact that offspring have a right to genetic information concerning themselves and it is suggested that the collection of donor information should be mandatory and kept in a central register. It is argued that there is need, " to produce a special code under the Privacy Act to ensure that donation of gametes and embryos will in the future be on the basis that the donor is identifiable to the offspring.". This reflects the arrangements operating in most New Zealand clinics at present and therefore confirms current practice. The Report contends that the code should incorporate procedures for endeavouring to obtain from past donors their consent to identification. The Report also supports the rights of donors to obtain information about offspring.

This approach to openness is partly in response to issues associated with the Treaty of Waitangi/Te Tiriti o Waitangi and with the Maori sense of identity being tied up with their whakapapa (lineage or genealogy). Whakapapa according to a Maori report on the topic is the mechanism by which individual whanau (family) members establish ascent to an eponymous ancestor. This element establishes and determines an individuals status, and formalises their relationships with others who are also able to trace their ascent to a common ancestor. A vital step in this process is having full knowledge and access to information and people who have the same biological connections. ... Protection of whakapapa requires that all children born as a result of AHR have unconstrained access to information that readily identifies the child's biological parents.

The topic of surrogacy also receives extensive consideration, with the Committee accepting that there is a place for in-vitro fertilisation compassionate surrogacy. It further accepts that the state does have a proper protective role in relation to surrogacy and that what is needed in New Zealand are appropriate protections and on-going monitoring. Suggestions are made regarding these.

On the question of whether body parts and human tissues should be able to be bought and sold the Committee argues that all human tissue - including embryos and gametes - has 'mana' (a Maori word similar in meaning to dignity or status), and that consequently commercialisation should be forbidden as this would show disrespect for the mana of human tissue.

The Report will be of interest to those outside of New Zealand for two particular reasons, the way in which consideration of the needs and concerns of the indigenous Maori people are reflected in the Report and the position that exists in New Zealand in relation to openness of information sharing between the parties involved in AHR.

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