Pre-conception, Conception and Birth

Abstract

• Numerous ethical and legal issues arise during the periods of pre-conception, conception and birth. These relate for example to birth registration, termination of pregnancies, child destruction, claims for negligent cause of injury, the use of technologies in relation to conception and birth, and surrogacy. • Birth registration is mandatory in Australia. It plays an important role in relation to access to many social services, and the legal recognition of a person within our society. It has also been hailed as a cornerstone of public health surveillance. Both patients and practitioners have legal obligations regarding birth registration. • The law governing abortion differs across jurisdictions. In all states and territories the termination of a pregnancy is lawful in certain circumstances; however, requirements differ across jurisdictions. 'Unlawful' abortion continues to remain a crime in most jurisdictions. • 'Child destruction' is an offence in all Australian jurisdictions except New South Wales and Victoria. The offence arises in situations that are not covered by either the offence of abortion or murder/manslaughter. • Civil causes of action commonly referred to as 'wrongful birth' or 'wrongful life' relate to claims for compensation brought by the parent(s) or a resultant child, respectively. The claim in both instances is that the negligent advice or treatment of the parent(s) deprived them of the choice to avoid conception, or terminate the pregnancy. In wrongful birth the parent(s) claim compensation for costs related to the pregnancy and rearing the child. Wrongful birth claims are accepted in Australia, with various qualifications across jurisdictions. In wrongful life claims, the child claims for a life lived with some kind of disability. Wrongful life has been rejected as a legitimate cause of action in Australia. • Pre-natal injury is a separate cause of action in which the negligence of a health care practitioner has directly led to injury or harm being suffered by a person. The negligence may have occurred pre-conception or while the person was in utero. The person's legal rights to claim compensation for the injury or harm suffered accrue upon birth. The law with respect to assisted reproductive technology is complex and comprises a mix of Federal and state and territory regulation, as well as national ethical guidelines and self-regulatory requirements. There arc many ethical and legal sub-issues that must be considered within this field. • TI1e regulation of surrogacy in Australia again generally falls to the states and territories. (Note: Federal family law is also important.) The way in which the states and territories legislate with respect to surrogacy is divergent. The only real consensus is that altruistic surrogacy is permitted and that commercial surrogacy is prohibited and carries high penalties.