Australia has recently amended copyright laws in order to exempt and protect parodies, so that, as the Hon. Chris Ellison, the then Minster for Justice told the Senate, ‘Australia’s fine tradition of poking fun at itself and others will not be unnecessarily restricted’. It is predicted that there will be legal debates about the definition of parody. But if the law, as the Minister contends, reflects Australian values, then there is a precursor question. Is there anything wrong with parody, such that it should be restricted? In our efforts to define parody, we discover and develop a moral defence of parody. Parody is the imitation of an artistic work, sometimes for the sake of ridicule, or perhaps as a vehicle to make a criticism or comment. It is the appropriation of another’s original work, and therefore, prima facie, exploits the originator. Parody is the unauthorised use of intellectual property, with both similarity to and difference from other misappropriations such as piracy, plagiarism and forgery. Nevertheless, we argue that unlike piracy, plagiarism and forgery, which are inherently immoral, parody is not. On the contrary, parody makes a positive contribution to culture and even to the original artists whose work is parodied.Not perhaps an item that IP law students will be rushing to read - a legal specialist might rework the title as "It's just thin" - but of interest nevertheless.
There's more controversy in the report [PDF] by the Victorian Parliament's Law Reform Committee regarding Inquiry into Access by Donor-Conceived People to Information about Donors.
The Committee was asked to consider -
a) the legal, practical and other issues that would arise if all donor-conceived people were given access to identifying information about their donors and their donor-conceived siblings, regardless of the date that the donation was made;
b) the relevance of a donor's consent or otherwise to the release of identifying information and the National Health & Medical Research Council's ethical guidelines on the use of assisted reproductive technology in clinical practice and research;
c) any practical difficulties in releasing information about donors who provided their gametes before 1 July 1988, because in many cases records are not available either because the procedure was carried out privately or records were not stored centrally;
d) the options for implementing any changes to the current arrangements, including non-legislative options;
e) the impact that any such changes may have on the donor, the donor-conceived person and future donor programs;
f) the impacts of the transfer of the donor registers currently held by the Infertility Treatment Authority to the Registrar of Births, Deaths and Marriages; and
g) the possible implications under the Charter of Human Rights and Responsibilities Act 2006.Its report states several findings -
1: Some donor-conceived people suffer substantial distress when they are unable to obtain information about their donor, and/or if told of their donor-conceived status later in life. .
2: Current arrangements for access to information by people conceived from gametes donated prior to 1988 are confusing, inconsistent, and applied in a haphazard manner. Outcomes differ depending on the treating clinic, and/or the treating physician, from which a person’s parents received treatment.
3: Current legislative arrangements pertaining to rights of access to information by people conceived from gametes donated after 1998 are satisfactory.
4: The introduction of measures to provide all donor-conceived people with access to identifying information will require legislative change.
5: The circumstances of donor-conception and adoption with regard to a person’s right to identifying information are largely comparable.
6: All donor-conceived people should be aware of the manner of their conception. A person’s parents should be principally responsible for informing that person of his or her donor-conceived status.
7: Donors have a wide range of views on the desirability of allowing the release of identifying information about them to their donor-offspring. Most donors empathise with the needs of donor-conceived people, but some express concern about the potential for their family life to be affected should identifying information about them be released.
8: If current arrangements permitting donor anonymity are changed to allow the release of identifying information, measures to protect donors and donor-conceived people from unreasonable interference in their private lives should be considered.
9: All donor-conceived people should have access to identifying information about their donors.
10: Current provisions of the Assisted Reproductive Treatment Act 2008 allowing donors to seek identifying information about children conceived from gametes donated after 1988 should not be extended retrospectively to allow donors to seek identifying information about children conceived from gametes donated prior to 1988.The report comments that
Currently, donor-conceived people have different rights in this regard, depending upon the date of donation of the gametes from which they were conceived. Assisted reproductive procedures help people to conceive a child through a means other than sexual intercourse. Donated gametes are often used in these procedures where partners have had difficulty conceiving, when a person carries a hereditary disease or genetic abnormality, or when women without male partners wish to have children. This is referred to as donor-conception. There are likely several thousands of donor-conceived people who were conceived in Victoria prior to 1988, and more than 5500 have been born since then. Many of these people will be unaware that they are donor-conceived.
The Committee heard views from a wide range of individuals and organisations in the course of this Inquiry, through submissions and public hearings. This report has been informed by the evidence of donors, donor-conceived persons, recipient parents, academics, and representatives from government agencies, fertility clinics, medical associations and support groups.
Chapter Two: A history of donor-conception in Victoria
Victoria was one of the leading international sites for the development of assisted reproductive technologies such as IVF during the 1970s and into the 1980s. Victoria was also the first Australian state, and the first jurisdiction in the world, to enact legislation regulating assisted reproductive treatment. This legislation – the Infertility (Medical Procedures) Act 1984 – came into effect in 1988. The legislation has been significantly amended twice, with the Infertility Treatment Act 1995 effective from 1 January 1998, and the current Assisted Reproductive Treatment Act 2008 coming into effect on 1 January 2010.
Prior to 1988, donor-conception was unregulated, and was entirely in the hands of the medical profession. A culture of secrecy was pervasive in the early days of donor-conception, despite contemporaneous changes to adoption laws to eliminate secrecy. Donors and recipient parents were required to sign anonymity contracts agreeing that they would not seek to discover each other’s identity. Parents undergoing treatment were advised not to disclose the manner of their child’s conception to their child or to others, and clinics attempted to match the physical characteristics of the donor and the prospective father, so that the child would not look too different from the father.
Donor-conception practices in Victoria have evolved significantly over time to encourage far greater openness. Legislation regulating donor-conception has incrementally introduced provisions allowing donor-conceived people to access information about their donors, with the Infertility (Medical Inquiry into Access by Donor-Conceived People to Information about Donors - Procedures) Act 1984 allowing post-1988 donor-conceived people to obtain identifying information with the donor’s consent, and the Infertility Treatment Act 1995 introducing the right for all post-1998 donor-conceived people to obtain identifying information about their donor in all cases.
Chapter Three: Access by donor-conceived people to information about donors
Not all donor-conceived people want to know who their donors are, or desire more information about their donors. However, donor-conceived people who want to know who their donors are can experience distress when they are unable to obtain information about them. This distress may be exacerbated when a donor-conceived person learns of the circumstances of their conception later in life.
Under current legislation in Victoria, rights for access to information by donor-conceived people are determined by the date at which the gametes used in their conception were donated. People conceived from gametes donated before 1 July 1988 have no rights to access information about their donors under legislation, although they may obtain information through a voluntary register. People conceived from gametes donated between 1 July 1988 and 1 January 1998 are entitled to receive non-identifying information about their donors, and identifying information with their donors’ consent. People conceived from gametes donated after 1 January 1998 are entitled to obtain non-identifying and identifying information about their donors. Legislative change will be required to provide people conceived from gametes donated prior to 1 July 1988 with access to identifying information about their donors.
There are a number of arguments in favour of providing access to identifying information to all donor-conceived people in Victoria. These include: providing for communication of medical information between donor-conceived people and their donors; ensuring that donor-conceived people are able to exercise their rights under the Charter of Human Rights and Responsibilities Act 2006; and ensuring that the principle articulated in the Assisted Reproductive Treatment Act 2008, that “the welfare and interests of persons born or to be born as a result of treatment procedures are paramount”, is applied. On the other hand, donors were promised anonymity when making donations prior to 1 January 1998, and providing donor-conceived people with access to identifying information may constitute an unreasonable breach of donors’ privacy.
On balance, the Committee determined that the right of a donor-conceived person to have access to identifying information about his or her donor is paramount. The Committee therefore recommends that the Victorian Government introduce legislation to allow all donor-conceived people to obtain identifying information about their donors. However, in order to provide some assurance to donors and donor-conceived people that they will not consequently experience unreasonable interference in their lives, the Committee also recommends that both parties be able to lodge a contact veto to prohibit contact with each other.
Chapter Four: Donors’ access to information
Donors have a wide range of views on whether donor-conceived people should have access to identifying information. The Committee heard from donors who were happy to have identifying information provided to donor-conceived people and others who did not want identifying information shared with others. Some donors were worried about the effect that contact with their donor-offspring would have on their families and careers.
Under current legislation in Victoria, donors who provided gametes prior to 1 July 1988 have no right to access identifying or non-identifying information about their donor-offspring. They may obtain information from the voluntary register (if other parties have also volunteered information), and may obtain non-identifying information from the treatment clinic, if it is still operating. Donors who provided gametes after 1 July 1988 are able to obtain non-identifying information about their donor-offspring from the central register, and identifying information with the consent of their offspring (or if that person is a minor, his or her parents or guardians).
The Committee determined that all donors should be provided with access to non-identifying information about any person conceived from their gametes. The Committee considered that providing all donors with a mechanism to obtain identifying information about their donor-offspring was not necessarily in the interests of the donor-conceived person, as evidence suggests that it is preferable that donor-conceived people learn of their status from their parents. In the Committee’s view, existing arrangements for donors’ access to identifying information should remain. The Committee also recommends that a mechanism be introduced to allow medical information to be passed from a donor to their donor-offspring, if a significant genetic or hereditary risk to the donor-conceived person exists.
Chapter Five: Access to information about donor-conceived siblings
A number of donor-conceived people expressed an interest in knowing more about their donor-conceived siblings. Some donor-conceived people also expressed concerns about forming relationships with people in their age group, fearing that they may discover their partner or spouse is their half-sibling. Some donor-conceived people find it difficult to form relationships for this reason, even though the likelihood of forming such a relationship is low.
Donor-conceived people are not currently entitled to receive any information about their half-siblings. The only mechanism through which contact can be made is the voluntary register, which requires the participation of both (or all) of the half-siblings.
The Committee recommends that non-identifying information about half-siblings be made available to donor-conceived people. This would provide some means for donor-conceived people to assure themselves that a person they formed a relationship with was not related to them.
Access to identifying information on half-siblings should not be provided to donor-conceived people. The Committee recommends that a mechanism be introduced to allow medical information to be passed from a donor-conceived person to his or her half-siblings should a significant genetic or hereditary risk to the half-sibling exist.
Chapter Six: Counselling and support services
Contact between donor-conception stakeholders – including donor-conceived people, their parents, half-siblings, and donors – is still very new and uncharted territory. All parties will feel vulnerable throughout this process, and will struggle to determine the appropriate way to proceed. It is important that particularly leading up to and during this process, comprehensive counselling and support services be available to these people and their families. The arrangements that were in place when the former Infertility Treatment Authority was responsible for providing these services (up until the end of 2009) were far superior to the limited and fragmented services currently available.
While it operated, the Infertility Treatment Authority was responsible for managing the donor registers, and provided a range of related services. These included donor-linking and counselling services for those seeking information about their donor or donor-conceived offspring, and operating a letterbox service. The letterbox service allowed donor-conception stakeholders to communicate and gradually develop a relationship before revealing their identities to each other.
The introduction of the Assisted Reproductive Treatment Act 2008 in 2010 dramatically changed the services available, by transferring the donor registers to the Registry of Births, Deaths and Marriages, and conferring a limited counselling role on a section within the Department of Human Services. The Committee heard much evidence to suggest that these changes have markedly reduced the services available to donor-conception stakeholders, and have made it difficult and confusing to access those services.
It would be preferable that all donor-conception stakeholders are able to access the information, counselling and support services that they require through a single agency with relevant expertise.
Chapter Seven: Protection and management of records
Victoria has had reliable and centralised donor-conception records from 1988 onwards, as since this time, clinics and doctors have been required to provide details about donor-conception procedures to be recorded on the central register. However, pre-1988 donor-conception records are held in disparate locations, and some may be inaccessible, incomplete, inaccurate, or may no longer exist. In addition, where these records are held privately, they are legally able to be destroyed at any time. As donor-conception records are a type of identity record, they should be protected and preserved indefinitely. To ensure that all donor-conception records are accessible, it is critical that they all be held and managed centrally. Ideally, the managing agency would be the same agency that is responsible for providing counselling and support services to donor-conception stakeholders.
It is important that information in donor-conception records is verified before it is released. Where there are gaps and uncertainties in the records, a DNA matching facility could assist to overcome these. It is also desirable that a national donor-conception register be established, and the Victorian Government could play a role in championing the development of consistent donor-conception legislation in all Australian states and territories.
Chapter Eight: Other issues in donor-conception
In the course of this Inquiry, a number of issues were raised that do not fall within the Committee’s Terms of Reference. The Committee did not make findings or recommendations on these issues, but considers that it is important to note the issues raised. These include: the number of families who should be permitted to use gametes donated by a single donor; the ‘reasonable expenses’ that donors should be entitled to receive, if any; whether potential donors should be subject to police checks before they are accepted as donors; whether the importation of gametes from overseas should be banned; and whether the legislation should be amended to clarify that a donor does not have the right to make decisions about embryos resulting from his or her gamete donation.The Committee's recommendations are -
R1: That the Victorian Government introduce legislation to allow all donor-conceived people to obtain identifying information about their donors.
R2: That, in implementing Recommendation 1, the Victorian Government require that a child applying for identifying information about his or her donor only be provided with that information if: 1) the child’s parents have consented to the application; or 2) a counsellor has provided counselling to the child and has confirmed in writing that the person is sufficiently mature to understand the consequences of the disclosure.
R3: That, with the introduction of the legislation described in Recommendation 1, the Victorian Government require donor-conceived people to attend counselling prior to obtaining identifying information about donors.
R4: That, with the introduction of the legislation described in Recommendation 1, the Victorian Government introduce provisions for contact vetoes that may be lodged by a donor or a donor-conceived person following counselling, with the following features: that contact vetoes only be available to people conceived from gametes donated prior to 1998, and the donors of those gametes; that donors may only lodge a contact veto after they have been informed that a donor-conceived person has lodged an application for identifying information about them; that a veto prohibits contact between the donor and the donor-conceived person; that suitable penalties be established for breach of a veto; that a veto lapses within five years if not renewed by the person who lodged it; and that the person who lodged a veto may withdraw it at any time.
R5: That, with the introduction of the legislation described in R1, the Victorian Government introduce provisions for donors to lodge a contact preference form for presentation to a donor-conceived person.
R6: That the Victorian Government introduce the measures proposed in R1 through R5 following a period of time sufficient to publicise and inform the Victorian community of retrospective changes to donor-conception arrangements..
R7: That the Victorian Government encourage organisations, agencies and persons holding information on donor-conception to release, upon request, non-identifying information about a donor to a donor-conceived person, his or her parents, and his or her descendants.
R8: That the Victorian Government encourage organisations, agencies and persons holding information on donor-conception to release to a donor, upon request, non-identifying information about his or her donor-conceived offspring.
R9: That the Victorian Government introduce a mechanism for medical information from a donor to be provided to a donor-conceived person, where there is evidence of hereditary or genetic disease or risks to the health of the donor-conceived person.
R10: That the agency managing the donor registers be empowered to release to a donor-conceived person, upon request, non-identifying information about his or her donor-conceived siblings.
R11: That the agency managing the donor registers be empowered to release to the parents of a donor-conceived person, upon request, non-identifying information about that person’s donor-conceived siblings
R12: That the voluntary register remain the only means for donor-conceived people to seek identifying information about their donor-conceived siblings.
R13: That the Victorian Government introduce a mechanism for medical information from a donor-conceived person to be provided to that person’s donor-conceived siblings where there is evidence of hereditary or genetic disease or risks to the health of the donor-conceived person.
R14: That the Victorian Government introduce legislation to empower one agency to provide all services relating to the provision of information, linking and counselling services related to donor-conception, including management of the donor registers, a letterbox service, education and public campaigns.
R15: That the agency referred to in R14 be granted access to the Victorian register of electors in order to conduct its functions.
R16: That VARTA assume the responsibilities of the agency referred to in R14.
R17: That the Victorian Government introduce legislation to transfer ownership of, and responsibility for, the donor register databases currently held by the Victorian Registry of Births, Deaths and Marriages, to the agency referred to in R14.
R18: That the agency referred to in R14 offer comprehensive and ongoing counselling and support services, in association with managing the donor registers, to all donor-conceived people, recipient parents and donors, and their relatives, and that counselling be compulsory for: a donor-conceived person who is seeking identifying information about his or her donor; a donor who is seeking identifying information about his or her donor-conceived offspring; and a donor or donor-conceived person who applies to lodge a contact veto.
R19: That the Victorian Government introduce a mechanism by which identifying information about a donor can be released directly to a donor-conceived person, in appropriate circumstances
R20: That the agency referred to in R14 provide a letterbox service for donor-conception stakeholders, based on the service previously provided by the ITA.
R21: That if the Committee’s recommendations are implemented, VARTA conduct a public information and awareness campaign advising the public of relevant changes in the provision of information to donor-conception stakeholders, particularly targeting pre-1998 donors
R22: That VARTA continue its education and public campaigns role, with a particular focus on encouraging and supporting the parents of older donor-conceived children to tell their children about the circumstances of their conception.
R23: That the Victorian Government introduce legislation to provide that destruction of, falsifying or tampering with, any records that identify parties to donor-conception, is an offence.
R24: That the Victorian Government introduce legislation to require that persons or organisations that hold records containing information on pre-1988 donor-conception provide copies of the records to a central agency, and in the case of PROV, that pre-1988 donor-conception records be transferred to a central agency.
R25: That the legislative changes proposed in R24 be advertised in a public campaign targeting the medical profession.
R26: That the agency referred to in R24 approach individual doctors who are known to have provided donor insemination services and obtain copies of records held by them, if any, containing information on parties to donor-conception.
R27: That the Victorian Government introduce legislation to transfer responsibility for the central and voluntary registers from the Victorian Registry of Births, Deaths and Marriages to the agency described in R14.
R28: That the Victorian Government provide a facility within the voluntary register for DNA matching.
R29: That where records for donors or donor-conceived people are unavailable, incomplete, or ambiguous, the Victorian Government offer a concession for DNA testing if that person wishes to lodge DNA matching data on the voluntary register
R30: That the Victorian Government provide regular reports to an appropriate inter-jurisdictional body, such as the Standing Committee of Attorneys-General or the Council of Australian Governments, on progress with the development and implementation of reforms to donor-conception legislation.
