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The Legal Regulation of Assisted Reproductive Technology The Legal Regulation of Assisted Reproductive Technology in Iraq - Lessons From the Australian Approach Khaled Hamad Fayadh A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law 2015 Dedication I dedicate my thesis to my loving mother with special feeling of gratitude for her prayers and caring. ii Acknowledgements I would like to express my appreciation for all people who supported me in fulfilling the successful completion of my thesis for their moral and logistical support. Foremost, I am very grateful to my supervisory panel team, Professor Carolyn Sappideen and associate professor Scott Mann, for your efforts and valuable guidance and advice that you provided me and for your patience during entire process of my research. I am also thankful for all friends and colleagues for their support and staying beside me throughout the process of completing my thesis. I would also like to acknowledge and thank teachers and administrators and all staff at UWS for all kind of assistance they provided to me. iii Statement of authenticity The presented thesis is original work and hereby I declare that I have not submitted materials of this work as in full or in part for a degree at any institution. Khaled Fayadh iv Abstract This thesis is concerned with the legal regulation of assisted reproductive technology (ART) in Iraq. ART has become widespread throughout the world including the Middle Eastern region but there is no specific legislation in Iraq that addresses ART. ART represents a problem for Iraqi law because the technology, particularly procedures that use donor genetic material, challenge the Iraqi social, Sharia and legal conceptions of what is a family, the status of children born using ART and legal parentage. The thesis examines the current Iraqi law in relation to ART, and argues that Iraqi laws are inadequate to regulate ART. This thesis argues that a legislative solution for ART is required for Iraq. The Australian experience, with particular emphasis on New South Wales, is used to inform the type and content of the legislative solution and the balance between formal statute based regulation and industry based regulation. But the thesis argues that Iraq cannot automatically adopt the Australian social and legal approaches relating to the formation and legal recognition of what is a family, the status of children, and access to ART by single persons and same sex couples. It is argued that the Australian approach cannot be transplanted into the Iraqi legal system because of the very different conceptions of family, inheritance, lineage and status of children according to Iraqi law, Sharia law, and existing social and legal norms. In the light of this, the thesis argues that, at a minimum, ART should be approved for married couples using their own gametes. v Table of Contents Chapter 1 Introduction ....................................................................... 1 1.1 Background of the Study ........................................................................... 1 1.2 Structure of the Thesis .............................................................................. 5 Chapter 2 Overview of ART .............................................................. 9 2.1 Introduction ................................................................................................ 9 2.2 Human Reproduction and Infertility ....................................................... 9 2.2.1 Description and Definition .................................................................................... 10 2.2.2 The Statistics and Causes of Infertility ................................................................ 11 2.3 ART: Principal Techniques .................................................................... 13 2.3.1 Artificial Insemination (AI) .................................................................................. 14 2.3.2 In Vitro Fertilisation (IVF) ................................................................................... 16 2.3.3 Cryopreservation Techniques .............................................................................. 22 2.4 ART: Benefits and Risks ......................................................................... 24 2.4.1 Benefits of ART ...................................................................................................... 25 2.4.2 Risks of ART .......................................................................................................... 25 2.5 ART: Genetic Contribution .................................................................... 27 2.6 Conclusion ................................................................................................ 29 vi Chapter 3 Regulating ART .............................................................. 31 3.1 Introduction .............................................................................................. 31 3.2 Free Market and Formal Regulation ..................................................... 32 3.2.1 Regulation or Deregulation................................................................................... 33 3.2.2 Regulation Enforcement Strategies ..................................................................... 37 3.3 Arguments about Regulating ART ........................................................ 38 3.3.1 Arguments for Not Regulating ART .................................................................... 39 3.3.2 Arguments for Regulating ART ........................................................................... 40 3.3.3 Optimal Regulation for Fertility markets ........................................................... 43 3.4 Regulating ART and Considerations of Health and Safety ................. 45 3.4.1 Protecting Health of Patient and Children .......................................................... 45 3.4.2 Legal Dilemmas Involved with ART .................................................................... 46 3.4.3 Gamete Donation and Donor Anonymity ............................................................ 47 3.5 Regulatory Framework Relating to ART Regulation .......................... 49 3.6 Conclusion ................................................................................................ 50 Chapter 4 The Current Legal Position of ART in Iraq ................ 52 4.1 Introduction .............................................................................................. 52 4.2 The Iraqi Constitution ............................................................................. 53 4.2.1 Iraq as a Federated State ...................................................................................... 53 4.2.2 Hierarchy of Rules in Iraqi Law .......................................................................... 55 vii 4.2.3 Sources of Iraqi Law ............................................................................................. 56 4.2.4 Constitutional Protection of Fundamental Human Rights ................................ 57 4.3 Iraqi Legislation and its Application to ART ....................................... 60 4.3.1 Relevant Iraqi Legislation..................................................................................... 61 4.3.2 ART and Medical Treatment ............................................................................... 63 4.3.3 ART and Transplantation of Human Organs ..................................................... 65 4.3.4 ART and Medical Experimentation ..................................................................... 69 4.4 Formation of Family and Status of Children- Relevant legislation .... 71 4.4.1 Formation of a Family in Iraq .............................................................................. 72 4.4.2 Status of Children in Iraq ..................................................................................... 76 4.5 Impact of ART on Parentage and Inheritance in Iraqi Law ............... 80 4.5.1 Legal Parentage in Iraqi Law ............................................................................... 80 4.5.2 Inheritance in Iraqi Law ....................................................................................... 85 4.6 Conclusion ................................................................................................ 86 Chapter 5 ART and the Islamic Sharia Perspective ...................... 88 5.1 Introduction .............................................................................................. 88 5.2 Background of Islamic Sharia in Relation to ART .............................. 89 5.2.1 Description of Islamic Sharia ............................................................................... 90 5.2.2 Sources of Islamic Sharia ...................................................................................... 93 5.2.3 Description of Islamic Jurisprudence .................................................................. 99 viii 5.3 Sharia Law and ART ............................................................................. 106 5.3.1 The Narrow View (Prohibitive Approach) ........................................................ 107 5.3.2 The Middle View (Restricted Approach) .......................................................... 110 5.3.3 The Liberal View (Permissive Approach) ......................................................... 114 5.4 Conclusion .............................................................................................. 115 Chapter 6 Legal Recognition of Family
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