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Donor anonymity to bite the dust in South Australia

6 December 2010
Appeared in BioNews 587
Australia has been a noted pacemaker in the field of assisted reproduction. It was the first nation to report embryo relinquishment for family-building (1), and a pregnancy (2) and live birth (3) from a previously cryopreserved human embryo.

The Australian state of Victoria was among the world's first jurisdictions to remove the rights of gamete and embryo donors to remain anonymous, allowing - with statutory endorsement - a donor-conceived person to learn the identity of her or his donor (4).

The Australian states of Western Australia (5) and New South Wales (6) have followed Victoria's lead. In September 2010, South Australia made a quartet of Australian states to abandon the legal protection of donor anonymity due to the Assisted Reproductive Technology Treatment Regulations 2010 made under the Assisted Reproductive Treatment Act 1988 coming into force (7). Virtually all donor conception procedures performed in Australia now operate on the basis on non-anonymity.

The policy change in South Australia provides evidence of the (albeit slow) shift internationally towards using gametes and embryos from identifiable donors. South Australia brings to 13 (8) the number of jurisdictions that provide legislative reinforcement to the notion a donor-conceived person should be able to learn the identity of her or his donor. Recent debates in Canada, however, indicate the global path to 'reform' is far from uniform (9).

As might be expected, legislative and regulatory requirements and procedures in these jurisdictions share common features, such as the establishment of registries. The South Australian government intends to establish a donor conception register and anticipates the necessary regulations will come into effect by early to mid 2011.

A unique feature of how the South Australian legislation has removed of donor anonymity is - unlike other jurisdictions - it has done so obliquely rather than directly. Under Section 15 of the Act, the 'Minister may keep a register of donors of human reproductive material' (Section 15(1)) and 'if the Minister does keep the donor conception register (Section 15(2))' any such register must contain the names of the donor, the recipient of donated gametes or embryos and any child born as a result of the donation.

Despite this cautious wording in Section 15, Section 8(2)(a) of the Assisted Reproductive Technology Regulations 2010 gives individuals conceived using assisted reproductive technologies (ART) the right to know their genetic heritage indirectly. Section 8(2)(a) amends Section 9(1)(e) of the Assisted Reproductive Treatment Act 1988 so clinics must comply with the Ethical Guidelines on Assisted Reproductive Technology, published by Australia's National Health and Medical Research Council (9) as a necessary condition of registration to provide assisted reproductive treatment. These guidelines state:

'Persons conceived using ART procedures are entitled to know their genetic parents. Clinics must not use donated gametes in reproductive procedures unless the donor has consented to the release of identifying information about himself or herself to the persons conceived using his or her gametes. Clinics must not mix gametes in a way that confuses the genetic parentage of the persons who are born'. (section 6(1))

The South Australian government also intends - as other jurisdictions have done - to establish a voluntary contact register (VCR) for donations made before the ending of donor anonymity. VCRs are a recent innovation and evidence of their operation remains limited (10). Maybe the South Australian initiative will provide the necessary impetus for an international evaluation of these registers and for them to become the internationally-accepted approach to reconciling newly-acknowledged rights of donor-conceived people to information with previous assurances of anonymity given to donors (11).

01) Trounson, A., Leeton, J., Besanko, M., Wood, C., & Conti, A. Pregnancy established in an infertile patient after transfer of a donated embryo fertilised in vitro
British Medical Journal, 286, 835 - 838 |  18 March 1983
02) Trounson, A. & Mohr, L. Human pregnancy following cryopreservation, thawing and transfer of an eight-cell embryo
Nature, 305, 707 - 709 |  18 March 1983
03) Downing, B., Mohr, L., Trounson, A., Freeman, L., & Wood, C. Birth after transfer of cryopreserved embryos
Medical Journal of Australia, 142, 409 - 411 |  18 March 1985
04) Infertility Treatment Act (amended by the Assisted Reproductive Treatment Act 2008)
|  18 March 1995
05) Human Reproductive Technology Amendment Act
|  18 March 2018
06) Assisted Reproductive Technology Act
|  18 March 2018
07) Assisted Reproductive Treatment Act
|  18 March 1988
08) National Health and Medical Research Council Guidelines on Assisted Reproductive Technology
NHMRC: Canberra |  18 March 2018
09) Blyth, E. Davina and Goliath: The personal cost of seeking justice
BioNews 582 |  29 October 2010
10) Crawshaw, M. and Marshall, L. Practice experiences of running UK DonorLink, a voluntary information exchange register for adults related through donor conception
Human Fertility 11(4): 231 - 237 |  18 March 2018
11) Blyth, E. and Frith, L. Donor-conceived people's access to genetic and biographical history: An analysis of provisions in different jurisdictions permitting disclosure of donor identity
International Journal of Law, Policy and the Family 23:192 - 210 |  18 March 2018
11 January 2016 - by Dr Julia Hill 
The Donor Detectives is an ABC radio documentary about donor-conceived people who have turned to alternative methods in an attempt to identify their biological fathers....
18 June 2012 - by James Brooks 
A French court has effectively reaffirmed the country's policy of gamete donor anonymity by rejecting a donor-conceived woman's demand for information on her biological father...
20 February 2012 - by Dr Rebecca Robey 
The state parliament in New South Wales (NSW), Australia, is considering whether sperm and egg donors' details should be mandatorily recorded on their children's birth certificate....
28 November 2011 - by Professor Eric Blyth and Dr Lucy Frith 
In the US the relinquishment of embryos for family building is the subject of intense ideological debate. This has occurred not least because of the competing discourses of models of 'embryo donation' and 'embryo adoption'...
8 August 2011 - by Professor Naomi Cahn and Wendy Kramer 
The largest study to date of donor-conceived people has just been published in Human Reproduction. Its findings show the need to address two different effects of anonymous donating: first, when should children find out that their parents used donor sperm or eggs; and second, should children ever find out the identity of their donors?...
27 June 2011 - by Professor Naomi Cahn and Wendy Kramer 
The fertility industry in the US state of Washington will be transformed in late July 2011, when a new law to recognise rights of donor-conceived people comes into effect. Under the changes, anyone who provides gametes to a fertility clinic in the state must also provide identifying information about themselves and their medical history...
14 March 2011 - by Ben Jones 
An Australian Senate Standing Committee has published a report calling for widespread updates to the law governing donor conception, including greater monitoring of compliance among clinics and practitioners and the development of new forms of oversight to support the current regulatory framework....
7 February 2011 - by Dr Neil Manson 
The donation of gametes and embryos must be done with the consent of the donor, otherwise important rights are breached. Valid consent must be voluntary and coercion can undermine voluntariness. But how is coercion defined? Coercion is where one or more parties force another party to act in a way that the coercing party desires, which means that it shares something with offers, incentives and persuasion, but differs by relying on the power of a credible threat....
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