One of the main reasons why an inquiry was held is the same reason why Australia's Federal Government may have difficulty implementing these recommendations. Constitutionally, this area of health has always been managed by the states. The patchwork of legislation across the states dealing with donor conception and assisted reproductive technologies meant people were treated differently and afforded conflicting rights depending on which state they were conceived or receiving treatment in.
The recommendation all states enact legislation and all legislation is consistent is therefore welcomed. How this will be achieved is a question to which the Senate does not have a ready answer because it has declared it will 'pursue all available policy and political options'. But, given the Federal Government used its external affairs powers to enact the 'Prohibition of Human Cloning for Reproduction Act 2002', this move is not without precedence.
The recommendations are clearly focused on the wellbeing of the offspring while also giving greater protection to recipients and donors by providing greater access to information and counselling, and an ombudsman-like complaint process. A moratorium on record destruction and ensuring record preservation provides the ability for offspring to be matched with their progenitors and siblings. It also ensures good scientific practice that will allow medical research to correlate a condition with source material or procedures. Both factors are severely disadvantaged under the various state-prescribed medical record-keeping practices, which allow records to be destroyed before offspring reach adulthood.
Reducing the number of families able to use a single donor is a positive step towards reducing the possibility of a consanguineous relationship. While donor supply can't currently meet demands and will be further diminished, the welfare of the child should never be held to ransom by market forces. While mathematically the chances of consanguinity are small, some Australian major cities have populations of little more than a million people and everyone appears to have only two degrees of separation meaning the mathematical models appear to fail at capturing the heightened risks.
The common situation where parents deceive their children about their origins (2,3) has been partly tackled by the recommendation that birth certificates be annotated, allowing the child to discover their conception status upon turning 18. However, it is hoped families will inform their child about their donor-conceived status well before this date in line with current best practice (4) to avoid the identity deconstruction and trauma created by late discovery (5).
Banning payments to donors to maintain altruistic donation is somewhat perplexing because reimbursements are allowed to continue. Evidence at the inquiry was that reimbursements for sperm donation can be approximately one hundred dollars, which can clearly be seen as an inducement to 'donate' because a man can easily accumulate a few thousand dollars. A rose by any other name would perhaps have the term 'reimbursement' relabelled 'payment'. Sperm donation also doesn't follow blood donation practice in Australia, which is completely without financial transaction and more time-consuming and invasive than sperm donation.
The inquiry also recommended a centralised donor conception register be formed to implement a DNA database to assist those offspring whose records have already been destroyed. The committee referenced the UK DonorLink register, suggesting the register and database would be comparable. Access to identifying information on this register would be voluntary and it was recommended it would not be mandatory nor retrospective.
The Committee stated: 'In principle, the committee is also supportive of donor-conceived individuals having a right to information about their biological heritage. The committee urges the states and territories to further consider the issue of retrospectivity in the creation of any national register'.
This says the Committee is acknowledging the rights of offspring to know their kinship, but also extinguishing this right if the offspring were conceived before a certain date. This is the let-out for states who have investigated retrospectively in the past, rejected the notion and are unlikely to veer from the status quo. The Government leaves itself open to a High Court challenge such as Pratten v British Columbia (Canada) (6), which is still in progress, because legal arguments of discrimination are based on age and conception, precedence of retrospective adoption (even though not entirely universal in Australia) and the courts overturning privacy under child welfare principles.
The landmark inquiry recommendations are a huge step forward for the welfare of people conceived via donated gametes and embryos in Australia. These will hopefully be mirrored in other jurisdictions around the world. Sadly, the inquiry falls at the final hurdle of giving existing donor-conceived people parity with all other Australian citizens because it keeps their kinship, identity and medical welfare in limbo.