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Disrespectful and immoral: retrospective legislation on donor anonymity

14 March 2016
By Professor Guido Pennings
Professor of Ethics and Bioethics, Ghent University
Appeared in BioNews 843

It is difficult to imagine a measure that shows more disrespect for sperm donors and recipients than the recent decision by Victoria, Australia (see BioNews 841). The State Legislature of Victoria has decided unilaterally to break their agreements with the men who donated before 1998 and will reveal their identity.

Retrospective legislation on donor anonymity is morally wrong because it is:

a) disrespectful – it implies that the donor is solely used as a means to serve someone else’s interests.

b) unfair  – in essence, it is a form of abuse of power by the government.

c) ungrateful – the government increases the costs for donors such that the majority would not have donated if they had known their identity would be revealed. They have been cheated into donating.

d) immoral – the autonomy of donors and recipients is expressed in their informed consent. Unilateral changes afterwards violate the donors’ and the recipients’ autonomy. It makes their consent null and void (1).

This change of law may have a tremendous impact on donor recruitment everywhere. Donors can no longer rely on what has been promised to them. If we want to be honest with candidate donors, we have to inform them that in the future the government might change its mind and, perhaps, recognise them as the legal parents of donor offspring and force them to pay maintenance for the child. Since the rights of the child are absolute, no one can say with certainly that no retrospective changes will be made on these points in the countries that have lifted donor anonymity. It would also be smart for clinics to put this clause in the consent form so that they cannot be brought to court if it happens. Since the countries that abolished donor anonymity are trying to outdo each other to show that they are the champions of children’s rights, UK donors should start worrying. I did not hear an outcry of indignation among the people involved in gamete donation in the UK after the announcement by Victoria. Things are not looking good for British sperm donors.

This law is not only disrespectful, it may also have disastrous consequences for the donor and his family. The contact veto, presented as a measure to respect the privacy of the donor, will not be able to prevent a donor from being known and his family from being informed about his donation. Moreover, it suffices to read the conditions and stipulations in the law about the contact preference to see that it is a mockery – restrictions on contact are made as difficult as possible and place a huge administrative burden on the donor. It is predictable that the majority of the donors will not be happy with contact. If they would accept being known and contacted, they would have already listed themselves on the voluntary register. This position will certainly also affect the way they will react to their offspring. What good will come from connecting people when one party feels unjustly treated and forced into contact?

The possibility of bad consequences applies both to donors and recipients because the retrospective change equally violates the agreement with the recipients. On the basis of the rules at the moment of treatment, they have made decisions that are now overturned. They may have decided to tell or not to tell their children they were donor conceived on the basis of this anonymity, or they may have accepted the donation on the condition of anonymity. In fact, it can be argued that the situation is even worse for recipients since the law in Victoria also gives the donor the right to obtain the identity of the donor offspring. So children who do not know they are donor conceived will be told that their donor has made an application for the disclosure of their identity (2). How is that in the best interests of the child? They and their families will be overjoyed by this news!

The attitude underlying the change of law is not only immoral, it also shows a simplistic perspective on the practice of donation. A single-minded focus on the presumed rights of the child will inevitably violate the wishes, views and rights of the other people involved. And then lawmakers are surprised when donors and recipients move away from the clinics and look for a solution elsewhere. This looks like a very reasonable thing to do. One frequently sees the argument (also used by the HFEA, Human Fertilisation and Embryology Authority), that people should stay away from private arrangements on the internet and abroad mainly because it offers no legal protection to the participants. But where is the legal protection now? If people can no longer trust the law, it seems that they should move away from the clinics and make their own arrangements.

All this is claimed to protect the best interests of the children. Do they really believe this?

SOURCES & REFERENCES
1) Pennings, G. How to kill gamete donation: retrospective legislation and donor anonymity
Human Reproduction 27 (10): 2881-2885 |  10 July 2012
2) Assisted Reproductive Treatment Amendment Act 2016, section 62
Parliament of Victoria |  26 April 2018
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HAVE YOUR SAY
Equal Rights are Equal - there is no one vs. the other (User:113741 - 15/03/2016)
The author of this post said "The attitude underlying the change of law is not only immoral, it also shows a simplistic perspective on the practice of donation. A single-minded focus on the presumed rights of child will inevitably violate the wishes, views and rights of the other people involved." Equal rights are balanced on the head of a pin - Equal rights are contingent upon equal obligations - there can be no exceptions made for the exceptional situation without creating an imbalance that causes some to have fewer obligations and therefore some to have fewer rights. All people are the offspring of parents who reproduced to create them, and all people are legally entitled to those people's care while they are minors and unable to provide for themselves because those particular people put them in that state of need and physical dependency. Society legally obligates people to the care of their own minor offspring because society cannot reasonably obligate anyone else barring their consent and barring the consent of the parents who caused the minor to exist and not to mention the fact that we cannot allow for people to privately offload the care of their offspring to others without vetting the suitability of the people who wish to care for another person's young and without vetting any instance of graft or corruption in the exchange because human beings are not to be sold, traded or gifted by their parents as objects for consumption by people who wish to poseesss and control another person's child. It matters not that the people who would receive another person's offspring simply want to love and care for the child as they would their own - it is an affront to human dignity to force a minor to pretend to be another person's child in order to receive life's necessities. They should not be forced to refer to someone who bought them or received them as a gift as their parent - it's degrading and demeaning to force minors to perform and play the roll of child to someone if they are not that person's offspring and it is horrid to suggest that a person must refer to their own parent as a "donor" ino order to make their owner feel more parent like. It does not matter of their buyer bought the pregnancy experience or not - if a person is not the offspring of the woman who delivered them she will never be their mother and is arrogant and fooloish to expect that person to think of her as a mother just because she gave birth even though biologically another woman is their mother. Nobody remembers being gestated or delivered this is a one way bond fantasy of the gift receiver or person purchaser. Morals are a subjective thing - who can really agree? But Ethics and fairness and equality and personal responsibility are the stuff of law that span all religions and ethnicity, all genders and sexual orientations, all economic and educational status - Equality is justice for all and is not at the mercy of personal belief or mere opinion. So take your bizarre self morals that require inequality and injustice and the supression of basic human freedom and equal rights. These gamete donors should have every right to reproduce as randomly, anonymously, and irresponsibly as they desire - this is their human right. Breed freely with people they have never met not knowing if they are siblings, cousins, aunts or uncles and throw caution to the wind that their offspring might face mental retardation or painful physical defect from their parents being relatives and not knowing it because they opted for anonymity before mating as its the preference of sperm and egg banks and very short sighted future biological parents and step parents. Go for it exercise that gamete donating reproductive freedom. But true fairness and equality and justice can only be achieved by equally obligating every human being to care for their own offspring - as a matter of taking responsibility for their own reproductive action, no matter how inbred or deformed and no matter what their intentions were at the time of conception. Personal responsibility for our actions is the cornerstone of law so much so that even with identical dna, justice would not be done to send someone to jail for the crime of his twin brother and neither would justice be served to a person to have their father's twin brother assigned to them as if he was their father and created them. It is a horrible injustice to the offspring of these gamete donors to allow anyone else to claim to be their parents and worse to allow their actual parents some exemption from parental responsibility when everyone else has the legal right to care by their own parents who caused their existence. Even when their own parents are horrible and fail in their care there is justice simply in the legal entitlement of care by the biological parent such that the minor has some legal recourse against the neglectful parent and also the understanding of society that they got less than they were owed and deserved from their own parents. Nobody else has a right to be anonymous from their children. The condition of these parents still not equal to the rest of people with offspring even with the lifting of anonymity. They want protection from people knowing the truth that they have offspring? Nobody else has that. And what is the author saying about human beings? That they are somehow different than other people's offspring in that their parents should be especially embarassed and ashamed of their existence and that the mere mention of their existence will cause the ruin of their lives and the fleeing of their shallow self absorbed spouses? So freaking what! Live the truth, play by the same rules as everyone else who has kids and frankly they were fools to believe that anyone would ever owe it to them to conceal their actions from the world such that they could randomly have a bunch of kids that they would not have to care for. If I promised you you could park anywhere you want and never have to pay a parking ticket - do you think that would be a safe bet to trust me? You think you''d be specially entitled to park in red zones and block drive ways? Grow up. The author is a big whining baby.
Anonymous donation was disrespectful and immoral (User:109337 - 15/03/2016)
As a former sperm donor, I welcome the news from Victoria. Anonymous donation seemed wrong when I donated in the 1980s, and the more I've heard from donor-conceived people since, the more wrong it seems. The donor-conceived, rather than the parents, clinics, or donors, are the people most directly affected by donor conception, and they are the ones who have to live with the consequences the longest. Some "anonymous" donors have been identified using DNA and genealogical databases, so it`s no longer possible for anyone to guarantee a donor that they will remain anonymous anyway.
Why stop at ending anonymity? (User:109719 - 17/03/2016)
Is there any reason why people should not be entitled to their parents care let alone their identity? What exactly gives people that they can pay money to force someone else's child to call them mommy or daddy and expect them to just accept it as their fate?
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