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Retrospective removal of donor anonymity: respectful, fair, grateful and moral? An evidence-based argument

21 March 2016
By Professor Eric Blyth and Dr Marilyn Crawshaw
Eric Blyth is Emeritus Professor at the University of Huddersfield; Marilyn Crawshaw is Honorary Fellow at the University of York
Appeared in BioNews 844

The decision of the state Government of Victoria, Australia, to enable donor-conceived people to learn the identity of their donor regardless of their donor's consent (1) has generated divergent responses: Sonia Allan and Damian Adams welcomed the new legislation as an overdue triumph of the rights of donor-conceived people (in BioNews 841), while Guido Pennings has castigated it as 'disrespectful', 'unfair', 'ungrateful' and 'immoral' (in BioNews 843). Neither of these reactions is surprising, given these scholars' previous contributions to the debate on retrospective removal of donor anonymity (2,3).

Lawmakers in Victoria have been the first to face up to the anomaly presented by recent legislative developments on assisted human reproduction that consider the interests of donor-conceived individuals are best served by allowing them the opportunity to learn the identity of their donor (and, in some cases, other genetic relatives), but which preclude the retrospective application of this opportunity. Simply put, as Victorian lawmakers observed (4), their existing legislation effectively discriminated against some donor-conceived individuals on the basis of the date the gametes from which they were conceived were donated. Further, they argued, that where the state – rather than individual clinics or doctors – held records in the form of statutory registers, access to which was barred, then the state had a responsibility to resolve this challenge.

Certainly this presented a potential conflict of interests between donor-conceived individuals wanting to learn about their biogenetic heritage, gamete donors who had donated under the presumption that their donation would remain anonymous, and parents who might assume that their recourse to donor conception would remain confidential. Prior to Victoria's Assisted Reproductive Treatment Amendment Act 2016 (1), other governments had generally avoided confronting this dilemma.

Pennings' claim that 'the countries that abolished donor anonymity are trying to outdo each other to show that they are the champions of children's rights' therefore hardly bears scrutiny. Very few of these jurisdictions actually give 'children' (i.e. those aged under 18 years) any rights to information at all, and in most of these there remain a raft of measures that could be taken to further promote the rights of donor-conceived children and adults (5). The most recent jurisdiction to join this club, the Republic of Ireland, provides evidence of this in only granting such rights to those aged over 18 years (see BioNews 793).

Examination of the history of legislation permitting donor-conceived individuals rights of information about their donor shows that, in most jurisdictions, initial legislation promoted donor anonymity, a policy that could itself be described as 'disrespectful', 'unfair', and 'immoral' and which was based on nothing other than accepted medical practice that had no evidence base to support it. As the Victorian Law Reform Committee (4) discovered, anonymity was presented to donors as a 'fait accompli' – more as a statement of 'this is how we do it' – rather than as something to which donors had the opportunity to consider and to give their genuine informed consent.

Since the Assisted Reproductive Treatment Amendment Act 2016 (1) is the first legislation to tackle the taboo of retrospectivity, we will have to wait to see if its provisions to protect the interest of those donors (and their families) who do not wish to have contact with their donor-conceived offspring, and of recipient parents, are sufficiently effective.

Certainly Victoria has shown moral leadership in its careful consideration of how best to provide professional support to those affected, building on its past experience in taking such responsibilities seriously (6). Previous attempts among some commentators to predict the consequences of reform of donor conception services have fallen wide of the mark, such as anticipating the decline in donor recruitment following the removal of donor anonymity in the UK (7,8). Consequently, Pennings' foreboding that 'in the future the government might recognise [donors] as the legal parents of donor offspring and force them to pay maintenance for the child... UK donors should start worrying' should be treated with scepticism. The history of medical science is littered with the need for social policies that address the unexpected fallouts from its advances. Far from castigating Victoria, we should be applauding its bravery in leading the way.

1)   Assisted Reproductive Treatment Amendment Act 2016, section 62
Parliament of Victoria |  2016
2)    Pennings G. How to kill gamete donation: retrospective legislation and donor anonymity
Human Reproduction 27: 2881–2885 |  2012
3)    Allan, S. Donor identification 'kills gamete donation'? A response
Human Reproduction 27(12): 3380–3384 |  2012
4)   Victorian Law Reform Committee. Inquiry into access by donor-conceived people to information about donors, Parliamentary Paper No. 120
Australia: Parliament of Victoria |  2012
5)   Blyth, E. and Frith, L. Access to genetic and biographical history in donor conception: An analysis of recent trends and future possibilities. In Horsey, K. (ed) Revisiting the Regulation of Human Fertilisation and Embryology
London: Routledge pp. 136-152 |  2015
6)    Johnson, L., Bourne, K. and Hammarberg, K. Donor conception legislation in Victoria, Australia: The ‘Time to Tell’ campaign, donor-linking and implications for clinical practice
Journal of Law and Medicine 19(4): 803-819 |  2012
7)    Pennings G. The reduction of sperm donor candidates due to the abolition of the anonymity rule: analysis of an argument
Journal of Assisted Reproduction and Genetics 18: 617-622 |  2001
8)    Human Fertilisation and Embryology Authority (2014) Egg and sperm donation 2012-2013 datasheet
HFEA |  2014
2 March 2020 - by Freddie Howell 
Anyone who donated sperm, eggs or embryos in the UK prior to the 2005 law change was promised life-long anonymity. Now in 2020, the probability of donors remaining anonymous is very much diminished, and continues to reduce, as more and more people take direct-to-consumer DNA tests...
3 April 2017 - by Andrew Hellman and Professor Glenn Cohen 
Many children conceived using donor sperm or eggs want to know their biological parents. In the US, some clinics make the identity of the sperm donor available to a donor-conceived child at age 18. Most intending parents, though, choose sperm donation programs that do not reveal the identities of the sperm donors – so-called 'anonymous sperm donation'...
6 March 2017 - by Rikita Patel 
People conceived using donor eggs or sperm now have a legal right to identifiable information about their biological parents in Victoria, Australia...
14 March 2016 - by Professor Guido Pennings 
The State Legislature of Victoria has decided unilaterally to break their agreements with the sperm donors who donated before 1998 and will reveal their identity. It is difficult to imagine a measure that shows more disrespect for both donors and recipients...
29 February 2016 - by Professor Sonia Allan and Damian Adams 
The state parliament of Victoria in Australia has passed legislation that will enable all donor-conceived people to receive identifying information about their sperm, oocyte, or embryo donor(s). The model adopted is a world first in its application to donor conception...
29 February 2016 - by Ayala Ochert 
The Australian state of Victoria has passed a bill allowing all people conceived through egg or sperm donation to apply for identifying information about their biological parents...
9 March 2015 - by Fiona Duffy 
According to a recent press release from the Department of Health, the Irish Government is finally going to legislate for 'Assisted Human Reproduction and associated research'...
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