Donor conception: What are people’s rights?

The term 'donor' conception refers to the process used when a baby is made using donated sperm, eggs, or embryos. Donors are also used for many surrogacy births. 

While this process opens the door to parenthood for those who are unable to conceive without help, there are legal issues that everyone involved must be aware of.

For donor-conceived people in Australia — or anyone who already is, or is about to become, the parent of a donor-conceived child — you should know what rights you and your child have when it comes to information about the donor.

"Australia is leading the world in laws regulating sperm donation and the rights of donor-conceived people," Donor Conceived Australia's National Director Aimee Shackleton says. "But there are still limitations."

The laws and guidelines that govern the rights of donor-conceived people are different depending on your state or territory. Here is some key information to help you understand some of the legal rights that donor-conceived people have.

The information in this article applies to people conceived through fertility clinics, which are regulated by law and where most donations occur in Australia. 

Does a donor-conceived person have a right to know who the donor is?

Yes. Australia-wide, donations aren't anonymous anymore. Any donor-conceived person in Australia who was conceived from 2004 onwards has the right to apply for identifying details of the donor when they turn 16 or 18, depending on their state or territory. 

"Because the regulations only came into effect in 2004 in some states — and those children will come of age in the next year — we're yet to see how exactly these rights and regulations will work for donor-conceived people over the age of 18," Shackleton says.

There are no federal laws that govern this, but every state and territory has similar laws or guidelines. For example, the Victorian Government passed world-first legislation in 2017, which allows any donor-conceived person aged 18 or older, even if they were conceived before 2004, to apply for identifying details of the donor. 

Some states and territories also allow access to medical or identifying information about donors before the donor-conceived person reaches the age of 16 or 18 if there is a serious genetic illness or other such compelling reason.

What can a donor-conceived person know about the donor?

Until they can apply for identifying details, a donor-conceived person has limited access to information about the donor — the donor's name, location and contact details aren't provided at conception or birth. But there are some things a recipient parent may know that they can tell their child.

Recipient parents are given non-identifying information about the donor's medical and family history. They may get background information about the donor's physical features, personality and interests. Recipient parents may have even chosen the donor based on these details.

Sometimes, the donor will write a letter to any children who are born from their donation. And they might provide baby photos of themselves, which the child can look at.

"But all recipient parents and donor-conceived people don't necessarily have a right to any of that information. It depends on the legislation in the state the child was conceived, the year of conception and the fertility clinic's policies about how much information they provide," Shackleton says.

Should a person be told they were donor-conceived? 

Donor Conceived Australia recommends recipient parents tell their donor-conceived child of their conception status early. 

"It's important for donor-conceived people to be told as early as possible, and the advice given to parents is to tell their children from birth, so the parents are used to saying it, and the child is used to hearing it," Shackleton says.

Being open with donor-conceived people can prevent them from finding out about their origins in other ways, which can be confronting. For example, a growing number of people are accidentally discovering they are donor-conceived through direct-to-consumer DNA tests — finding out this way can be emotionally painful.

"In the 1970s and 1980s, many recipient parents were advised by doctors not to tell their children, and those children are finding out now as adults; it is very traumatic for them. Donor-conceived people don't have a legal right to know their conception status, but the strong advice now is to tell children early, so the trauma of the past doesn't continue," Shackleton says.

How should recipient parents talk to their child about being donor-conceived?

While it's advised recipient parents tell their child about their conception status early on and talk about it often, parents should follow their child's lead. They may want to talk a lot about it or not at all. And the child will choose the language they prefer to describe the donor, their siblings and anyone from their genetic family.

"Try not to force them to use language that you think is important. That language will probably change over time as they mature and as their understanding of the relationship changes," Shackleton says.

What else should you know?

Before recipient parents receive any donations or go through any medical processes, they must go through mandatory counselling about the implications. This legal requirement is done through fertility clinics, where among other things, they will find out about the rights of their donor-conceived child based on local laws and guidelines. 

Fertility clinics in Australia are regulated by laws and guidelines that aim to protect donor-conceived people. While there are other ways to access donations, Donor Conceived Australia does not recommend using unregulated options because of their lack of safety and regulation.

Laws and regulations about the rights of donor-conceived people are regularly changing. Check with your jurisdiction or Donor Conceived Australia's database of current state-based legislation for the most up-to-date information.

For more information about the issues raised in this article, you can contact Donor Conceived Australia.

David* is the parent of three donor-conceived children. His advice to anyone who is about to become the parent of a donor-conceived child is to be informed and comfortable.

"Inform yourself of the legislation that applies to the rights of donor-conceived children in your state or territory. Share that with your child as soon as they are old enough to understand what it means for them. How they choose to use that information as they get older is their decision. Be supportive and open-minded," David says.

"Be open with your child about their conception and all that means, including connection to donor parent and half-siblings. If you are comfortable with it, there's a better-than-fair chance your child will be too."

You can read David's story, which he shared with us in The Male issue #8.
 

_{*Name changed to protect privacy.}