Proposed amendments to the Assisted Reproductive Treatment Act 2008 (“ARTA”) would permit access to identifying information for all donor conceived people without donor consent, albeit with some conditions.
Those whose gametes were donated after 1998 have unconditional access to information identifying their donor. Previous legislative changes to the ARTA on 29 June 2015 meant that donor-conceived persons born between 1988 and 1998 could receive identifying information (but only with the consent of their donor). In contrast, donor conceived persons born before 1988 could not access identifying information. In the absence of any legal right to access this information, the only option for donor-conceived individuals has been to put themselves on a voluntary register with the hope that their donor did the same.
Now, the Andrews Labor Government proposes to go one step further, legislating so that all donor-conceived people will have the same rights to access donor information, regardless of when gametes were donated and without the requirement that the donor consents to its release. Details which would become available to offspring under the legislative amendments include the name, date of birth, ethnic background, marital status and address of the donor.
The topic of donor identification has been widely debated over time, with some holding the view that the release of information would be “unfair” to men who donated gametes on the understanding that their involvement was anonymous, and others emphasising the rights of the child to be able to answer core questions around their identity. In a bid to balance the rights of donor-conceived individuals with the donors themselves, the new legislation would provide that express permission will be required if a donor-conceived person wishes to contact their donor upon receipt of the identifying information. The discussion paper released by the Andrews Government on 29 June 2015, ‘A Right To Know Your Identity‘, indicates that contact preferences would allow donors to nominate a preferred form of contact by donor children. This contact preference will establish if and/or how, the donor wishes to be approached.
Prior to the identifying information being released, donor-conceived individuals must sign an undertaking that they will comply with any contact preference submitted by the donor. Should a donor elect not to be contacted and the donor-conceived person subsequently disobeys that request, they risk being subjected to a fine of up to 60 penalty units. In order to ensure donors are protected, if a donor-conceived person refuses to sign an undertaking, identifying information will not be provided to them.
Unfortunately, even if passed the legislation amendments won’t guarantee that all donor conceived people will be able to access their donor’s information because prior to 1988 there was no requirement that doctors create or retain records of donations. This has resulted in gaps in practitioner records and others being lost or destroyed. The discussion paper explained that counselling services would be offered for those donor-conceived persons who are not able to access information about their donor.
If you are a donor and wish to obtain advice about your rights, or alternatively if you are a donor-conceived person and want to know more about the information you can access, we can assist. Contact us to arrange an appointment.