Wednesday, December 02, 2015

Answers to some FAQs About Proposed Changes to Laws in Victoria

The following is reposted from the Are You Donor Conceived website, in which responses were written to some commonly asked questions regarding proposed amendments to the Assisted Reproductive Treatment Act. These are not my words I am just reposting here for others who may be interested in changes that occurring around the world and some of the arguments that are being used to try and create change.

1. Donors were promised anonymity, isn’t it wrong to renege on that promise?
Early donor insemination practices were conducted in secrecy and varied according to clinic and jurisdiction. Some donors were given assurances that they would be anonymous, that they could not seek the identity of the recipient or any resulting child and signed consent forms with that undertaking. Others were told nothing and there is no documentation. Anonymity was a condition of donating as opposed to something that was necessarily actively sought. As times have progressed and donor-conceived people have grown, the effects of anonymity have become known. Many donors wonder about the children that they helped to create, children wonder about their donors, recipient parents seek information too. The removal of anonymity therefore is not about reneging on a promise, but rather showing that our understanding of what is important has grown and changed, and supporting openness and honesty for all parties.

2. But a contract is a contract right?
While ‘consent forms’ were signed by donors and recipient parents in which they agreed not to seek out the children or each other, the consent forms do not equate to legal contracts. In addition, such consent forms did not prevent children from seeking information, and could not bind them from doing so. In the instances in which donors were given assurances, either explicit or implied, any agreement that can be found to exist relates only to the donor, the provider clinic and the recipient undergoing treatment. There is also the issue of whether clinics or medical practitioners had any authority to promise or impose anonymity when from very early on there had been recognition that donor-conceived children would grow and might seek information. Any alleged ‘contract’ – if one could be found to exist-might therefore be declared void on grounds of public policy.

3. Doesn’t changing the law retrospectively create uncertainty?
No. The changes to the law would simply provide for a system that supports information release in a clear and explicit way. In the early days of donor-conception practice there was no law in Victoria providing that donors may be anonymous nor remain anonymous in perpetuity. In fact the 1983 Waller committee review of assisted reproductive treatment practices recommended that donors be advised that there can be no guarantee of permanent complete anonymity. Consequently when and where legislation has been introduced it has ended the practice of anonymous donations and enshrined the best interests of the donor conceived person as a guiding principle, providing them with the ability to access the identity of the donor once they reach maturity. A donors right to privacy (as distinct from anonymity) will be protected by a number of provisions, including statements of contact preference and mandatory counselling. The laws will therefore provide certainty for all, recognising the need for information, but balancing that with the ability to clearly state whether or not contact is wanted, and if so, the extent to which that might occur.

5. But this will be an invasion of a donor’s privacy?
The release of information about donors is seen as integral to providing donor conceived people certainty regarding their identity and biological parentage. A donor’s privacy will be protected by allowing him or her to place a contact preference stating the extent to which they would be willing to have contact with the donor-conceived person, if at all. Significant penalties will apply if that preference is breached.
In comparison, unexpected (and sometimes unwelcome) direct contact between immediate family members who may have been previously unaware of each other occurs daily in our community. These interactions take place without any legislated mediation and privacy protections, despite the fact that such contact could be embarrassing, personally disruptive and even result in court proceedings for estate claims or child support.
The second reading speech by Victorian Health Minister Jill Hennessy when introducing the bill to parliament contains a brief discussion of this issue and can be accessed here:

6. What about claims on a donor’s estate or child support?
Laws which provide for the legal status of children (including donor conceived people) stipulate that donors have no rights or responsibilities in relation to the child. The person undergoing treatment with donor gametes and their partner (if applicable) are deemed to be the legal parent(s) of any child conceived as a result.
Note, the vast majority of donor conceived people who will be affected by the Victorian government’s proposed amendments are all well into adulthood, their motivations for seeking the identity of their biological parent stem from thoughtful and sensitive consideration of questions relating to their own identity and family heritage.

7. Shouldn’t donors be consulted about these changes?
They have been over a period of many years.
Most recently, in Victoria, on the 23 June 2010, the Victorian Parliamentary Law Reform Committee received the first terms of reference to conduct a public inquiry into access by donor-conceived people to information about donors. This committee tabled an interim report in September 2010. The inquiry was continued by the subsequent parliament and the final report was tabled on the 28th March 2012.
The parliamentary inquiry was well advertised and thorough. It received many submissions from stakeholders and organisations and was extensively publicised in the media. Following the final report the government requested that a special independent donor consultation be held to canvas the views of donors. This report was conducted by Monash University, School of Public Health and Preventative Medicine, Jean Hailes Research Unit and was given to the government in May 2013. It represented the views of 42 donors three quarters of whom were not opposed to the release of their identity even though they may have been promised anonymity.

8. Why is advertising the voluntary registers not sufficient?
The voluntary registers operate to facilitate information exchange and contact between donors, donor conceived people and other family members. They are advertised and should continue to be. They are an important service and (as the name suggests) operate by matching details entered voluntarily on the register. Currently there are 221 donors listed and 110 offspring.
Opponents of the proposed legislative amendments suggest that their preference would be to better advertise these registers. There are a number of issues with this proposal, fundamentally that it perpetuates the stigma of secrecy and shame, which is demeaning and damaging for donor conceived people and it does very little to change their position at the present time.
Capturing all of the anonymous donor cohort would require a broad spectrum, expensive advertising campaign. Even if you were able to make all of those donors aware of the voluntary registers existence, that awareness would not equate to a comparative level of active engagement with the registers. Perhaps because of an outright refusal of donors to make themselves known but more likely because an application requires thought and can be an emotional process and therefore is something that they might intend to do “one day”.
Practically this means that the donor conceived person relies on their donor not only seeing an advertisement but then acting on that information in a timely manner. The number of donor conceived people (and donors) who might benefit from this approach would be much less than those who will be empowered and assisted by the legislative amendments.

9. Are there any other reasons that support such legislation?
With the advent of DNA testing people are now able to discover the identity of genetic relatives due to extensive genealogical databases originally created by people researching their family history.
The legislation in fact would provide for protections of privacy in terms of ensuring only contact that is wanted in the case of donors and donor-conceived people may proceed, as a result of them being able to place ‘contact preferences’. At present, without such legislation, unexpected contact may occur, and people may not be supported via counselling services.

In addition, the Assisted Reproductive Treatment Amendment Bill represents a paradigm shift for donor conceived people. It recognises them as mature adults who should have the ability to access vital personal information concerning their own identity, family and medical history. It also recognises that donors are real people with names rather than shadowy coded figures, who are important and worth knowing, but provides them with essential protections if sought.

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