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.
http://www.areyoudonorconceived.org/frequently-asked-questions/
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: http://www.parliament.vic.gov.au/
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.
