Sperm is not taken, it is ejaculated…

Tuesday, May 20, 2014

Last week Ian Maynard, the Director General of Queensland Health wrote to Queensland IVF clinics. This is part of what he had to say:

“In Queensland, under section 41 of the Transplantation and Anatomy Act 1979 (the Act), it is an offence to advertise for the buying of (human) tissue or the right to take tissue from the bodies of persons, unless the proposed advertisement has been approved by the Minister and contains a statement to that effect.

ART providers wishing to advertise in Queensland therefore must comply with the Act by making a formal application for Ministerial approval. Should you or your staff wish to advertise in relation to gamete donation, you must make an application to do so, by submitting your proposed advertisement together with other relevant detail to my office for ministerial consideration. “

All correct so far as it goes concerning egg donors- but sperm donors don’t need doctors to take the sperm from them- after they masturbate it leaves their bodies from ejaculation. As sperm does not need to be taken by doctors from the bodies of donors, therefore in my view clinics are free to advertise for sperm donors without the need for approval from Lawrence Springborg as Minister for Health.

This is what I wrote to the Minister last week:

16 May 2014

The Hon Lawrence Springborg MP

Minister for Health

By email: health@minsterial.qld.gov.au

Dear Mr Springborg

Advertising for Egg and Sperm Donors by IVF Clinics

I am a surrogacy and family lawyer in Brisbane. I am aware that a view has been expressed by Queensland Health that IVF clinics must obtain your approval under section 41 of the Transplantation and Anatomy Act 1979 to advertise seeking any gamete donations.

This view is, with respect incorrect as a matter of law.

Section 41 of the Act makes it an offence to advertise for the buying of human tissue or the right to take tissue from the bodies of persons unless the proposed advertisement has been approved by you as the Minister and contains a statement to that effect.

It is clear on a reading of that Act that tissue includes eggs and sperm.

The key phrase in the section is “the right to take tissue from the bodies of persons”. Breaking down that phrase it is clear:

· In effect only doctors have the right to take tissue, therefore so far as intended parents are concerned, there is no prohibition on advertisements by intended parents seeking egg and sperm donors;

· Tissue includes eggs and sperm;

· There is a requirement to take tissue from the bodies of persons.

Therefore, with the comparative exception of men who have undertaken vasectomy there is on its face a requirement to obtain Ministerial approval for egg donors but there is not a requirement to obtain ministerial approval for advertising for sperm donors. To put it bluntly, sperm is ejaculated from the body following masturbation. It is not taken from the body. It’s already left. Eggs, however, are removed from the body in an invasive procedure much as other tissue might be taken from a body.