The Rights of Donor-Conceived Adults
G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers and I’m talking today about the recent Queensland Parliamentary Inquiry, which was about the rights of donor conceived adults to information about how they came into being.
What we’ve known about IVF and before that, sperm donation, is that when it started, and we’re talking about basically the 1980s with sperm donation, it was all secret squirrel business. Doctors would say, “Stop, don’t tell the child where they came from. You two, husband and wife, are the parents, end of story”, because there was only husbands and wives back then, and what doctors were doing was going to medical students, male medical students, and say, “Fellers, in the interests of society and science, and you are men of science, contribute your sperm”, and so these blokes were donors.
They were told it’s anonymous, they will never know where they’ve come from, you will never be contacted, and in several cases, these individual doctors didn’t keep accurate records because, well, they were starting something new, that was quite exciting, they were playing God, I suppose. Why did they need to do that? Well, times moved on.
In 2001, 2002, there was a Senate inquiry that said donor practices must improve, and the Fertility Society of Australia in 2001 wrote to all the clinics and said, you must improve and as a result, by 2004, there was a significant change. So in 2004, the licensing conditions of the clinics said, if you’re using donor sperm or donor eggs, there must be some limitations.
The first one is there is a cap on numbers. So you can’t donate willy nilly forever and ever and ever, there’s a cap on the number of families you can donate to, and now we have in some places in Australia laws on caps, but the general rule is seen about 10 families. So in Queensland, for example, it’s 10 families.
The second thing that came about was there was a loss of anonymity. But the child on turning 18 or after 18 had the means to find out who the donor was. So the donor had to sign up to that. So, an outcome of that was that there was fewer donors, but the child at least could find out where their place was in the world, and so it’s been since 2004.
The problem has been, what do we do with those conceived prior to 2004? And I remember some years ago speaking in a seminar of lawyers, and I was asked to talk about divorce and marriage from recollection, but the amount of time they gave me was way out of proportion to what I had to speak about. So I said to them in advance, the organisers, can I talk about some fertility law? And they agreed, and I spoke about that, and in the process, I said, look, Victoria, first place in the world, has made retrospective anonymity a thing of the thing that’s dead.
It’s retrospective transparency from the very beginning, and that came about because a woman who was donor conceived wanted to know where she came from, and she couldn’t find out and she was desperate. This was a central part of her being, and no one would tell her, and the records were, of course, sealed. So Victoria changed that, we had this issue of balance. Do you say to a donor who’s been told it’s anonymous forever, yes, we’ll comply with the contract that you agreed to, that it’s going to be anonymous forever?
Or do you go with the now adult who’s saying, I wasn’t ever a part of this conversation. This has been imposed on me, but it’s part of my inherent being, and I don’t know where I’ve come from, and where Victoria got to was, okay, we’re going to move the scale back to retrospective transparency.
The Queensland Attorney General, Shannon Fentiman, called for an inquiry, and the inquiry was held by the relevant committee of Parliament. I was privileged to make a submission and to give evidence. I certainly said to the committee that anonymity is dead. You can just go on to websites like ancestry.com and 23andme.com and find out whether it’s wise to do so is another matter.
But that’s the reality today. It’s all over anonymity. You can find out who the donor is, and I know this because I’ve had clients who were anonymous donors who have been contacted because someone in their family, as well as the donor, as well as the donor conceived child or a member of the donor conceived child’s family, has done these tests, and found the connection.
Because when you do those tests with ancestry.com or 23andme.com, you sign away your DNA. So the data keeps getting bigger and bigger and bigger, and therefore, the ability to find you is easier and easier and easier. I took the view, and I still take the view that who we are and how we came into being is fundamental.
It’s a fundamental right to know how we were conceived and our genetic origins. I’m glad the committee agreed. The committee has recommended, like Victoria, that there be retrospective transparency. Part of the terms of reference to the committee were also asking whether there should be a central registry.
So instead of there being the child, now adult, going to the clinic and asking for the records, so the obvious question, what clinic did they go to? And having to ask every clinic, go to the state and ask, because while the clinic might keep records, the state will have them and it’ll be much easier to find.
Sadly, we don’t have a national database. But one of the things I called for, and I’m glad the committee has taken up, is that not only should there be a central registry for the state of Queensland, but that the Queensland registry should try and link up with central registries that already exist in New South Wales, Victoria, South Australia, and sadly not fit for purpose in WA.
But at least those three New South Wales, Victoria and South Australia. Because that way, if an inquiry is made in one, it may trigger a bell in another, and they’ll be able to identify for this child where they came from. So we’ll see where this goes. If there’s going to be a central register, it’s back to government now, so the government has to review it.
So it’ll be in the hands of the Attorney General, Shannon Fentiman, and presumably next of cabinet. But the recommendation is that if there’s going to be a central register, it’s run by Queensland Registry of Birth, Deaths and Marriages. Again, this was something that I endorsed, we should be very proud of the Queensland Registry of Birth, Deaths and Marriages. It’s the most efficient in the country.
When surrogacy orders are made, for example, and you put the forms in to say there’s a change of parentage, they normally get back to you with the altered arrangements in a couple of days, maybe in an afternoon, but in a couple of days, typically. By contrast, New South Wales is six weeks. So very efficient registry, self-funded, very forward thinking, I think, in dealing with the public and really low key just getting on with the job.
So we’ll see where it goes. I think it’s all very positive. But for those men who have been donors, they can have counselling, and the counselling that might be available down the track is likely to be funded by the state and the recommendation is fertility counsellors who aren’t part or counsellors who are not part of the IVF industry. So we’ll see where it goes but in the meantime, there’s nothing to stop sperm donors from years ago going and speaking to fertility counsellors now, so they understand what the landscape is and where it’s going.
If you’re thinking about becoming parents through surrogacy, by all means get a copy of my book, When Not If: Surrogacy for Australians. You can find it on my website, stephenpage.com.au or through the Page Provan website. It talks about my professional journey with surrogacy, which started as long ago as 1988, and also my personal journey with infertility and surrogacy, so not my professional journey, this is my personal journey in this space.
But most importantly, it’s absolutely chock full of information about how to, different places, practical things that you may never have thought of. Go and have a squeeze, it’s really good. But of course, I’m saying that I wrote it. Good luck.