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The legal angle on donor conception

Interview - LSE
Making babies in the 21st century
Professor of Law
I think the removal of anonymity for donors in 2005 has been a really interesting legal experience because although it was widely supported at the time by various constituencies there were others who were anxious about it. In particular, I think the British Medical Association thought that this was not a good idea. The worry was that it would be impossible to recruit donors and that people who needed access to treatment with donated sperm would not be able to receive treatment or there would be huge waiting lists. What seems to have happened in practice is that it is just the profile of donors have changed.
And the medical student donating sperm in return for pin money or beer money as it was called, that has largely stopped and instead you tend to have older men, often who have had children of their own who are willing to be identifiable. So, I think the feared awful consequences of the removal of anonymity haven’t happened and I think opposition to the removal of anonymity from bodies like the BMA has, has softened in recent years. I think the most interesting thing is that I think it is starting to change attitudes towards openness. Partly that is because, help by the HFEA, there is a very strong message that is given to patients in clinics that you should be open with your children.
And that the easiest way to be open with them is to tell them from a very young age. For this not to be a secret that you have to disclose suddenly, perhaps when they are a teenager and having identity issues anyway. So, I think there has been a general move towards openness and I think it has been an example of a legal change where it can almost drive a change in attitude. So, for example, in Australia where there has been this retrospective removal of anonymity, which is obviously quite controversial. But aside from that there is a very broad acceptance in Australia of the importance of children having access to this information.
So, I’m involved in a research project in Australia looking at people travelling overseas for fertility treatment. And one of the things that, that has come out from those interviews very strongly is how important parents think it is for their children to be able to find out about a donor or a surrogate in the future. So it is as though, actually, quite a lot of parents now think that this is important. So, I think there is a change in attitudes, so clearly, its not everybody tells their children and not everybody is open. But I think we are gradually moving towards a position where parents increasingly recognize that it is in their children’s interest for there to be openness.
The retrospective removal of anonymity in Victoria in Australia is hugely controversial because it involves in a sense reopening the arrangement the sperm donor made with the clinic. So he donated believing he was anonymous and then the State of Victoria has decided to in a sense open up that agreement and decide he can’t be. I don’t think that would happen in the UK where I think the circumstances under which people donated are seen as quite important, that they gave consent under these conditions and not under different conditions. So I don’t imagine retrospective opening up of anonymity. Although, it is of course open to people to re-register as identifiable donors and we know that quite a lot of men have done that.
So, pre-2005 donors deciding that they don’t mind being identified. In terms of whether or not you could force parents to tell their children by for example, endorsing birth certificates, which as been suggested here and elsewhere, my own view is that is not a good idea. Partly because birth certificates are sometimes things that people don’t see throughout their childhood. In fact, sometimes people only see their birth certificate when they need it to apply for a passport or for an employer needs to see it. Or even when they are sorting out their parent’s effects after their parent’s death. Now we all know that finding out about circumstances of your conception in a shocking sudden way is not great.
And the openness from a very early age is the way in which children handle this best. So I think putting this information on a birth certificate, that people could find unwittingly in later life would not be in the best interest of children.

Around the world, different legal systems deal with donor conception in very different ways. Many countries have little or no legal provisions and some have recently changed their legislation.

In the UK, donor anonymity was removed in 2005. Many people worried about this, and there were concerns that it would mean the end of donor conception.

In fact, what occurred was a change in the demographics of donors and the choices that families make. With identifiable donation, the typical sperm donor is more likely to be older and often more interested in having contact with the child in the future.

Some countries have gone further than the UK, and have made disclosure mandatory or opened their donor register even for donations that were anonymous at the time, as mentioned in the introduction to this week’s learning.

Professor Jackson goes through these controversial ethical and legal wrangles that occur when biology, technology and social norms change.

Question to consider: What are your views on retrospective removal of anonymity and forced disclosure for those using donated gametes?

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Making Babies in the 21st Century

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