Sperm donors may no longer be anonymous

Family Law: 23 March 2019

Amendments to the Assisted Reproductive Treatment Act 2008 (Vic) in relation to Donor Information

As a part of Law Week, we attended an information session entitled, 'The legalities of donor linking: bringing recipients, sperm donors and offspring together' held by Latrobe University.

The point of this session was to raise awareness about the amendments passed by the Victorian Parliament on 21 August 2014 in relation to the Assisted Reproductive Treatment Act 2008 (Vic). The amendments will bring the rights of donor conceived people that were born before 1 July 1988 in line with those that were born between 1 July 1988 and the end of 1997 who have had the right to access identifying information about their donor with the donor's consent.

Prior to these amendments, donor conceived people who were born before 1 July 1988 have had no way of being able to connect with their donor unless both the donor and the donor conceived person were registered on the Voluntary Donor Register and this is because the donors had been informed that they would remain anonymous.

The amendments have also expanded the functions of the Victorian Assisted Reproductive Treatment Authority (VARTA). VARTA's functions have been expanded to include donor-linking counselling, intermediary and support services to applicants of the donor registries and those that are affected by the applications such as donor conceived people, donors, descendants of donor conceived people, recipients of donor treatment and relatives.

The Registry of Births, Deaths and Marriages manages the two registers in which information about the donors and donor conceived people are recorded and these registers are:

• The Central Register: this register includes identifying information such as name and address and non identifying information such as donor's hair or eye colour about donor conceived people who were conceived from 1 July 1998 including their parents and the donor; and
• The Voluntary Register: this register is open for personal information to be recorded about the donor, donor conceived person, recipient parent or their relatives and as stipulated this is a voluntary register. This register also allows people who have been involved in donor conception to record information about themselves and their wishes to exchange information with other people on the register.

Whilst the amendments will bring those donor conceived people's rights who were born before 1 July 1988 into line with those born between 1 July 1988 and 1997 it only allows those donor conceived people to obtain non-identifying information from the Central Register as consent is not required to obtain information related to hair or eye colour. To obtain identifying information however, consent is required and an application must be made to the Central Register and the Central Register will contact the donor if current contact details are available to determine whether they will agree to provide identifying information. 

There are still issues with the rights afforded to donor conceived people born before 1 July 1988 particularly in light of the fact that consent is still required from the donor and information may not be available to provide to the donor conceived person. Further, there are concerns in relation to when consent is not obtained or when information is not available in light of examples such as the recent story in the United Kingdom where two gay lovers named Paul and Lee met through an internet dating site discovered that they were long lost brothers after taking a DNA test on the Jeremy Kyle show or the recent example of the long lost siblings in the Netherlands matching and flirting with each other on Tinder before realising they were related. If these had been examples of donor conceived people the only way that they would have been able to gain information to determine if they were related had they been born before 1 July 1988 would be through the Voluntary Register if information had been lodged with the register or applying to the Central Register to attempt to gain identifying information.

The amendments are certainly important and a step in the right direction there are definitely still steps to be taken to ensure that donor conceived people born before 1 July 1988 are afforded the same rights as far as possibly available as those born after 1 July 1988.