14 March 2016
By Professor Guido Pennings
Professor of Ethics and Bioethics, Ghent University
Appeared in BioNews 843
It is difficult to imagine a measure that shows more disrespect for sperm donors and recipients than the recent decision by Victoria, Australia (see BioNews 841). The State Legislature of Victoria has decided unilaterally to break their agreements with the men who donated before 1998 and will reveal their identity.
Retrospective legislation on donor anonymity is morally wrong because it is:
a) disrespectful – it implies that the donor is solely used as a means to serve someone else's interests.
b) unfair – in essence, it is a form of abuse of power by the government.
c) ungrateful – the government increases the costs for donors such that the majority would not have donated if they had known their identity would be revealed. They have been cheated into donating.
d) immoral – the autonomy of donors and recipients is expressed in their informed consent. Unilateral changes afterwards violate the donors' and the recipients' autonomy. It makes their consent null and void (1).
This change of law may have a tremendous impact on donor recruitment everywhere. Donors can no longer rely on what has been promised to them. If we want to be honest with candidate donors, we have to inform them that in the future the government might change its mind and, perhaps, recognise them as the legal parents of donor offspring and force them to pay maintenance for the child. Since the rights of the child are absolute, no one can say with certainly that no retrospective changes will be made on these points in the countries that have lifted donor anonymity. It would also be smart for clinics to put this clause in the consent form so that they cannot be brought to court if it happens. Since the countries that abolished donor anonymity are trying to outdo each other to show that they are the champions of children's rights, UK donors should start worrying. I did not hear an outcry of indignation among the people involved in gamete donation in the UK after the announcement by Victoria. Things are not looking good for British sperm donors.
This law is not only disrespectful, it may also have disastrous consequences for the donor and his family. The contact veto, presented as a measure to respect the privacy of the donor, will not be able to prevent a donor from being known and his family from being informed about his donation. Moreover, it suffices to read the conditions and stipulations in the law about the contact preference to see that it is a mockery – restrictions on contact are made as difficult as possible and place a huge administrative burden on the donor. It is predictable that the majority of the donors will not be happy with contact. If they would accept being known and contacted, they would have already listed themselves on the voluntary register. This position will certainly also affect the way they will react to their offspring. What good will come from connecting people when one party feels unjustly treated and forced into contact?
The possibility of bad consequences applies both to donors and recipients because the retrospective change equally violates the agreement with the recipients. On the basis of the rules at the moment of treatment, they have made decisions that are now overturned. They may have decided to tell or not to tell their children they were donor conceived on the basis of this anonymity, or they may have accepted the donation on the condition of anonymity. In fact, it can be argued that the situation is even worse for recipients since the law in Victoria also gives the donor the right to obtain the identity of the donor offspring. So children who do not know they are donor conceived will be told that their donor has made an application for the disclosure of their identity (2). How is that in the best interests of the child? They and their families will be overjoyed by this news!
The attitude underlying the change of law is not only immoral, it also shows a simplistic perspective on the practice of donation. A single-minded focus on the presumed rights of the child will inevitably violate the wishes, views and rights of the other people involved. And then lawmakers are surprised when donors and recipients move away from the clinics and look for a solution elsewhere. This looks like a very reasonable thing to do. One frequently sees the argument (also used by the HFEA (Human Fertilisation and Embryology Authority) that people should stay away from private arrangements on the internet and abroad mainly because it offers no legal protection to the participants. But where is the legal protection now? If people can no longer trust the law, it seems that they should move away from the clinics and make their own arrangements.
All this is claimed to protect the best interests of the children. Do they really believe this?