Many families are turning to assisted reproductive treatments such as artificial insemination and IVF to conceive a child. Where a donor is involved, it is very important that you consider the rights and obligations of all involved.
Who can be a donor?
Sperm and eggs (gametes) and embryos can be donated through a donor program (an anonymous donor) or donated by someone you know (a known donor). The processes and implications of each are quite different, as discussed below, and you should consider which is best for you and your family.
Donors must be at least 18 years of age, and clinics will typically have an upper age limit for donors. Clinics will also have other policies in respect of who can be a donor, such as limits on the number times a person can donate and medical checks. Clinics are not permitted to create embryos from sperm or eggs from a close genetic relative of the recipient.
Further, if the donor has a partner (married or de facto), then the clinic will require the donor’s partner’s consent to the donation.
Does my partner need to agree, even if his or her gametes are not used?
Yes. Clinics require consent from a partner (married or de facto) before carrying out artificial insemination or IVF.
Can I pay my donor?
No, this is illegal in Australia. However, you can reimburse the donor for their expenses associated with the donation, for example, clinic fees and travel costs.
Will the donor be the legal parent for my child?
Where a child is born as a result of artificial insemination or IVF, if the woman has a partner (married or de facto), and that partner agrees to the artificial conception procedure, then the donor will not be the legal parent of the child.
However, in all other cases - for example, if the woman does not have a partner at the time of the procedure, or the woman’s partner did not consent to the procedure (although it is a requirement for clinics to require any partner’s consent) - there is no fixed rule as to whether the donor is a legal parent. Instead, this is an issue that must be determined by the Family Courts. These issues will generally only arise if a known donor is used. The court will take into account matters such as the involvement of the donor in your child’s life, any financial support provided by the donor, and the donor’s and your intentions as to the donor’s role in your child’s life.
Further, even if your donor is not the legal parent for your child, the donor may be able to apply to the Family Courts for parenting orders in respect of your child, for example, for your child to spend time with the donor or communicate with the donor. Whether that application will be successful will be based on your individual circumstances.
One way to avoid or minimise the likelihood of these issues arising is to use an anonymous donor.
However, if you use a known donor, it will depend on all of the circumstances of your matter as to the status of your donor. It is crucial that you and your donor seek legal advice about the consequences of the donation, and that you engage in counselling as to your expectations regarding the donor’s involvement before going ahead. Your intentions can be documented by way of a donor agreement, as although agreements of that kind are not legally binding, it will provide useful evidence of each party’s intentions if a dispute arises.
Will my child know their donor? What will the donor know about my child?
Australia recognises the right of a person to know the details of their genetic origins. If a person conceived with a donor approaches the relevant clinic, provided that he or she is over the age of 18 (or under the age of 18 but the clinic considers that the person is sufficiently mature) and receives counselling, the clinic must provide information to the person about their donor, including:
- the identifying details of the donor;
- the donor’s medical history and physical characteristics;
- the number, age and sex of other children born from the donor’s gametes and, if any of those people have consented, the identifying details of those people.
Further, some States have a central register in order for people to obtain information as to their donors, and the information held in those registers depends on the legislation in that State.
Donors can request information from the clinic about the number, age and sex of any children born as a result of their donation. However, no identifying information can be provided to donors.
What if I do not want to use a clinic?
In Australia, it is illegal to purchase eggs, sperm and embryos, including from other countries.
While self-insemination is permitted, the counselling and support provided through clinics can be invaluable and may assist all of the parties to a donation to understand the ramifications of the donation of gametes or embryos as it is mandatory for clinics to provide certain information to donors and recipients, and for donors and recipients to engage in counselling. These are beneficial processes for all involved, particularly if you decide to use a known donor.
Some of the issues around starting your family with a donor can be complex. If you wish to seek legal advice contact Partner, Alison Ross, or any member of the HG Private Family and Relationship Law team.