A major report on law reform regarding identification of sperm donors in Australia was released this week. You can either read the press coverage (short and way to simplistic) or the actual report. The report (prepared for the Victoria parliament) is focused on a fairly narrow and transitional issue, but I want to use it as a jumping off point for another conversation.
Victoria law currently provides that all donor conceived people conceived after 1998 have access to identifying information about their donors. This information is made available when the donor conceived person reaches adulthood. That means anyone who provided sperm after 1998 did so knowing that the identifying information would be available.
The new report considers what to do about people conceived before 1998. The men whose sperm was used before 1998 did not provide the sperm with the understanding that identifying information about them would be available. (Depending on when they donated, they would have had different ideas about how protected their identities would be.) That’s a factor that the committee considers in its new report, though ultimately it does not find it to be dispostive.
One point made in the commission report along the way really struck me. In the introductory section of the report, the committee notes:
Not all donor-conceived people want to know who their donors are, or desire more information about their donors.
(That’s on page xx.) Perhaps this is just stating the obvious, but it does seem to me sometimes that most of the attention has focused on the subjects of the sentence that immediately follows the one I just quoted:
However, donor-conceived people who want to know who their donors are can experience distress when they are unable to obtain information about them.
I take both observations to be important.
What follows from this? It seems to me that it is problematic to force information on people just as it is problematic to withhold information. This is why, I believe, Victoria law makes information “available.” What that means is that it is there if the donor-conceived person wants it but isn’t given to them if they do not want it.
It’s fairly easy to see how this works out once the donor conceived child reaches adulthood–the person makes their own election. But what about before that time?
It seems to me that during the period the donor conceived person is a child, the decision-making authority must lie first with the parents. That’s the whole point of parental rights–that we trust parents to make important decisions for their kids more than we trust the state or strangers or even other family members. (You might want to include an exception of some sort for unusual circumstances–something that would allow a mature sixteen-year-old, say, to make her/his own choice.)
Notably, this is pretty much exactly what the Victoria committee recommended. If you look at recommendation 2 on page 77 you’ll see that it allows that a child (as opposed to an adult) applying for identifying information will only get the information if the parents have consented to the application or if a counsellor has confirmed in writing that the child is sufficiently mature to understand the consequences of the action she or he is taking.
I’ve been thinking about this for a while and I may even have discussed it once or twice. (I fear I can no longer recall.) If we are on a path that leads to the end on anonymity (and we may be on that path) then it’s important to think about how a system of all identifiable providers might work.
It should not be the case that all children (and I use the word “children” to mean people who have not yet reached the age of majority) who are donor-conceived will automatically be placed in contact with their donors or even given identifying information. Rather, we need to recognize that not all donor conceived children want/need to know who their donors are. Even among those who do want to know and and will benefit from that knowledge the age at which they want to know and the details of what they want to know cannot be assumed to be uniform. Determining which children need what is traditionally the prerogative of parents and it seems to me that is the way this needs to work, too. If you don’t leave it up to the parents, who else can you let decide? And of course once the child turns 18, the choice is theirs alone.