Unknown donor rights
Deciding whether to use an UNKNOWN donor or a KNOWN donor is a huge decision. An unknown donor provides sperm to a fertility clinic not knowing who may use his sperm to conceive a child. A woman who uses a unknown donor in Australia can only select a donor who agrees to be contactable when the child turns 18 years of age.
Who are the legal parents?
A child who is born from anonymously donated sperm is the legal child of the birth mother. If the birth mother is in a de-facto relationship and her partner consented to the artificial insemination, then the birth mother’s partner is also deemed to be the other legal parent of the child.[i]
An unknown donor has no legal rights or obligations to the child. This means that he cannot access any information relating to you, your partner, or the child. He has no right to see the child and does not have to provide any financial support to the child.
If you did want the donor to have some involvement or contact with your family (before the child turns 18) then may still able to initiate this through your fertility clinic and it would then be up to the donor to make contact with you.
Since 2010, in NSW the law requires that all unknown donors be registered.[ii] This means that when children turn 18, they are able to access information regarding their donor. This information is managed by each Fertility Clinic and a “Central Register” (in NSW and VIC) for donors and donor-conceived children to connect and find out more information about each other if they choose.[iii]
On 16 March 2016, the Assisted Reproductive Technology Amendment Bill 2016 (NSW) passed the Lower House in NSW. Amongst the amendments, the Bill aims to allow people conceived in NSW via donor eggs or sperm to receive information about their donor, but not necessarily the donor’s name.[iv]
The Amendment Bill will still allow fertility clinics in NSW to manage records of children conceived prior to 2010.
From 1 March 2017, all donor-conceived children in Victoria will be able to access information relating to their donors, without the donor’s consent.[v] The Assisted Reproductive Treatment Act Amendment Bill 2015 (Vic) passed.
Prior to this Bill, only children born from donated sperm or eggs after 1998 could find out donor information when they turned 18. Now children born before 1998 will also be able to access donor information, without the donor’s consent.
The Victorian Assisted Reproductive Treatment Authority will manage access to information about donors and provide counselling and support for donors, children, and their families.
The Bill also recognises that donors who donated prior to 1998, did so on the basis they would be unknown. Donor children will be able to lodge their contact preferences if the donor seeks information about them. Otherwise, these donor-conceived children will not be able to contact their donors.
The kind of information children may be able to receive about their donors when they turn 18 includes:
date of birth;
sex and year of birth of other donor children;
fertility clinic; and
date the sperm was provided.
Fertility clinics in Australia are required to make most of this information available to children born from donated sperm once they reach 18 years of age.
Donors and children can also connect through private international websites such as the ‘Donor Sibling Registry’ and other websites for donor children.[vi]
Summary of Main Points:
Unknown donors do not have any legal parental rights.
De facto partners of birth mothers who conceive using an unknown donor are considered the other legal parent.
Sperm donors in Australia must now be part of a register.
Children conceived from donor sperm will have access to the register when they turn 18.
[i] ss 60 and 60HA of the Family Law Act 1975 (Cth)
[ii] Assisted Reproductive Technology Act 2007 (NSW)
[iii] NSW Health: The Central Register (2016), viewed 4 October 2016, http://www.health.nsw.gov.au/art/Pages/The-Central-Register.aspx and Births, Deaths and Marriages Victoria (2016), viewed 4 October 2016, http://www.bdm.vic.gov.au/home/births/donor+treatment+registers/central+register/
[iv] Australian Legal Information Institute: Explanatory note (2016), viewed 4 October 2016, http://www.austlii.edu.au/au/legis/nsw/bill/artab2016457/
[v] Assisted Reproductive Treatment Act Amendment Bill 2015 (Vic)
[vi] The Donor Sibling Registry (2016), viewed 4 October 2016, https://www.donorsiblingregistry.com
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.
If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at firstname.lastname@example.org.