Mo Hayes
With a change in the law around donor anonymity taking effect for the first time this year, Family Law Partner Mo Hayes has taken stock of recent developments and emerging issues concerning the anonymity of gamete donors (eggs and sperm), and the rights of donor-conceived children to access information about their genetic heritage.
Anonymity of Donors
In the early days of donor-assisted reproduction, donors were assured complete anonymity. The concern was that egg and sperm donors would otherwise be discouraged from contributing to assisted reproduction.
It was only with the Human Fertilisation and Embryology Act in 1990 that certain very limited information could be shared, and nothing which would reveal the donor’s identity.
However, the Human Fertilisation and Embryology Authority (HFEA) found that for both donor-conceived people and donors there was an in fact openness to sharing information and enabling contact if both parties wanted that. Therefore, in April 2005 there was a significant move away from donor anonymity.
The first donor-conceived individuals since this change will be turning 18 this year, and for the first time they will, if they choose, be able to access significantly more information about their genetic heritage.
This includes:
- the donor’s full name (now and at birth)
- their date and town of birth
- the most recent address the HFEA have for them
- any other information the HFEA may have previously removed because it would have revealed the donor’s identity.
Even with the availability of this information, donors also have the opportunity to express their preferences regarding contact with the donor-conceived individuals. This can range from a willingness to be contacted for further information or even establishing a relationship, to a preference for limited or no contact.
Challenges and Considerations
Use of donated sperm outside of a clinical setting
Unlike IVF using a donated egg, artificial insemination using donated sperm is not dependent on the services of a fertility clinic, and the legal landscape changes significantly depending on whether the process takes place through a licensed clinic or involves artificial insemination at home.
When using a licensed clinic, a sperm donor has no legal obligation to any children conceived from their donation. They are not the child’s legal father, will not be named on the birth certificate, won’t have any rights over how the child will be brought up and won’t be required to support the child financially such as by way of Child Maintenance.
On the other hand, these protections are not automatic for sperm donors in home insemination scenarios for whom there is a risk that they will be considered a parent by law. They can find themselves facing potential legal challenges, particularly concerning parental rights and financial obligations.
Before engaging in at-home artificial insemination, donors and those using a donated sperm should seek legal advice to avoid any unintended legal implications.
Home DNA Testing
Although pre April 2005 donors were assured anonymity, the prevalence of DNA testing through ancestry sites and the expansion of social media has led to inadvertent identification of donors. In part, this can be seen as justifying the more transparent approach advocated by the HFEA not only in accessing information about donors but also enabling those conceived to grow up in the knowing the part donation played rather than inadvertently finding out later in life.
International Treatment
The view of the HFEA is that openness about donor origins can contribute to a more informed and emotionally healthy family environment where donation is a feature. However, it also requires effective communication and support for all family members involved. There is a wealth of support available from the HFEA and counselling is a prerequisite for donors and donor recipients using fertility clinics in the UK.
The same is not true globally where in many countries the balance has been struck in favour to preserving the total anonymity of the donor. For some seeking to donate or receive treatment using donated eggs and sperm, this might influence both for and against the decision to undertake donor assisted treatment at clinics overseas.
In the evolving landscape of donor conception laws in the UK, recent changes highlight the principles of transparency and the rights of donor-conceived individuals to access their genetic heritage. Whether engaging with a licensed clinic or exploring at-home methods, obtaining comprehensive legal advice is essential in avoiding unforeseen and potentially costly legal issues in the future, and for all involved to explore their options and the associated legal implications.
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