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Surrogacy – Child Identity and Secrecy

In-House Memorandum

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Child Identity and Secrecy

Rights of the Child have been recognised internationally and occupy a central place in Australian law[1]. Integral to these rights is a child’s right to preserve his or her identity, a right which is intricately linked to the child’s knowledge of their origins.[2]The ‘Implementation Handbook for the Convention on the Rights of the Child’ states that this should include a genealogical history[3] and access to information about both genetic parents andbirth parents[4]. It is estimated that only a minority of Australian children created through donor gametes are aware of the origins of their conceptions.[5] Traditionally “shrouded in secrecy”[6], donors were historically not identifiable. The resulting children have, as a result, been left unable to rely on the legislation or assisted reproductive technology (ART) clinics to provide access to information about their donor parents. Research into the attitudes of donor-conceived individuals highlights the importance of open disclosure and the risks of serious psychological and psychosocial consequences for individuals who are deceived about their origins of conception.[7] Some Australian States now regulate the collection of data from ART centres and facilitate its disclosure upon request to donor-conceived individuals.[8] However, an absence of nationwide uniform legislation leaves individuals often relying on the clinic in question to facilitate disclosure. Clinics are often conflicted as they are contractually and legally obliged to keep their clients’ files private and confidential, however, the courts have also recognised that in specific situations a doctor might, with lawful excuse, disclose his or her patient’s files to a third party.[9] Retrospective access to information is not permitted and individual rights can come to depend on the mode of conception, its year and location. Victoria has a central register that keeps information on the name of the donor, the person born as a result of the donor treatment procedure and the woman on whom the procedure was carried out (s51, Assisted Reproductive Treatment Act 2008 (Vic) (ART Act )). Under the ART Act, a person born as a result of a donor treatment procedure may, upon application, access identifying information about their donor. The Registrar must disclose to an applicant who was conceived using donor gametes[10] after 31 December 1997[11]. Where the person was conceived using gametes donated between 1 July 1988 and 31 December 1997, the Registrar must only disclose identifying information where the donor has given consent to such disclosure[12]. Persons conceived before 1988 have no right in Victoria to obtain such information, because prior to 1988 the donor’s anonymity was a requirement of the process. However this is likely to change soon. The Assisted Reproductive Treatment Further Amendment Bill (2013) (Bill), currently before the Victorian Parliament, will firstly open up access to persons conceived before 1988 provided the donor has given consent to the disclosure[13]. The Bill will also permit disclosure of non-identifying information about a donor or a person born as a result of a donor treatment procedure, if disclosure is necessary to save a person’s life[14] or to warn of a genetic or hereditary condition that may be harmful to that person or that person’s descendants[15]. Importantly, such information may be disclosed “without the consent of the person to whom the information relates”[16]. The Billseeksto overcome anyincreased risk or late diagnosis or disease to donor-conceived individuals by denial of access to their genetic familial medical histories[17]. Debate on the Bill, including its second reading speech, is due to resume on 27 May 2014. Despite the changes proposed by this Victorian Bill, ART is a national and international practice. This reality ought to precipitate the urgent development of a National register to allow access to central information forming identity. Failure across Australia to register such information and provide access to it is inconsistent with Australia’s Treaty obligations under the United Nations’ Convention on the Rights of the Child and should be addressed urgently.   Loretta Houlahan 15 April 2014 FOR A PRINTABLE VERSION OF THIS ARTICLE CLICK HERE FOR THE PDF VERSION.

[1] Family Law Act 1975 (Cth), s60B
[2] See UNICEF Implementation Handbook for the Convention on the Rights of the Child (3rd ed, 2007) 105.
[3] Ibid.
[4] UNICEF Implementation Handbook for the Convention on the Rights of the Child (3rd ed, 2007), 105.
[5] Brewaeys A, ‘Donor insemination, the impact on family and child development ‘ (1996) 17,Journal of Psychosomatic Obstetrics and Gynaecology, 1-13; Duma, E, Bebe J, Steigrad S, Leader L & Garrett D, ‘Donor insemination: attitudes of parents towards disclosure’ (1997) 167, Medical Journal of Australia’ 256; Gottlieb C, Lalos O & Lindblad F ‘Disclosure of donor insemination to the child: the impact of Swedish legislation on couples’ attitudes’ (2000) 15, Human Reproduction, 2052-2056.
[6] Allan S ‘Access to information about donors by donor-conceived individuals: A human rights analysis (2013), 20,Journal of Law and Medicine 655, 655.
[7]Freeman M, “The New Birth Right? Identity and the Child of the Reproduction Revolution” (1996) 4 International Journal of Children’s Rights 273, 291.
[8] Assisted Reproductive Treatment Act 2008 (Vic); Human Reproductive Technology Act 1991 (WA); Assisted Reproductive Technology (Clinical Practices)Act 1988 (SA); Assisted Reproductive Technology Act 2009 (NSW).
[9] AAA v BBB [2005] WASC 139; PD v Harvey [2003] NSWSC 487
[10] A gamete is a mature haploid male or female germ cell which is able to unite with another of the opposite sex in sexual reproduction to form a zygote.
[11] Assisted Reproductive Treatment Act 2008 (Vic) s.59(b)(i).
[12] Assisted Reproductive Treatment Act 2008 (Vic) s.59(b)(ii).
[13] Assisted Reproductive Treatment Further Amendment Bill 2013 (Vic).s. 10(b).
[14] Ibid s.68(1)(a).
[15] Ibid, s.68(1)(b).
[16] Ibid s.68C(1)(4).
[17] Allan S ‘Access to information about donors by donor-conceived individuals: A human rights analysis (2013) 20, Journal of Law and Medicine,655, 664.
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