Family Limits

Introduction

‘Family limits’ in the context of donor conception refers generally to limits set by laws, guidelines or codes of practice, regarding how many children may be created, or families formed, using a particular donor.

Limits are set for two primary reasons:

1) to reduce the risk of people who are genetically related forming relationships;

2) the psycho-social implications of having a large number of donor-conceived siblings/offspring across a number of families.

Some limits around the world at a glance

Laws, guidelines or recommendations by professional bodies, exist in many jurisdictions around the world that set such limits.

  • Australia – varies from state/territory (from 5-10 women; to 10 families), see further below;
  • Belgium, 6 children per donor;
  • Canada, some fertility doctors follow the U.S. guidance (not law) of 25 children per population of 850,000;
  • Denmark limits donations to 12 children per donor;
  • France, 5 children per donor;
  • Germany, 15 children per donor;
  • Hong Kong, China, 3 children per donor;
  • The Netherlands, 25 children per donor;
  • New Zealand, 10 children per donor to 4 families;
  • Norway, 8 children per donor;
  • Sweden, 12 children per donor to 6 families (with 2 children per family);
  • Switzerland, 8 children per donor;
  • United Kingdom, 10 families worldwide; and
  • United States of America, 25 births per population of 850,000.

Australia: Laws and Guidelines

In Australia, limits vary across states/territories, dependent upon whether there is legislation or NHMRC Ethical Guidelines and RTAC guidance.

Limits across jurisdictions also vary regarding whether they are applied to how many women bear children to one donor, or how many families may be created.

See the table below

Table: Limits concerning the use of donor gametes
LAWS NHMRC Guidelines/RTAC
 NSW 5 women
Victoria  10 women
Western Australia  5 families
South Australia x (10 families)*
Northern Territory  x (10 families)*
Queensland  x (10 families)*
ACT  x (10 families)*
Tasmania  x (10 families)*
 (nb. *this applies worldwide)

NSW

In New South Wales, an ART provider must not provide ART treatment using a donated gamete if the treatment is likely to result in offspring of the donor being born to more than 5 women (or less if the donor sets a lower limit). The limit of 5 women includes children born to the donor and any current or former spouse of the donor. 1

There are fines if an ART provider goes above this limit (being up to $136000 in the case of a corporation, or $68000 in any other case). An ART provider will not however be fined if the limit is exceeded if they have exercised ‘due diligence’ by having searched records held by the ART provider, made reasonable inquiries of the donor, and requested information from other ART providers when necessary. 2

Victoria

In Victoria, ART treatment cannot be carried out if it will result in more than 10 women having children who are genetic siblings (including the donor and any current or former partner of the donor). 3 (Note the limit may be lowered by the donor as part of the consent process where he/she must specify the number of women on whom treatment procedures using the donor’s oocyte, sperm or embryo may be carried out.) 4

If an ART provider contravenes the limit, they may face a fine $40800 or 2 years imprisonment or both.

The provision does not prevent women who fall within the 10 women limit, to have further children to the same donor, the law recognising that such women may wish to have genetically related siblings. 5

Western Australia

In Western Australia regulations provide that a maximum of five families may receive gametes from a donor. This includes families that may be outside of Western Australia. The regulations however make an exception for couples who wish to donate spare embryos to another family instead of the embryos being destroyed, but such a donation would result in more than five families. Permission can be granted in these circumstances by the Assisted Reproductive Technology Council of WA for an extension to the limit. 6

Guidelines

SA NT Qld ACT Tas

South Australia, NT, Qld, ACT, Tas

In South Australia, the Northern Territory, Queensland, the Australian Capital Territory, and Tasmania the National Health and Medical Research Counsel Guidelines provide that ‘clinics must take all reasonable steps to reduce the numbers of genetic relatives created through donor gamete programs’ to protect donor conceived people, and donors, from having too many genetic siblings or too many offspring, respectively.

While they do not provide a specific number, the NHMRC Ethical Guidelines state that

[g]ametes from one donor should be used in a limited number of families. In deciding the number of families, clinicians should take account of:

  •  the number of genetic relatives that the persons conceived…will have;
  • the risk of a person conceived with donor gametes inadvertently having a sexual relationship with a close genetic relative (with particular reference to the population and ethnic group in which the donation will be used);
  • the consent of the donor for the number of families to be created; and
  • whether the donor has already donated gametes at another clinic.

The Reproductive Technology Accreditation Committee (Fertility Society of Australia) has advised that ‘a maximum of ten donor families per sperm donor’ is acceptable. 7

Notes:

  1. Assisted Reproductive Technology Act 2007 (NSW) s 27(1).
  2. Assisted Reproductive Technology Act 2007 (NSW) ss 27(2) and s 27(3).
  3. Assisted Reproductive Treatment Act 2008 (Vic), s 29(1).
  4. Assisted Reproductive Treatment Act 2008 (Vic), s 17(1)(b).
  5. Assisted Reproductive Treatment Act 2008 (Vic), s 29(2).
  6. Human Reproductive Technology Directions (WA), Western Australian, paragraph 8.1, Government Gazette, 30 November 2004, p. 5434.
  7. Reproductive Technology Accreditation Committee, Advice to Units, Technical Bulletin 3 (5 May 2011), available at http://www.fertilitysociety.com.au/rtac/technical-bulletins/.