Gamete and Embryo Donation

The decision to donate gametes (that is sperm or eggs) or embryo(s) to help a person or couple to have a child is a serious one. If a child results, it has life-long implications.

Medical practitioners and specialist fertility clinics can provide donors information on the medical aspects.

Counsellors will explore the social and emotional issues associated with making a decision about donating sperm, eggs or embryos.

There are also important legal rights and responsibilities that fall to donors and recipients, as well as legal implications regarding any resulting child(ren).

gamete and embryo donation = family patchwork
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Things to consider

There are legal implications that need to be understood for anyone donating or receiving donated gametes or embryos.

If unsure about what the implications are, intending donors or recipients should seek independent counselling and legal advice before entering into any arrangements. While general information is available via a number of resources (including Health Law Central!) only independent legal advice will provide information about the law in a way that is applicable to a person’s individual circumstances.

The following information sets out the general rights and responsibilities of donors and recipient parents, as well as the rights of donor conceived people.

Donation is altruistic (non-commercial) in Australia

Commercial transactions are prohibited

In Australia it is an offence to intentionally give, receive or offer to give or receive money or other things of value for the supply of a human egg, human sperm or a human embryo. This includes that people are not permitted to receive any inducement, discount, or priority for the provision of services in exchange for gametes or embryos.

Reimbursement for reasonable expenses related to the collection, storage or transport of the egg, sperm or embryo, are permitted. Clinics vary in what they will reimburse, but generally people may be reimbursed for travel, accommodation, and time spent.

That ‘reasonable expenses’ payments have, in some instances, been seen as being enough to induce participation, some have argued that more specific criteria may be needed in the future. Some clinics have moved to purely altruistic donations, with no financial reimbursement at all.

Donation is not anonymous in Australia

All Australian states and territories now recognise that donor conceived people are entitled to information about their genetic parents in Australia.

Donors must now consent to the recording and release of identifying and non-identifying information when they donate.

The information will be held by clinics, and reported to any register that exists in the state in which the sperm, eggs or embryos are used. Identifying information will be released to a donor-conceived person when they reach the legal age for asking for such information in their state (or earlier with the donor’s and recipient parent’s consent).

Non-identifying information about the donor may be released to recipients. This may include past medical and family history, details of physical characteristics, other characteristics as available, and information about the number of people conceived using the gametes of the donor.

Donors are also entitled to some information about the offspring born. On request, clinics can provide non identifying information about live births, gender of the child, number of the children and any abnormalities.

Donors who donated in the past are encouraged to place their information on voluntary registers, and or contact the clinic at which they donated to give consent to sharing information with donor-conceived people. A significant number of donors have already registered on such registers, seeking to exchange information with the offspring that were born as a result of their donation.

For more information regarding laws and guidelines in each state concerning information release see the Health Law Central page on Access to Information.

Limits regarding use of gametes

In Australia there are limits on the number of women or families that can conceive using a donated sperm, eggs or embryos.

The exact limit varies depending upon the state/territory in which the law applies.

Table: Limits concerning the use of donor gametes
LAWS RTAC Technical Bulletin No 5.
 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. *applies worldwide.)

For more information regarding laws and guidelines in each state concerning family limits see the Health Law Central page on Family Limits.

Legal Parentage

All Australian states and territories recognise the woman who gives birth to a child as its legal mother. Her domestic partner (husband, defacto – same sex or hetero-sexual) is recognised as the child’s father/parent. The recipient couple are financially and legally responsible for the child. They have full parental rights and responsibilities for the child.

The donor has no legal rights to, or responsibilities for the child. (They are not financially responsible for the child, the child cannot claim inheritance, and the donor does not have a right to apply for visitation or access to the child).

Note however that the law can be complicated. For example, there have been conflicting views in Family Law matters concerning children born to unmarried women using a known donor. In one case, a known donor was successful in his application to the Family Court for parenting orders in circumstances in which the mother was single when the donation took place, the donor was a ‘known donor’ (with whom she had a previous relationship), there was an intent for the donor to play a parental role in the resulting child’s life, and the donor did in fact play a role in the child’s life.

People’s circumstances differ, and therefore if in doubt, potential donors and recipients should seek independent legal advice from a Family Law expert prior to entering into any arrangement.

For a further summary of laws regarding legal parentage where assisted reproduction and donor conception have been used, see the Health Law Central page on legal parentage.

Further reading

Stack of Books
For some examples of interesting studies and further reading concerning sperm, egg and embryo donation see:

Blyth, E, Frith, L, Paul, M and Berger, R (2011). Embryo relinquishment for family building: How should it be conceptualized? International Journal of Law, Policy and the Family, 25(2): 260-285. Abstract at http://lawfam.oxfordjournals.org/content/25/2/260.abstract

De Lacey, S (2007). Decisions for the fate of frozen embryos: Fresh insights into patients’ thinking and their rationales for donating or discarding embryos. Human Reproduction, 22 (6): 1751-1758. Abstract at http://www.ncbi.nlm.nih.gov/pubmed/17416918

Rodino IS, Burton PJ, Sanders KA (2011) ‘Donor information considered important to donors, recipients and offspring: an Australian perspective’ (2011) Reprod Biomed Online 22(3) pp 303-11. doi: 10.1016/j.rbmo.2010.11.007. Abstract at http://www.ncbi.nlm.nih.gov/pubmed/21269882

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